2022 QCCQ 1415, 2022 QCCQ 1415

Zhou c. Bodington 2022 QCCQ 1415 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL « Civil Division » N° : 500-32-705401-182 DATE : April 4, 2022 ______________________________________________________________________ PRESIDED BY JUDGE HENRI RICHARD, J.C.Q. ______________________________________________________________________ LANG FENG ZHOU and TAO XU Plaintiffs v. GÉRALD (GÉRARD) BODINGTON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms. Tao Xu and Mr.

Lang Feng Zhou (the buyers ) allege that the duplex sold to them by Mr. Gérald (Gérard) Bodington (the seller ) has latent defects and are claiming $61,000 from him, which they agree to reduce to $15,000 in order to confer jurisdiction on the Small Claims Division. [ 2 ] In defense, the seller alleges that the building was not affected by any latent defect because there were sufficient indications allowing the buyers to detect them. Furthermore, the seller adds that the buyers aggravated the damage by not performing any repair and maintenance work .

ISSUE [ 3 ] Did the buyers act in a prudent and diligent manner in the purchase of the property involved? CONTEXT [ 4 ] By deed of sale dated December 23, 2011, the seller sells to the buyers a duplex located in LaSalle and built at least as far back as 1955.

After taking possession, the buyers occupy a portion of the duplex. [ 5 ] Prior to the signing of the deed of sale, the buyers obtain a copy of the document entitled "Declarations by the seller of the immovable" (P-2) which contains positive answers to the following questions : D3.1 To your knowledge, are there or have there ever been water infiltrations in the basement or elsewhere (e.g. roof, patio, balcony, greenhouse, skylight, door, window, chimney or other)? D6.3 To your knowledge, are there or have there ever been evidence of mould or rot?

D8.1 To your knowledge, are there or have there ever been plumbing-related problems such as marked variations in water pressure or flow when using fixtures, freezing pipes, water links, rusty water, odours, plumbing drainage or backup problems, abnormal noises or other? D11.1 To your knowledge, are there or have there ever been insects or other pests? [ 6 ] To clarify his answer to question D3.1, the seller states : « Roof water - Ice storm ». [ 7 ] Before signing the deed of sale, the buyers retained the services of a pre-purchase inspector, Mr.

Fang Wang, who proceeded to visit the premises on November 2, 2011 and wrote a report filed as Exhibit P-3. [ 8 ] In the " Basement "

section of this report, the inspector notes the following : 1. This is a finished basement with laundry room and washroom. 2. Humidity level was not able to be measured due to running dehumidifier (pic.1) 3. Seepage occurred in laundry room (pic.2)

Moisture source was not identified due to floor covering. [ 9 ] In the "Summary"

section of his report, the inspector, with accompanying photos, makes the following observations : […] 4. Cracks on left foundation wall need treatment to prevent deterioration caused by further water infiltration (pic.3 & 4). Consult qualified professional for evaluation. […] 6. Infrared camera detected moisture in corner of bedroom drywall in unit 465 (pic.8 & 9). […] 14. Efflorescent foundation wall at corner of basement window on right side (pic.17) need to be repaired to prevent water infiltration. […] 16. Visible leak at toilet base in basement (pic.19) need repair. […] 19.

Fill gap between electrical entrance and foundation wall to avoid water intrusion (pic.23). 20.

Repair broken aluminum siding to avoid structure damage caused by water infiltration (pic.24). [ 10 ] The buyers did not make any repairs or perform any maintenance on the building between the time of purchase in 2011 and October 2016 when they experienced water damage in the basement laundry room as a result of a bad return flow from the washing machine. [ 11 ] It was then that the buyers began to strip the wood floor of the laundry room and noticed that the basement had been infiltrated by water for many years, resulting in the deterioration of the wood structure of the basement floor, in addition to the appearance of mould. [ 12 ] The photographs produced by the buyers are unequivocal: the entire basement is affected by major recurring water infiltration problems that require complete repair. [ 13 ] For the purposes of this case, the buyers retained the services of engineer Louis Denoncourt, who produced two reports dated August 15, 2017 (P-6) and September 29, 2017 (P-6A). [ 14 ] In his first report, the engineer concluded that four sources of water combined to cause rotting of the subfloor framing elements and the bottom of the basement finish walls : 1.

Le refoulement des égouts dans la salle de lavage; 2. Des infiltrations par les joints au bas des murs de fondation qui sont la conséquence de l’absence ou de la vétusté des systèmes de protection et de drainage souterrain des fondations; 3. Des infiltrations par les joints décalés entre les blocs de béton de la

partie supérieure de la fondation; 4. Des infiltrations par la jonction du toit de la remise, au coin arrière-gauche. [ 15 ] In support of their claim, the buyers submit a quote (P-9) dated September 20, 2017 from Vinet & Fils, general contractors, at a total cost of $61,060.

This quote contains, among other things, the costs for the supply and installation of a French drain at the base of the foundation, two waterproofing membranes around the foundation, four window-wells and a well equipped with a sump pump. [ 16 ] At trial, the buyers produced a document (P-11) which detailed the costs of repairs to date as follows: Outdoor work: Installation of a French drain and a membrane on the foundations: $15,000.00 Waterproof painting treatment of basement two inside walls: $2,299.50 Moving the removed soil elsewhere: $3,449.25

Interior work: Workmanship: $17,830.00 Materials: $10,865.00 Expertise fees: $1,052.02 [ 17 ] Notwithstanding these amounts, as previously indicated, the buyers agree to reduce their claim to $15,000 in order to file their application with the Small Claims Division. [ 18 ] On his part, the seller retained the services of Richard Santo, an expert with a bachelor's degree in architecture, who visited the premises on June 29, 2017 and wrote his report on July 4, 2017 (D-1). [ 19 ] In his report, Mr.

Santo concludes as follows : This whole residence now requires French Drains and membrane on outside foundation wall to protect the finished basement. In addition a sump pump and a floor drain are required to keep the basement floor dry. The above are required with normal aging more so on this residence, and sump pump for preventive is suggested. [ 20 ] At trial, the expert Santo testified that the alleged defects were apparent because several clues existed prior to the purchase, which should have led the buyers to further question and investigate before purchasing the building. ANALYSIS [ 21 ] The

article 1726 of Civil code of Québec ( CCQ ) provides the basis for the buyers' recourse : 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. [ 22 ] Four conditions must be met in order for the defect to qualify as a latent defect within the meaning of this article.

It must be serious, prior to the sale, unknown to the buyer and hidden. [ 23 ] In this file, only the non-apparent or hidden nature of the defect is at issue since the other three conditions are met. [ 24 ] In other words, the Court must determine whether the defects affecting the immovable in question are latent, for prudent and diligent buyers. [ 25 ] Over the years, the jurisprudence has established certain principles that are worth recalling : - The degree of care and diligence on the part of the buyer, which may be decisive in determining whether a defect is apparent or not, is modulated according to the particular circumstances, including the status of the seller and the buyer, the nature, age and price of the property, the type of defect and the behaviour of the parties [1] ; - The hidden nature of the defect is assessed according to an objective standard, namely by evaluating the adequacy of the buyer's examination against that of a prudent and diligent buyer of similar skill [2] ; - The prudent and diligent buyer could not have detected the defect before the sale [3] ; - In order to meet the standard of the prudent and diligent buyer, a buyer may be required to seek specialized assistance to conduct the required adequate examination, particularly if the buyer lacks the skills to do so or if there are indications of certain defects in the property [4] ; - In order to qualify as prudent and diligent, the buyer who retains the services of a pre-purchase inspector must follow his recommendations [5] ; - The number and seriousness of the apparent signs noted by the pre-purchase inspector should alert the prudent and diligent buyer to have the condition of the property verified by an expert [6] ; - The buyer who requires the services of a pre-purchase inspector should review his report and, if necessary, proceed with further inspection [7] ; - The prudent and diligent buyer should conduct a thorough examination when signs of water infiltration are noticed [8] ; - The prudent and diligent buyer must inquire into the cause of the problems revealed by clues, or risk having his claim dismissed [9] ; - Between the seller's declaration made in good faith and the pre-purchase inspector's recommendation to consult a specialist to check for cracks in the foundation, the prudent and diligent buyer must follow the inspector's recommendation [10] . - The buyer cannot expect a functional drain when buying a house built more than 50 years ago [11] .

[ 26 ] Applying these principles, the Court concluded that the defects alleged by the buyers could not be qualified as " latent ", in particular because of the numerous visible signs before the sale. [ 27 ] According to the buyers and their expert, the main source of water infiltration into the basement was at the base of the foundation wall and was due to the absence or obsolescence of the foundation's underground protection and drainage system. [ 28 ] Yet, at the time of the sale, the building in question was at least 56 years old, so the buyers should have expected to repair, replace or install a French drain. [ 29 ] In addition, the evidence reveals that one of the upper parts of the foundation is made of concrete blocks, with visible cracks.

In this regard, the pre-purchase inspector of the buyers recommended that a professional be consulted for an assessment, which they failed or neglected to do. [ 30 ] Also, the pre-purchase inspection report P-3 mentions the presence of humidity on the first floor, traces of efflorescence on the foundation and several outside openings that could allow water to penetrate.

Despite all these indications, the buyers did not carry out any repairs or maintenance between the date of purchase, in December 2011, and October 2016, when water damage occurred as a result of the malfunctioning of the washing machine's exhaust duct. [ 31 ] If the buyers had followed the recommendations of their pre-purchase inspector and had taken into account the numerous signs of water infiltration in the immovable in question, they would have gone further in their inspection and they would have discovered serious water infiltration problems in the basement. [ 32 ] The presence of these numerous indicators and the failure of the buyers to inspect more thoroughly make the alleged defects apparent. [ 33 ] Moreover, the age of the building should have led the buyers to question the presence of an adequate drainage system around the foundations, in particular the presence of a French drain.

In this regard, the Court noted that the Plaintiff Lang Feng Zhou is a real estate broker and could not have been unaware of the importance of such a drainage system in order to avoid water infiltration in the basement. [ 34 ] As a result of all of the foregoing, the Court concludes that the buyers do not discharge their burden of establishing, by a preponderance of the evidence, the merits of their claim, particularly in that they did not act as prudent and diligent buyers. However, in the exercise of its judicial discretion, the Court does not impose any costs.

FOR THESE REASONS, THE COURT : DISMISSES Lang Feng Zhou and Tao Xu’s claim against Gérald (Gérard) Bodington, each party paying its own costs. __________________________________ Henri Richard, J.C.Q. Date of hearing : March 24, 2022