2018 QCCQ 6331, 2018 QCCQ 6331

Tiutiun c. Petel 2018 QCCQ 6331 COURT OF QUEBEC “ Small Claims Division “ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “ Civil Division “ No: 500-32-154349-163 DATE: August 17, 2018 ______________________________________________________________________ BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ SERGHEI TIUTIUN -and- NATALIA CROITOR-TIUTIUN Plaintiffs v.

OREN PETEL -and- MARINA MILAYAVSKAYA-PETEL Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Alleging a violation of the legal warranty against latent defects, the Plaintiffs claim $12,327.12 from the Defendants, representing the estimated costs to replace the roof of the house they purchased from the Defendants in May 2014. [ 2 ] The Defendants plead that the defects: (1) were not hidden; (2) result from ordinary wear and tear, exacerbated by the Plaintiffs allowing ice dams to form on the roof during the winter; (3) do not warrant a complete replacement, as they are located in a corner of the roof and can effectively be repaired locally.

CONTEXT [ 3 ] Mr. Tiutiun points to the MLS listing of the house and the vendors’ declaration, where it is stated that the roof was redone in 2011. [ 4 ] In July 2015, he asked a roofer to examine the roof of his house and was informed that it had been installed above the previously existing structure. The new membrane had also not been properly welded and it was probable that water could leak inside and compromise the wooden structure of the house. [ 5 ] Mr. Tiutiun did observe some water infiltrations from the roof during heavy rain periods in September 2015. He gave Mr. and Mrs.

Petel written notice of this, by email, on September 22, 2015, and gave them the option either to redo the roof themselves or pay him the estimated repair costs of $9,300. The Defendants did not respond to this demand.

He sent them this notice again, only then asking for $9,500, by certified mail, in July 2016. [ 6 ] The Plaintiffs’ claim now breaks down as follows: 6.1. $9,731.30: Repair of the roof, per Home Depot’s estimate; 6.2. $2,052.75: Replacement of plywood, per Abbey Roofing’s estimate; 6.3. $183.96: Cost of skip tracers to locate the Defendants; 6.4. $14.19: Cost of certified mail. [ 7 ] André Desjardins is an engineer. He evaluated the roof of the Plaintiffs’ house, per their request, in May 2016.

His observations read as follows: It is our opinion that the roof is nearing the end of its serviceable life and a roof should be replaced prior to reaching or exceeding it serviceable life to limit the possibility of damage due to water ingress. We found the following deficiencies on the top pan of the main roof; 1. There was a lack of adhesion between the membrane and the roof substrate on all the perimeter edges. 2. There was an excessive amount of moisture under the membrane on the leading edges. 3. The wrong type of drip edge was used.

4. The wrong type of bathroom exhaust was used; a low profile vent was used instead of a roof exhaust trap. 5. Improper bases for the Maximum ventilators were used. 6. The plumbing vent was not capped properly and is probably leaking. It is our opinion that the roof should be repaired immediately. [ 8 ] In order to observe point #1, Mr. Desjardins had to pull the roof membrane. [ 9 ] He had to insert his hand between the membrane and the deck to assert point #2. [ 10 ] As regards point #3, Mr. Desjardins says that this type of drip edge is to be used in tar and gravel roofs. [ 11 ] As regards point #5, Mr.

Desjardins observed that the ventilators were forced and bolted into bases too small to receive them. [ 12 ] The issue in point #6 was visible, but as is the case with his other findings, would not have been recognizable as problematic by a layperson. [ 13 ] He is of the opinion that it would not be advisable to only repair the roof locally. From an economic standpoint, it would represent more than half the cost of a complete replacement, while providing far less than half the same result.

Due to the poor quality of the initial installation, it makes no sense to try to fix it. [ 14 ] Kevin Lantaff is an engineer and a building inspector. He performed the pre-purchase visual inspection of the property in 2014. [ 15 ] The roof could only be inspected from outside, as there was no access to the attic. [ 16 ] He testifies that the lack of adhesion between the membrane and the substrate on the edges of the perimeter of the roof was not observable when he performed the inspection.

It has since become apparent and is the result of an improper membrane installation. [ 17 ] Since he had no access to the attic, the excessive moisture under the membrane was also not noticeable when he did the inspection. This was also the case with the improper bases for the ventilators and the fact that the plumbing vent was not capped properly. [ 18 ] He is adamant that there was no way, without performing an intrusive inspection, to see that the roof was affected by these problems. [ 19 ] Mr.

Petel avers that the problems identified by the roofer in 2015 were not hidden and as such, do not give rise to a claim for latent defects. [ 20 ] He also underscores that this roofer’s diagnosis of the issue is far lesser in scope than that made in 2016 by Mr. Desjardins, which indicates that some issues which appear problematic to Mr. Desjardins really are not, or that the situation deteriorated because Mr. Tiutiun did not act diligently when he was first informed of the problem. [ 21 ] Mr.

Petel refers to industry literature to support his position that the installation of new membranes over existing structures is current practice, and that wrinkles and blisters, which are somewhat normal in roofs of this type, can be fixed. [ 22 ] Finally, he argues that should their claim prevail, a 50% depreciation should be applied to avoid unjust enrichment of the Plaintiffs, since the roof was already 5 years old when they took their action in 2016. ANALYSIS [ 23 ] This is not an action in professional liability against Mr.

Lantaff and the issue at hand is not to determine whether or not he should have seen that the roof was affected by latent defects. It is clear that when they purchased the house, Mr. and Mrs. Tiutiun were unaware of such defects. [ 24 ] Both Mr. Lantaff and Mr. Desjardins testified that it would have been impossible for anyone who was not an expert to notice that there were issues with the roof. This is precisely how the Civil Code defines a latent defect: III. — Warranty of qualit y 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. [ 25 ] Mr. Lantaff and Mr.

Desjardins also testified that the premature deterioration of the roof is the result of a deficient installation. This is a more plausible and convincing explanation than that of inadequate maintenance. Homeowners should not be expected to have to climb on their roof in the winter to break ice dams. In Canada, winters are cold and roofs should be designed to withstand normal weather conditions all year round. [ 26 ] The defect, even if it had not yet materialized, thus already existed at the time of the sale.

[ 27 ] Mr. and Mrs. Tiutiun could legitimately expect that the roof of their house would not leak less than 5 years after it had been redone. [ 28 ] It has also been established on a balance of probabilities that a local repair of only a

section of the roof would not be adequate. [ 29 ] Seeing however that the estimates filed by the Plaintiffs provide 10-year warranties against leakage, and considering that the roof began to leak 4 years after it had been redone, the Defendants should only support the equivalent of the 6 missing years on the 10- year minimal durability that can normally be expected of a roof. [ 30 ] Finally, the Plaintiffs have not demonstrated that the Defendants, who live in Ottawa, were trying to hide and that it was not possible to locate them without resorting to a skip tracer. [ 31 ] The claim will thus be granted for $7,070.43, that is: 0.6 * ($9,731.30 + $2,052.75).

FOR THESE REASONS, THE COURT: GRANTS the action, in part; CONDEMNS Oren Petel and Marina Milyavskaya Petel to pay $7,070.43 to Serghei Tiutiun and Natalia Croitor Tiutiun, with interest at the legal rate and the additional indemnity provided by

article 1619 of the Civil Code of Quebec , to accrue from July 19, 2016, with costs in the amount of $214.19. __________________________________ VINCENZO PIAZZA, J.C.Q. Date of hearing: April 30, 2018