2015 QCCQ 6953, 2015 QCCQ 6953

Rubenstein c. Gualtieri 2015 QCCQ 6953 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL Civil Division No: 500-32-137534-139 DATE: August 6, 2015 ______________________________________________________________________ BY THE HONOURABLE DIANE QUENNEVILLE, J.C.Q. ______________________________________________________________________ LAWRENCE RUBENSTEIN and ALYS GEIGER Plaintiffs v.

CARLO GUALTIERI Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiffs claim $5,153.24 representing the cost of repairing the latent defects discovered in the house purchased from the Defendant. [ 2 ] The Defendant contests this claim on the basis that the defects should have been discovered by Plaintiffs’ inspector and that the repairs to be done to the house are due to normal wear and tear.

THE FACTS [ 3 ] The Plaintiffs purchased the house located at 376 Frontenac, Dollard-des-Ormeaux, on June 7 th , 2010 [1] . [ 4 ] Prior to proceeding to the sale, the Plaintiffs retained the services of AmeriSpec Home Inspection Service who conducted an inspection on April 2010 [2] . In the inspection report, no mention is made that a crawl space was found or inspected. [ 5 ] The Plaintiffs provide the Court with several pictures showing the garage, the basement and the pipe [3] . The Plaintiff, Mr.

Rubenstein explains that the pipe which required to be replaced starts in the garage, continues under the concrete floor and exits in the basement in a crawl space. [ 6 ] In July 2011, when a plumber was doing work in the basement, he discovered the crawl space and the pipe and informed the Plaintiffs that this pipe needed to be replaced. [ 7 ] The Plaintiffs again referred the matter to AmeriSpec Home Inspection Service.

In his letter of July 15, 2011 [4] , Allen Fox from this company writes that the inspector, who did the inspection at the time, raises the likelihood that the crawl space and the pipe were not visible or accessible when the inspection was done. [ 8 ] In August 2011, the Plaintiffs retained Drains National to review the condition of the pipe with a camera [5] . A similar camera inspection was done on April 29, 2015 by Warmuth Inc. [6] . [ 9 ] The Plaintiffs obtained quotes to proceed to the repairs and replacement of the pipe.

One such quote from Entretien Stéphan Eau, to replace the pipe for $950 and one from PCéramic for $3,250 to repair the garage floor, etc, totaling $4,200 [7] and another quote from Novoco Construction for $7,636 [8] . In addition to the cost of the repairs, the Plaintiffs claim the cost of the three inspections by AmeriSpec, Drains National and Warmuth Inc., totalling $1,040.68.

THE ANALYSIS [ 10 ] As established at Articles 1726 to 1728 of the Civil Code of Québec , dealing with, the seller must warrant to the buyer that the property and its accessories are, at the time of the sale, free of latent defects. [ 11 ] The author, Jeffrey Edwards [9] , provides that a house has a lifespan equal to that of its components [approximate translation]. [ 12 ] Kirk Warmuth, who conducted the second camera inspection, explains that the pipe leading from the garage to the crawl space was a cast iron pipe that must be replaced with an ABS pipe in accordance with today’s Plumbing Code. [ 13 ] In his report, Mr.

Warmuth states that the visual inspection shows the drain to be completely rotted and the pipe under the slab to be fill with debris and very brittle .

[ 14 ] Drains National, in its report [10] , notes that the first elbow is fully corroded and needs replacement immediately - at the top the 3 " cast comes out of the wall with a few cracks. No presence of debris is noted. [ 15 ] Salvatore Graceffa, general contractor and engineer, explains that cast iron pipes have a 40 to 60 years life expectancy and must be replaced. Since 1970, ABS pipes are installed. [ 16 ] In its letter of July 15, 2011 [11] , AmeriSpec highlights the advanced deterioration of the pipe. [ 17 ] Notwithstanding that Mr.

Warmuth states that the pipe is not the original pipe put in when the house was constructed in 1967, and could have been installed in the last 10 years, the evidence shows on a balance of probabilities that the pipe was put in at the time of construction, as ABS pipes are used since the 70’s. [ 18 ] The Court concludes that the replacement of the cast iron pipe is due to normal wear and tear and does not constitute a latent defect.

FOR THESE REASONS, THE COURT : DISMISSES Plaintiffs’ action; WITH COSTS in the amount of $156 representing the judicial stamp of the contestation. __________________________________ DIANE QUENNEVILLE, J.C.Q. Date of hearing: May 12, 2015