HOW A SELLER IMPLICITLY RENOUNCED TO THE WRITTEN DENUNCIATION

Article 1739 of the Civil Code of Quebec states the following regarding latent defects:

A buyer who ascertains that the property is defective may give notice in writingof the defect to the seller only within a reasonable time after discovering it.

The seller may not invoke the tardiness of a notice from the buyer if he was aware of thedefect or could not have been unaware of it.

Yet, in the case of Reulet c Deschênes, the decision rendered from the Court of Appeal has given space for a broader interpretation of this article.

The buyer, Mr. Reulet, is originally from France. He has been recruited by the University of Sherbrooke to lead a high level research. On the other hand, the sellers, Mr. Deschênes and Mrs. Llaréguy, have been living in the property since 1999 and were in the course of divorcing and have been trying to sell the house for over a year.

The buyer, Mr. Reulet, came down and first visited the premises in mid-March 2010. The only parties present during this visit were Mr. Reulet, his wife and the real estate agent. The sellers were not present and had forgotten to unlock the door which gave access to the pool premises. Due to the urgency to rapidly assume his new work functions, Mr. Reulet immediately expressed his interest towards this residence.

With their return back to France, the buyers addressed a list of questions to the sellers, Deschênes. These questions were given to the real estate agent who were then transmitted and answered by the sellers.

The second visit occurred in or about the 26th -27th of April. The visit lasted longer and the whole family was present along with the real estate agent and a building contractor. Prior to their visit the real estate agent had politely asked to the seller, Deschênes, to provide the key giving access to the pool premises. Fairly enough they never heard back from the sellers and the premises still remained inaccessible. Following this visit a pre-purchase inspection report was made along with a new document entitled “Changes and Notice of Realization of Conditions”. This new document stated that the sellers, Deschênes, undertook at their own cost to assure that all windows open and close properly, to repair the roof and clean the gutters.

The act of sale was signed and the buyer, Reulet, came and took possession of the house in July 2010. It was with great disappointment that the new owners started to realize critical problems to the house more commonly known as latent defects.

The pool which they never had access to, was defective. The cloth was ripped and water seeping out of it, contrary to the response given by the sellers in the questions sent to them by the buyers. The windows did not open properly, the gutters were never cleaned and the list goes on.

Subsequent to emergency repairs, a demand letter was given to the sellers, Deschênes on the 15th of October to inform him of the other latent defects. Later, a letter from the seller’s attorney and phone calls were made in order to resolve this matter. As in accordance with their attorney’s letter, the sellers demonstrated no intention of visiting the property or to proceed to an expert inspection or undertake repairs necessary.

The initial court concluded that the sellers, Deschênes, are liable for all the latent defects repairs undertaken by the buyer, Reulet. The seller argued that the required written denunciation was never given to him, concerning the latent defects which were emergently repaired and therefore he should not be held liable.

The Court of Appeal unanimously agreed with the initial judgement. The judges from the Court of Appeal agreed that the required written notice had never been given concerning the emergency repairs. However, the absence of this denunciation is not a barrier since the appellants clearly indicated later on that they had no intentions to remedy any of the latent defects.

In conclusion, the simple mere fact of not undertaking any actions in order to remedy the prejudice occurred by any latent defect, urgent or not, results in the implicit denunciation of a written notice.

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