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A Harmful Surprise By Me Pasquale Artuso ary and Tony purchase a duplex. On two separate occasions before the sale, they visited and carefully inspected the property, examining the walls, floors, ceilings cupboards and closets. However, the main floor of the duplex was cluttered with furniture that hid most of the walls. As for the closets and cupboards, they were full of the owners’ personal belongings. The basement was filled with lumber, boxes, old carpets and isolating material. The apartment on the second floor was uninhabited. Once the previous owners moved all of their belongings out and Mary and Tony took possession of the property, they realized that the basement walls, which were once hidden by clutter, were covered in mold that was also found in closets and cupboards. After only a few days of living in their new home, they began suffering from respiratory difficulties and symptoms of extreme fatigue. Afraid that the mold was the cause of their sudden symptoms, they hired a microbiologist to analyze the quality of the air in their home. The results of the analysis were shocking. The home was infested with dangerous mold spores that could have a dangerous effect on the inhabitants’ health.
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What are Mary and Tony’s legal recourses? The presence of dangerous mold spores in the walls of the home can be considered a latent defect if the situation respects the definition of a latent defect as defined by the Civil Code of Quebec.
Article 1726 of the Civil Code of Quebec states: “The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without any need of expert assistance”.
PA S Q U A L E A RT U S O & ASSOCIÉS
Pasquale Artuso Avvocato di Fiducia Consolato Generale d’Italia Caroline Francoeur Avvocatessa Valérie Carrier Avvocatessa
T.: 514.259.7090
Elena Milioto Avvocatessa Julie Therrien Avvocatessa Amanda Alfieri Avvocatessa
F.: 514.256.6907
Pierre Fugère Avvocato - diritto criminale e penale Joseph W. Allen Avvocato dal 1976 diritto dell’immigrazione
artmars@securenet.net
Complexe Le Baron, 6020, rue Jean-Talon Est, bureau 630 Montréal (Québec) Canada H1S 3B1
In order to have a latent defect, the following elements must exist: 1- The defect must be serious The defect must be serious to the point that had the buyer known the defect, he would not have purchased the property or would have purchased it at a lesser price. In most cases, Quebec courts have deemed that in a residential building, a defect that is hazardous to health is serious. 2- The defect was unknown to the buyer at the moment of sale Mary and Tony were unaware of any mold problem at the moment of sale. The sellers did not mention such an issue and they did not see any symptoms of a mold problem when they inspected the property. 3- The defect had to be non-apparent and hidden at the moment of sale The mold problem was hidden and non-apparent at the time of the sale because furniture and other objects covered the walls. It was only after the sale and once the previous owners had moved out that they could properly view the walls. The fact that they did not have a professional building inspector inspect the duplex before they purchased it does not necessarily invalidate their recourse against the sellers. 4- The defect had to exist before the sale The buyer can usually benefit from a presumption that the defect existed before the sale if he or she advises the seller of the defect in a short delay after the sale. Mary and Tony can ask the Court for the cancellation of the sale or the reduction of the price of sale. This article provides general legal information and does not substitute consulting an attorney who can advise you on the particularities of your case.
Contributions by: Me Amanda Alfieri v