2012 QCCQ 11042, 2012 QCCQ 11042

Aguilar c. Fatigati 2012 QCCQ 11042 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-120598-091 DATE: November 1, 2012 ______________________________________________________________________ BY THE HONOURABLE SCOTT HUGHES, J.C.Q. ______________________________________________________________________ MYRNA AGUILAR Plaintiff v.

ANGELADEA FATIGATI and DINA FATIGATI Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Myrna Aguilar is claiming a reduction of $7,000.00 of the price she paid to purchase an immoveable. She alleges that the house is affected by latent defects. [ 2 ] Angeladea Fatigati sold this property to Mrs. Aguilar. She alleges that the house was in a good state of repair at that time and that the purchaser inspected the house prior to her purchase. [ 3 ] Dina Fatigati is also named as a Defendant.

She signed the deed of sale, acting as mandatary for her mother Angeladea. Nothing in the evidence would allow the Court to retain any personal liability on the part of Dina. As mandatary, acting within the limits of her mandate, she incurs no personal liability.

Article 2157 of the Civil Code of Québec ( C.C.Q. ) reads: 2157. Where a mandatary binds himself, within the limits of his mandate, in the name and on behalf of the mandator, he is not personally liable to the third person with whom he contracts. The mandatary is liable to the third person if he acts in his own name, subject to any rights the third person may have against the mandator. The claim against her personally will be dismissed without costs. [ 4 ] Angeladea and Dina Fatigati did not appear at trial notwithstanding the notice sent and being called. The trial proceeded in their absence.

THE FACTS [ 5 ] Mrs. Aguilar acquired this property on September 4, 2009. The sale was made with legal warranty. She testified that during the month of September, she had certain renovations made to the house. During these renovations, she discovered the latent defects that she is alleging. Her claim is set out in detail in a letter she sent to the Fatigatis on October 29 th , 2009: However, shortly I moved in that house, I have been forced to deal with several major problems which required immediate attention, such as follows: 1. Dead rodent in the attic: I took pictures and I have witnesses as proof.

Extermination required ASAP. 2. The main water valve of the house is defective. It does not shut the flow of water necessary to avoid the risk of flooding. 3. Valves of hot water tank are defective also. And we are not able to take a shower for more than 12 minutes because there is no more hot water after this delay.

4. The telephone line must be re-wired in one of the rooms, due is cut. Primus Canada estimated cost at 85$ per hour. 5. The built-in oven in the kitchen is non-functional. It is either broken or there is no electricity flow (wire cut) to it. 6. The heating of the washroom in the basement is not working. There are unfortunately no repair pieces available in the market. A new heating system will therefore have to be installed. 7. The most significant problem was the defective electrical system which required immediate replacement of the electrical panel. Some outlets had no power at all.

The hot water tank was not properly connected (pictures in hand) There is no power flow to the exterior lighted address box (wire not connected). I already spent over 7000$ in repairs with regards to the electrical problems and other are appearing on a daily basis. (Reproduced as drafted) [ 6 ] On March 27 th , 2012, Mrs. Aguilar also filed in the Court record an allegation of a defect she discovered at that date (Exhibit P-14). She states in this letter: Voilà un vice caché Comme vous pouvez le constater sur la photo ci-jointe, je viens de découvrir une grosse fissure sur l'un des murs de mon garage.

Puisque le mur était recouvert de céramique verte, la fissure était cachée. Elle a été mise à jour lorsque le menuiser à retirer la céramique des murs pour peinturer le garage. (Reproduced as drafted) [ 7 ] There is no evidence that this letter were ever sent to the Fatigatis. THE LAW OF LATENT DEFECTS [ 8 ]

Article 1726 of the C.C.Q. 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. As well,

article 1739 must be cited: 1739. A buyer who ascertains that the property is defective may give notice in writing of the defect to the seller only within a reasonable time after discovering it. The time begins to run, where the defect appears gradually, on the day that the buyer could have suspected the seriousness and extent of the defect. The seller may not invoke tardy notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 9 ] 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. There may be exceptions to this obligation in cases of emergency. [ 10 ] Also, the burden of proof in this matter lies on the shoulders of Mrs. Aguilar. She must prove by preponderance of evidence that each of these criteria are met (art. 2803 and 2804 C.C.Q ).

ANALYSIS AND DECISION Absence of notification [ 11 ] Prior to the letter of October 29 th , 2009, Mrs. Aguilar did not notify Mrs. Fatigati in writing, of the alleged defects. Mrs. Aguilar's real estate agent did contact Mrs. Fatigati's agent to discuss some of these defects. He stated at trial that the defects discussed were minor in nature and he thought they required no official notification. Mrs. Fatigati's agent testified that he reported the call to his client and received no further instructions. [ 12 ] Angeladea Fatigati's agent also stated that further to Mrs.

Aguilar's inspection, her agent attempted to negotiate the sale price to take into account the condition of the house. Mrs. Fatigati refused to reduce her price and the sale took place with no changes. [ 13 ] No written notification was given to the Fatigatis prior to repairs being done. Such notification is required in order to allow the

vendor to inspect the alleged latent defects. He may choose to repair them, or at the very least will be able to defend himself adequately, if he denies responsibility. For this alone, Mrs. Aguilar's application should normally be dismissed. [ 14 ] Mrs. Aguilar states that the work done was urgent. Therefore, she argues that no notification was needed. The Court cannot agree with this proposition. In September 2009, it was not urgent to repair the electrical panel, the heating system nor the water main. The panel was full but operational. The heating, although non-functional, was not required in September.

The water main risked leaking but was functional. The hot water tank only allowed 12 minute showers; this is not ideal, but is not sufficiently urgent to cancel the vendor's right to inspect the alleged defects. No latent defect [ 15 ] Mrs. Aguilar's inspector's report was filed at trial (Exhibit P-16). It shows that the electrical system was aged and required replacement. It also shows that he inspected the water main, the hot water tank, as well as the electrical panel and heating system. [ 16 ] He concludes: 1. There was a risk of leaks at the water main; 2.

The hot water tank was nearing the end of its useful lifespan (10 to 15 years). In fact, the hot water tank was 11 years old at the time of the sale; 3. The electrical panel was full and required improvement; 4. The electric heaters in the house were aged and required replacement. [ 17 ] Mrs. Aguilar agrees that electric panel does not constitute a latent defect and that she was fully aware that it required changing. [ 18 ] Mr. Edgar Turcot, the electrician who did the electrical work that is the main basis of Mrs. Aguilra's claim, testified that the house needed maintenance.

The electrical panel, hot water tank and electrical heaters needed replacement. In order to test the heating system, he simply needed to turn it on. He did so and immediately concluded that the heaters were not functional. Also, he concluded, on visual inspection, that the electrical element in the oven was non-functional.

These are also the conclusions of the inspector's report. [ 19 ] The only allegations that are not dealt with in the inspector's report are the dead rodent in the attic, the cut telephone wire in a bedroom and the crack discovered in March 2012. [ 20 ] There is no evidence that the dead mouse was there prior to the sale. Also, although unpleasant, this is certainly not sufficient to seriously reduce the use of the property. [ 21 ] The same can be said of the cut telephone wire. Firstly, it would have been very simple to verify this prior to the purchase. Secondly, the repair is valued at $85.00.

Again, this cannot seriously reduce the use of the property. [ 22 ] As for the crack discovered on the garage wall, the burden of proof in the case of a discovery some 13 months after the sale is a difficult one. There is nothing in the evidence to show that this crack existed prior to the sale in September 2009. Also, there is no evidence as to the cost required to repair this crack. Therefore, the Court cannot evaluate whether or not it seriously diminishes the use of the property. [ 23 ] However, there is more. The evidence clearly showed that the house had been neglected prior to the purchase.

It had been vacant for some time. Mrs. Aguilar had the house inspected by a professional as was prudent in such a situation. On the face of this inspection, her agent attempted to renegotiate the purchase price. The negotiation failed and the sale took place nonetheless. [ 24 ] Mrs. Aguilar has not proven that the house was affected by latent defects at the time of her purchase. [ 25 ] For all these reasons, Mrs. Aguilar's application will be dismissed. There will be no order as to costs, since the Defendants did not appear at trial.

FOR THESE REASONS, THE COURT: DISMISSES Myrna Aguilra's application against Dina Fatigati without costs; DISMISSES Myrna Aguilar's application against Angeladea Fatigati without costs. __________________________________ Scott Hughes, J.C.Q.

Date of hearing: July 30, 2012