2014 QCCQ 12173, 2014 QCCQ 12173

He c. Telemichev 2014 QCCQ 12173 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-134817-123 DATE: December 5, 2014 ______________________________________________________________________ BY THE HONOURABLE JEFFREY EDWARDS, J.C.Q. ______________________________________________________________________ WEI FANG HE -and- XIAO YAN LI Plaintiffs v.

SABYR TELEMICHEV -and- SVETLANA TELEMISHEVA Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Wei Fang He and Xiao Yan Li claim against Defendants Sabyr Telemichev and Svetlana Telemisheva the amount of $6,600 with regard to alleged latent defects in a residential property (“House”) purchased from Defendants. The Defendants did not appear at the hearing to contest the Plaintiffs’ motion.

Both Plaintiffs testified and filed their exhibits. [ 2 ] On August 15, 2011, Plaintiffs purchased the House with legal warranty [1] . Plaintiffs states that they discovered the problems complained of progressively and became aware of them in the spring of 2012. Plaintiffs claim that their House had two major defects at the time of the purchase: a damaged and leaking exit drain pipe used for the laundry room and kitchen and a water infiltration problem in the basement. [ 3 ] Plaintiffs testified that on March 20, 2012, they sent an e-mail to the Defendants advising of their discovery.

They then spoke to the Defendant Sabyr Telemichev by telephone. The Defendants agreed to come down and examine the problems. But they did not come down as promised. Plaintiffs then called Defendants back many times and left messages but the Defendants did not return the telephone calls. On May 23, 2012, Plaintiffs then sent a demand letter by registered mail which was received by the Defendants as confirmed by the postal service receipt [2] . The Defendants did not respond to the demand letter either. In July 2012, Plaintiffs sent another letter to Defendants.

This time Defendants did not pick up the letter [3] . [ 4 ] The Court concludes that Plaintiffs have satisfied the legal requirements to send a demand letter (Article 1594 C.C.Q.) and to give notice of latent defects within a reasonable time (Article 1739 C.C.Q.). [ 5 ] Regarding the damaged and leaking exit drain pipe, Plaintiffs brought down to the House a plumber who tried to repair it [4] . The cost was $800 for a temporary repair [5] . However, the problem of leaking continued.

After the problem persisted, the plumber opened up the floor and discovered that the iron drain pipe was broken and had to be replaced and that the leak existed before the time of the sale [6] . This conclusion is confirmed by the evidence of Plaintiffs [7] . The cost of the repair work to replace the pipe was $4,599 [8] , which Plaintiffs paid in full.

Plaintiffs submit that this problem of leaking must have been known to the Defendants and was not disclosed to Plaintiffs at the time of the sale. [ 6 ] Prior to the sale, pursuant to the promise to purchase, the Plaintiffs had hired a pre-purchase inspector and this problem was not ascertained or noticed by him [9] .

[ 7 ] The Court is satisfied that the defective and broken pipe is a latent defect in the circumstances (Article 1726 C.C.Q.). It was unknown to the buyers at the time of the sale. It was serious and impaired the normal use of the House. It existed at the time of the sale. It was unapparent at the time of the sale as indicated by the fact that the Plaintiffs’ inspector did not detect it. [ 8 ] However, the House was built in 1956 and was approximately 56 years old at the time of the sale. According to the proof, these types of pipes should last approximately 120 years.

Accordingly, the Court will take the past use and age of these pipes into consideration and reduce the claim of $4,599 by 47% (56/120: $2,161.53) leaving a residual loss for the Plaintiffs of $2,437.47. There is no reason to reduce the invoice for temporary repair costs ($800). Plaintiffs had to incur these costs to avoid immediate and additional damages.

Accordingly, the total admissible amount of compensation for this defect is $3,237.47. [ 9 ] Regarding the water infiltration problem, Plaintiffs filed into the Court record a quote to install French drains around the perimeter foundation walls for the amount of $12,877.20 [10] . However, the risks of a water infiltration problem and signs of previous water infiltration damage were mentioned to the Plaintiffs in their pre-purchase inspector report [11] .

Additionally, the Plaintiffs were advised by their pre-purchase inspector that there was no existing French drain system at the time of the sale in order to protect the foundation (Exhibit P-10, p.4). As such, Plaintiffs are asking for more than they purchased and in fact are claiming an improvement. The claim under this heading will therefore be dismissed.

FOR THESE REASONS, THE COURT: GRANTS Plaintiffs’ motion in part; CONDEMNS Defendants Sabyr Telemichev and Svetlana Telemisheva to pay Plaintiffs Wei Fang He and Xiao Yan Li the amount of $3,237.47 plus legal interest of 5% per annum and the additional indemnity provided at

Article 1619 of the Civil Code of Quebec from the date of the demand letter (Exhibit P-1), dated May 23, 2012; WITH COSTS of $163 in favour of Wei Fang He and Xiao Yan Li. __________________________________ Jeffrey Edwards, J.C.Q. Date of hearing: November 10, 2014