2016 QCCQ 10575, 2016 QCCQ 10575

Caron c. Bargelletti 2016 QCCQ 10575 JG2338 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF VAUDREUIL-DORION Civil Division No: 760-32-016890-156 DATE: August 3, 2016 ______________________________________________________________________ IN THE PRESENCE OF THE HONOURABLE CÉLINE GERVAIS, J.Q.C. ______________________________________________________________________ LEE ANNE CARON and BRIAN MADEJCHUK Plaintiffs v.

SOFIA BARGELLETTI and SALVATORE CAVALLINO Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Lee Anne Caron and Brian Madejchuk claim the amount of $ 1690,64 from Sofia Bargelletti and Salvatore Cavallino, based on the presence of hidden defects in the kitchen of the house they purchased from them, namely that there was no gas line for the stove, and that the kitchen fan was installed to low. [ 2 ] On June 30, 2014, Mrs. Caron and Mr. Madejchuk bought from Mrs. Bargelletti and Mr.

Cavallino a house located on des Arbrisseaux Street in Pincourt for a price of $ 529 849. The listing of the house specifically mentions: "heavy duty exhaust fan ready for gas stove." [1] [ 3 ] Mrs. Caron and Mr. Madejchuk visited the house twice before buying it, and had it inspected. Mrs. Caron says that she had a conversation with Mrs. Bargelletti in which she asked specifically if the gas entry was ready for a gas stove, which received a positive answer. Mrs. Bargelletti and Mr. Cavallino, who were the sole owners of the house since it was built in 2009, were using an electric stove. Mrs.

Bargelletti says she does not remember that conversation. [ 4 ] Mrs. Caron says that when her new stove was delivered on July 5, 2014, she realized that it could not be installed, as there was no gas line. Mr. Madejchuk and Mrs. Caron were certain that the kitchen was ready for the gas stove, due to the mention in the listing about the fan, and also to the fact that the gas tank was right outside the house, close to the kitchen. [ 5 ] Mrs. Caron phoned Mrs.

Bargelletti who told her that she would pay for the gas line, if it was written in the listing. [ 6 ] The stove was installed on July 8, 2014, for a cost of $ 505.89. Mrs. Caron also had to buy an electric plug converter ($35). [ 7 ] The first letter of demand was sent to Mrs. Bargelletti and Mr. Cavallino on November 4, 2014, but the proof of receipt of said letter is not in the file.

A second letter of demand was sent on February 15, 2015, claiming not only the cost for the gas line installation, but also the cost to modify the kitchen fan cabinetry to bring it to legal requirements, which would cost $ 1000 plus taxes. Mrs. Bargelletti and Mr. Cavallino answered that letter on February 23, 2015, stating that the listing was clear and never mentioned any existing gas line. Mrs.

Bargelletti also notices that the inspector should have verified the situation in the kitchen, and that it was quite apparent that there was no gas line present. [ 8 ] To support their allegation that the fan cabinetry had to be changed, Plaintiffs filed as exhibit P-2 a quote from Ébénisterie Conception/Mesure that says: " réparation pour la hotte pour la loi à 36 pouces haut d'espace = 1000$ plus taxes". They also filed a picture showing the distance between the stove and the fan, together with the installation guide for the gas stove they bought.

ANALYSIS AND DECISION: [ 9 ] 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. [ 10 ] Two of these conditions are problematic in the present file.

The first one is the gravity of the situation, as regards the gas line. The seriousness of the defect means that the use of the immoveable has to be diminished considerably, to the point that the buyer would not have bought the house, or would have paid less had he known the problem.

In the opinion of the Court, the absence of a gas line for a stove does not meet the criteria of the seriousness of the problem. [ 11 ] Also, the note in the listing is clearly related to the fan only and cannot lead to the conclusion that all other features necessary to operate a gas stove are already installed. [ 12 ] As concerns the representations made verbally by Mrs. Bargelletti regarding the gas line, as this conversation is denied, it was not proven according to

section 2803 of the Civil Code of Quebec . [2] [ 13 ] As concerns the height of the fan, a defect must be hidden, which is to say that it could not be detected by the buyer on a normal exam. Maybe Mrs. Caron and Mr. Madejchuk or their home inspector did not know of the height requirement for a gas stove, but the distance between the fan and the place where the stove would be was clearly visible. [ 14 ] The idea itself of a hidden defect supposes that it refers to a situation which is not plainly visible, which is the case here. [ 15 ] For those reasons, their claim cannot be granted.

FOR ALL THESE MOTIVES, THE COURT: DISMISSES the demand; THE WHOLE without costs. __________________________________ CÉLINE GERVAIS, J.Q.C. [2] 2803. A person seeking to assert a right shall prove the facts on which his claim is made.