2018 QCCQ 7450, 2018 QCCQ 7450

Lalonde c. Key 2018 QCCQ 7450 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-700697-172 DATE: September 27, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ GYSLAIN LALONDE Plaintiff v.

CHRISTOPHER KEY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendant the sum of $15,000.00 in reimbursement of the costs he has incurred as a result of the latent defects affecting the roof of an immoveable property (a bungalow) purchased by him from said Defendant by deed of sale dated June 27, 2016 (exhibit P-1). [ 2 ] More particularly, Plaintiff claims $14,000.00 being the costs allegedly incurred for the replacement of the roof and $1,000 in accessory damages. [ 3 ] Defendant contests Plaintiff’s demand and in this regard, in the contestation filed by him into the court record, he alleges the following : 2.

The Defendant contests the amount of the claim for the following reasons: It should not cost $14,000 to repair the damages specified. 3. The Defendant contests the claim for the following additionnal reasons: During the building inspection the buyer was made aware that the roof was not done properly and he accepted that. 4.

The Defendant contests the claim and would like it to be dismissed on the following grounds: The plaintiff was aware that the roof had leaked and according to his building inspector was not redone properly so he was aware that he would need to address this issue. (sic) [ 4 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following ones. [ 5 ] During winter of 2016, Plaintiff was searching to purchase a house.

To help him find one, he retained the services of a real estate agent, who informed him that Defendant’s bungalow was for sale. [ 6 ] At this time, the “M.L.S.” listing (exhibit P-14) relating to the bungalow was remitted to Plaintiff.

On the listing in question, it is indicated that the bungalow was constructed in 1961. [ 7 ] Plaintiff’s real estate agent also remitted to him the “Declaration by the seller of the immoveable” completed by Defendant (exhibit P-15) on February 15, 2016. [ 8 ] In clause D3.1 of the declaration, Defendant, in his capacity of vendor, answered “No” to the following question : “To your knowledge, are there or have there ever been water infiltrations in the basement or elsewhere (e.g. roof, patio, balcony, solarium, skylight, door, window, chimney or other)?” [ 9 ] Furthermore, in the said declaration, Defendant’s states that the roof covering of the bungalow was installed in 2015. [ 10 ] Sometime in February 2016, Plaintiff visited the bungalow for the first time.

Were present at this visit, Plaintiff and his father as well as Defendant, who resided there. [ 11 ] According to Plaintiff, at the time of the visit, Defendant did not tell him that there had been a previous leak coming from the

roof which had damaged the kitchen ceiling. [ 12 ] Plaintiff’s testimony on this issue was contradicted by that of Defendant who affirmed that he did inform Plaintiff about the leak adding furthermore that the repairs on the kitchen ceiling were evident. [ 13 ] According to Defendant, the repairs to the roof of the bungalow were performed by him in May of 2016 but his testimony on this issue is not corroborated as the roofer who performed the repairs did not testify at the hearing and no documentary evidence in support of this allegation was filed into the Court record. [ 14 ] After having visited the property, on March 7, 2016, Plaintiff submitted an offer to purchase (exhibit P-17) conditional to the examination of the said property by and building expert or professional. [ 15 ] Plaintiff retained the services of Gary Bloomfield, Engineer, who examined the property of or about March 16, 2016. [ 16 ] After his examination, Mr.

Bloomfield drafted an inspection report (exhibit P-3). [ 17 ] In regard to the roof, in item 301 of his report, Mr. Bloomfield wrote the following : “301 Roofing Type & Materials The roof is of low sloped construction covered with asphalt shingles. Immediate Repair. Low sloped roof with inappropriate type of shingles. Risk of water infiltrations.

We recommend consulting a licensed roofer for further evaluation and correction of this situation. [ 18 ] According to Plaintiff, in view of the fact that Defendant stated, in the “Declaration by the seller of the immoveable” (exhibit P- 15) form that there had been no previous water infiltrations coming from the roof, he decided not to consult a licensed roofer for evaluation of the condition of the roof regarding the risk of water infiltration put to his attention in Mr.

Bloomfield’s report. [ 19 ] Plaintiff testified that after having purchased the bungalow, two distinct water infiltrations coming from the roof occurred, one in January 2017 and a second one in January 2018. [ 20 ] According to Plaintiff, the first infiltration caused approximately $3,400.00 in damages and as a result of the second one, a total of $7,356.78 in damages were caused (exhibit P-16). [ 21 ] Plaintiff acknowledged that the roof covering of the bungalow was not replaced by him until July 2018 at which time, he paid an amount of $10,577.70 for the work done (exhibit P-9). [ 22 ] Defendant testified that as of January 31, 2016, date of the “Declaration by the seller of the immovable” form (exhibit P-15), no water infiltrations coming from the roof had occurred and that is why he answered “No” to question D-3.1. [ 23 ] As concerns the leak that occurred subsequently to January 31, 2016, Defendant’s testimony is to the effect that in addition to having informed Plaintiff of this, the repairs performed to the kitchen ceiling were indicative of a water leak and were visible to anyone who visited the property. [ 24 ] Defendant’s testimony to the effect that the repairs to the kitchen ceiling were visible is corroborated by Mr.

Bloomfield in his report. More particularly, in item 1204, he wrote : 1204 Ceiling The type of ceiling is: gypsum panels. Review. Signs of previous water damage noted. Dry at time of inspection. Unable to determine source. We recommend determining source and correcting to prevent further damages. We recommend repairs be performed. [ 25 ] In the present case, the basis of Plaintiff’s action against Defendant is twofold. [ 26 ] Firstly, Plaintiff alleges that the problem with the roof of the bungalow constitutes a latent defect within the meaning of

article 1726 C.c.Q. which states the following : 1726. The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a

defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert. [ 27 ] Secondly, Plaintiff alleges that he was misled by the declaration of Defendant contained in the “Declaration by the seller of the immoveable” form (exhibit P-15) regarding the existence of previous roof leaks. [ 28 ] On the question of the latent defects, considering the contents of the report of Mr.

Bloomfield and more particularly his comments regarding the condition of the roof of the bungalow and of the ceiling of the kitchen, the Court considers that Plaintiff did not act as a prudent and diligent buyer when he decided to not have the roof of the bungalow examined by a licensed roofer before finalizing his offer to purchase. [ 29 ] In the opinion of the Court, had Plaintiff done so, the alleged latent defects affecting the roof would have been discovered before the signing of the deed of sale.

Consequently, the defects in question are not latent but apparent and therefore not covered by the legal warranty provided in

article 1726 C.c.Q. [ 30 ] As concerns the alleged misrepresentations by Defendant concerning the occurrence of the previous leaks coming from the roof of the bungalow, the Court is of the opinion that no conclusive evidence was adduced at trial establishing that Defendant did misleed Plaintiff on this issue. [ 31 ] Consequently, in view of the preceding, Plaintiff’s demand must be dismissed without judicial costs however in view of the particular circumstances of the present case. WHEREFORE FOR THE FOREGOING REASONS THE COURT: DISMISSES Plaintiff’s demand against Defendant without judicial costs. __________________________________ ARMANDO AZNAR, J.C.Q. Date of hearing: September 18, 2018