2021 QCCQ 3472, 2021 QCCQ 3472

Prata c. Beaudin 2021 QCCQ 3472 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF LONGUEUIL Civil Division No: 505-32-702080-186 DATE: May 7, 2021 ______________________________________________________________________ BY THE HONOURABLE LUC HERVÉ THIBAUDEAU, J.C.Q. ______________________________________________________________________ ELIZABETH PRATA Plaintiff v.

CLAIRE BEAUDIN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I- OVERVIEW [ 1 ] Elizabeth Prata claims $4,080.35 to Claire Beaudin. She states that the mobile home Mrs. Beaudin sold her on June 28, 2017 is affected with a hidden defect on the roof. She adds that Mrs. Beaudin declared that the roof had been redone in 2012 and that she was induced in error by that statement. [ 2 ] Mrs. Beaudin contests. She claims that she disclosed honestly the condition of the roof to Mrs. Prata. She adds that Mrs.

Prata neglected to follow the recommendations of the inspector who inspected the mobile home before her purchase. II- ISSUES IN DISPUTE [ 3 ] Is the mobile home sold to Mrs. Prata affected with latent defects? [ 4 ] If yes, what is the remedy that must be awarded? [ 5 ] Mrs. Prata’s claim is granted partly, for an amount of $1,900.01. [ 6 ] Here is why. III- CONTEXT [ 7 ] During the month of March 2017, Mrs. Prata becomes interested in a mobile home that Mrs. Beaudin is offering for sale, for an amount for $99,900.00 [1] . [ 8 ] The declaration of the seller states that the roof was redone in 2012 [2] . Mrs.

Prata visits the mobile home several times. At her third visit, he asks Mrs. Beaudin to show her documentation concerning the replacement of the roof. Mrs. Beaudin gives her a copy of an estimate she obtained in 2010 [3] . She tells her that this is the only document she has concerning the replacement of the roof and that she cannot find the other ones. [ 9 ] After having it inspected [4] , Mrs. Prata purchases the mobile home from Mrs. Beaudin on June 28 2017, for an amount of $95,000.00. Delivery is to take place on July 1 st , 2017.

The sale is made with legal warranty. [5] [ 10 ] Until at least the summer of 2018, Mrs. Prata makes improvements to the house. [ 11 ] On June 15, 2018, as Mrs. Prata is having the siding of the outside walls redone, her workers notice a hole in the roof, under the shingles. Also, the shingles are cut flush to the house, allegedly leaving room for water infiltration and causing the wood to rot. They also notice another hole in the roof, just above the dining room window. [ 12 ] On June 28 th , 2018, Mrs. Prata has the roof inspected by Toitures Alain Forget [6] . Mr.

Forget concludes that the replacement of the roof in 2012 is not done according to the rules of the art. Namely, the installation does not provide an appropriate impermeability of the roof. Several accessories are improperly sealed and there is rotten wood under the shingles in several places. [ 13 ] On June 19, 2018, Mrs. Prata sends an e-mail to Mrs. Beaudin [7] . She holds her responsible for the elements she discovered and asks that she assumes the cost of replacing the roof. She gives her one week to respond.

[ 14 ] On July 1 st , 2018, Mrs. Prata sends a formal letter of demand to Mrs. Beaudin [8] . She invites her to communicate with her to arrange a visit of the house to show her the defects she noticed. She adds that when she visited the house, there were no indications that the roof had not been done according to the rules of the art. [ 15 ] Mrs. Prata institutes her claim on July 14, 2018. IV- POSITION OF THE PARTIES A- MRS. PRATA [ 16 ] Mrs. Prata states that the sale is made with legal warranty and that this condition is not respected by Mrs. Beaudin. She adds that Mrs.

Beaudin’s declared that the roof was redone in 2012. She gave her a document that made her believe that the roof had been changed by professionals. B- MRS. BEAUDIN [ 17 ] Mrs. Beaudin states that she never told Mrs. Prata that the roof had been redone by professionals. She affirms that the roof was redone by friends of hers, which Mrs. Prata knew. [ 18 ] She adds that Mrs. Prata was negligent by not pushing the inspection of the house further, especially since the inspector she retained recommended it.

Finally she states that the alleged defects did not cause any water infiltration and therefore it must not be considered as a latent defect. V- ANALYSIS A- RULES OF EVIDENCE [ 19 ] To succeed, Mrs. Prata must prove the facts on which her claim is based, by preponderance of proof, as per articles 2803 and 2804 of the Civil Code of Quebec [9] ( C.C.Q. ). [ 20 ] Without reaching certainty [10] , Mrs. Prata must adduce sufficient evidence to convince the Court of the allegations made during the trial [11] . The proof which renders a fact more probable than inexistent is sufficient [12] .

However, a mere possibility that a fact may have happened, a hypothesis, is not enough [13] . The Court does not weigh on possibilities. Probable facts are those which bear a degree of probability of at least 50 % [14] . To obtain the dismissal of the claim, Mrs. Beaudin must demonstrate, again by preponderant proof, that the right alleged by Mrs. Prata does not exist. However, if Mrs. Prata does not meet her own burden, her claim is dismissed and Mrs. Prata does not have anything to demonstrate. [ 21 ] The Court appreciates the probative value of the testimonies [15] .

If the evidence is not convincing or is contradictory to the point where the Court cannot determine the truth, the issue is decided in view of the burden of proof [16] . The party on which lies the burden and which does not satisfy it sees his or her demand dismissed. B- RULES OF LAW [ 22 ] Mrs. Prata’s claim is based on a breach of the legal warranty of quality which is stated in

article 1726 C.C.Q. This

article reads as follows: 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. [ 23 ] To succeed on a claim based on this warranty, Mrs. Prata must demonstrate that the following four conditions are met:

a) The good must be affected with a latent (hidden) or not 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; and

b) The defect must be sufficiently serious. A defect is serious where it seriously undermines normal usage of the good or which so diminishes its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of it;

c) The defect must be unknown to the buyer. Since good faith is presumed, it is incumbent on the seller to prove the buyer’s knowledge; and

d) The defect must exist at the time of the sale; [ 24 ]

Article 1739 C.C.Q. also provides that the buyer who ascertains that the property is defective shall give notice in writing to the seller within a reasonable time after discovering the alleged latent defect.

[ 25 ] The determination of the hidden character of the defect commands an analysis of all the circumstances of the transaction [17] . Even if

article 1726 C.C.Q. does not require the presence of an expert, the prudent purchaser must identify the clues that, objectively, command a more thorough inspection. Depending on the situation, the purchaser may be obliged to seek specialized help [18] . If some signs suggest a possibility of a major defect, she/he must push the investigation further, alone or with an expert [19] . [ 26 ] If there are reasons to suspect the existence of a defect, the purchaser must react.

The C.C.Q. does not state a formal obligation to do so but if a sign of a possible defect is present, it may be imprudent to remain inactive [20] . Each case has its own particularities [21] . [ 27 ] Retaining the services of a professional inspector prior to the purchase of a house is demonstrative of prudence and diligence. However this is not just a formality.

One must wait for the result of the inspection before purchasing and, as the case may be, follow the recommendations issued by the inspector [22] . [ 28 ] An action based on a latent defect may be dismissed when the purchaser is informed by her/his inspector of signs of probable defects [23] . The criteria set forth by the Supreme Court is whether or not a prudent and diligent purchaser would have detected the defect [24] . [ 29 ] The buyer may also seek information from the seller and rely on his answers.

The seller has the obligation to disclose all relevant information concerning the good that is offered for sale. [ 30 ] This obligation becomes very important when the prospective buyer makes a particular request. If the seller reassures the buyer on a particular preoccupation of the buyer, one can say that the buyer fulfilled her/his obligation to inspect [25] . [ 31 ] The seller is however held to a minimum of transparency.

He must supply to the buyer all relevant information and disclose any and all detail, without having to assess their relevancy or its impact on the buyer’s decision to go forward or not [26] . A fraudulent or reluctant conduct may upheld the hidden character of a defect [27] . [ 32 ] If a defect is noted and that the seller, by his / her representations, places the buyer in a feeling of false security, the conclusion is that the defect is unknown [28] . Representations concerning repairs made to a house can transform an apparent defect into a defect that is hidden on a juridical point of view [29] .

Reassured by the representations of the seller, the buyer may be justified to believe that the repairs have been correctly executed and well-founded not to push the inspection any further [30] . C- APPLICATION [ 33 ] Mrs. Prata’s employees discovered the defect in the roof while working on the balcony. Mrs. Prata then had the roof inspected. The report of Toitures Alain Forget is filed as Exhibit P-3. This report concludes that the roof has to be entirely redone. [ 34 ] The inspector retained by Mrs. Prata at the time of purchase emits a few reserves concerning the general condition of the house.

The inspector also recommends a further inspection of the roof since it is not fully visible in reason of the snow. One may say that Mrs. Prata should have taken these reserves in consideration and push the inspection further. [ 35 ] However Mrs. Prata states that by declaring, at the time of purchase, that the roof has been redone in 2012, Mrs. Beaudin comforts her as to its condition and makes her believe that the roof is in a good condition. [ 36 ] The Court agrees. The declaration of the seller states that the roof of the house is redone in 2012, which is five years before the purchase.

It also states that Mrs. Beaudin has documentation concerning the replacement. Although the first element seems to be accurate, the second is not. The documentation that is given to Mrs. Prata is not related to the replacement of the roof. It is an estimate that dates from two years before the replacement [31] . There is no evidence that the replacement of the roof is made in accordance with this estimate. [ 37 ] On the contrary, the estimate states the installation of a membrane on the whole roof whereas Mr. Forget’s report [32] states that it is installed only at the bottom. Mrs.

Beaudin’s declarations place Mrs. Prata in a feeling of false security. This renders hidden the defect that could have been apparent should Mrs. Prata proceed to a follow-up inspection. [ 38 ] Of course, one can say that Mrs. Prata should have noticed that the date of the document was April 2010. However, considering the particular context in which the document is remitted to her (demonstrating the work on the roof and confirming the accuracy of the seller’s declaration) and the fact that it is prepared by a professional, it is not unreasonable for Mrs.

Prata to feel reassured by the document and to believe that the roof is sound. [ 39 ] It is also reasonable for Mrs. Prata to believe that the work performed on the roof is done according to the rules of art. This is not the case, as per the conclusion reached by Mr. Forget, who states on his report seven types of defects with the installation [33] , namely that the sealing membrane is not installed properly and that is rotten wood in several places under the shingles. Even if these elements do not cause water infiltration, they constitute a defect.

In addition, they are located under the shingle and cannot necessarily be seen during an inspection. [ 40 ] Mr. Forget’s report is not contradicted. [ 41 ] Mrs. Prata’s claim is therefore well founded. The preponderant evidence convinces the Court that Mrs. Beaudin’s declarations justified Mrs. Prata to believe that the roof was in good condition. The evidence also demonstrates that this was not the case. [ 42 ] The remedy sought by Mrs. Prata is a reduction of the sale price [34] . In awarding such a remedy, the Court must consider all evidence submitted.

The reduction does not necessarily equals the amount of the repairs [35] . If the corrective work brings value to the good affected of a defect, their cost has to be reduced accordingly.

[ 43 ] Mrs. Prata claims an amount of $4,080.35, which is the value of the corrective work. However, she fails to demonstrate that the amount of $1,000.00 she claims for her employees is legitimately disbursed. Also, the amount of $360.00 that she claims for missing three days of work cannot be awarded. This kind of inconvenience is inherent to instituting a claim in justice.

Finally, the amount of $187.00 claimed for legal costs cannot be awarded as part of the price reduction. [ 44 ] The action is however granted with legal costs, as this is the general rule stated by law [36] . [ 45 ] This leaves us with an amount of $2,533.35 $. The Court is deducting 25 % of this amount ($633.34) in reason of the added value to Mrs. Beaudin’s property created by the installation of a new roof. This added value is indeed demonstrated, since Mr. Prata sold the house for an amount of $157,000.00 after purchasing it for $95,000.00 and after making several improvements on it, including the roof.

VI- CONCLUSION [ 46 ] Mrs. Prata’s claim is granted in part only, for the amount of $1,900.01 ($2 533.35 – $633.34). This amount bears interests since July 1 st , 2018, date of the letter of demand. [ 47 ] Legal costs are awarded in favour of Mrs. Prata. FOR THESE MOTIVES, THE COURT: [ 48 ] GRANTS in part plaintiff Elizabeth Prata’s claim; [ 49 ] CONDEMNS defendant Claire Beaudin to pay $1,900.01 to Plaintiff Elizabeth Prata, bearing interests and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec since July 1 st , 2018; [ 50 ] CONDEMNS defendant Claire Beaudin to pay to Plaintiff Elizabeth Prata the legal costs in an amount of $187.00, bearing interests and the additional indemnity provided for in

article 1619 of the Civil Code of Quebec since the date of this judgment. __________________________________ LUC HERVÉ THIBAUDEAU, J.C.Q. Date of hearing: March 30 th , 2021