2013 QCCQ 1101, 2013 QCCQ 1101

Hui c. Huang 2013 QCCQ 1101 COURT OF QUEBEC Division of small claims CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL No: 500-32-123372-106 DATE: February 13, 2013 ______________________________________________________________________ BY THE HONOURABLE DAVID L. CAMERON ______________________________________________________________________ FUNG PING WONG SHU MING HUI […] , Dollard-des- Ormeaux, Qc, […] v.

YING HUANG PINYUE CAO […] , Kirkland, Qc, […] ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Fung Ping Wong and Shu Ming Hui, purchasers of a house on […] in Pointe Claire, sue the vendors Huang Ying and Pinyue Cao for latent defects. [ 2 ] They allege defects requiring corrective works of more than $ 9,000, reducing their claim to the maximum permitted in the Small-claims Division, $ 7,000. [ 3 ] The Defendants contest, alleging that no defects existed at the time of the sale and that the Plaintiffs did not notify them quickly enough of the alleged problem.

They assert that the works carried out by the Plaintiff are upgrades for which they are not responsible and, subsidiary, they allege that the claim is greatly exaggerated. [ 4 ] There are two problems complained of. The first consists of water infiltration in the basement in a corner where the Plaintiffs allege that furniture hid any signs of water damage at the time of the inspection. The second relates to mould in the upstairs bathroom wall requiring extensive repairs to the wall and its ceramic-tile finish.

Issues [ 5 ] The Court must determine, for each of the two problems alleged, whether these were defects existing at the time of sale that were not noticeable upon a reasonable inspection by a non-professional purchaser without the assistance of an expert, whether the seller knew of the defect and failed to reveal it, whether the purchaser notified the seller of the defect within a reasonable time after its discovery and, finally, the value of the defects for the purpose of a reduction of the price.

Facts [ 6 ] A deed of sale was entered into on July 29, 2009 pursuant to a bilateral promise of purchase of June 11, 2009. [ 7 ] The vendor remained in occupation until November 30, 2009 and the purchaser moved in early December 2010. [ 8 ] The purchasers visited the home prior to the offer and had it inspected by Wanxing Qi, a certified home inspector, member of "NACHI". Mr. Qi's report (P-2) states that the foundations were not visible but that they appear serviceable and there was no moisture present (page 7). [ 9 ] In the

section devoted to the bathroom, there is nothing noteworthy. [ 10 ] Mrs. Wang testified that, during the visit prior to the sale, it was not possible to see the corner where she eventually discovered water infiltration because of furniture placed in front of it. [ 11 ] She testified that, during the visit, she noticed repairs in the bathroom wall. There were a lot of repairs in the cement around the ceramic tiles. She testified that she asked the seller whether this was because of a mould problem and the seller answered no and, in the

presence of the agent, promised to fix any mould problem or reimburse the purchaser. [ 12 ] The Defendants deny that they knew anything about a mould problem in the bathroom and they also deny that the matter was discussed during the pre-sale visits. [ 13 ] Mrs. Wang, upon taking possession of the property in December 2009, decided that it was important to fix the bathroom. She had just given birth and wanted to deal with the problem quickly for the sake of her child's health.

She obtained an estimate from Bain Magique (P-4) for some extensive repairs to the bathroom including plumbing and accessories. [ 14 ] In her testimony, she stated that she spent $ 6,112.17 mentioned on the Bain Magique estimate. The document is dated January 29, 2010. [ 15 ] At that point, she did not have any communication, neither with the real estate agent, nor with the Defendant. [ 16 ] Later, in March 2010 during a thaw, she discovered water infiltration in the basement in a corner. Photographs (P-3) show discoloured gyproc and wall studs suggesting that this was a problem that had existed for some time.

The Plaintiffs obtained an estimate for injection of the cracks with polyurethane for $ 600 and for repairs to the inside wall replacing the gyproc and insulation for $ 1,370. [ 17 ] As proof of payment, the Plaintiffs provided two Réno-Dépôt cash register receipts for laminated floor materials totalling $ 337.60.

These do not relate to the repairs alleged. [ 18 ] There is a bill marked "paid" relating to an expenditure of the $ 620.81 to repair a crack in the foundation. [ 19 ] She did not provide any other relevant bills but the Plaintiff assured the Court that she spent $ 1,600 to repair the problem in the basement wall. [ 20 ] Upon the discovery of the water infiltration problem in March, she spoke to the agent who contacted the Defendants.

The Defendants admitted that they were contacted by the agent about the problem and that the agent had mentioned a claim for $ 1,000. [ 21 ] The Plaintiff Wong denies that she asked for $ 1,000 but she admitted she would have wanted to settle the case. [ 22 ] Upon learning of the problem, the Defendants took the position that it was not their problem. They did not ask to see the basement and passed on their denial through the agent. [ 23 ] The Plaintiffs sent a formal letter of demand (P-5) on May 19, 2010. [ 24 ] The letter mixed up the two problems.

The opening passage reads: In regarding to the mildew on the bathroom wall, leaking towards basement through the outside wall crack which turns to a flooding in the basement as well as the mildew. This was a problem we had questioned but it was never mentioned or documented upon the House Sale confirmation […] [sic]. [ 25 ] In the letter, the Plaintiffs claim a total cost of $ 9,000. [ 26 ] Pictures of the basement (P-3

D) show a crack in the foundation wall in the corner with epoxy filling it from top to bottom. [ 27 ] There is no evidence that this crack is in any way related to any problem of water infiltration in the bathroom. [ 28 ] The Defendants replied to the letter of demand (P-6) on May 21 st . [ 29 ] Essentially, they take the position that the condition of the bathroom was accepted but they deny that any water-infiltration problem in the basement occurred when they were owners. [ 30 ] The picture of the finishing materials in the basement show that there was previous repair to the gyproc wall.

Near the place where the wall materials were later removed, the wall is significantly blackened. Analysis The bathroom: [ 31 ] The Plaintiff has not provided credible evidence that the problem in the bathroom was discussed at the time of sale.

If a special promise had been made about it, it would have been included in the deed of sale not or, at least, in the offer. [ 32 ] The agent did not testify, and the Court would have been very surprised if an agent who witnessed a special guaranty being given by the vendor would not insist on it being included in the bilateral promise to purchase. [ 33 ] The Plaintiff's case is also flawed because there was no notification given to the Defendant before the work was carried out. [ 34 ] There was no testimony on the part of any workman establishing the existence of the defect.

The works carried out included extensive changes to the plumbing and fixtures and appear to be improvements rather than repairs of a latent defect. The basement: [ 35 ] With respect with the water infiltration problem however, this does appear to be defect that existed prior to the sale. The pictures reveal a problem that had existed for some time and attempts to repair it. The Defendants may have been unaware of it but they

are responsible as sellers even if they did not have any knowledge of it. [ 36 ] The Court accepts the Plaintiff's testimony that the problem was not visible at the time of sale and it was only discovered in March.

The Defendants were then given the opportunity to inspect but, on receipt of the call from the real estate agent and the written letter of demand, they simply denied liability and did not take the opportunity to inspect the problem for themselves. [ 37 ] The Plaintiffs allege having spent $ 1,600. but produced no invoice or proof of payment except the bill for the repair of the foundation crack. [ 38 ] On the other hand, two estimates totalling $ 1,950 appear to be modest for the finishing work contemplated and can constitute a reasonable assessment of the diminution of price associated with the foundation crack and the repairs required to the interior.

The Court will award the Plaintiffs the amount Mrs Wong testified having spent, $ 1,600, because it is within a reasonable estimate of repairs. [ 39 ] Because the Plaintiffs were successful on one part of the claim but not on the other, there will be no award as to costs. FOR THESE REASONS, THE COURT: CONDEMNS the Defendants to pay to the Plaintiffs the amount of $1,600, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec , calculated from the date of the institution of the proceeding. WITHOUT costs. __________________________________ David L. Cameron, J.C.Q. Date of hearing: December 10 th , 2012