2012 QCCQ 16458, 2012 QCCQ 16458

JH 5371 Dada c. Dada 2012 QCCQ 16458 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120531-092 DATE: November 15, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ ABDUL GHANNI DADA and GINA DADA Plaintiffs v.

MATHEW ORR Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Abdul Ghanni Dada and Gina Dada are claiming a reduction of purchase price pursuant to latent defects discovered after they purchased an immoveable in June of 2009. They contend that the plumbing system, more specifically the drains used in the basement apartment, were discovered to be blocked partially. In order to repair to the drain system, they incurred costs of $8,399.48.

The claim is reduced to $7,000.00 in order to remain within the jurisdiction of the Small claims division. [ 2 ] Mathew Orr, the Vendor pleads that he was never aware of any defect in the plumbing system, never repaired the same and never falsely represented the situation or state of repair of the system. He concludes that the claim should be dismissed. A REQUEST FOR POSTPONEMENT [ 3 ] At the hearing, Mr. Orr was absent although duly notified of the trial and called. In fact, according to the record, Mr. Orr requested a postponement on August 17 th , 2012. Mr. Dada objected to the same. Mr.

Orr was advised of this objection to which he responded that he would discuss the postponement with the Plaintiffs. When asked if Mr. Orr had contacted him, Mr. Dada indicated that he had not. The Court therefore proceeded in the absence of Defendant. THE FACTS [ 4 ] Mr.

Dada acquired the building by notarial deed dated June 1, 2009 for the amount of $358.000.00 The building was sold with legal warranty. [ 5 ] Although, Gina Dada appears as Co-plaintiff in this matter, the evidence shows that she is not a co-owner of the property, and therefore should not be a party to these proceedings. [ 6 ] In July of 2009, Mr. Dada's tenant in the basement apartment complained that the toilet was not functioning correctly. On two occasions, Mr. Dada attempted to have the problem solved.

In August of 2009, the plumber retained, discovered that the basement floor drain was partially blocked by a cable, normally used to clean drains. Instead of been removed, it had been left in the drain partially obstructing it. [ 7 ] The testimony and photographs produced at trial, undoubtedly show that this cable was in fact impeding the normal functioning of the drain. [ 8 ] Mr. Dada explained that removing the cable required that it be pulled by a truck from outside the building. In the process, the drainpipe for a length 20 feet was damaged and required replacement.

In order to gain access to the drainpipe, the cement floor had to be broken and then repaired. [ 9 ] As an indemnity for the inconvenience suffered by the tenant, Mr. Dada allowed him two months free rent.

[ 10 ] The costs to find the problem and to do the repairs are as follows: 1. August 13 th , 2009: $142.11: plumber; 2. August 21, 2009: $234.21: plumber; 3. August 21, 2009: $121.91: plumber; 4. September 16 th , 2009: estimate for repairs: $7,901.25. [ 11 ] Mr. Orr was notified of the situation by letter of October 1 st , 2009. He was invited to visit within one week in order to verify the situation. He never did. In fact, when contacted by Mr. Dada, Mr. Orr stated that he hade no reason to pay for these repairs and invited Mr. Dada to sue him. THE LAW OF LETENT DEFECTS [ 12 ]

Article 1726 of the Civil Code of Québec . defines the warranty of the vendor: 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 any need of expert assistance. As well,

article 1739 must be cited: 1739. A buyer who ascertains that the property is defective may give notice in writing of the defect to the seller only within a reasonable time after discovering it. The time begins to run, where the defect appears gradually, on the day that the buyer could have suspected the seriousness and extent of the defect. The seller may not invoke tardy notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 13 ] The rules concerning latent defects can be summarized as follows: 1.

The defect must be serious and it must diminish the purchaser's use of the property; 2. It must have existed prior to the sale; 3. It must be hidden, notwithstanding a serious examination by the purchaser prior to the purchase; 4. The purchaser must notify the vendor of the defects, within a reasonable delay of their discovery. [ 14 ] Also, the burden of proof in this matter lies on the shoulders of Mr. Dada. He must prove by preponderance of evidence that each of these criteria are met (art. 2803 and 2804 C.C.Q ).

ANALYSIS AND DECISION The defect must be serious and it must diminish the purchaser's use of the property [ 15 ] A non-functioning toilet and main drain of an apartment obviously constitute a serious defect. It is difficult to imagine a more serious reduction in the use of the property. It must have existed prior to the sale [ 16 ] The blockage was discovered soon after the purchase, Mr. Dada did not cause this situation. The Court concludes that this defect existed prior to the sale.

It must be hidden, notwithstanding a serious examination by the purchaser prior to the purchase [ 17 ] The defect was hidden at the time of the sale. The cable was in the drainpipe that is sealed in the cement floor of the building. Also, Mr. Dada had the property inspected prior to his purchase. The report states that the basement floor and plumbing are both in "bon état". The purchaser must notify the vendor of the defects, within a reasonable delay of their discovery. [ 18 ] The letter addressed to Mr. Orr by Mr.

Dada's attorney on October 1 st , 2009 states: Afin de réparer ledit problème, notre client est obligé de faire l'excavation et changer la tuyauterie de ladite toilette ainsi que de remplacer le plancher de céramique existant moyennant un prix total de 7 901.25 $ comprenant les taxes, tel qu'il appert d'un estimé à cet égard ci-joint daté du 16 septembre 2009.

À la lumière de ce qui précède, nous vous invitons à vérifier ce problème vous-même dans un délai d'une semaine qui suit date de votre réception des présentes, à défaut de quoi notre client entamera lesdits travaux tels qu'indiqués et vous poursuivra pour l'intégralité des frais occasionnés. (pièce P-3)

(Reproduced as drafted) [ 19 ] Considering that the purchased immovable was affected by a latent defect namely, a partially obstructed main drain. [ 20 ] Considering that the defect seriously reduced the use of the property. [ 21 ] Considering that this defect existed prior to the sale. [ 22 ] Considering the vendor's legal warranty. [ 23 ] Considering that the vendor, Mathew Orr, was notified prior to the repairs being made and that he neglected to inspect or repair the property. [ 24 ] Considering that Mr. Dada has proven his damages in the amount of $7,000.00.

FOR TESE REASONS, THE COURT: GRANTS the application; CONDEMNS Mathew Orr to pay a sum of $7,000.00 to Abdul Ghanni Dada with legal interest, plus the additional indemnity provided for in

article 1619 of Civil Code of Québec , from the date of his demand, October 1 st , 2009; CONDEMNS Mathew Orr to pay judicial costs in the amount of $157.00. __________________________________ Scott Hughes, J.C.Q. Date of hearing: September 10, 2012