2018 QCCQ 8070, 2018 QCCQ 8070

Keogh c. Tanguay 2018 QCCQ 8070 COURT OF QUÉBEC « Small Claims Division» CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL No: 500-32-155020-169 DATE: November 7, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE MARIE-JULIE CROTEAU, J.C.Q. ______________________________________________________________________ PETER KEOGH -and- KATHLEEN KEOGH -and- GHANSHYAN SINGH BIRLA -and- DENISE PARISÉ -and- GUYLAINE VALÉE -and- JACINTHE CÔTÉ Plaintiffs v.

CLAUDE TANGUAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr. Peter Keogh, Ms. Kathleen Keogh, Mr. Ghanshyan Singh Birla, Ms. Denise Parisé, Ms. Guylaine Valée and Ms. Jacinthe Côté (collectively the Owners ) claim $4,122.62 from Mr.

Claude Tanguay in order to recover the costs they incurred to ensure that the property they purchased from him ( Property ) complied with the municipal by - laws . [ 2 ] More specifically, they allege that, at the time of the sale, the Property had the following latent defects: • one of the parking spaces was improperly located; • the backyard stairs were not at least three meters away from the neighbor’s building; • one of the windows of the basement apartment was too small. [ 3 ] Mr.

Tanguay contests the claim primarily alleging that the Owners failed to notify him of the situation prior to undertaking the corrective work. QUESTION IN DISPUTE [ 4 ] Is the absence of notice prior to conducting the corrective work and engaging costs fatal to the Owners’ claim? CONTEXT [ 5 ] On December 14, 2012 , the Owners purchased the Property from Mr. Tanguay . [ 6 ] In 2015 , the Owners put the P roperty up for sale and Mr.

Mathieu Domon presented an offer to purchase. [ 7 ] During the negotiations , the Owners were informed that the staircase at the back of the Property , a window in the basement ’s dwelling and one of the parking space s did not comply with the City of Lachine ’s by-laws . [ 8 ] In order to finalize the sale, the Owners undertook to carry out the corrective work to ensure that the Property conformed to the municipal by-laws. [ 9 ] In that context, d uring the months of April and May 2015, the Owners : • obtain ed a minor exemption from the City of Lachine to keep the staircase without reconstructing it ( $ 1,500.00) ; • retained the services of an architect to prepare a plan for the basement lodging to ensure that it compl ied with the municipal dimensions requirements ($650.00) and paid for t he permit ($406.00);

• paid $1,480.57 to Mr. Domont as compensation to allow him to replace, in a timely manner, one of the basement’s windows with a larger one ; • bought two large flower pots to prevent a second car from parking on the paved area of the front yard ($86.05). [ 10 ] On July 27, 2016, Mr. Keogh sent a letter of demand to Mr. Tanguay listing all the expenses incurred “ as a result of irregularities discovered by Mathieu Domon’s notary ” that the Owners “ were obliged to fulfill before they could legally sell the Property ” [1] . [ 11 ] On August 9, 2016, a second letter of demand was sent to Mr.

Tanguay , but to no avail . ANALYSIS Principles applicable in matters involving latent defects [ 12 ] Over the years, courts have established the principles applicable in matters involving latent defects: •

Article 1726 of the Civil Code of Québec (“ C.C.Q. ”) sets out the legal warranty by which a seller is bound to warrant that the property sold has no latent defects: • To enforce the quality warranty, a buyer must prove that the defect meets four essential prerequisites [2] : o The defect must be sufficiently important. ▪ The defect will be considered important if the buyer would not have purchased the property if he had been aware of it or, alternatively, the price he would have paid would have been considerably lower. o The defect must have existed at the time of the sale. o The defect must have been hidden (i.e. latent) or not apparent. ▪ An apparent defect can be perceived by a prudent and diligent buyer, without the need of expert assistance. o The defect was unknown to the buyer. • The buyer is required to give notice in writing of the defect to the seller within a reasonable time after discovering it [3] . o The necessity to give a written notice has been attenuated namely in cases where the buyer is able to prove, with preponderance of evidence, that a sufficient verbal notice was given within reasonable time. ▪ To determine if a verbal notice is sufficient, the Court may verify if the seller was given the opportunity to visit the property to assess the nature and extent of the problem and to negotiate prior to the commencement of the corrective work [4] . o The buyer is relieved from giving notice in cases of emergency, when the seller denies any liability with respect to the latent defect, or when the seller waives the requirement of a notice [5] . o Furthermore, the seller may not invoke the tardiness of a notice from the buyer if he was aware of the defect or could not have been unaware of it. • The buyer must put in default the seller prior to carrying out any repairs [6] : o The seller may be in default by the sole operation of the law. o Other exceptional circumstances can dispense the buyer from sending a demand letter. • Where the four conditions to enforce the warranty have been proven, and the seller has been properly notified of the existence of the defects and later put in default, the buyer is entitled, at his discretion, to one of two remedies: o Obtain the cancellation of the sale if the defect is sufficiently serious. o Obtain a reduction of the purchase price that may correspond to [7] : ▪ The cost of remedying the defect; ▪ The diminution in value caused by the defect. • The buyer can also claim damages if the seller was aware of the defect or could not have been unaware of it [8] .

Is the absence of notice prior to conducting the corrective work and engaging costs fatal to the Owners’ claim? [ 13 ] The Court concludes that the Owners’ claim must be dismissed because they failed to inform Mr. Tanguay, in due course of the defects , they had di scovered and to advise him of the corrective work they were planning to carry out . [ 14 ] Indeed, by going ahead with the repair work without providing proper notice, the Owners precluded Mr. Tanguy from verifying the existence and nature of the alleged defects and potentially proceed with the appropriate repairs at his own expense.

Moreover, unless an exemption applies, which is not the case in this matter, the Owners had to ensure that Mr. Tanguay was notified

prior to proceeding to any corrective work. Their failure to do so results in the dismissal of their claim. [ 15 ] That being said, the Court must also emphasize that the Owners have yet to establish that the alleged defects meet the four essential prerequisites to qualify as latent . For example , the Certificate of Location that was remitted to the Owners in 2012 clearly mentioned that the rear staircase did not comply with the municipal by-laws [9] , thus preventing them from validly pretend ing it was a latent defect. FOR THESE REASONS, THE COURT: DISMISSES the demand of Mr. Peter Keogh, Ms.

Kathleen Keogh, Mr. Ghanshyan Singh Birla, Ms. Denise Parisé, Ms. Guylaine Valée and Ms. Jacinthe Côté against Mr. Claude Tanguay; THE WHOLE , with $100 for legal costs, representing the Court stamp fee on the Contestation. __________________________________ MARIE-JULIE CROTEAU, J.C.Q. Date of hearing: May 15, 2018 Date at which the file was taken under advisement: May 22, 2018