2010 QCCQ 11727, 2010 QCCQ 11727

Frauenfeld c. Québec (Curateur public) 2010 QCCQ 11727 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-119207-092 DATE: December 13, 2010 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ CELESTE FRAUENFELD […] Longueuil, Quebec […] Plaintiff vs.

CURATEUR PUBLIC DU QUEBEC 600 René-Lévesque West Blvd. 10 th Floor Montreal, Quebec H3B 4W9 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Celeste Frauenfeld, who acquired an immovable property known as […] in the city of Montreal from the Public Curator, sues the latter for recovery of an amount of $488.65 incurred by her for the services of a plumber to install 25 foot pipe to divert water from the plumbing system of the house to the outside through a back window. [ 2 ] Ms Frauenfeld alleges that on March 11, 2009, three weeks after she took possession on the immovable, snow stated to melt on the roof.

The pipes in the buil-ding were frozen because the building had not been heated under the Public Curator's administration. Ice formed a blockage in the plumbing system. Water draining from the roof came out through the second floor toilet flowing into the rest of the house. [ 3 ] When Ms Frauenfeld took possession of the property, she had plans to demolish the interior and retain only the façade.

As it turned out, the façade was not preserved and the building was eventually demolished. [ 4 ] Ms Frauenfeld does not claim anything for the damages occurring to the interior, she claims only for this plumbing cost which she alleges would not have been necessary if the Public Curator had properly cared for the house between the time of her offer to purchase and the transfer of possession on February 28, 2009. [ 5 ] The Public Curator contests this action, on the grounds that the sale was made without legal warranty and at the risks of the purchaser. [ 6 ] If the necessity to install this emergency pipe resulted from a latent defect, any claim would be excluded under the terms of the sale.

FACTS [ 7 ] The building in question, an empty barricaded building, was administered by the Public Curator who followed procedures to

winterise it without heating. The Public Curator followed this practice to save the expense of heating and other expenses associated with the maintenance of the property. Ultimately, the goal was to reduce the costs associated with the administration of the asset to a minimum. [ 8 ] Ms. Frauenfeld agreed to purchase the property on March 28, 2008.

The Superior Court only approved the sale in December 2008 and possession was transferred under a deed of sale on February 28, 2009. (D-1) [ 9 ] Apart from the renunciation of the legal warranty, and the "own risk" clause [1] there is nothing of interest in the offer to purchase: GARANTIE Cette vente est faite sans autre garantie que celle des faits personnels du vendeur, aux risques et périls de l'acquéreur.

Entre autres, le vendeur ne garantit pas les mesures, la contenance, ni la localisation des bâtisses. [ 10 ] Possession was to be transferred on the execution of the deed of sale before a notary. (D-2) [ 11 ] The deed of sale contains a standard clause concerning the transfer of risks: TRANSFERT DE RISQUES Nonobstant l'aliéna 2 de l'

article 1456 du Code civil du Québec , l'acquéreur assumera les risques afférents à l'immeuble conformément à l'

article 950 du Code civil du Québec à compter de la date des présentes. [ 12 ] There can be no doubt as to the

interpretation of this clause: prior to the date of the deed of sale, a risk of loss of the property would fall upon the vendor and as of the date of the deed it would fall upon the purchaser. [ 13 ] Ms Frauenfeld states in her letter of demand of May 19, 2009 (P-1): I purchased the duplex "as is" but because it was not properly cared for prior to my possession I think it is only fair if your office pay the plumbers invoice for this preventable incident. [ 14 ] This incident of which the Plaintiff complains; the backing up of water draining from the roof in frozen pipes, was the sort of risk that she, as a purchaser acquiring the property at her "own risk" , was prepared to accept. [ 15 ] While a different type of administration by the Public Curator may have resulted in the risk being avoided or eliminated, it could not be said that the Public Curator was at fault in its decision to carry the property without heating, barricading it so that it would not be occupied by squatters. [ 16 ] Nothing in the proof establishes that the Public Curator ought to have taken any particular steps with respect to the drainage of the plumbing system. [ 17 ] The Court cannot find any legal basis to impose a liability on the vendor for the costs incurred several weeks after the sale to preserve the property from reoccurring water damage resulting from a condition existing within the plumbing at the time of the sale that had become known after the sale.

FOR THESE REASONS, THE COURT: DISMISSES the Plaintiff's action; CONDEMNS the Plaintiff to pay, to the Defendant, judicial costs in the amount of $104. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: November 8, 2010