Written by Me Pierre-Alexis Bombardier and Me Clément Lucas
Although every seller is required to warrant to their buyer that the property sold is free from latent defects rendering it unfit for its intended use¹, it is possible for the parties, in their contract, to diminish the effects of such a warranty or to exclude it completely.
However, as the Honourable Luc Huppé J.C.Q. points out in this decision, a clause excluding the legal warranty of quality does not release the seller from all responsibility for the condition of the property sold. The seller remains responsible for their personal actions ².
Ms. Dominique Jacques (“Ms. Jacques“) is claiming compensation from her sellers Maryse Fontaine and Jacques Boisvert (“Sellers“) for what she considers to be latent defects affecting the unit of a divided co-ownership that she purchased in 2018.
She alleges defects affecting the façade (swelling of the bricks) and poor soundproofing of the building. Considering that a clause excluding the legal warranty of quality is written in the deed of sale, Mrs. Jones must prove that the sellers deliberately misled her about the characteristics of the property sold, “despite her own diligence in requesting and obtaining the information relevant to her purchase“.
As for the first claim, namely the one based on the swelling of the bricks on the façade, the Court concluded that the Plaintiff had not proven fraud, as the sellers had transmitted to her the minutes of the co-owners’ meeting mentioning the poor condition of the bricks (albeit in general terms). “It was then incumbent upon Ms. Jacques to inquire in greater detail, with the syndicate or with the sellers, about the nature and extent of such problems.”
In this respect, the present decision is reminiscent of a decision that we commented on in a previous news item. There is no doubt as to the importance of communicating the minutes during the process of selling a unit held in divided co-ownership, as they act as a true bulwark against a recourse in latent defects.
As for the second claim, that is the one based on the low level of soundproofing of the building, Justice Huppé j.c.q. concludes that there was indeed fraud. The Sellers had provided Ms. Jones, through their broker, with inaccurate information, namely that they had never had any complaints from the tenants of the unit concerning the noise ³ (which is contradicted by the evidence administered).
This being the case, the extent of the liability of the Sellers is reduced considering that “Mrs. Jacques could by herself have suspected potential problems concerning the soundproofing of the building“, because the inspection report prepared for her benefit identifies a possible problem of soundproofing in the building.
It is also interesting to note that the Court raises, ex officio, that the lawsuit relating to the soundproofing of the building was instituted on October 27, 2021, more than three (3) years since the problem was noticed, that is to say a “delay longer than the prescription period set by article 2925 of the Civil Code of Quebec“, but that since the prescription periods were suspended by ministerial order due to the declaration of sanitary urgency, the lawsuit was instituted in a timely manner. In the end, an indemnity of $10,000 was awarded.
In a previous news item, we questioned the scope of the immunity⁴ conferred on the directors of a syndicate of co-ownership. We had concluded, considering the decision under review, that “when the fault of a board member is purely personal and does not fall within the scope of his or her mandate, the latter does not benefit from any immunity.” In the present decision, in the opinion of the Court, the directors, at the time of the relevant facts, acted within their mandate.
The Plaintiff, Colombe Raymond, (“Ms. Raymond“) sought the personal condemnation of the directors of her condominium (“Defendants“) for having been, according to her allegations, incompetent directors who had not established a contingency fund or a self-insurance fund.
Not only does it appear that the directors were diligent, but that they duly constituted the two funds. Ms. Raymond’s claim in this regard is therefore rejected in its entirety. Ms. Raymond also requested that the Court order her syndicate to add $5,000 to the contingency fund “for the purpose of covering certain expenses, including certain repairs resulting from damage caused by water infiltration that occurred in September 2019 and January 2021“.
The Court declares that it does not have jurisdiction to hear such a request, which does not constitute a small claim within the meaning of article 536 of the Code of Civil Procedure (being a request of a mandatory and/or injunctive nature).
However, it is legitimate to wonder whether the Superior Court, which is competent to deal with such requests, would really intervene in the management of the financial assets of the syndicate, which remains primarily the responsibility of the board of directors, with the Court only intervening in review in obvious cases.
¹ 1726 du Code civil du Québec (« C.c.Q. »).
² 1733 C.c.Q. ; Garage Robert inc. c. 2426-9888 Québec inc., 2001 CanLII 9967 (QC CA).
³ It appears from the evidence that the Sellers were not owner-occupiers, but owner-landlords.
⁴ Such immunity is conferred both by law and contractually in the declaration of co-ownership.