Dayan c. Amos 2015 QCCQ 11327 COURT OF QUEBEC (Small Claims Division) CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-140420-136 DATE: October 15, 2015 ______________________________________________________________________ BY THE HONOURABLE DOMINIQUE GIBBENS, J.C.Q. ______________________________________________________________________ RosalinE DAYAN Plaintiff v.

Simon Amos -and- aYALA CHRIQUI Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims $7,000 from Defendants because the property she purchased from them (the “ Property ”) was affected by what she considers to be a latent defect. The amount claimed corresponds to the cost of the work that she carried out to correct the defect. [ 2 ] Defendants deny any liability towards Plaintiff.

They claim that the defect was disclosed during the pre-purchase inspection of the Property and is therefore not a latent defect for which they are responsible. They also argue that Plaintiff’s claim must fail because she did not provide them with proper notice before completing the corrective work. questions in issue [ 3 ] The case raises the following questions:

a) Is the defect at issue a latent defect giving rise to Defendants’ liability?

b) Did Plaintiff provide Defendants with sufficient notice prior to proceeding with the corrective work and, if not, is this fatal to her claim?

FACTUAL CONTEXT [ 4 ] Plaintiff purchased the Property from Defendants on February 27, 2013 for $825,000. [1] [ 5 ] The sale followed Plaintiff’s Promise to Purchase of January 30, 2013, which was accepted by Defendants, with counter- proposals, on February 3, 2013. [2] [ 6 ] The Promise to Purchase was conditional upon Plaintiff having the Property inspected by a building inspector [3] and Plaintiff retained AmeriSpec Home Inspection Service (“ AmeriSpec ”) for this purpose. [ 7 ] During the inspection, AmeriSpec noted damaged tiles at the bottom of one wall of the master bathroom shower stall and, in its written report of February 6, 2013, recommended that Plaintiff verify the condition of the wall components behind the damaged tiles and replace any affected materials. [4] [ 8 ] Without conducting any further investigations, Plaintiff declared herself satisfied with the inspection [5] and went ahead with the purchase. [ 9 ] After taking possession of the Property in early March 2013, Plaintiff commenced repairs to the master bedroom shower stall.

After removing the damaged tiles, she found that a portion of the exterior wall behind the tiles was damp and showed signs of humidity and condensation. [ 10 ] AmeriSpec was brought in again and concluded that the shower may not have been built in accordance with the building code in that no vapour barrier was installed against the exterior wall, resulting in an accumulation of condensation and humidity. [6] [ 11 ] On April 19, 2013, Plaintiff, through her attorney, advised Defendants of the defect and called upon them to inspect the Property and take the required steps to repair or replace the affected shower wall within 14 days. [7]

[ 12 ] On May 1, 2013, Defendants responded to the letter of demand through their attorney. They denied responsibility because Plaintiff was aware of the defect when she purchased the Property, but advised that they would be hiring an expert to inspect the Property. They requested that Plaintiff provide them with additional information and stated that no repair work should be undertaken without giving them prior notice.

Finally, they asked that Plaintiff’s attorney withdraw from the matter because of a conflict of interest. [8] [ 13 ] A follow up letter was sent by Defendants’ attorney on May 20, 2013, [9] and on May 22, 2013, Plaintiff’s attorney advised that he was withdrawing and that Plaintiff would be acting on her own behalf going forward. [10] [ 14 ] Unbeknownst to Defendants’ attorney, Plaintiff had already sent a letter on May 8, 2013 asking Defendants to inspect the Property no later than May 25, 2013. [11] [ 15 ] This letter was sent by registered mail, but was left unclaimed and returned to Plaintiff on May 28, 2013. [12] Plaintiff immediately wrote to Defendants again, advising them that she would be proceeding to the corrective work on June 10, 2013 and that if they wished to inspect the Property they had to do so prior to that date. [13] [ 16 ] This letter was again sent by registered mail and returned unclaimed to Plaintiff. [14] At trial, Defendants explained that during this period, they frequently received registered mail for the previous resident of their new home and did not see the notices addressed to them. [ 17 ] Without otherwise attempting to contact Defendants, Plaintiff proceeded to the repair work in October 2013 at a total cost of $7,050.55. [15] She filed her claim on October 24, 2013.

ANALYSIS

a) Is the defect at issue a latent defect giving rise to Defendants’ liability? [ 18 ] Plaintiff’s claim is based on the legal warranty of quality to which sellers are bound by law. [16] [ 19 ] Under this warranty, the seller must guarantee to the buyer that the property sold is free of latent defects that render it unfit for its intended purpose or significantly diminishes its usefulness. The warranty does not extend, however, to defects known to the buyer or to apparent defects.

A defect that can be perceived by a prudent and diligent buyer without the assistance of an expert is an apparent defect. [17] [ 20 ] A buyer is expected to proceed to a careful inspection prior to purchasing a property and, if there are signs suggesting a possible defect, the buyer must proceed to further verifications. [18] If a buyer retains a building inspector to proceed to an inspection, he or she is expected to take due note of the inspector’s report and follow recommendations. [19] [ 21 ] In the instant case, the evidence shows that Plaintiff was made aware of a problem with the shower wall during the pre- purchase inspection of the Property.

The visibly damaged tiles were brought to her attention by AmeriSpec, who specifically recommended that she verify the components behind the damaged tiles and replace any damaged materials. [20] [ 22 ] The Court is of the view that AmeriSpec’s comments were a clear indication of a potential defect affecting the wall components behind the tiles and that any prudent and diligent buyer would have perceived them as such. [ 23 ] Plaintiff’s decision to go ahead with the purchase of the Property without proceeding to any further investigations and without reserving her rights in relation to the shower wall precludes her from claiming that it was affected by a latent defect. [ 24 ] The defect at issue is therefore not a defect covered by the legal warranty of quality for which Defendants are liable.

b) Did Plaintiff provide Defendants with sufficient notice prior to proceeding with the corrective work and, if not, is this fatal to her claim? [ 25 ] The Court also believes that Plaintiff did not provide proper notice to Defendants prior to proceeding with the corrective work and this is also fatal to her claim. [ 26 ] The law requires that a purchaser who discovers a latent defect give formal notice of the defect to the seller, in writing and within a reasonable delay after its discovery. [21] [ 27 ] The absence of such a notice, whose purpose is to allow the seller to verify the existence and nature of the alleged defect and proceed to corrective work if needed, is normally fatal to a claim to recover the cost of such work, except where it can be shown that the seller was not prejudiced. [22] [ 28 ] The buyer must also ensure that his seller is in default [23] prior to proceeding to any corrective work. [24] [ 29 ] Plaintiff’s letter of demand of April 16, 2013 [25] meets the above requirements and would have been sufficient if the letter had been left unanswered. [ 30 ] In response to the letter of demand, however, Defendants clearly expressed their intention to inspect the Property, requested information from Plaintiff and asked that no repair work be undertaken without advising them.

Plaintiff could not ignore their response and proceed to the corrective work without providing them with further notice. [ 31 ] Although Plaintiff tried to do so through her letters of May 8 and May 28, 2013, [26] she knew that Defendants had not received these letters because they were returned to her unclaimed. She could have served a letter to Defendants or otherwise contacted them, but she chose not to.

[ 32 ] In going ahead with the repair work without providing proper notice, Plaintiff effectively precluded Defendants from verifying the existence and nature of the alleged defect and potentially see to their repair. This is fatal to her claim. FOR THE REASONS, THE COURT: DISMISSES the action. WITH COSTS of $156 representing the judicial stamp on the Contestation. __________________________________ DOMINIQUE GIBBENS, J.C.Q. Date of hearing: July 10, 2015