2019 QCCQ 1416, 2019 QCCQ 1416

Sparling c. Marchand-Duchesneau 2019 QCCQ 1416 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF BEDFORD TOWN OF COWANSVILLE Civil Division No: 455-22-004695-169 DATE: February 28, 2019 ______________________________________________________________________ BY THE HONOURABLE MARTIN TÉTREAULT, J.C.Q. ______________________________________________________________________ ALEXIS SPARLING and ANDREA SPARLING Plaintiffs v.

DAVID MARCHAND-DUCHESNEAU And MAUDE TOUGAS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiffs seek an order for reduction of the price sale and damages as a result of hidden defects and false representations by Defendants with respect to the sale of an immoveable property located in Mansonville (the “Property”). [ 2 ] The defects are: 1) absence of/or broken dispersal fields; 2) non-functional wells; 3) blocked french drain and 4) blocked gutters. [ 3 ] Defendants deny having provided false informations to Plaintiffs and submit that the defects are not covered by the warranty of quality provided by the Civil Code of Quebec (“ CCQ ”).

CONTEXT [ 4 ] In the spring of 2013, Defendants decide to sale the Property that they had bought in 2007 [1] . [ 5 ] The Property, a 2.5 acres land on which a house was built in 1980, is located next to the Missisquoi North River [2] . [ 6 ] The listing mentions the following characteristics: “Système d’égoûts: Champ d’épuration, Fosse septique. Approvisionnement eau: Puits artésien, Puits de surface [3] ” [ 7 ] The selling price is 165 000$. [ 8 ] On June 27, Plaintiffs visited the Property with Defendants’ real estate agent, Ms. Sandra Williams (“Ms Williams”). Defendants were not present.

A Vendors’ Declaration signed by Defendants on March 12, 2013 was handed over at this visit [4] . [ 9 ] On the same day, Plaintiffs presented a Promise to Purchase to Defendants [5] . The offered price was 162 000$ and the sale was not conditional upon an inspection by a person chosen by the buyer. This offer was accepted by Defendants without any counter proposal. [ 10 ] On August 1, the parties signed the Deed of Sale [6] . Plaintiffs took possession the same day. [ 11 ] On August 4, Defendant David Marchand-Duchesneau (“Mr Marchand-Duchesneau”) came to the Property notably to explain

Plaintiffs how to run the Water Supply System (“Water Supply System”). The residence was equipped with two pressure tanks located in the basement which served the surface and artesian wells. Mr Marchand-Duchesneau showed Plaintiffs how to switch from the surface to the artesian well. [ 12 ] On March 9, 2014, the surface well ran dry. [ 13 ] Eigth days later, the artesian well also ran dry. [ 14 ] On March 25, a plumber came to inspect the wells in order to solve the problem.

He adjusted the pump of the Water Supply System and the water came back [7] . [ 15 ] At the end of June, the Plaintiffs Andrea Sparling (“Ms Sparling”) noticed water entering into the basement from behind the dry wall in the laundry room. [ 16 ] On July 2, a contractor came to inspect the basement. He suspected that the french drains were blocked and should be excavated.

He also noticed the absence of dispersal field which accounted for a strong odor of raw sewage. [ 17 ] The next day, Plaintiffs advised Ms Williams of the situation and asked her to contact the Defendants. [ 18 ] On July 4, Mr Marchand-Duchesneu visited the Property and found that the exit pipe for the french drain was disconnected.

He denied any liability regarding this situation. [ 19 ] On July 18, Ms Sparling sent a Letter of Demand to Defendants concerning the absence of a leeching field and the defects affecting the french drains [8] . [ 20 ] Upon receiving this letter, Defendants came back to the Property and identified the surface well which was beside the site chosen for the proposed dispersal field. Based upon this information, Plaintiffs suspended their plans for the construction of a dispersal field. [ 21 ] On September 14, Ms Sparling took a water sample from the surface well and sent it to be analysed.

The conclusion of the analysis was that the sample did not conform to the Quebec Government’s drinking water recommendations and that the water should be boiled for one minute before drinking [9] .

It also recommended that the well be disinfected. [ 22 ] On September 24, Ms Sparling sent another Letter of Demand to Defendants concerning the water, the wells, the french drains and the gutters [10] . [ 23 ] At the beginning of October, a contractor proceeded to the hydro-fracturation of the artesian well and to its reconstruction with all necessary accessories [11] . [ 24 ] On November 9, the gutters and downspouts were replaced [12] . [ 25 ] Between November 17 and 24, a new septic system was installed [13] . [ 26 ] On December 23, a Water Treatment System was installed [14] . [ 27 ] In July 2016, Plaintiffs replaced the french drains [15] . [ 28 ] On July 22, the Application for damages was served upon Defendants.

ISSUES IN DISPUTE [ 29 ] 1. Are the defects affecting the Property covered by the legal warranty of quality? If so, what amount should be paid by the Defendants for these defects? [ 30 ] 2. Did Defendants make any false or misleading representations to Plaintiffs concerning the Property sold? If so, are they liable for the defects affecting the Property and what is the amount of damages owed to Plaintiffs? ANALYSIS THE LAW [ 31 ]

Section 1726 of the CCQ describes the warranty of quality of the seller: “ 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. » [ 32 ] In their book on Contract Law in Quebec, Pr Campagnolo, Debruche and Grammond, summarize the elements to be proven under this

section : « 665. Four elements are required to prove a latent defect, triggering the responsibility of the seller: (

i) the seriousness of the defect; (ii) the anteriority of the defect to the sale; (iii) that the buyer was unaware of the defect; and (iv) and the occult (or hidden) nature of the

defect. 1223 […] 667. Gravity, or the seriousness of the defect, is measured according to the consequences it entails, which must not be insignificant. In the context of the sale of a house, a window that does not close properly, for example, does not qualify. 1226 Only defects which meet the requirements of art. 1726 C.C.Q. give rise to the warranty, such that either the buyer would not have agreed to the sale had he known about the defect, or would not have paid as high a price.

The case law provides many examples, ranging from defective roofs to rotten flooring and insulation, cracked foundations causing [Page 279] leaks, structural defects affecting the stability of buildings and infestations by insects and rodents. 1227 […] 668.

The notion of anteriority to the sale is confirmed by the wording of art. 1726(1) C.C.Q., which states that the warranty applies to defects “at the time of sale.” It is important to note here that precedence to the sale does not mean that the defect had to manifest itself prior to the transfer of property. 1229 Rather, to trigger the warranty, it is sufficient that a defect was gestating at the time of the sale and only manifested itself once in the hands of the buyer. 669.

In order not to give rise to the third condition of a latent defect – the buyer’s unawareness of the defect – it is common practice, stemming back to Roman Law, that the seller of a property fill out a declaration, informing the buyer of all defects affecting the property. 1230 Thus, the buyer may not invoke the warranty of quality against a seller who has revealed a defect in his declaration. Moreover, the entirety of the defect must be revealed. 1231 It is not enough for a seller to simply gloss over a problem, without getting into the details. This would not fulfill the seller’s duty to inform. 670.

Finally, arguably most essential to the notion of latent defect, is the hidden nature of the defect.

Despite common misconceptions about the necessity of an inspection by an expert (e.g., architect or engineer) and the consequences associated with the failure to engage an expert, the Civil Code states, at art. 1726(2) C.C.Q., that “an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert.” In other words, while it is common practice and not unwise to do so, there is no legal requirement that a buyer have a property professionally inspected upon purchase in order to take advantage of the warranty of quality.

Rather, what is necessary, and continuously enforced by the courts, is that purchasers must be prudent and diligent in their dealings, taking care to carry out a careful examination of the property they wish to buy. The defect that is not noticed by the careful buyer is therefore a hidden defect. 1232 » [16] APPLICATION TO THIS CASE [ 33 ] Since Plaintiffs have raised different defects, we will adress them respectively. 1.

Dispersal field [ 34 ] Initialy, Plaintiffs were pretending that the Property had no dispersal field. [ 35 ] However, after they received the proof that a septic tank and sweeping bed had been installed in 1988 [17] , they amended their proceeding to claim that it was not functional and non-conforming. [ 36 ] As mentioned at the trial by Mr Mike Mierzwinski, the contractor in excavation who was hired by Plaintiffs to install the Enviroseptic System, the old system was not operating correctly. The sewage was sent directly from the house to two culvert pipes with no bottom buried in the backyard [18] .

Mr Mierzwinski added that the presence of green grass in this area was a proof of a leaking problem. [ 37 ] Under these circonstances, the Court comes to the conclusion that the dispersal field was affected by a serious defect which existed at the time of the sale and was unknown by Plaintiffs. [ 38 ] However, this defect cannot be qualified as hidden since it could have been perceived by a prudent and diligent buyer. [ 39 ] In a recent case, the Court of Appeal described the notion of « prudent and diligent buyer » [19] : « [7] Un acheteur prudent et diligent se doit de faire une inspection de l’immeuble qu’il se propose d’acquérir.

Cet examen doit être attentif et sérieux [3] . En présence d’un indice de nature à soulever chez l’acheteur un soupçon quant à la présence de vices, il est tenu de pousser l’examen [4] . Il se doit de vérifier de façon satisfaisante ce qui est suspect [5] . Il n’est toutefois pas tenu d’ouvrir les murs et de creuser les fondations [6] ni de faire appel à un expert [7] . De plus, si le vendeur dénonce des problèmes existants, l’acheteur se doit d’en faire un examen approprié [8] .

S’il n’a pas les connaissances nécessaires pour écarter la possibilité que le bien soit affecté d’un vice, l’acheteur doit obtenir une aide spécialisée. Dans ce cas, s’il omet de demander de l’aide, il agit de manière négligente et ne satisfait pas à la norme de l’acheteur prudent et diligent [9] . [ 8 ] L’âge du bien doit être tenu en compte. Plus le bien est âgé, plus s’intensifie l’obligation d’effectuer un examen approfondi. Ainsi, plus un vice se manifeste par des signes précurseurs, plus il doit être qualifié d’apparent.

Si son existence n’est révélée que par des travaux exceptionnels, par exemple d’excavation ou de démolition, il s’agit d’un vice caché [10 ] » [20] [ 40 ] Here, Plaintiffs made an offer on the Property after a 30 to 60 minutes visit with Defendant’s real estate agent. Their offer was not conditional upon an inspection by a building inspector despite the fact that they had no knowledge in construction or renovation work

or in septic system. Moreover, they knew that the house had been built in the 1980’s. [ 41 ] At the hearing, Ms Sparling explained that she had driven by the Property in 2008 and had loved the sight, the place and its location. Her visit in 2013 confirmed her feelings of 2008.

Since the Declaration did not mention any problem with the septic system and she knew that the financial institution which would lend the money would rely on a evaluator before grantig the loan, she thought, mistakenly, that it was not necessary to proceed with an inspection by a building inspector. [ 42 ] Since Mr Sparling had never owned the Property, he relied on his mother for the sale and did not notice anything special when he visited the Property. At that time, the field in the back was overgrown with flowers so he did not notice any bad odors.

It’s only after he cleared up the area after the sale that he started noticing the odors and the dampness in the area were the sewage was leaking. [ 43 ] In view of 1) the age of the house; 2) the mention on the Declaration that Defendants had no knowledge of the installation date of the septic system; and 3) their ignorance of such system, Plaintiffs should have conducted a more thorough inspection before buying. [ 44 ] As mentioned by Mr Mierzwinski, the mere presence of green grass in this area was a sign that the septic system had a leaking problem. [ 45 ] Plaintiffs’ claim under this item is therefore dismissed. [ 46 ] The Court adds that should it have granted this part of the claim, an important depreciation would have been applied since the system had been installed in 1988. 2.

Water Supply System [ 47 ] Plaintiffs claim that insufficiency of water and the problems affecting its drinkability are hidden defects.

Whether under the warranty of quality or because of false or misleading informations on their part, Defendants should be liable for the costs required to correct these problems. [ 48 ] These costs include tests, intervention by plumber, inspections, hydro-fracturation, installation of water treatment system and replacement of a hot water tank. [ 49 ] For the following reasons, the Court comes to the conclusion that this part of the claim should be dismissed. [ 50 ] As per the insufficiency of water, the claim refers to an incident that ocurred in March 2014, when the surface and the artesian wells ran dry. [ 51 ] At the hearing, the technician who inspected the wells, Mr Richard Giard, explained that the insufficiency of water was caused by a damaged pump.

When he replaced it, the problem was solved.

According to Mr Giard, it was fair wear and tear. [ 52 ] Though Defendants may not have been totally transparent when they mentionned in their Declaration that they never had any problem with the quantity of water, Mr Giard’s testimony confirms that the March 2014 incident was not related to the quantity of water in the wells. [ 53 ] Moreover, Plaintiffs never verified, prior to the sale, the age of the water supply system. [ 54 ] Since fair wear and tear is not covered by the warranty of quality, this part of the claim must be dismissed. [ 55 ] As per the quality problem, the water supply analysis done in September 2014 is clear : the water sample provided by Ms Sparling showed that it was unfit for consumption [21] . [ 56 ] Even if this type of defect is serious, the proof does not show that it existed at the time of the sale. [ 57 ] Defendants testified that they never had any problem with the drinkability of the water. [ 58 ] There is no proof that Plaintiffs had any problem prior to the reception of the Certificate of analysis in March 2014. [ 59 ] Under these circunstances, this part of the claim must also be dismissed. [ 60 ] As per the hot water tank, no proof was provided that the replacement of the hot water tank was caused by a latent defect. 3.

French drains [ 61 ] According to Plaintiffs, Defendants should be liable for the replacement costs of the french drains on the Property. [ 62 ] As mentioned by Mr Mierzwinski in his testimony, a french drain was found while digging to replace the sewer pipe. The french drain had an outlet and was not evacuating any water.

He did not give is opinion as to the reason for the replacement of the french drain because he had not filed an expert’s report. [ 63 ] In fact, no expert report was filed by any party involved in this litigation. [ 64 ] Aside the fact that a part of the french drain was blocked, there is no proof as to the impact this problem had on the Property. [ 65 ] Therefore, even if this Court came to the conclusion that it was in fact a defect, there is no proof as to it’s seriousness. [ 66 ] Moreover, the Declaration mentions that there had been no modification to the french drains [22] . Since the house was built in

the 1980’s, Plaintiffs should have been more careful on this aspect when they bought the Property. [ 67 ] Under these circonstance, this part of the claim is also dismissed. 4. The gutters [ 68 ] Plaintiffs alleged that the absence of gutters is a latent defect and that Defendants should be liable for the cost related to their installation. [ 69 ] The absence of gutters was clearly visible at the time Plaintiffs made their offer.

Therefore, this defect can not be considered as hidden. [ 70 ] This part of the claim must also be dismissed [ 71 ] FOR THESE REASONS, THE COURT : [ 72 ] DISMISSES Plaintiffs’ Re-amended originating application for damages resulting from hidden defects ; [ 73 ] WITH COSTS against Plaintiffs. __________________________________ Martin Tétreault, J.C.Q. Me Thomas A. Lavin Lavin Gosselin Avocats inc. Attorneys for Plaintiffs Me Joannie Tardif LB Avocats inc. Attorneys for Defendants