2020 QCCQ 8954, 2020 QCCQ 8954

Sirkin c. Khoury 2020 QCCQ 8954 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD Civil Division No: 760-32-701374-193 DATE: December 2, 2020 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ SHAI SIRKIN and Jennifer HUDON Plaintiffs v.

Nabil KHOURY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Shai Sirkin and Jennifer Hudon bought from Nabil Khoury a house located on [Street A] in Notre-Dame-de-l’Ile-Perrot for the amount of $ 655 000. The deed of sale was signed on August 24, 2018. [ 2 ] Less than a week after their purchase, Mr. Sirkin and Mrs. Hudon realize that there is a water leakage in the air conditioning unit, which caused extensive damage to the basement. [ 3 ] Mr. Sirkin and Mrs.

Hudon claim the amount of $ 10 020 from Mr. Khoury, representing the cost of replacing the HVAC unit ($9 083.03) and the cost of emergency work ($ 937.05). THE FACTS: [ 4 ] After they realized the problem, Mr. Sirkin and Mrs. Hudon contacted Mr. Khoury who told them he was not responsible for the situation. [ 5 ] On October 3, 2018, Mr. Khoury received from the claim adjuster for Mr. Sirkin’s insurance company a notice informing him that his liability could be involved. [ 6 ] According to the expert’s report, the damages were estimated to roughly $ 18 000. [ 7 ] Mr.

Khoury responded to the letter on October 22, 2018 (exhibit P-2) indicating that the home inspection made before the purchase was satisfactory, asking to receive copy of the existing report to allow him to assess this situation. [ 8 ] The Demand was filed in the Small Claims Court a year later, on October 21 2019. [ 9 ] In his contestation, Mr. Khoury says that he declared in the vendor’s declaration that the HVAC system was the one built with the house in 2007 and has informed the purchasers that he had no service contract.

He adds that the system was functional when the sale occurred and that the problem could be due to a wrongful use of the system. [ 10 ] He also adds that anyway the system was at the end of its lifespan and that a depreciation of 100 % should be applied anyway. Finally, he says that he never received the report, as asked in his response letter. ANALYSIS AND DECISION:

[ 11 ] To conclude that there is a latent defect, the following four elements must be present: - The defect must be serious, i.e. it must have serious adverse effects on the use of the property and the buyer would not have paid so high a price had the buyer been aware of the defect; - The buyer must not be aware of the defect at the time of the sale; - The defect must be hidden, i.e. it could not have been perceived by a prudent and diligent buyer without any need of expert assistance; - The defect must have existed before the sale, since the warranty concerns the condition of the property at the time of the sale. [ 12 ] Exhibit P-9 is the quote of Entreprise B.R. dated November 14, 2018, which indicates the following: “After disassembling the HVAC unit, I found that the motherboard is completely corroded.

This renders the entire unit unusable. (…) This corrosion is something that would have taken years to develop and could not happen in the period of a few months. Had the unit been properly maintained with a yearly maintenance check, both the block drain which caused the flooding prior and the corroded motherboard would have been prevented.” [ 13 ] This demonstrates that the problem was present at the time of the sale, which is confirmed by the very short delay between the sale and the damage. [ 14 ] Even if Mr. Sirkin and Mrs.

Hudon had the home inspected prior to the purchase, a regular home inspection could not have foreseen this problem. [ 15 ] It is also a serious problem, as the entire unit had to be replaced. Though the Court is convinced that Mr. Khoury was not aware of this situation, his responsibility may none the less be engaged according to the principle of the legal warranty established by

Section 1726 and following of the Quebec Civil Code . [ 16 ] However, Mr. Khoury is right in saying that a depreciation should be applied. Mr. Sirkin and Mrs. Hudon bought a house with an HVAC system that was in place since 2007.

It was then 11 years old when they bought the house and the law does not allow that they claim the entire cost of buying a new HVAC system, as this would contribute to their enrichment, as opposed to granting them the fair reduction of the sale’s price that they would have paid, had they known the real situation. [ 17 ] As no proof of the useful lifespan of an HVAC system has been made by any of the parties, the Court will rely on some case law, which determined that lifespan at 15 years. [1] [ 18 ] As the HVAC unit has reached almost 75 % of its lifespan, the Court establishes the amount that Mr. Sirkin and Mrs.

Hudon can claim, exercising its discretion, at $ 2 500. FOR ALL THESE MOTIVES, THE COURT: GRANTS partially the Plaintiffs’ claim; ORDERS the Defendant, Nabil KHOURY, to pay to the Plaintiffs, Shai SIRKIN and Jennifer HUDON, the amount of $ 2 500 plus the legal interest calculated from the date of service (October 23, 2019) and the additional indemnity payable in virtue of

article 1619 C.c.Q. , and the judicial costs of $ 205. __________________________________ CÉLINE GERVAIS, J.Q.C.