2015 QCCQ 8947, 2015 QCCQ 8947

Levadi c. Tabacman 2015 QCCQ 8947 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-135309-120 DATE: July 28, 2015 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ ROSS LEVADI -and- STEPHANIE KATZ Plaintiffs v.

JEFF TABACMAN -and- ERIN MARIASINE Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ross Levadi and Stephanie Katz (“the purchasers”) claim that the house they purchased from Jeff Tabacman and Erin Mariasine (“the vendors”) was affected by latent defects.

They claim the sum of $7 771.03, that they voluntarily reduce to $7 000.00 in order to remain within the monetary jurisdiction of the Small Claims Division. [ 2 ] The vendors argue that they are not liable to reimburse these repairs because there was sufficient evidence at the time of the pre- purchase building inspection that the Court should deem any such defect as being apparent.

THE FACTS [ 3 ] After making a conditional proposal to purchase the property, the purchasers had the property inspected. [ 4 ] The inspector, a member of the Order of professional technologists of Québec provided a detailed inspection report [1] concluding thus: Higher priority improvements that you should consult a specialist on: - A roofer or contractor should be consulted to investigate the indications of water infiltration on the side wall in the furnace room.

Appropriate corrective actions should be taken to stop infiltration if not already done . - Improvements should be made to the electrical system by an electrician (G.F.C.I. outlets).

An inspection for aluminium wiring is also recommended. - A foundation repair specialist should be consulted to take appropriate corrective action regarding the crack identified at the back wall. - A pyrite test performed on the backfill material of the concrete slab is recommended before you go further in the process of buying the house. (Emphasis added) [ 5 ] The evidence shows that purchasers did in fact have a pyrite test performed. The results of this test did not justify cancelling the offer to purchase.

[ 6 ] As for the advice to have a roofer or contractor investigate the indications of water infiltration on the side wall in the furnace room, the evidence shows that the purchasers had a contractor friend inspect the electrical mast on the mansard roof on one side of the house. However, they did not inspect the roof itself on that side of the building contrary to what Mr Durocher, their building inspector recommended. [ 7 ] The property was transferred by notarial deed on June 27, 2011.

On Friday, March 31, 2012, in the late afternoon, the vendors were advised verbally that the purchasers had discovered rotten wood behind the drywall in their master bedroom.

This work was being done as purchasers were renovating. [ 8 ] Although, it was difficult for vendors and a contractor friend to visit the premises (they are observant Jews and it was the Sabbath) they did in fact inspect the premises on the following Sunday, April 1 st . [ 9 ] Since there were presence of mould in the wall and floor, purchasers immediately proceeded to have emergency cleanup measures undertaken. [ 10 ] On or about April 16, 2012, purchasers obtained an inspection report from a roofing specialist [2] . This specialist concluded: 3.

DISCUSSION AND RECOMMENDATIONS In light of the observations made at the time of our inspection, and having taken into account the information that was provided to us by the various people, it is of our opinion that the damages were caused be a small opening in the membrane at the intersection of the roof and the mansard in a joint if ( sic ) the drip edge. We recommend repairing a

section of the roof, approximately 2’ X 4’, change the deteriorated wood in the edge of the roof deck, approximately 1’ X 36”. Estimated cost: For the works, the cost should be approximately 1,500 $ (+ taxes) . This estimate does not includes any of the inside repairs. [ 11 ] According to the evidence, this roof is exactly that which Mr Durocher had recommended be inspected at the time of purchase. THE LAW OF LATENT DEFECTS [ 12 ]

Article 1726 of the Civil Code of Québec . defines the warranty of the vendor: 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 any need of expert assistance. [ 13 ] The rules concerning latent defects can be summarized as follows: 1. The defect must be serious and it must diminish the purchaser's use of the property; 2. It must have existed prior to the sale; 3. It must be hidden, notwithstanding a serious examination by the purchaser prior to the purchase; 4.

The purchaser must notify the vendor of the defects, within a reasonable delay of their discovery. [ 14 ] Also, the burden of proof in this matter lies on the shoulders of purchasers. They must prove by preponderance of evidence all these criteria are met (art. 2803 and 2804 C.C.Q ). THE ANALYSIS AND DECISION [ 15 ] The seepage through the defective roof must have been going on for a number of years since the wall and floor were mouldy and rotten. Also, such a defect is of a serious nature and diminishes the purchases’ use of the property.

Finally, the vendors were notified of these defects within a reasonable delay of their discovery. [ 16 ] The only question to be decided here is whether or not the defects were hidden according to the criteria contained in

article 1726 of the C.C.Q. as further defined by jurisprudence. [ 17 ] The building inspector Mr Durocher clearly identified patches of mould and rotten wood on the garage ceiling below the master bedroom

section of this house. There was no doubt that there was water infiltration in the vicinity above the garage. He thereafter made a specific recommendation that a contractor or a professional roofer inspect the roof of the building in order to identify the source of the water leakage and correct the same. [ 18 ] The evidence shows that purchasers did not follow-up thoroughly on this recommendation. They did verify an electrical mast that goes through the mansard roof on that side of the house. This however is not what Mr Durocher recommended they do. When, after the fact, they correctly inspected the roof above the bedroom

section of the house, the defect was immediately discovered. The report

filed by Mr Trudeau as well as the pictures that accompany it, show that it was a matter of visual inspection to discover a faulty joint in the membrane of the roof. [ 19 ] Purchasers argue that the area where the rotten wood was found behind the wall is some ten feet away from the exact place where the leakage in the roof was discovered. This argument is not sufficient to counter the probable evidence presented by the vendors that the leakage discovered is in fact the cause of the rotten wood.

Mr Trudeau’s report says so specifically and no other leakage was found on the roof. [ 20 ] The Court concludes that the defect in the roof of the purchased property must be deemed to have been apparent since there was sufficient evidence for the building inspector to be suspicious of a problem. The building inspector was clear [3] : “ we moved some of the insulation aside above the drywall and found mould and rotted wood behind it. It was dry at the time of the inspection.

However, it does not mean the cause of the water damages is under control .” This was a clear indication that the wall, on that side of the house, had a seepage problem. The purchasers should have been more prudent and thoroughly examined the roof on that side of the house. They neglected to do so appropriately. The effect of this negligence is to render the alleged defect apparent [4] . [ 21 ] Purchasers’ claim must fail.

FOR THESE REASONS, THE COURT: DISMISSES the claim; CONDEMNS Ross Levadi and Stephanie Katz to pay to Jeff Tabacman and Erin Mariasine their Court disbursements in the amount of $152. __________________________________ SCOTT HUGHES, J.C.Q. Date of hearing: June 1 st , 2015