Bulletin- Real Estate Litigation

Boudreault c. Boily 2017 QCCQ 3545

In this case, the purchasers claim compensation 49 000 $ for the stabilization of the foundations of their house and related expenses following the discovery of a defect of construction appeared a few months after the sale, despite a denunciation of existing cracks and a exclusion of the legal guarantee. The seller calls his own seller as collateral for a transaction older than 20.

Upon their pre-purchase visit in the fall of 2012, buyers Boudreault and Gouin notice a drop in the floor of the dining room. They inquire with the seller about the cause of this drop and apparent cracks in the basement. Their salesman, Mr. Boily, reassures them that there has been no new drop since the repair that was made, there is more than 20 years, before he buys himself the house in 1991. Mr. Boily has also followed and noted the evolution of cracks over the years and confirms buyers have learned to live with this small inconvenience. Buyers do not push further their research and instead negotiate a reduction in the selling price corresponding to this apparent defect they evaluate to 10 000 $. A clause excluding the legal warranty for cracks is added to the contract of sale.

However, a few months after the purchase, the buyers notice new cracks and deterioration inside the residence at the windows, the floor and the walls. the slump of the property. As a result of these findings, the purchasers conduct an expertise of the foundations and the soil. The expert then attributed the cracks and the collapse of the house to the fact that the solage is based astride a rock in the front and on deposits of backfill material and clay in the back. The differential settlement of the ground under the foundation at the back is, according to him, a serious construction fault that affects the value of the building.

After having reported the problem to their seller, the buyers make the repairs, at the cost of 49 226.17 $ they claim, less the sum of 10 000 $ that they had planned to invest in renovation and repair during the discovery of the cracks at the time of the pre-purchase inspection. However, they claim a sum of 10 000 $ as troubles and disadvantages especially for the time spent on repair work (more than 386 h).

For the Tribunal, the real hidden defect is the construction on partially unstable ground at the back of the residence. This defect dates from the period of construction (1985), and it was not until the expertise performed by buyers to see the existence and extent. It is therefore a hidden vice within the meaning of theart. 1726 of the Civil Code of Québec which is attributable to all the sellers. However, as this vice was unknown to them, the sellers are exempt from the payment of the damages relating to this vice. The judge determines that the buyers must obtain a reduction in the purchase price equal to the amount of the repair work less the amount of 10 000 $ they had obtained at the time of the sale, for a total amount of 25 877.04 $, including a 5 000 $ allowance for time spent on the work, totaling approximately 6% of the building's value.

As regards the first seller of the immovable, according to the same reasoning, and recalling that the limitation period is applicable only at the time of the knowledge of the defect, the Tribunal establishes its liability to the sum of 5 770 $, that is this same percentage of 6% of the value of the building, but calculated on the price of the sale in 1991, minus the depreciation for the 21 years of peaceful occupation.

In summary, even 20 years later, you can be held responsible for a construction defect that affects a property you have sold. If in doubt, consult an expert.

Me Sébastien Tisserand
June 2017

This newsletter is not legal advice and was written solely for the purpose of informing readers. The latter should not act or abstain from acting solely on this chronicle. It is advisable to consult their legal adviser for this purpose.

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Me Sébastien Tisserand specializes in civil litigation, administrative law and labor law. Law office Mercier Leduc 514-954-2000 # 239.

construction defect

Foundation subsidence

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