Bulletin - Real Estate Litigation

Patenaude c. Trepanier, 2017 QCCS 2291

In this case, the buyer acquires a house built in 1961, including a low slope cathedral roof. The buyer, with his knowledge of renovation, renounces the pre-purchase inspection, although recommended by his real estate broker, because according to a television program, pre-purchase inspectors are "charlatans" and he has elsewhere already had bad experiences with the inspectors.

Less than a year after the purchase of the property, the applicant notices traces of moisture around the windows. This problem will lead him to carry out further checks and especially to find that the windows were unsealed and that there are problems of mold and rot elsewhere in the house in addition to problems with the sanitary drain, the lack of which a check valve and the non-compliance of the pipe installation for the washer. Following the sending of a formal notice detailing the applicable articles of the Building Code and its implementing regulations, the buyer shall lodge a recourse to small claims against his seller by invoking latent defects. However, it will be entirely rejected by the Court on the ground that it has not been a prudent and responsible buyer in acquiring a residence of more than 50 years without at least having a serious prior examination, especially in the presence of certain signs with the The presence of sawdust in the asphalt indicates that excavation work has been undertaken. Failure to investigate further entails, for the Court, the forfeiture of an appeal for hidden defect.

Later in 2012, the buyer discovers new problems of condensation and bad ventilation in the roof, new traces of infiltration and mold. He then sends a new notice to his seller, but also to his real estate broker invoking, again, hidden defects. The purchaser will do most of the work, including the basement drainage system, the redesign of the piping, the change of windows, the reconstruction of the basement walls, the leveling of the concrete slab, etc. . The buyer then starts against the seller, a recourse to reduce the selling price and a recourse against the listing broker and his broker for failing to provide him in due time the declaration of the seller that indicated the presence of an infiltration of water. The total claim is more than 172 897 $ against the brokers and 111 653 $ against the seller.

Analyzing the conduct of the parties, the Superior Court dismissed all the plaintiff's claims by invoking his imprudence when he gave up the pre-purchase inspection despite the advice of his real estate broker. For the Court, any prudent and diligent buyer must thoroughly and carefully examine the building while being on the lookout for any indication of a problem. The buyer must also examine, thoroughly, any indication of vice. Even if the Civil Code of Québec does not require the buyer to use the services of a home inspector, he must do so in the presence of a defect index in order to obtain appropriate recommendations on the problem and the measures to take. In this case, the buyer, who has good knowledge of construction, should have been able to identify clues such as saw cuts, poorly installed piping, the absence of a check valve, or he should have used a Pre-purchase inspector considering the advanced age of the house. The complaint is therefore entirely rejected.

Good reading!

Me Sébastien Tisserand
July 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.

Hidden defects

Totally rotten wooden structure

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