2014 QCCQ 5996, 2014 QCCQ 5996

Byer c. Klainer 2014 QCCQ 5996 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-128086-115 DATE: MAY 1 st , 2014 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ DAVID BYER and JAMIE LANDS […] Dollard des Ormeaux, Québec […] Plaintiffs vs.

ABRAHAM KLAINER and SARA HADAD […] Dollard des Ormeaux, Québec […] Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs claim $7,000.00 for a latent defect discovered in the immoveable bought from Defendants. Defendants deny owing such an amount, alleging that the defect was apparent. QUESTIONS IN DISPUTE - Have Plaintiffs demonstrated the existence of a latent defect according to

Section 1726 C.C.Q. ? - What are the damages suffered by Plaintiffs ? THE CONTEXT [ 2 ] In early 2010, Plaintiffs begin looking for a home. They visit Defendants' home located at […] in Dollard des Ormeaux (the residence) twice before submitting an offer to buy it. [ 3 ] After negotiations, Defendants provided Plaintiffs with a "Declaration by the seller of the immoveable" giving answers to specific questions regarding the residence. There is no reference to water infiltrations in the basement. [ 4 ] The parties finally agreed on a price after which an inspection was made by Mr. Rodrigues on March 9, 2010.

According to him, evidence of prior leakage is noticeable close to the bedroom window on the ground floor. The following note appears in his report: We cannot ensure that your basement will be dry. If a dry basement is a necessity, consult a specialist immediately. [ 5 ] Following said inspection, the deed of sale was signed on June 1 st , 2010. Less than two weeks later, Plaintiffs heard a bubbling noise from the drain in the furnace room in the basement.

A plumber, Abe Cohen, was called right away and unblocked the drain. [ 6 ] On June 17, as Plaintiffs were painting and renovating, they noticed a puddle of water on the basement floor, in the finished part, and one inch of water on the furnace room floor. [ 7 ] They called Defendants right away whom told them to look after the problem and keep them informed. [ 8 ] Plaintiffs then called the same plumber who proceeded with a camera inspection. The report issued by Abe Cohen, dated June 22, 2010 reads as follows: This is to confirm that on June 15, 2010 our serviceman unblocked a drain in your basement.

We were called back a few days later because there was a backup causing flooding in your basement. A subsequent camera inspection of the drain revealed a significant belly in this underground piping. This area has a significant grease build-up. It was cleared and washed allowing the drain to work for the time

being. In order to permanently remedy this problem, we must break the concrete floor, excavate and replace the line (approximately 20 feet). The concrete floor would then be patched. We estimate this work will cost $5,500.00 plus applicable taxes. (Our underline) [ 9 ] Plaintiffs met with Defendant Hadad to explain the findings of Abe Cohen. Mrs.

Hadad was shocked as she had never experienced any similar problem. [ 10 ] On June 23, Plaintiffs sent a letter to Defendants requesting the payment of the expenses incurred (plumbing services, insurance deductible and estimate for excavation and replacement of pipe). [ 11 ] Upon receipt of said letter, Defendants sent their own plumber who also proceeded with a camera inspection. On August 17, 2010, Defendants informed Plaintiffs that the camera inspection performed by their plumber showed a clear drain pipe with uninterrupted flow.

According to Defendants, "belly in a drain pipe of old house is very common" and requires very simple and basic maintenance. [ 12 ] Plaintiffs obtained a second opinion from Budget Drain, who did a camera inspection on September 1 st , 2010 at which point the belly in the pipe was seen again. Jason Solomon from Budget Drain testified that following his camera inspection, he recommended the excavation and the replacement of the pipe in which the belly was found. The work was to excavate the bedroom on the main floor, change the pipe and fill in the excavation.

According to him, the blockage of the drain was caused by the belly in the pipe which led to the accumulation of, amongst other things, grease. [ 13 ] Shortly after, Plaintiffs sent a letter to Defendants giving them the opportunity to conduct whatever expertise they may require no later than on Tuesday October 5, 2010, following which Plaintiffs will proceed with the repairs.

Plaintiffs also informed Defendants that they will next seek payment of all expenses and damages sustained. [ 14 ] No such expertise was conducted by Defendants and Plaintiffs mandated Budget Drain to do the excavation and replacement of the pipe, work done in October 2010, for a total amount of $4,500.15. Said bill was paid in full by Plaintiffs. [ 15 ] Plaintiffs testified that following the excavation and the replacement of the pipe, they never had any water in their basement.

They made a claim to their insurer, Wawanesa, which reimbursed the damages to the residence but not the costs related to the excavation and replacement of the pipe. Plaintiffs bought a dehumidifier ($199) and had a floating floor installed in the room where the excavation took place ($409.36).

Plaintiffs also claim reimbursement of the camera inspections performed by Abe Cohen and Budget Drain ($677.53) plus the reimbursement of the lawyer's fees ($779.01 which includes disbursements of $183.79 for bailiff services). [ 16 ] Defendants suggested in their contestation that the problems encountered by Plaintiffs may have been caused by the fact that the residence was vacant during the Spring of 2010. [ 17 ] In addition Defendants submitted that the inspection report provided to Defendants recommended additional investigation which Plaintiffs neglected to do.

Therefore, Defendants alleged that Plaintiffs were not prudent buyers. [ 18 ] Defendants also submit that a couple of weeks prior to trial, they wanted to have access to the residence and received no reply from Plaintiffs on their demand. THE ANALYSIS - Have Plaintiffs demonstrated the existence of a latent defect according to

Section 1726 C.C.Q. ? [ 19 ] Sections 1726 and 1739 of the Quebec Civil Code read 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 any need of expert assistance. 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. The time begins to run, where the defect appears gradually, on the day that the buyer could have suspected the seriousness and extent of the defect.

The seller may not invoke tardy notice from the buyer if he was aware of the defect or could not have been unaware of it. [ 20 ] Plaintiffs must demonstrate that: - the defect rendered the residence unfit for the use of which it was intended or which so diminishes its usefulness that they would have not bought it or paid so high a price if they had been aware of it; - the defect was unknown to them but present at the time of the sale; - the defect was hidden;

- the discovery of the defect was disclosed in writing to defendants [1] . [ 21 ] In the present case, Plaintiffs explained that a finished basement was an important factor when they decided to buy the residence.

They testified that the presence of water in the finished and unfinished parts of the basement was a serious concern only a couple of weeks after taking possession of the residence. [ 22 ] Considering that the first occurrence of water infiltration in the basement took place so soon after the sale, there is a presumption that the defect was present at the time of the sale [2] . [ 23 ] Defendants neglected to demonstrate the opposite. [ 24 ] Plaintiffs argued that they were not aware of that defect at the time of the sale and that it was hidden.

They explained that they relied on the information provided by Defendants who mentioned no problem with the basement and/or water infiltration in the declaration by the sellers. In addition, Plaintiffs retained the services of an inspector, Mr. Rodrigues, who performed a visual inspection on March 10, 2010 who made no comment on the plumbing system or refer to a potential problem in the basement. [ 25 ] At the time of said inspection, there was no evidence of water infiltration other than in the bedroom on the ground floor.

The suggestion of the inspector to consult a specialist should Plaintiffs consider a dry basement a necessity is not, per se , an indication that Plaintiffs were negligent. In fact, Plaintiffs relied on the information provided by Defendants and on the fact that no specifics were noted by their inspector with respect to the basement floor and the plumbing.

Considering the circumstances of the present matter, the Court finds that Plaintiffs did not have to investigate further. [ 26 ] In addition, it is only with a camera inspection that the belly in the pipe was discovered. [ 27 ] Finally, Plaintiffs have disclosed the problem to Defendants as early as June 23 rd 2010, and also in September 2010, prior to the replacement of the pipe. [ 28 ] Defendants' argument that they were not given access to the residence a couple of weeks prior the hearing must be set aside.

At the time of their request, the repairs were completed since more than three years. [ 29 ] In view of the foregoing, the Court finds that Plaintiffs have demonstrated that the residence they bought from Defendants had a latent defect at the time of the sale and that such defect was disclosed without delay upon its discovery. - What are the damages suffered by Plaintiffs ? [ 30 ] The following items are claimed by Plaintiffs: Budget Drain (repairs): $4515.00 Budget Drain (camera inspection): $231.67 Abe Cohen (service to unblock the drain and camera inspection): $445.86 Floating floor: $170.30 Dehumidifier: $199.00 Lawyers' fees: $799.01 (Including Bailiff services in the amount of $183.79) [ 31 ] The Court must grant Plaintiffs' claim in part only.

The amounts paid to Budget Drain and Abe Cohen for the camera inspections and repairs of the pipe together with the floating floor are damages that were directly caused by the discovery of the latent defect. [ 32 ] The Court must however exclude the dehumidifier as Plaintiffs will certainly use it for other purposes. Also, the lawyers' fees are not damages which are usually allowed unless certain circumstances are present, which is not the case in the present matter [3] . Finally, Defendants do not have to bear the disbursements related to the services of the bailiff.

FOR THESE REASONS, THE COURT: GRANTS in part Plaintiffs' claim; CONDEMNS Abraham Klainer and Sara Hadad solidarily to pay David Byer and Jamie Lands an amount of $5,362.83 with interest at the legal rate together with the indemnity as per

Section 1619 C.C.Q. since June 23 rd , 2010; THE WHOLE , with costs ($159.00).

__________________________________ JULIE VEILLEUX, J.C.Q. Date of hearing: April 9, 2014