Newsletters

199

Buying a Century-old Property: An Extra Measure of Care Is Required

While looking for a home, you fall for a century-old residence: what should you do? Make sure you carry out certain verifications before closing the sale. Although the legal warranty of quality applies regardless of the building’s age, courts generally have more stringent expectations towards buyers of older properties. The Superior Court illustrated this in the recent case of Auchintek c. Gerkes, 2022 QCCS 2637.

In that case, the plaintiff was asking for more than $430,000 in damages from the seller for latent defects in a property that she had bought in 2004. The defendant raised two key arguments for his defence: the buyer’s negligence in having failed to perform an inspection on a dwelling built in 1910, and failure to give notice within a reasonable time. The quantum of the damages was also in issue.

Reminder of the Criteria for the Warranty of Quality

The Court first reminded us that a seller must guarantee to the buyer that the property and its accessories are free from latent defects rendering it unfit for the use for which it was intended. To succeed in his recourse, a buyer must prove that the alleged defect:

  • Was not obvious to a prudent and diligent buyer;
  • Is serious;
  • Existed at the time of the sale; and
  • Was unknown to the buyer (which is presumed).

The Court continued by reminding us that the legal warranty does not cover normal wear and tear.

A prudent and diligent buyer of an old dwelling should perform a thorough examination, and expect certain repairs due to the property’s age. Such buyer is presumed to accept the normal wear and tear and the fact that construction standards were not as stringent as they are by today’s standards.

Application to the Facts

Considering the evidence, the Court concluded that the alleged damages were not the result of latent defects, but were caused by normal wear and tear. It agreed with the defendant’s expert, who based his conclusion on the Manuel de l’évaluation foncière du Québec, in virtue of which the life expectancy of a building’s foundations and structure is 100 years. As the dwelling had been built in 1910, the structural elements had reached the end of their useful life.

The Court also mentioned that even if it had come to the conclusion that the dwelling did have defects, those could not be considered to be latent since the plaintiff had not acted like a prudent and diligent buyer. Given the age of the building, she should have asked for a pre-purchase inspection. The plaintiff alleged that she had witnessed extensive repairs performed by the seller, who had been her companion from 2002 to 2004, and that she was confident that, had problems existed, those would have been fixed as part of those repairs. The Court did not agree with this argument.

Although retaining an inspector is not generally necessary in order to be considered as a prudent and diligent buyer, certain circumstances may dictate otherwise, for instance when clues are present or when the seller raises previous problems. In the Court’s opinion, the mere fact that a dwelling is 100 years old dictates the need for an inspection. In this case, an inspection could have alerted the plaintiff on the need to proceed to more thorough verifications.

Absence of Notice Within a Reasonable Time

Even if the Court had concluded that there were latent defects, the plaintiff’s claim would have been dismissed since she had omitted to give the defendant a notice within a reasonable time, as required by article 1739 of the Civil Code of Québec.

The plaintiff’s lawyer had sent the defendant a notice by regular mail in 2017, but the Court believed the defendant’s version that he had never received it. Only when the lawsuit was launched and the defendant received the summons, at another address, did he learn of the plaintiff’s claim. At that time, the repairs had already been completed, thus depriving him of his right to examine the defects and correct them.

To avoid such a conclusion, buyers (and their lawyers and insurers, as the case may be) should always give notice in due time of the defect, using means that will allow them to prove receipt by the seller.

199

Authors

Stéphanie Beauchamp

Lawyer, Partner

Articles in the same category

The Pool Floats, the Claim Sinks

In the recent decision Piscines Élégance – Québec inc. v. Comtois, 2023 QCCS 4574, the Superior Court reiterates the rules governing a contractor’s obligation to inform his customer in the context of a fixed-price consumer contract for which hefty extras were billed. Piscines Élégance – Québec Inc. (“Piscines“) is claiming from defendant Comtois (“Comtois“) the […]

Apostille: A Simplified Process for International Legalisation of Documents

On January 11, 2024, a new procedure came into effect for the legalisation of documents issued throughout Canada (including Québec) and which are destined to be produced before foreign authorities, whether they be supporting documents for administrative purposes such as the issuing of permits or full-fledged pieces of evidence used as exhibits in international Court […]

The Defect Was Well Hidden, but Is That Enough?

In Cvesper v. Melatti, the Court of Appeal reminds us of the importance of a timely notice to the vendor in cases of latent defects as tardiness or omission to do so may fatally impact the purchaser’s recourse The Facts Essentially, in May 1980, Appellant, Mrs. Cvesper, purchased a property consisting of a multi-unit building […]

Theft Is Not Negligence

In a recent decision, the Quebec Court of Appeal upheld the ruling of the Honourable Chantal Corriveau of the Superior Court that a party cannot benefit from the presumptions of liability in the Civil Code of Quebec when there is no contractual relation between the parties. In such cases, the rules of extra-contractual liability apply, […]

Company Found Guilty of Criminal Negligence Causes Death to Its Truck Driver

Last August 11, the Quebec Court of Appeal dismissed the appeal and upheld the trial judge’s decision finding CGF Construction Inc. (the “employer”) guilty of criminal negligence causing death1. The victim in question, a truck driver with over 25 years’ experience, died after losing control of the employer’s heavy container truck, which flipped over on […]

The « Appropriate Care » Provision in Disability Insurance: An Application Bearing Heavy Consequences for the Insured

In Desjardins Sécurité financière v. Hébert, the Court of Appeal reminds us of an essential condition often overlooked in order to claim disability insurance benefits: the obligation to be under the care of a medical team and to receive medical treatment, a contextualization of the obligation to mitigate one’s damages. The Court also considers the […]