2023 QCCQ 1754, 2023 QCCQ 1754

Agaton c. Singh 2023 QCCQ 1754 JG2338 COURT OF QUEBEC « Small Claims Division » CANADA PROVINCE OF QUEBEC DISTRICT OF BEAUHARNOIS LOCALITY OF SALABERRY-DE-VALLEYFIELD « Civil Chamber » N° : 760-32-701894-216 DATE : March 23, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE CÉLINE GERVAIS, J.C.Q. ______________________________________________________________________ PAOLA AGATON Plaintiff c.

SUKDEV SINGH and BALJINDER KAUR KHUN Defendants ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ [ 1 ] Paola Agaton claims from Sukdev Singh and Baljinder Kaur Khun the amount of $10,946, representing the damages suffered after the discovery of hidden defects in the house she bought from Mr. Singh and Mrs. Khun. Those defects are related to leaks in the incoming water pipe and heating problems with the furnace. [ 2 ] In their contestation, Mr. Singh and Mrs.

Khun state that they have never occupied the property, which was rented and that they were not aware of those problems. They also plead that the inspection report recommended an inspection by camera as the house was older than 50 years. They further plead that they could not do an expertise as the excavation was in progress when they received the Letter of Demand. They also argue that Mrs. Agaton’s claim is not taking into consideration any depreciation as the pipe was in place since the house was built. THE FACTS: [ 3 ] On July 7, 2020, Mrs. Agaton buys Mr. Singh and Mrs.

Khun’s house, located on [Street A] in Chateauguay, which was built in 1961, for an amount of $259,000. The house was previously inspected by Inspections Bourkas Inc. who filed a written report (Exhibit P- 9). The price was reduced by $10,000 after the inspection. [ 4 ] As was said previously, Mr. Singh and Mrs. Khun have never lived in that house they bought in 2017. [ 5 ] Shortly after buying the house, Mrs. Agaton hired a contractor to do some repairs in the basement; he noticed leaking water during his work. Mrs. Agaton called the City of Chateauguay who offers its citizens a free service to check pipes.

The City employee came with a camera and saw that there was an issue with the pipe because of a nearby tree, which was existing for many years. [ 6 ] The report issued by the City (Exhibit P-5) and dated July 30, 2020, states that: “ we detected a water leak on the service entrance of your residence. (…) The inspection confirms that the leak is located on your property, between the curb stop and your property or inside the house, on your internal plumbing.

A notice will be sent shortly asking for the completion of the work necessary for the security of the network.” [ 7 ] The text messages filed as Exhibit P-7 show that Mr. Singh was aware of the situation as of August 21, 2020. He spoke over the phone with Mrs. Agaton and confirmed that the situation was not covered by his home insurance. Mrs. Agaton sent the estimate and the City report by text to Mr. Singh in early September.

[ 8 ] The repairs were done on September 15, 2020, by Transport Verelli for a cost of $5,231.36 (Exhibit P-11). [ 9 ] On October 5, 2020, Mrs. Agaton’s attorney sends a Letter of Demand to Mr. Singh (Exhibit P-2). Mr. Singh’s attorney responded on November 2, 2020, (Exhibit P-3) stating that Mrs. Agaton had not follow her inspector’s recommendation to have the pipes checked by camera and that the cause of the leak was not explained. [ 10 ] In their response dated November 20, 2020, Mrs.

Agaton’s attorneys declare that another problem was discovered regarding the furnace which stopped working, as it had two heat elements working out of four. The Demand said that an amount of $3,429.14 was paid to replace the furnace. [ 11 ] The Demand was filed on March 5, 2021. Mrs. Agaton claims $10,946 which represents the costs paid to replace the pipe and the furnace, $1,217.66 paid to have the front yard leveled after the work performed on September 2020 as well as $1,000 for damages, trouble and inconvenience.

ANALYSIS AND DECISION: [ 12 ] 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 he 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. [ 13 ] Besides those conditions, a notice has to be sent to the seller to inform him of the situation. [ 14 ]

Section 1739 of the Quebec Civil Code reads as follows: “ 1739 . A buyer who ascertains that the property is defective shall give notice in writing of the defect to the seller within a reasonable time after discovering it. Where the defect appears gradually, the time begins to run on the day that the buyer could suspect the seriousness and extent of the defect. 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.” [ 15 ] The denouncing of the discovery of a hidden defect is essential to a buyer’s recourse against his seller.

The Civil Code provides for such a step to give the seller some information about the hidden defect for which a claim is made, to evaluate the problem and to have it seen by an expert in order to help him make an offer, deny the claim, or have it repaired at his own costs. The water pipe [ 16 ] It seems that the broken pipe was the one first installed when the house was built in 1961 which means it was 59 years old. The Court asked the City’s witness what was the lifespan of such a pipe.

He answered that, depending on the quality of the material used, a main water pipe could last 50 or 60 years. [ 17 ] There is a difference between a situation that constitutes a hidden defect and one which involves a house part that has reached the end of its lifespan. The latter does not constitute a hidden defect. [1] As was explained in Krukowski c. Mellos [2] : “ the wear of a property is not necessarily a hidden defect.

Therefore, the loss of normal use is not a defect in the case where it results from wear, use and the age of the property .” [ 18 ] We have to conclude that the leaking pipe does not fall within the definition of a hidden defect, as it has arrived at the end of its lifespan. The furnace [ 19 ] At the hearing, Mr. Singh and Mrs. Khun said that the furnace had been replaced shortly before the sale of the house and that it was still guaranteed. The Court asked them to send the documents to support their argument. The Court received a sale contract signed on February 1, 2020, between them and AT Climatisation.

However, this contract was not related to the furnace but was for the installation of a cooling system with a HVAC compressor, filter, humidity control, which was connected to the furnace and the electric panel. Mrs. Agaton’s claim is not in regard of that system. [ 20 ] The inspection report, on page 21, says the following about the electric forced air furnace: “ the unit was installed in 1980. This unit is functional however due to age, has a higher risk of failure. Annual service is required. A disposable 4 inch filter is recommended. The duct system and furnace must be cleaned.

The evaporator coils are in good condition.” [ 21 ] No one testified at the hearing regarding the lifespan of a furnace, but it had probably been reached it, as it was 40 years old when it broke.

[ 22 ] But there is a more important point. This problem was not denounced to Mr. Singh and Mrs. Khun before the work was executed, contrary to

section 1739 of the Quebec Civil Code , cited above. [ 23 ] In an urgent situation, a buyer could be excused from sending such a notice. The repair of a furnace could be seen as such an emergency situation. However, we note from the invoices filed as Exhibit P-8 that maintenance of the furnace was done on October 21, 2020. The thermostat was changed on October 29 and the furnace was replaced on November 17, 2020. [ 24 ] There was enough time between October 21 and November 17 to inform Mr. Singh and Mrs. Khun that another problem had been discovered and give them the opportunity to come and examine the problem.

The situation was disclosed to them by the November 20, 2020 letter, at which time the furnace had already been replaced. [ 25 ] This claim cannot be granted. [ 26 ] Considering the circumstances, the Court dismisses Mrs. Agaton’s claim, each party paying their own costs. FOR ALL THESE REASONS, THE COURT: DISMISSES the Plaintiff's claim; THE WHOLE , each party paying their own legal costs. __________________________________ CÉLINE GERVAIS, J.C.Q. NOTICE TO THE PARTIES

SECTION III EXTRACT FROM THE CODE OF CIVIL PROCEDURE OF QUÉBEC FILING OF PLEADINGS AND DOCUMENTS. 108

(2) Any document or real evidence that is filed in the record as an exhibit must remain in the record until the end of the proceeding, unless all the parties consent to its being removed. Once the proceeding has ended, the parties must retrieve the exhibits they have filed; otherwise, the court clerk may destroy them one year after the date on which the judgment becomes final or the date of the pleading terminating the proceeding. In either case, the chief justice or chief judge, if of the opinion that the exhibits can still be useful, may stay their destruction .