2017 QCCQ 11479, 2017 QCCQ 11479

Giulano c. Migliorati 2017 QCCQ 11479 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-017813-165 DATE: October 5, 2017 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ Shanda GIULANO Plaintiff - Cross Defendant v.

Sonia MIGLIORATI and Karim ESSAMRI Defendants - Cross Plaintiffs ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] By her application, Mrs. Giulano asks to be declared the lawful owner of a fence surrounding the pool of the house she sold to Mrs. Migliorati and Mr.

Essamri, to be allowed to take possession of it, that the Court establishes a time and date to collect the fence and, alternatively, in the event that Defendants no longer have possession of the original fence, to award her the amount of $ 3224.47, representing the value of said fence. [ 2 ] Against this Application, Defendants filed a Contestation, but also a Cross-Demand, by which they claim, as amended at trial, a sum of $ 7652.39, representing the cost of replacement of the air-conditioner, the replacement of the biofilter of the Écoflo septic system, the cost of a plumber to repair the sump pump and the difference of value of the pool fence that had to be replaced.

The Small Claims Court Division’s jurisdiction: [ 3 ] At the beginning of the hearing, the Court told Mrs. Giulano that the Small Claims Division did not have jurisdiction to declare her the owner of the fence, as this was within the powers of the Civil Chamber only, considering the amount involved. [ 4 ] The jurisprudence has applied this principle since 2008, as Mr. Justice Grenier explained it in Investissements Ridos [1] .

Claiming the value of the goods which Plaintiff wishes to have possession is considered too similar to a declaration of ownership to fall within the Court’s jurisdiction. [ 5 ] Despite the lack of jurisdiction, the undersigned offered to the parties to express her opinion in the judgment, in order to help them settle their dispute about the fence, explaining that this opinion would not have the value of a judgment, and could not be enforced. THE FACTS: [ 6 ] On November 29, 2015, Sonia Migliorati and Karim Essamri presented an offer to purchase Mrs.

Giulano’s property located on Place de Saratoga in St-Lazare for an amount of $ 310 000. The house was built in 2007, and was inspected by Mrs. Migliorati and Mr. Essamri before the purchase. [ 7 ] The offer to purchase includes many items, among which are the security fence for the pool and the air-conditioner. The promise to purchase form says that those items are sold without any legal warranty of quality, at the buyers’ own risk, but must be in working order at the time of delivery of the immoveable. [ 8 ] Before the deed of sale was signed, Mrs.

Giulano received from the City of St-Lazare a notice informing her that the security fence for the pool was not built according to the City’s regulation. This letter asked Mrs. Giulano to take the necessary steps to proceed before July 1, to install a fence in accordance with the law so the access to the pool would be secure.

[ 9 ] Minutes before the deed of sale was signed at the Notary, it was agreed that an amount of $ 1800 would be hold by the Notary until the fence was replaced. For security reasons, it was understood between the parties that the actual fence would stay in place. On the “ État des recettes et débours ”, some handwritten notes were added, as follows: « Retenue de 1800 $ pour non-conformité de la clôture de la piscine, conformément à l’avis du 28 avril 2016. Cette somme sera retenue et remise selon : 1) La municipalité lève son avis de non-conformité; 2) Les vendeurs présentent une facture payée pour corriger la non-conformité.

En cas de non-paiement par les vendeurs dans un délai raisonnable suivant la vente (2 mois) et de non-conformité maintenue de la part de la municipalité, la somme de 1800 $ sera remise par la notaire aux acheteurs sur remise d’une facture. Aucun montant excédant 1800 $ ne pourra être exigé au vendeur. » [ 10 ] These notes were signed by both parties. [ 11 ] Mrs. Giulano pretends though that it was agreed that when the new fence would be installed, she could take possession of the old fence. Mrs.

Giulano filed the “Déclaration pour valoir témoignage” of the real estate agent Monique Gagnon, who recalls such an agreement. [ 12 ] Mrs. Migliorati’s version is that it was discussed but never agreed that the old fence would return to Mrs. Giulano. [ 13 ] When the new fence was installed, Mrs. Giulano asked when she could go to pick-up the old fence, and Mrs.

Migliorati answered that after consulting with the Notary, she did not have to give back the old fence, as it was not excluded in the offer to purchase. [ 14 ] If the Court had to decide about the property of the old fence, it would have relied on the handwritten notes by the Notary and signed by both parties. It would have been easy, if the agreement was settled between both parties, to add a simple sentence to say that after the new fence was installed, Mrs. Giulano could get back the old one. [ 15 ] Mrs. Giulano filed as exhibit P-3 some email exchange between her and Mrs. Migliorati.

We cannot find in those emails any admission by Mrs. Migliorati that she indeed agreed to give back the old fence . THE CROSS DEMAND [ 16 ] The first item of the Cross Demand is an amount of $ 844.49, representing the difference in the value of the old and the new fence. The original fence was paid $ 3224.47. Mrs. Migliorati and Mr. Essamri signed a contract to install a fence that cost $ 2379.98, of which $ 1800 was paid by Mrs. Giulano. [ 17 ] It would be most exaggerated to allow Mrs. Migliorati and Mr.

Essamri to keep the old fence, the new one, and the difference of price between them … Also, the notes at the Notary specified that no amount over $1 800 could be asked from the vendor. [ 18 ] Mrs. Migliorati also claims for the cost of a new air-conditioner that she had to install, as she pretends that the one in the house would not function when she took possession of the premises. [ 19 ] Mr. Essamri and Mrs. Migliorati sent a letter to Mrs. Giulano on May 30, according to

Section 1739 of the Quebec civil Code , informing her that the air-conditioner was broken and that on May 29, a local company came by to fix it, to realize it was over ten years of age, and that it would be hard to repair due to its age. They announced a quote for a new air-conditioner of $ 2700. [ 20 ] In the last paragraph of the letter, Mrs. Migliorati and Mr. Essamri say that upon reception of this letter, Mrs. Giuliano has seven days to contact them and to solve the problem. [ 21 ] On June 6, Mrs. Giulano sent an email to Mrs.

Migliorati saying that she would come by with someone to get the evaluation of the air-conditioner, adding that she did not have any problem with it last summer. Mrs. Migliorati replied that they had already changed the air-conditioner this week-end since it was hot in the house, and offers to send paper proof that it was broken and a copy of the bill of the new one they purchased for the amount of $ 3506.73. [ 22 ] Mrs. Migliorati and Mr. Essamri correctly read

Section 1739 of the Quebec civil Code that obliged them to send a notice to the seller to inform of the problem. The purpose of such a notice is not only to inform the seller of the situation, but also to allow him to go on site, examine the problem and fix it by himself if he wishes so. [ 23 ] Mrs. Migliorati and Mr. Essamri did not respect the delay they had themselves fixed, which renders their notice totally useless. [ 24 ] It is not enough to send a notice; it is also necessary to respect the delay that is given to the other party. The fact that the weather may have been very hot on that week-end cannot be considered as an emergency that would allow them to wave the delay.

[ 25 ] Mrs. Migliorati and Mr. Essamri also claim an amount of $ 2069.55 that they paid to Premier Tech Aqua to replace the Écoflo’s biofilter, which has to be changed every ten years. [ 26 ] Mrs. Migliorati and Mr. Essamri reproach to Mrs. Giulano not to have advised them of the fact that she had received a notice in February 2016 about the replacement of the biofilter. [ 27 ] The fact that the biofilter needed to be changed cannot be considered as a hidden defect.

The changing of the biofilter of the Écoflo system has to be regarded as maintenance of a component that has come to the end of his useful life, which is not considered by the law as a hidden defect. [2] [ 28 ] This claim cannot be granted either. [ 29 ] The last claim of the Cross Demand is for an amount of $ 1231.52, which was paid to a plumber on November 22, and 23, after Mrs. Migliorati called them in emergency because of an overflow.

The invoice of Plomberie Kukovica reads as follows: « Pompe existante hors d’usage, remplacer par une pompe submersible et aussi faire la modification de la tuyauterie de renvoi en 3 pouces ABS, 2 pouces ABS, 1 ½ ABS, installée.

Des regards de nettoyage en 3 pouces et 2 pouces, c’est pour faire l’entretien du renvoi et faire le nettoyage au besoin, passer et visionner la caméra vidéo sur le renvoi existant de 3 pouces PVC, beaucoup d’ocre ferreux, voir vidéo avant et après, le tout testé avec beaucoup d’eau. » [ 30 ] Among the conditions that has to be present for a problem to be qualified as a hidden defect are the unknown character of the problem to the buyer and the fact that it existed at the time of the sale. [ 31 ] The inspection report done before the purchase pointed out an action necessary regarding the sump pump, which did not activate or pump as intended.

The presence of ochre in the soil was alco disclosed by Mrs. Giuliano in her Vendor’s Declaration (section D 4.7). [ 32 ] Plomberie Kukovica’s working order dated November 23, 2016, does not demonstrate that the sump pump problem was due to a defect existing when the house was sold; and that it is not due instead to a lack of maintenance considering the presence of iron ochre. [ 33 ] This claim cannot be granted. FOR ALL THOSE REASONS, THE COURT: DECLINES jurisdiction regarding Plaintiff’s application; DISMISSES the Cross Demand; THE WHOLE without cost. __________________________________ CÉLINE GERVAIS, J.Q.C.