2012 QCCQ 2, 2012 QCCQ 2

MacMillan c. Tedeschi 2012 QCCQ 2 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Civil Division No: 500-32-117088-098 DATE: January 4, 2012 ______________________________________________________________________ BY THE HONOURABLE SUZANNE HANDMAN, J.C.Q. ______________________________________________________________________ JOAN A MACMILLAN JEAN-MARC CHALIFOUR [...], Kirkland (Qc.) [...]

Partie demanderesse v. PATRICIA TEDESCHI FERNAND TEDESCHI [...], St-Lazare (Qc.) [...]

Partie défenderesse ______________________________________________________________________ RECTIFIED JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs Joan A. MacMillan and Jean-Marc Chalifour are suing Defendant Patricia Tedeschi for $7,000, alleging the house they bought from Defendant was affected by hidden defects. Defendant denies the claim and presented a cross demand for $5,000, invoking harassment on the part of Plaintiffs. The evidence: [ 2 ] Plaintiffs bought their home from Defendant and her husband, the latter who is now deceased.

Prior to their purchase, the property was inspected by a building inspector. Plaintiffs took possession of their house on September 1, 2008. [ 3 ] Plaintiffs, after moving in, found a number of problems, including the stove that was beyond repair, the existence of mice and carpenter ants in several rooms, plumbing that was inadequate and not in conformity with the plumbing Code and the furnace that was no longer functioning. Plaintiffs seek compensation for these defects and damages for their stress, trouble and inconvenience. The Applicable Principles: [ 4 ]

Article 1726 of the Civil Code of Quebec specifies that a vendor must warranty to the buyer that the property and its accessories, at the time of sale, are free of latent defects which render it unfit for the use for which it was intended or which diminish its usefulness to such an extent that the buyer would not have bought it or paid so high a price if he had been aware of them. [ 5 ] The guaranty does not extend to a defect that is known to the buyer nor to an apparent defect.

[ 6 ] A defect is apparent when it clearly can be seen by a buyer such that the buyer should necessarily note that it renders it unfit for the use for which it was intended. The purchaser must carry out a serious inspection since the possibility of discovering a defect is sufficient for it to lose its hidden character [1] . The presence of signs or indices constitute an element to consider in determining whether a buyer has acted in a diligent and prudent manner, as required by law [2] . [ 7 ] The vendor, for his part, must act in good faith. He is required to provide full disclosure [3] and cannot mislead the buyer [4] . [ 8 ] In accordance with

section 1739 of the Civil Code of Quebec , a buyer who ascertains that the property is defective must advise the vendor, of the defect, within a reasonable time after discovering it. The purpose of such a requirement is to allow the vendor to examine the property, determine whether the alleged defect existed at the time of the sale and rectify the problem. [ 9 ] Failure to notify the vendor deprives him of the possibility of verifying the problem and carrying out the necessary repairs.

Ultimately, our case law has established that the lack of notice to the vendor is fatal and results in the dismissal of any claim, made by the buyer, for work carried out by a third party. [ 10 ] The foregoing principles are applicable in the present case. Analysis of the Principal Action: [ 11 ] Plaintiffs are seeking compensation for alleged hidden defects they found in the house they purchased from Defendant. Defendant denied having suffered any of the problems raised.

Specifically, Plaintiffs are claiming the following amounts: 1. the cost of a technician: $94 and the cost of a new stove: $1234. 2. the cost of the exterminator: $304.76 3. the cost of sealing different entrances to mice and carpenter ants: $400. 4. the cost of exterminating carpenter ants: $445.86. 5. the cost of installation a P-trap for the bath tub: $720 6. the cost of connecting the sink not done in conformity with the Code: $1130 7. the cost to correct the slope of the vent to the roof: $950 8. the initial cost of the plumber for all the defaults: $237.03 9. the cost to open a ceiling to access the bath tub and the repairs: $998.66 10. the cost of replacing the 30-year-old electrical furnace: $3500. 11. $500 for the stress trouble and inconvenience. [ 12 ] The issue, in this case, is whether the defects were ''hidden'' such that Defendant, as the vendor, is liable for the damages suffered or whether the problems were apparent, such that Defendant does not incur any liability.

The defective stove: [ 13 ] Plaintiffs complain that although the house came with appliances, they found during their last visit that the stove would not open. Defendant agreed to fix the stove, but since it was 14 years old, it was too old to be repaired. Plaintiffs purchased a new stove and are claiming $1,136.58, plus the $94 service call. [ 14 ] Defendant accepted to pay half the cost and she sent a money order for $633 by registered mail to Plaintiffs. Plaintiffs lost the money order. Defendant was told by the bank that it would be difficult to trace if it is found and was cashed.

She therefore refused to replace the lost money order. [ 15 ] Plaintiffs are seeking reimbursement for the cost of their oven, which could not be repaired since the part needed was no longer available. [ 16 ] The stove, which was 14 years old, was at the end of its lifespan and replacing it with a new appliance brings about added value to the property. Plaintiffs are not entitled to compensation in such circumstances. Infestation of Insects and Carpenter ants : [ 17 ] On or around September 4, 2008, when cleaning the cupboards, Plaintiffs discovered vermin poison.

Plaintiffs subsequently found a mouse in the kitchen. Defendant told them she had no problems with insects or vermin. In Court, she testified that she had never seen mice in the 29 years she had lived in the house. However, since neighbours had field mice, she had called in an exterminator as a precaution.

[ 18 ] Plaintiffs hired an exterminator, who found a lot of excrement in the attic as well as three mice in the kitchen. They paid $304.76 for the treatment. Different entrances were sealed in November 2008. Since the problem was not resolved, Plaintiffs paid $395.06 to rid the house of pests in August 2009. [ 19 ] Given the amount of excrements found at different places throughout the house, the exterminator concluded mice had infested the property for years.

Plaintiffs are claiming the cost of the exterminator's services. [ 20 ] In mid February 2009, Plaintiffs found their master bedroom's on suite bathroom and one of the bedrooms was infested with carpenters' ants. The exterminator found the ants had installed a satellite nest inside the house. The cost of treatment is listed as $395 plus tax.

The date of the visit and the treatment was not indicated. [ 21 ] Defendant denied having any carpenter ants in the house, which had been renovated from 1994 until 2006. [ 22 ] The evidence establishes that the problem of both the mice and carpenter ants constitute a latent defect. The rodent droppings and the existence of a nest in the wall indicate that the rodents had been present in previous years. [ 23 ] While Defendant declared she was not aware of theses problems, this does not mean that the infestation is not a hidden defect. Defendant claims she does not deserve Plaintiffs' accusations.

However, the existence of hidden defects in a property does not indicate bad faith or wrongdoing on the part of a vendor but simply describes a problem, which is not known to the vendor but for which the vendor is nevertheless responsible. [ 24 ] In the present case, the problem having existed at the time of sale, renders Defendant, as the vendor, responsible for the damages incurred. [ 25 ] Plaintiffs produced one bill for $304.76 and another for $395.06 plus an estimate for $445.86.

However, vendors are liable only for costs once they have been advised of the problem by the purchasers and provided with the opportunity of rectifying it. [ 26 ] Plaintiffs incurred the cost of $445.86 without notifying Defendant of the problem and therefore this amount is not granted. The amount of $699.82 is awarded for the remainder of the costs. Plumbing Problems: [ 27 ] A further problem related to a foul smell in the en suite bathroom, adjacent to the master bedroom.

A plumber who was called to investigate the problem found the bathtub did not have a P-trap to block the smell from the sewage system in the upstairs bathroom. He also found that the drainage for the sink was not installed according to the building code and it needed to be re-done. In addition, he found counter slopes for the vents in the attic, which had to be repaired. [ 28 ] The plumbing company charged $237.03 for its visit on February 23, 2009. The estimate to install a P trap ($720), redo the connection for the sink ($1150) and repair the vent ($950) comes to a total of $2,820.

Plaintiffs obtained a submission of $998, dated March 16, 2009, to repair the ceiling in the entrance hall, under the master bathroom, which had bubbled, following leakage from a bathtub drain. [ 29 ] Defendant denied having any plumbing problems; they renovated the house ten years before and there were no bubbles in the ceiling under the master bathroom. [ 30 ] The plumbing defects relating to the lack of a P trap for the bathtub and the faulty connection for the sink constitute latent defects, which existed at the time of sale. [ 31 ] While Plaintiffs are entitled to the repair of these items, the costs presented are an estimate and the prices are listed as approximate.

In the absence of an explanation from the plumber regarding the material, labour and amounts foreseen, the Court grants Plaintiffs $1,200 plus $237.03 for the plumber's visit.

Plaintiffs, however, are not entitled to the cost of repairing the vent in the attic since the inspector recommended changing the ventilation conduit in the attic. [ 32 ] Plaintiffs are also entitled to the cost to repair the ceiling in the entrance hall ($998.66) since the defect was not visible at the time of sale [ 33 ] The foregoing costs were incurred after Defendant, on January 22, 2009, instructed her agent to advise Plaintiffs to stop emailing Defendant and cease trying to find her telephone number and address.

Given Defendant refused all contact with Plaintiffs, the Court considers that a demand letter after this date is no longer required. The defective furnace : [ 34 ] In November 2008, Plaintiffs noted the electrical furnace was making a pounding noise and malfunctioned. They allege the inspector informed them the furnace was the original one. A maintenance company told Plaintiffs the furnace was old and needed to be changed.

They paid $134.18 to fix it and later purchased a new one for $3,300. [ 35 ] Plaintiffs, during the hearing, renounced to their claim for cost of a new furnace since their action exceeded $10,000. However, even had they not done so, this aspect of their claim would not be granted. [ 36 ] Plaintiffs were told that the furnace was the original heating system installed in the house. They replaced their furnace with a new one. Compensation is not intended to be a source of enrichment for the buyers and the purchase of a new appliance brings about an added value to the property.

Given that the house was built in 1979 and the furnace was close to 30 years old at the time of the sale, it was at the end of its useful lifespan; there was little foreseeable life for this appliance.

[ 37 ] Therefore, despite the high cost involved to replace the furnace, the purchaser is not entitled to reimbursement. [ 38 ] In sum, Plaintiffs are entitled to compensation for the cost of the exterminator ($699.82), their plumbing costs ($1,437.03) and the cost to repair the vestibule ceiling ($998.66) for a total of $3,135.51.

The Cross Demand: [ 39 ] Defendant is seeking $5000 for the harassment she allegedly suffered from Plaintiffs' constant e-mails, threats and Defendant's resulting stress and anxiety. [ 40 ] In an e-mail Defendant sent to her agent in October 2008, Defendant states she has been battling health problems for the past five years and believed that when she moved into a smaller home, she would be less stressed and begin to get better.

Because of the e- mails and Plaintiffs' demands, she was feeling worse than she had been feeling in a long time and did not want to be harassed. [ 41 ] Defendant, in a note for the file, wrote that she has been under a lot of pressure and stress from the buyers, which affected her health.

She has been hospitalized and her health has declined due to the ongoing harassment by the buyers and their unfounded accusations. [ 42 ] In essence, Defendant is seeking compensation from the stress and anxiety that she has suffered because of the various claims submitted by Plaintiffs. [ 43 ] Whether or not Plaintiffs' claim is valid is a matter to be determined by the Courts. However, following the sale of a house, purchasers are entitled to take action, based on the notion of hidden defects. Correspondence dealing with such issues, in itself, does not constitute harassment.

Moreover, Defendant did not produce any medical expertise to substantiate her allegations. [ 44 ] In light of the foregoing, Defendant has not satisfied the Court that her claim is well founded. Her cross demand is therefore dismissed. FOR THESE REASONS, THE COURT: GRANTS , in part, Plaintiffs' action; CONDEMNS Defendant, Patricia Tedeschi, on her behalf and on behalf of her late husband, Fernand Tedeschi, to pay Plaintiffs, Joan A Macmillan and Jean-Marc Chalifour, the sum of $3,135.51 plus interest at the legal rate and the additional indemnity foreseen by

section 1619 of the Civil code of Quebec from the date of judgment and judicial fees of $157. DISMISSES the cross demand, with costs. __________________________________ SUZANNE HANDMAN, J.C.Q. Date of hearing: July 6, 2011