BUYERS BEWARE! SELLERS BEWARE!

This is the case of when an apparent defect turns into a latent defect; namely Joséphine Mackay vs. Stéphane Scalabrini, 2015 QCCS 39 (http://canlii.ca/t/gfxfg).

In March 2009, the seller, Stéphane Scalabrini, had bought the property in order to “fix and flip” the house. Being very practical with his hands and considered to be an experienced handy man, he decided to undertake all interior and exterior renovations himself. It is important to mention that there had been prior water infiltration issues that needed to be repaired, and implementing a draining system could have resolved any future complications.

However, Scalabrini did not undertake such repairs. The steep slope of the property is set on very thin stilts that support the house in question. The seller carried out renovations to solidify this weak foundation but did not fully re-install a new foundation.

In February 2012, the buyer, Josephine Mackay purchased the property as she was impressed with the newly and fully renovated interior. The seller, Scalabrini, re-assured the buyer about the freshly renovated property with a new foundation all the while claiming in his seller’s declaration stating that there had never been any prior water infiltration.

Satisfied with the noted above information stated in the seller’s declaration, the buyer, Mackay, decided to purchase the house after only a two hour and a half visit of the premises. A few weeks after purchase, the buyer was faced with the first of a series of floods in the basement.

The court ruled that the seller should be held responsible for all damages and renovation expenses the buyer had undertaken in order to enjoy her newly purchased home concluding that all possible visible signs of an apparent defect become a latent defect due to the actions of the seller for the following reasons:

1. The seller falsified his sellers declaration by claiming a new foundation, no mold, no issues with plumbing and no water infiltrations;

2. Although signs of infiltration could have been detected, the fact that the seller had fully renovated all the interior of the property while masking and covering up all signs of water infiltration had made an apparent defect latent;

3. The Buyer fulfilled her obligation of diligence by inspecting the property for 2.5 hours and therefore did not need to push her reflection further regarding the foundation as she did not have any suspicions regarding the bad faith of the seller as she was re-assured by the seller’s declaration;

The court condemned the seller, Scalabrini, to pay the Buyer, Mackay, the sum of $45,508.43 representing repairs and costs paid or to be paid by the Buyer as well as damages for troubles and inconveniences in the amount of $15,000.00 for a total sum $60,508.43.

It is to be concluded that when faced with any type of latent defects, the courts will rule in regards to the diligence of the buyer and the information provided by the seller in order to assess the quality of the property. On the other hand, the seller is obligated to act in good faith and must provide the buyer valid and true information to the best of his/her knowledge and ability.

Therefore, an apparent defect could become a latent defect based on the attitudes, manners and information provided by the seller that reassures the buyer into buying the property.

BUYERS BEWARE! SELLERS BEWARE!

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.