2013 QCCQ 10600, 2013 QCCQ 10600

Manousos c. Hedrich 2013 QCCQ 10600 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-128015-114 DATE: September 12, 2013 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ GEORGE MANOUSOS […] Montréal Québec […] Plaintiff v.

ÉVA SCHUSTER HEDRICH [...] Chomedey Laval [...] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] George Manousos is claiming 4 000 $ from Eva Schuster Hedrich, alleging that after purchasing her property the dual energy system ceased working. Mrs. Hedrich contests the action. The evidence: [ 2 ] Mr. Manousos purchased a rental property from Mrs. Hedrich on August 19, 2010. He had an inspection carried out before buying the immoveable.

He stated that in January 2011, his tenants complained about a lack of heat. He hired a plumber and an electrician and according to Mr. Manousos, both told him the dual energy system was no longer functioning. Mr. Manousos bought a new system for $3,987.38 and is claiming its cost. [ 3 ] Mrs. Hedrich testified that she purchased the dual energy system in 1996 and it was repaired in 2007. The system was serviced yearly by Ultramar and she had no problems with it. Legal Principles: [ 4 ] Plaintiff contends that the property he purchased is affected by a hidden defect. According to

article 1726 of the Civil Code of Quebec , a vendor must guarantee that, at the time of sale, the property is free from latent defects that render it unfit for the use for which it was intended or that diminish its usefulness such that the buyer would not have paid so high a price, if he had been aware of them. [ 5 ] A vendor is not obliged to guarantee a latent defect that is known to the purchaser nor a defect that is apparent; a defect is apparent when it can be noted by a prudent and diligent buyer, without having recourse to an expert. [ 6 ] The purchaser must carry out a serious inspection.

Where there are indices or revealing signs that will enable a problem to be noted, the defect is no longer qualified as hidden. [ 7 ] The Courts have held that the possibility of discovering a defect is sufficient for it to lose its hidden character [1] . The presence of signs or indices constitutes an element to consider in determining whether a buyer has acted in a diligent and prudent manner, as required by law [2] . [ 8 ] These principles are applicable to the present case.

Analysis: [ 9 ] Mr. Manousos had an inspection carried out at the time of sale but failed to produce the inspection report. Mrs. Hedrich maintained that the dual energy system was in good working order when she lived in the premises she sold. [ 10 ] To determine if the system was working at the time of sale, it should have been turned on to see if it produced heat. However, there is no evidence that Mr. Manousos or his inspector tried the system to see whether it was functional. [ 11 ] As indicated above, the mere possibility of discovering a defect is sufficient for it to be considered as apparent.

Accordingly, if the system was not working at the time of purchase, the defect could have been discovered and therefore the defect was apparent. [ 12 ] Alternatively, the system was working at the time of the inspection but failed to function subsequent to the sale. Mr. Manousos testified that the system failed to work in January 2010. However, he does not live in the building and none of his tenants testified. [ 13 ] Furthermore, while he replaced the dual energy system, he did not produce any expert report or testimony to establish that it was no longer functional and required replacement.

Moreover, the cause of the problem was not established by expert evidence. [ 14 ] The system that was replaced was 15 years old. Even if the Court comes to the conclusion that the heating system was affected by a hidden defect, given the amount of time since it was first installed, it had little or no remaining life expectancy. [ 15 ] Plaintiff has the burden of proof. He has not established to the satisfaction of the Court that the problem existed at the time of sale. He has also not shown that the problem was related to a latent defect rather than to normal wear and tear [3] .

FOR THESE REASONS, THE COURT: DISMISSES the action; THE WHOLE , with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: August 27, 2013