2015 QCCQ 2702, 2015 QCCQ 2702

Hunyak c. Ilkiw 2015 QCCQ 2702 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-22-208022-130 DATE: March 13, 2015 ______________________________________________________________________ BY THE HONOURABLE MARIE MICHELLE LAVIGNE, J.C.Q. ______________________________________________________________________ IHOR HUNYAK and HALYNA RADETSKA Plaintiffs v.

STEVE ILKIW and SYLVIA ILKIW Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Ihor Hunyak and Halyna Radeska bought the house of the late father of the Defendants Steve and Sylvia Ilkiw.

This house is a triplex with one apartment on the first floor and basement and two apartments on the second level. [ 2 ] Plaintiffs claim the cost of the replacement of the roof [1] in the amount of $14,716.80 and $7,128.48 [2] which represents the cost of additional repairs to be made to the basement of the triplex. Plaintiffs claim these costs were incurred because of the presence of latent defects relating to the roof and the basement. [ 3 ] Moreover, Plaintiffs claim that the Defendants knew about the leaks from the roof but did not advise the Plaintiffs.

These non disclosed facts would be equivalent to false representations and entitled them to seek damages. The facts [ 4 ] In April 2013, Ihor Hunyak learned that Defendants’ father had passed away. He contacted the Defendant Steve Ilkiw to enquire if his late father’s triplex would be put for sale. [ 5 ] The Plaintiffs were very interested in the property since they were looking for a bigger house in the sector. [ 6 ] On this first visit, Ihor Hunyak went to the house alone with Steve Ilkiw. He did not enter in the two apartments on the second storey.

Ihor Hunyak inquired about the roof and was told by Steve Ilkiw that the roof was at least 20 years old but that it was not leaking. [ 7 ] The sale price was agreed upon on that date but Mr. Hunyak wanted to come back with his wife before confirming it. [ 8 ] He made a second visit with his wife. On this occasion, Ihor Hunyak visited the first floor and the basement and the two apartments on the second floor. Although, he met the tenants, he did not ask about leaks or problems to the apartments.

He did not notice any leakage in the apartments. [ 9 ] Following this second visit, Ihor Hunyak asked Me Petro Choma, Notary, to prepare a Promise to Purchase. This document did not contain the usual inspection clause. It rather stated: “Inspection

The Purchaser declared that he does not wish to have the building inspected, having seen same and being satisfied therewith.” [ 10 ] The Sale Contract was signed on July 30, 2013. [ 11 ] A few days after, Ihor Hunyak was informed by a tenant that there was a leak in his apartment. The roof was changed in October 2013 at the of $14,716.80 [3] . [ 12 ] In August 2013, Ihor Hunyak dismantled the basement and found some cracks in the foundation behind the wall covering. He obtained an estimate for the repair.

According to the estimate of August 27, 2013, this work would cost $7,128.45 [4] . [ 13 ] A letter of demand was sent on October 17, 2013 [5] . In this letter, Plaintiff’s attorney informed Defendants that the repairs to the roof have already been made: “After our clients took possession of the property they were informed that there had been problems with the roof and in fact as an emergency measure, our clients were obliged to effect repairs to the roof, for which they paid the sum of $14,716.80.” [ 14 ] The present proceedings were filed on December 4, 2013.

Questions to be answered: • Does the condition of the roof represent a latent defect? • Does the condition of the basement represent a latent defect? • Did Plaintiffs prove the Defendants’ false representations concerning the roof? The law [ 15 ] The articles 1726 and 1728 of the Civil Code of Quebec apply to this case: 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 the need to resort to an expert. 1728.

If the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. [ 16 ] In order to have a claim under 1726 C.c.Q. a plaintiff must prove: 16.1. That the defect existed at the time of the sale; 16.2. That the defect was hidden or could not be perceived by a prudent and diligent inspection of the buyer; 16.3. That the existence of this defect was unknown to the seller; 16.4. That the defect is of importance such that the buyer would not have bought the property knowing the defect existed. 16.5.

Upon finding a defect, if the seller was not aware of the existence of such defect, a notice should be sent in writing to the seller (

article 1739 C.c.Q. ) Does the condition of the roof represent a latent defect? [ 17 ] In the present case, the Court concludes that the problem with the roof is not a latent defect since Plaintiffs could have notice it had they made a prudent and diligent inspection. [ 18 ] The reasons that lead the Court to this conclusion are the following: • Ihor Hunyak was told by Steve Ilkiw that the roof was 20 years old. • Richard Santo, building inspector, and Vince Fitchev, contractor, both testified that the life span of a roof is between 20 and 25 years.

Therefore, Ihor Hunyak should have known that the roof was at the end of its life. • Ihor Hunyak knew that he was buying a house where Steve Ilkiw did not live. • Ihor Hunyak did not inspect the roof prior to buying the house nor did he mandate an inspector to do an inspection. • Ihor Hunyak made only one visit to the two apartments on the second storey. On this occasion, he did not see any trace of infiltrations. If such problems existed at the time of the sale, it should have left traces.

No questions were asked to the tenant concerning the state of the apartment and the roof. [ 19 ] Furthermore, Plaintiff Ihor Hunyak did not give notice of the existence of a defect as provided for by

section 1739 of the Civil

Code of Quebec : 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 . Where the defect appears gradually, the time begins to run on the day that the buyer could have suspected 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. [ 20 ] As proven by the letter of Plaintiff’s attorneys of October 17, 2013, the defect was not declared in writing to Defendants before the roof was replaced. Defendants did not have the opportunity to inspect the problem and evaluate the cost of the repairs before they were made.

There is no proof that the problem with the roof was such that it had to be urgently replaced and a notice could not be given. [ 21 ] Finally, the proof does not support the fact that the defect to the roof was of such an importance that the buyer would not have bought the property knowing the defect existed. [ 22 ] Plaintiff knew or should have known that the roof was at the end of its life span and that it would need to be replaced soon. Plaintiff Ihor Hunyak evaluated that the roof would need to be changed within 2 or 3 years.

The fact that the replacement was needed prior to Plaintiff Ihor Hunyak’s estimate time does not make it such that, had they known, Plaintiffs would not have bought the building. Does the condition of the basement represent a latent defect? [ 23 ] The proof does not support the fact that the condition of the foundations of the house constitutes a latent defect. Plaintiff Ihor Hunyak had noticed humidity in the basement.

This condition is compatible with the presence of leaks and cracks in the foundation. [ 24 ] The proof reveals that Plaintiff Ihor Hunyak placed some fans in the basement prior to the visit of the bank’s inspectors in order to diffuse the humidity. This behaviour proves that Plaintiffs bought the property knowing the possible humidity problems in the basement.

He should have pursued its inquiry into the cause of the humidity. [ 25 ] Moreover, Plaintiffs cannot claim that the presence of cracks in the foundations is a defect of such importance that they would not have bought the property or not paid the price had they known of the situation. Plaintiffs intended to dismantle the basement to rebuild it. The cost claimed [6] relate mostly to work that Plaintiffs would have done in any circumstances.

Did Plaintiffs proved the Defendants’ false representations concerning the roof? [ 26 ] Although the Court does not think the condition of the roof is a latent defect, the Plaintiffs allege that they were falsely convinced by Steve Ilkiw that there was no problem with the roof. [ 27 ] The proof does not enable the Court to conclude that the leakage of the roof existed prior to the sale, and that Steve Ilkiw was aware of that situation. [ 28 ] Steve Ilkiw did not reside in the building.

The only persons that could validly testify that the leakage existed prior to July 30, 2013 are the tenants residing of the two apartments on the second storey. However none of them were called as witnesses. Ihor Hunyak mentioned that his tenants informed him that it had been leaking for a while. This constitutes hearsay evidence when the tenant is not present to testify. [ 29 ] A stronger proof was needed for the Court to conclude on the existence of false representations.

FOR THESE REASONS, THE COURT: DISMISSESS Plaintiffs Ihor Hunyak and Halyna Radeska’s claim; THE WHOLE WITH costs. __________________________________ MARIE MICHELLE LAVIGNE, J.C.Q Me Edward J. Druker Druker Narvey Green Schwartz Attorney for Plaintiff Me Christopher Dimakos Dimakos Law Group Attorney for Defendant Date of hearing: February 26, 2015