2017 QCCQ 11512, 2017 QCCQ 11512

Saleem c. Rosenthal 2017 QCCQ 11512 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-149647-150 DATE: September 15, 2017 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ AYESHA SALEEM and MOHAMMED SALEEM Plaintiffs v.

HAIM ROSENTHAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ayesha Saleem and Mohammed Saleem claim $10,922 from Haim Rosenthal on the grounds that the property they purchased from him was afflicted with a latent defect. Mr. Rosenthal contests the claim and argues that the alleged defect was apparent at the time of the sale. Moreover, he argues that the damages claimed are grossly exaggerated. Questions in Issue

a) Was the water leak and infiltration originating from the hallway washroom an apparent defect at the time of the sale?

b) If so, what damages, if any, are the plaintiffs entitled to? Context [ 2 ] By deed of sale entered into on August 26, 2015, Mr. Rosenthal sold to plaintiffs a residential property located in Dollard-des- Ormeaux for $410 000 (the “Property”). [1] The sale was made with legal warranty. [ 3 ] Prior to the sale, the Property had been listed for sale at $439 000. The Property is a split level detached home with notably two washrooms on the first floor: one in the master bedroom and one in the hallway.

This litigation deals with the water leakage and infiltration from the hallway washroom. [ 4 ] The plaintiffs visited the Property twice prior to the purchase, namely on June 20 and on June 24, 2015. The seller’s declaration was remitted to the plaintiffs on June 24, 2015. [2] [ 5 ] On June 21, 2015, the plaintiffs made a promise to purchase the Property at $420 000. [3] On June 22, Mr. Rosenthal made a counter proposal of $425 000 which the plaintiffs accepted on June 24, 2015. [4] [ 6 ] Following the acceptance of the counter-proposal, the plaintiffs had the Property inspected by a home inspector.

The plaintiffs also had in hand a pre-purchase inspection report of the Property prepared by Grimaldi Home Inspection dated April 11, 2015 which had been obtained by a prior potential purchaser. [5] [ 7 ] Based on the findings contained in the Grimaldi Inspection Report, Mr. Rosenthal agreed to lower the selling price of the Property to $410 000 and plaintiffs agreed to this revised price. [6] On August 26, 2015, the deed of sale was signed by plaintiffs and Mr. Rosenthal. [ 8 ] On August 28, 2015, the plaintiffs took possession of the Property. They moved in 3 days later. A few days after moving in, Mrs.

Saleem noticed that whenever a shower was taken in the hallway washroom, water would seep onto the hallway floor and also down through the ceiling of the powder room located directly below the hallway washroom. [7] [ 9 ] Plaintiffs communicated with Mr. Rosenthal to inform him of this problem and he mandated a plumber to attend the premises and inspect the hallway washroom to determine if there was indeed a leak. [ 10 ] On September 3, 2015, the plumber, Sam Mirarchi, attended the Property to inspect the allegedly leak. [8] He replaced two

faucet spindles and seats and also added silicone caulking to insure that there were no leaks. [9] [ 11 ] It appears that the problem persisted as by letter dated October 8, 2015, Mrs. Saleem sent Mr. Rosenthal a notice of defect in which she writes that the hallway washroom is still leaking despite the plumber’s repairs. [10] She includes with her notice an estimate for the repairs to the washroom in the amount $10,922.63. [11] [ 12 ] On November 4, 2015, plaintiffs filed with the Court of Québec, Small Claims Division, their application against Mr. Rosenthal. Analysis and Decision

a) Was the water leak and infiltration originating from the hallway washroom an apparent defect at the time of the sale? [ 13 ] The plaintiffs’ claim against Mr. Rosenthal is based on the legal warranty against latent defects, a warranty which is included in the Deed of Sale. This warranty is set forth in

article 1726 of the Civil Code of Québec (C.C.Q.), which reads as follows: 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 the need to resort to an expert. [ 14 ] To succeed on a claim alleging a breach of the legal warranty against latent defects, a plaintiff must meet and prove the following five conditions which flow from articles 1726 and 1739 C.C.Q.: 1.

The defect must be sufficiently serious, in other words it must render the property unfit for the use for which it was intended or so diminish its usefulness that the buyer would not have bought it or paid so high of price if he had been aware of the defect; 2. The defect must be unknown to the buyer at the time of the sale; 3. The defect was unapparent at the time of the sale. An apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert; 4. The defect must have existed prior to the sale; 5.

The buyer must give notice in writing of the defect to the seller within a reasonable time after discovering it. [ 15 ] In the present case, only the third of the above-mentioned conditions is in issue. Indeed, the proof reveals that the defect was serious, that it existed prior to the sale. Moreover, the plaintiffs gave written notice of the alleged defect to Mr. Rosenthal within a reasonable time after discovering it, namely roughly one month after the discovery of the defect. [12] [ 16 ] The issue that the Court must adjudicate and which Mr.

Rosenthal raises in his defense is whether the problem related to the water leak and infiltration originating from the hallway bathroom was apparent at the time of the sale. [ 17 ] The evidence reveals that Mr. Rosenthal purchased the Property in July 2007. From 2007 until the sale to the plaintiffs in August 2015, four persons occupied the Property, namely Mr. Rosenthal, his spouse, his child and Mr. Rosenthal’s mother. The hallway washroom was only used by Mr. Rosenthal’s mother. Moreover, she was wheelchair bound and did not use the shower in this washroom.

The other inhabitants of the residence used the master bedroom washroom to bathe or shower. [ 18 ] Over that 8 year period during which he inhabited the Property, Mr. Rosenthal never witnessed water leaking form the hallway washroom into the hallway or down to the ground floor powder room.

This explains why in Seller’s Declaration, there is no reference to any water infiltration emanating from the hallway washroom. [13] [ 19 ] Prior to purchasing the Property and during their inspections, plaintiffs had in their possession the Grimaldi Inspection Report. [14] [ 20 ] The Grimaldi Inspection Report indicates in regards to the hallway washroom the following: - ‘’Ceramic cracks noted. Repairs required . Caulk damage observed.

Replacing with new caulking required to prevent water infiltration damage ’’ (page 6 of the Report); - The 2 pictures included at page 7 of the Report show arrows pointing to cracks in the ceramic tiles and missing caulking on the edge of the bath tub; - At page 38 of the report, the inspector writes: ‘’Ceramic cracks noted. Repairs required . Caulk damage observed. Replacing with new caulking required to prevent water infiltration and damage’’ . (underlining added) [ 21 ] Mr. Rosenthal visited the property and specifically the hallway washroom after the plaintiffs complained of the water infiltration.

He noticed that the shower had been used, that no shower curtain was in place and that the floor was wet. [ 22 ] Mr. Mirarchi, the plumber, inspected the hallway washroom on September 3 to determine the cause of the water infiltration in the powder room directly below the hallway washroom. He filled the tub with water to overflow and no leaks were observed. He too

noticed that no shower curtain was in place. [ 23 ] Plaintiffs argue that the cracks in the ceramic and the deficient caulking cannot be the origin of the water infiltration in the hallway and in the ceiling of the ground floor powder room because all leaks stopped after the plumber’s visit on September 3, 2015. However, this statement is contradicted by plaintiffs own evidence, since in their October 8, 2015 notice of defect sent to Mr. Rosenthal [15] , they write that the washroom is still leaking notwithstanding the repairs carried out by the plumber in September.

This contradiction significantly weakens the plaintiffs’ credibility on the origin of the water infiltration [ 24 ] Based on the evidence adduced at trial, the cracks in the tiles and the damaged caulking of the hallway washroom are the most probable causes of the water infiltration they complain of. [ 25 ] While this constitutes a defect, the evidence reveals that it was nonetheless apparent to a prudent and diligent buyer when the plaintiffs visited the Property prior to the purchase.

Not only was this defect apparent, the Grimaldi Inspection Report explicitly points out that the cracks in the ceramic tiles and the defective caulking (pages 6 and 338) and twice warns the buyer to repair this to prevent water infiltration damage. [ 26 ] There were sufficient red flags raised by the Grimaldi Inspection Report such that a prudent and diligent buyer would have carried out additional investigations to assess the seriousness of the cracks in the ceramic tiles and the damaged caulking. [16] [ 27 ] The plaintiffs did not heed the inspector’s warnings and what he anticipated eventually happened.

They cannot look to their seller for compensation. [ 28 ] Considering that the defect the plaintiffs complain was an apparent defect at the time of the sale, it is not covered by the legal warranty against latent defects. Mr. Rosenthal cannot be held responsible for the damages which may have been caused by this apparent defect.

b) What damages, if any, are the plaintiffs entitled to? [ 29 ] Considering that the Court has concluded that the conditions required to trigger the warranty against latent defect have not been met by the plaintiffs, the Court need not address the second and last question in issue. FOR THESE REASONS, THE COURT: [ 30 ] DISMISSES the plaintiffs’ application; [ 31 ] WITH COSTS of $190 payable to Haim Rosenthal, representing the Court fees paid on the filing of the Contestation. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: May 16, 2017