2014 QCCQ 3093, 2014 QCCQ 3093

Maitland Smith c. Herbert Smith 2014 QCCQ 3093 COURT OF QUÉBEC Small Claims CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL LOCALITY OF GATINEAU Civil Division No. 550-32-020911-134 DATE: April 11, 2014 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN FAULLEM J.C.Q. ______________________________________________________________________ DOUGLAS MAITLAND SMITH Plaintiff v.

GRAEME HERBERT SMITH Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Douglas Maithland Smith, the plaintiff, claimed from his brother, Graeme Herbert Smith, the defendant, $1714.15 stemming from professional fees paid to an attorney in order to obtain a court declaration clarifying a title of ownership of an immovable. [ 2 ] The plaintiff alleged that the defendant is liable for payment of half of the attorney's fees, since they were co-owners of the immovable from 1970 to 2008. [ 3 ] The defendant contested, alleging that his absence of any interest in the immovable since 2008 means that he is not liable for payment of the fees of the attorney retained by the plaintiff. [ 4 ] At the hearing, the plaintiff admitted that he did not send a formal notice to the defendant, his former business partner, before mandating his attorney to have the titles of ownership of the immovable corrected.

I- QUESTION IN DISPUTE [ 5 ] Does the lack of written notice of the discovery of the defect in the title of ownership constitute a bar to the plaintiff's claim? II- CONTEXT AND ANALYSIS [ 6 ] On August 15, 2008, the defendant sold to 6763243 Canada Inc. the undivided half of the immovable he had co-owned with the plaintiff since 1970. The sale included the legal warranty provided for in

article 1728 of the Civil Code of Québec (CCQ). [ 7 ] On October 23, 2008, the plaintiff exercised his right of redemption with respect to the sale, in accordance with

article 1022 CCQ. [ 8 ] When the plaintiff attempted to sell the whole of the immovable to a third party in 2011, the buyer’s legal advisers discovered a title defect dating back to 1937. [ 9 ] In a private deed signed on October 21, 2011, the plaintiff made a commitment to the buyer to have the titles of ownership corrected, at his expense.

The deed of sale was signed the same day. [ 10 ] On October 26, 2012, Dominique Goulet J.S.C. rendered a judgment clarifying the titles of the immovable. [ 11 ] On January 8, 2013, the plaintiff sent a formal notice to the defendant claiming from him half the amount of the professional fees he paid to his attorney to obtain the judgment clarifying the titles.

[ 12 ]

Article 1738 CCQ provides that a buyer who discovers a risk of infringement of his or her right of ownership shall, within a reasonable time after discovering it, give notice of the risk to the seller, in writing. [ 13 ] Having exercised his right of redemption to acquire the rights of 6763243 Canada Inc., the plaintiff was covered by the clause of legal warranty in the deed of sale of April 15, 2008. [ 14 ] However, the fact that the plaintiff failed to send written a notice regarding the discovery of the defect in the titles to the immovable before incurring the expenses to have the titles clarified, prevents him from claiming any damages whatsoever from the defendant regarding that defect. [1] [ 15 ] THEREFORE, THE COURT: [ 16 ] DISMISSES the claim; [ 17 ] CONDEMNS the plaintiff to pay the defendant the court costs for contesting the claim, set at $93.75. __________________________________ JEAN FAULLEM J.C.Q.

Date of hearing: March 11, 2014