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Facchini c. Nardelli

2010 QCCS 6291

 

SUPerior

JR1353

 
 COURt

 

 

CANADA

 

 

PROVINCE of QUÉBEC

 

 

DISTRICT of

MONTREAL

 

 

 

 

 

N°:

500-17-040793-088

 

 

 

 

 

DATE :

December 14, 2010

 

 

 

_________________________________________________________________________

 

 

 

presiding:   the HONORABLE BRIAN RIORDAN, J.S.C.

 

 

_________________________________________________________________________

 

 

 

 

 

 

 

 

ANTONIO NARDELLI

-and-

LORENZINA COPPOLA

 

 

Plaintiffs

 

 

 

 

 

v.

 

 

 

LORETO FACCHINI

-and-

GIOVANNI ROSAURI

 

 

Defendants

 

 

 

 

 

_________________________________________________________________________

 

 

 

 

 

judgment

 

 

_________________________________________________________________________

 

I.       THE PROCEEDINGS

[1]           Plaintiffs allege that the apartment building (the "Building") that they purchased from Defendants in June 2006 (the "Sale") is afflicted with a number of hidden defects.  They thus claim $106,354.02 from Defendants representing the cost of the work required to repair those defects, as well as rent lost during the repairs and interest on the loan taken out to finance the work.  They claim an additional $6,000 as moral damages for "perte de jouissance et troubles et inconvénients".

[2]           The defects and the cost claimed to repair them are as follows:

a.    faulty sewer pipe                                                            $75,411.35

b.    rat infestation causing problems

with the alarm system                                                       $8,643.91

c.    faulty water main                                                              $1,453.15

d.    faulty garage drains                                                          $1,022.69

e.    faulty toilet fixtures                                                           $2,825.15

f.     loan interest and expenses                                               $16,997.77

[3]           Defendants deny liability, alleging that these defects, to the extent that they exist, were not hidden but, rather, were apparent and that Plaintiff Nardelli was personally aware of most of them at the time he and Plaintiff Coppola, his wife, purchased the Building.  As well, they allege that Plaintiffs' claim is inflated because much of the work went to renovating and upgrading the Building rather than simply repairing it.

II.      THE STATE OF THE LAW

[4]           The first paragraph of article 1726 of the Civil Code sets out the liability of the seller towards the buyer for hidden defects, liability that exists whether or not the seller knew of the problem"

Art. 1726.  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.

[5]           Since we are talking of "hidden" defects, knowledge or reputed knowledge of a defect prior to the sale greatly affects the positions of each of the parties.

[6]           For the buyer, such knowledge means that the defects are not hidden but are, in fact, apparent.  With one exception, this frees the seller from liability, as indicated in the second paragraph of the same article:

Art. 1726.

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.

[7]           For the seller aware of the defect, article 1728 imposes the added liability "not only to restore the price, but to pay all damages suffered by the buyer" where he fails to divulge the defect prior to the sale.

[8]           It is therefore not surprising that, as in the present case, each party denies any pre-sale knowledge of the defects.  However, the Plaintiffs argue that, even if the Court were to find that certain of the defects were apparent, the Defendants are still liable under the theory of "vice apparent juridiquement caché", which the Court translates as "misrepresented defects".

[9]           This theory goes farther than article 1728 in that it imposes liability on the seller for apparent defects where he makes false or misleading representations to the buyer about those defects.  In his judgment in the case of Placement Jacpar inc. v. Benzakour[1], Justice Lebel, then of the Court of Appeal and now of the Supreme Court of Canada, wrote:

(le) dol ou le mensonge du vendeur peut rendre un vice juridiquement caché, surtout lorsque l'acquéreur a demandé une explication au sujet des manifestations d'un défaut et qu'on l'a orienté sur une fausse piste.

[10]        As a result, in the case of a misrepresented defect, the seller has greater liability than that imposed by article 1726 for a hidden defect.  In the Court's view, since the seller is aware of the defect, article 1728 would also apply.  Accordingly, he would be liable for all damages suffered by the buyer and not just the effect on the item's price. 

[11]        Using this legal backdrop, we shall analyze each of the five alleged defects making up the present claim.  It is necessary to point out that, since these problems have different causes and indicia, the fact that one might be apparent or hidden has little or no effect on the status of the others.

III.     THE SEWER PIPE

          A.      Nature of the defect

[12]        The Building is a four-storey structure with two apartments in its half-basement, apartments number one and number two ("Apartment 1" and "Apartment 2").  It was in those units that most of the problems arising from the sewer pipe manifested themselves, particularly in Apartment 2.

[13]        The Building was inspected before the Sale and, in their April 28, 2006 report (the "Report": Exhibit P-4), the inspectors ("IBQ") identified many problems.  Nardelli makes no claim for those, admitting that they would be apparent defects.  He only claims for the problems that IBQ did not discover. 

[14]        As reasonable as that position appears, it is technically not accurate in law.  Defendants ("Facchini"[2]) are not liable for defects that Nardelli could reasonably perceive on his own.  If he or his inspector failed to discover a defect that a prudent and diligent buyer should have noted, then that is not Facchini's problem, assuming it is not a misrepresented defect.

[15]        Apartment 2 was in a bad state at the time of the Sale.  The Report points out several items of concern, including condensation below the windows, "typical" defects in the ceilings and mould and mildew in the kitchen cabinets.  Surprisingly, it makes no mention of mildew or water marks on the other walls, although both Facchini's expert ("Guertin") and Nardelli's ("Ortona") were unequivocal that moisture and mildew staining had to be evident at the time of the Sale.  Ortona went so far as to say that the majority of the lower walls, some 75% of them, would have had black staining associated with water damage.

[16]        More relevant to the sewer pipe issue is the horrible smell in Apartment 2, as described by several witnesses.  The tenant there complained mightily of it, eventually moving out as a result.  Ortona, who visited the Building some eight months after the Sale, said it was the worst he had ever experienced in his career.  More importantly for present purposes, Nardelli and Coppola each noticed it before the Sale.

[17]        It was on Nardelli's second visit to the Building, some time between March 6 and 12, 2006, that he asked Facchini what the smell was.  Coppola was present and she corroborates Nardelli's testimony that Facchini pooh-poohed the smell away, saying it was from the type of food the tenant cooked and the fact that she never opened her windows.  Nardelli had known Facchini for a number of years, the two having worked together in the past, and he accepted Facchini's word without question.  "If Loreto says it's that, then it's that", he told his wife.

[18]        But Facchini knew there was likely more to it than that.

[19]        The tenant in Apartment 2 testified that in February 2006 there had been a "disaster" in her bathroom.  Her toilet had backed up into the bathtub.  Facchini had to call in a plumber who made significant repairs to that bathroom, even changing the bathtub. 

[20]        The tenant stated that the smell started that day and eventually became intolerable.  Prior to the Sale, she asked Facchini to move her into another unit in the Building, but none was available.  She moved out in June 2007, a year and a half after the "disaster".

[21]        It seems obvious that the explanation for the "disaster" lies with the sewer pipe.  Apartment 2 has the dubious distinction of sitting above the pipe through which the Building's waste is evacuated to the city sewer system.  It is also above the main water valve through which water is fed into the Building.  There is a trap door in the floor of Apartment 2 allowing access to the valve controlling the water main, but there is no way to access the sewer pipe without breaking through the floor and the concrete slab on which it sits.

[22]        Nardelli undertook major repair work in Apartment 1 and Apartment 2 in July 2007.  In the course of that, the contractor discovered that the sewer pipe under Apartment 2 was perforated in several places.  As a result, it was necessary to break a channel through the cement slab and replace it.  Given the extent of damage that this work caused to the surrounding elements, Nardelli alleges that he had no choice but to change all the bathroom and kitchen fixtures.  He did the same in Apartment 1.

[23]        The first question to ask is, given the presence of the smell, was the sewer pipe defect hidden or apparent. 

[24]        It is clear that the only way to have identified it would have been to do a "camera test", i.e., run a camera line through the pipe and view it from the inside.  This goes well beyond what a prudent and diligent buyer could perceive on his own.  Nevertheless, the smell certainly gave a strong indication that something was wrong.  For a defect to be apparent, it is not necessary to be able to identify the specific problem.  An obvious sign of a problem is enough.

[25]        That said, the Court is not of the view that the smell should have led a buyer to conclude that the sewer pipe was dysfunctional.  None of the witnesses testified that the smell was clearly that of sewage, even Ortona.  The pipe was buried under the concrete slab of the Building, which should have contained the odour to a large degree.

[26]        Facchini argues that Nardelli should have done a camera test before starting the work, as Ortona recommended in February 2007.  Although that would have been informative, it was not necessary.  All that this would have done would have been to allow Nardelli to discover the perforated sewer pipe earlier, but still after the Sale.

[27]        Facchini also argues that Nardelli clearly intended to do a complete renovation of the two apartments as early as February 2007, when he received estimates from three contractors (Exhibit P-36).  Those estimates make it clear that major work was foreseen and one of them, by a contractor who did not get the job, mentions "couler dalle de béton dans 2 app. et passage". 

[28]        No explanation was asked for or given concerning this entry, although that type of work is not included in the submission of the successful contractor.  That contractor testified that the need to change the pipe was discovered at the end of July as the result of a smoke test by a drain specialist, who noted "… nous avons localisé un trou dans le tuyau de 4" dans l'appartement #1.  Le drain doit absolument être changé car il n'est plus en état" (Exhibit P-17).[3]

[29]        Whatever the explanation, this argument does not help Facchini.  Even assuming for the sake of argument that in February 2007 Nardelli intended to replace the sewer pipe, if the pipe has a hidden defect - or a misrepresented defect - Nardelli's claim will be valid. 

[30]        The test is whether "the buyer would not have bought (the property) or paid so high a price if he had been aware of" the defects: article 1726.  Clearly, had the problem been known in the spring of 2006, Nardelli would have negotiated a lower price for the Building, as he did when he obtained a reduction of $12,500 in the already-agreed-upon purchase price because of the problems identified in the Report.[4]

[31]        As well, Facchini asserts that IBQ pointed out the problem in the Report.  At page 69, the inspector wrote "présence d'acier galvanizé (VIEUX CONDUITS) à remplacer au besoin"However, the note does not indicate that the work is urgent in any way, showing that it should be done according to IBQ's criterion #3, which its representative stated as meaning in the medium term, not within the first two to four years.

[32]        Again, and even considering the average life of such pipes, the test is whether Nardelli would have paid the same price for the Building.  The Court is convinced that he would not have done so.

[33]        Finally, even if the smell and other elements should have alerted Nardelli to a problem with the sewer system, the Court concludes that this would be a misrepresented defect.  For the reasons explained below, the Court gives very little credibility to Facchini's version of events and concludes that he attempted to mislead Nardelli on this point.

[34]        As noted above, Facchini knew that there was a sewer-related problem in this unit, having done major repair work only a month before Nardelli's first visit.  His statements to Nardelli and Coppola about the odour are clearly misleading, as is his answer to IBQ in the pre-sale declaration that he signed (Exhibit P-5).  To question 6 of that declaration he answered that there had never been any sewer overflow in the Building, and this, only a couple of months after the "disaster" in Apartment 2.

[35]        This unwillingness to divulge the facts is consistent with Facchini's overall behaviour in relation to the disclosure of unfavourable information about the Building.

[36]        For purposes of the Sale, two inspectors interviewed Facchini, IBQ's employee and the representative of Envirotest, who did an environmental assessment of the Building on April 5, 2006.  In both cases, Facchini signed declarations designed to identify issues about the property that only the owner would know.  In both cases, he gave false information:

a.            He told Envirotest that he had done "major renovation work" in the bathrooms in 2006, confirming what he had told his real estate agent, whereas, prior to being confronted by those facts, he testified that he had only done a bit of work on three or four bathrooms in 1998 or 1999;

b.            To Envirotest's question whether oil tanks had ever been present on the property, he answered that he did not know, whereas he had had an underground oil tank removed less than a month before that inspection;

c.            He told IBQ that that there was no (land) fill on the property, whereas the hole made when removing the former oil tank in March 2006 had been filled;

d.            He told IBQ that there had never been any abnormal odours in the property, whereas he was aware of the smells emanating from Apartment 2;

e.            He told IBQ that there had never been a problem with mice or rats, whereas it is clear that such a problem did exist and that at least the tenant in Apartment 1 had complained to him about it and he had put rat poison out.

[37]        In addition, his testimony lacked credibility on a number of other points.  He was incapable of giving a straight answer to simple questions, requiring Nardelli's lawyer, and even his own, to repeat the same question several times.  He was also contradicted by a number of other witnesses, including third parties with no interest in the outcome of the proceedings.  This occurred in relation to the repairs he had done on the bathrooms in the building, to steps he had taken to control rats, contradicting the tenant of Apartment 1, and to the extent of problems with the alarm system, contradicting the widow of the former janitor.

[38]        For all these reasons, the Court is unable to give credence to any of Facchini's testimony that is not corroborated by independent evidence.  It follows that, where his testimony conflicts with the testimony of another witness, it is to the latter that the Court will turn.

[39]        Thus, the Court concludes that, even if the sewer pipe defect were apparent, it would be a misrepresented defect.  Consequently, Facchini owes general damages to Nardelli and Coppola for that defect in accordance with article 1728.

B.       Evaluation of Damages

[40]        That decided, the calculation of the damages is not a simple task.  The amount of $75,411.35 claimed under this heading[5] is broken down as follows:

a.    an account from the contractor for both basement apartments:   $44,967.69

b.    plumbers' bills totalling                                                           $20,936.10

c.    electricians' bills totalling                                                          $6,547.81

d.    the fees of an expert hired to discover the sewer problem:              $569.75

e.    lost or reduced rent                                                                  $2,390.00

[41]        Facchini is correct to question whether those amounts do not include a certain amount of renovation, as opposed to mere repair.  His expert Guertin was of that view, opining that the work resulted in added value to the Building and went beyond what was necessary to repair the sewer pipe defect. 

[42]        As well, the invoices include mirror-image work on Apartment 1, except for the repair of the sewer pipe itself.  The moisture damage in Apartment 1, as well as much of it in Apartment 2 for that matter, was apparent, being caused in large part by condensation from inefficient windows.  The cost of the work relating to Apartment 1 must therefore be excluded, except for the portion relating to repairing the small portion of the sewer pipe under its floor.  Since there is no clear breakdown of the amounts for each apartment, the Court will have to estimate that as best it can.

[43]        In addition, the Court will reduce the award by the value of work representing an upgrade or renovation of the Building, as opposed to a repair of a specific problem.  Here again, the proof does not provide a clear breakout of these amounts, so the Court will make estimates.

[44]        Concerning the general contractor's account for $44,967.69 (Exhibit P-13), the contractor mentioned that the cost was split fairly evenly between the two basement apartments, even though Apartment 2 is larger than Apartment 1.  We shall nonetheless attribute 60% to Apartment 2 ($26,980) to adjust for work necessitated by the sewer pipe repair under Apartment 1. 

[45]        As well, part of this amount represents upgrades.  We estimate that part of the supervision of the overall project, plus the supervision of the electrical work (1/2 of 25%: 12.5% of total), the new kitchen cabinets (10%) and one-half of the finish work and painting (15%) went for upgrades.  This leaves 62.5% of the amount strictly for repair work: $16,862.  This is the amount that will be awarded to Nardelli under Exhibit P-13.

[46]        Concerning the plumber's bills for $20,936.10 (Exhibit P-14), the Court is satisfied that the majority of the charge was for necessary work in the bathrooms of the two units.  Assuming that 60% of the total ($12,562) was for Apartment 2, we shall assume that 20% represented an upgrade, leaving $10,050 to be awarded under this exhibit.

[47]        Concerning the electrician's bills for $6,547.81 (Exhibit P-15), the Court does not see how this work, basically to rewire the two apartments, relates to the sewer pipe defect.  In discovery, Nardelli testified that "an inspector" told him in July 2007 that once the gyprock was removed to expose the wiring, one could not reinstall new gyprock without bringing the wiring up to current standards. 

[48]        At trial, Nardelli identified the inspector in question as Ortona, but Ortona denied that he commented on electrical questions when he visited the site that summer.  As well, Facchini's expert explained that there was no obligation to change wiring in those circumstances. 

[49]        The Court concludes that the upgrading of the wiring was simply a wise decision by an owner to use the best standard possible for such a critical element of his property.  Accordingly, the claim for electrical work is refused.

[50]        Concerning the fees of $569.75 identified in Exhibit P-40 as being for a specialist to discover the rat problem, in his oral argument Nardelli's attorney clarified that this invoice (Exhibit P-26) is in fact for Ortona's work in producing his report.  Accordingly, and since we grant the present action in part, we shall include this item under costs.

[51]        Concerning lost rent, the Court will grant the amount relating to Apartment 2, as mentioned in paragraph 38 of the re-amended action ($1,410), and only half of the amounts relating to Apartment 1 in paragraphs 37 and 39 ($380 + $110), since the necessary work there, being of a lesser scope than in Apartment 2, should not have taken two months to complete.  The award for lost rent is thus $1,900.

[52]        The total award for correcting the problem of the defective sewer pipe comes to $28,812.

IV.     RAT INFESTATION

A.      Nature of the Defect

[53]        Nardelli made no expert proof on this point, choosing to rely on a number of photographs and the testimony of several witnesses.  Suffice it to say that the Court is satisfied that there existed a serious problem of rat and cockroach infestation at the time of the Sale.  Photographs filed as Exhibit P-8 show how serious the rat problem was in August 2006[6].  That said, the cost of extermination of vermin is not the only amount claimed for this defect.

[54]        Much of the $8,643.91 claimed is made up of expenses related to problems with the Building's alarm system.  The rats got a charge out of eating the plastic casing around the system's electrical wires, which Nardelli found shocking.  This caused short circuits that made the alarm go off on numerous occasions, both day and night.

[55]        Facchini testified that he only ever heard the alarm go off once in the eight years he owned the Building.  Other witnesses, including the wife of the janitor who recently passed away, testified to the contrary, stating that the alarm was ringing at all hours of the day and, especially, the night.  The Court prefers that witness's testimony and holds that the alarm system had become a major problem prior to the Sale. 

[56]        This situation was not divulged to Nardelli and he could not reasonably be expected to have perceived either the rat problem or the faulty alarm system himself or through IBQ.  Accordingly, the Court considers that both items represent hidden defects and will award to Nardelli the cost of correcting them.

B.       Evaluation of Damages

[57]        The amount claimed of $8,643.91 includes work to discover the point of entry of the rats using smoke tests, to exterminate the pests and remove the cadavers, to exterminate the cockroaches, to determine the source of the problem with the alarm system and to repair it.  The only controversial item is an account from the janitor for $3,097.80.

[58]        Nardelli testified that he, like Facchini, paid the janitor a fixed amount monthly for his regular services, which did not include vermin control or being required to turn off the alarm, often in the middle of the night.  He agreed to pay the man $30 an hour to trap and remove the dead rats from the Building and to compensate him for his troubles caused by the faulty alarm.  The janitor prepared a detailed invoice on those points (Exhibit P-25).

[59]        Facchini objects because there is no proof of payment, it having been made in cash, and no proof that the janitor actually did anything in this regard.  The Court does not agree.  The janitor's widow as well as the tenant in Apartment 1 confirmed Nardelli's version of the events. 

[60]        The Court will award the full amount of damages claimed under this head: $8,643.91.

V.       THE WATER MAIN

[61]        Nardelli testified that the first time he accessed the water main under Apartment 2 it was spurting water from the main valve.  Neither he nor IBQ inspected the valve before the Sale and it was not until September 5, 2006 that his plumber repaired the problem.  He attributes the majority of moisture damage in the two apartments to this fact, claiming $461.79 for the repair to the valve and $991.36 for work done in apartments #4 and #9 in September of 2007.

[62]        Neither amount will be awarded. 

[63]        Concerning the water main, Nardelli should have discovered whatever problem existed with the valve as part of the pre-purchase inspection.  This is a critical element in a building.  The standard form used by IBQ for the Report has a section dealing specifically with this element at page 68, requiring an indication of the material used in the main water feed. 

[64]        Here, the trap door covering the valve is clearly visible in the floor of Apartment 2, as seen in the photograph D-1-c: #IMGP5263.  It is thus hard to understand why, at page 68, IBQ states: "Entrée d'eau: non visible". 

[65]        In any event, even if that were the case that day, i.e., that it was hidden under boxes or a piece of furniture, an experienced buyer like Nardelli should have taken the trouble to locate the trap as part of his pre-purchase inspection.  Moving a box or a bureau is certainly something that a prudent and diligent buyer would be ready to do to inspect such an important element.

[66]        Concerning the work done in apartments #4 and #9, the invoice (Exhibit P-16) shows that the plumber repaired the cold water for each apartment and did a hook-up for a vanity.  Neither of these elements can be shown to relate to a faulty main water valve.

VI.     THE GARAGE DRAINS

[67]        Nardelli alleges that the drains that evacuated water from in front of the two garage doors of the Building were blocked, resulting in a flooding of the garages after a heavy rain.  His expert, Ortona, did not inspect that part of the Building but Nardelli's plumber indicates in his detailed invoice (Exhibit P-21, #570) that the drains were blocked and that there was a possible break in the pipe under the cement floor.  In addition to the cost of that manoeuvre ($219.35), Nardelli is claiming the cost of replacing the pipe ($803.34: Exhibit P-19).

[68]        The Court is satisfied that the problem existed at the time of the Sale and that Nardelli could not have been expected to perceive it himself.  It is true that the Report, at page 20, speaks of a drainage problem and low points in the back of the building, but this has nothing to do with blocked drain pipes.

[69]        We shall award him the full amount claimed: $1,022.69.

VII.    THE TOILET FIXTURES

[70]        IBQ noted that the toilets in several of the apartments were unsteady (branlantes).  The cause of the problem is not stated.

[71]        Coppola testified that she accompanied the plumber and saw that there were two levels of ceramic tiles in some of the bathrooms, leading to the conclusion that a new layer of tiles had been laid over the old tiles.  Facchini admitted in two documents to have renovated the bathrooms, although it was impossible to determine from his testimony to what extent he did the work himself.

[72]        The shaky toilet problem might well be a defect, but it was noted by IBQ[7].  Moreover, it would have been apparent to anyone who would take the trouble to push against the commode, as a prudent and diligent buyer would do.  No amount will be awarded for this head.

VII.    LOAN AND INTEREST EXPENSES

[73]        Nardelli financed the repair work on the Building by adding $60,000 to the hypothec on another property he owned (the "Loan").  He claims the cost of a new evaluation ($478.59), notarial fees for the hypothec ($650) and analysis fees to the lender ($489), as well as the interest on the borrowed amount ($15,380.18 - as amended at trial).

[74]        The Court has recognized that repairs attributable to hidden defects in the Building had a cost of $38,478.60.  Adding the new evaluation and notarial fees, which the Court accepts, the total comes to $39,607.  There was some dispute between the parties as to whether the whole amount of $60,000 went into the Building, or just $45,000, as mentioned in a letter from the bank.  Since the Court's figure is lower than $45,000, that issue becomes moot.

[75]        Nardelli calculated the interest on the amount of $60,000 using a table (Exhibit P-30) showing the repayment schedule for a hypothec of $60,000 with a five-year term and a 25-year amortization period, with monthly payments.  These are not the conditions of the Loan.

[76]        The hypothecary documents from the Caisse Populaire (Exhibit P-38) show that the Loan had a term of five years at an interest rate of 6%, requiring 260 weekly blended payments of $289.93.  On the fifth anniversary of the Loan, "tout solde en capital, interest et accessoires deviendra exigible". 

[77]        Accordingly, to calculate the interest payable on the Loan, Nardelli's table is of no use: it does not consider weekly payments and a five-year payback.  Applying those, the interest on $60,000 comes to $9,343.28 over five years.  On the amount awarded, $39,607, total interest comes to about $6,000.  But there is another problem. 

[78]        Interest is not paid all at once.  In this case it is spread over five years, but Nardelli is asking that it be reimbursed in full now.  As a result, the amount should be discounted to present value.  Nardelli provides no information to assist in the discounting calculation.  Since there are several factors to take into account, such as the discount rate, the Court is not in a position to do the calculation for him, as it did for the interest. 

[79]        We shall simply assume that the discounted value of the interest paid over five years would be about 50% of the total: $3,000.  Adding the evaluation cost and the notarial fees, the total award relating to the Loan comes to $4,128.59.

[80]        The total of the above amounts is $42,607.19, which the Court will award by the present judgment.

IX.     MORAL DAMAGES

[81]        Nardelli and Coppola both testified as to the strain that was put on them as a result of having to deal with the various hidden defects in the Building.  Coppola corroborated her husband on the long hours he had to spend trying to discover the source of these unexpected problems.

[82]        They thus claim $6,000 as moral damages for loss of enjoyment of life, troubles and inconvenience, citing article 1728.  Since the Court finds that Facchini was aware of both the sewer pipe defect and the rat/alarm system defect, that article does, in fact, apply and Facchini is thus liable for all of Nardelli's damages.

[83]        Facchini counters that such problems are part of the job of owning residential rental buildings and no amount should be granted.

[84]        Although Facchini is correct that building owners will have their share of headaches, these will not normally include those caused by the frustration and anxiety of discovering important hidden defects just after purchasing a building. 

[85]        Nardelli knew that the Building needed work and was ready to pay to have it done.  The deluge of problems he discovered within weeks of the Sale, however, particularly when he and Coppola made the rounds of the tenants to collect their first month's rent in July 2006, gave a whole different perspective to the precariousness of their investment and understandably caused them anxiety and inconvenience. 

[86]        Since the situation was caused by Facchini's fault, they are entitled to be compensated.  The Court will award them $5,000 under this head, $2,500 each.

X.       INTEREST AND COSTS

[87]        Nardelli sent three default letters to Facchini, starting in September of 2006.  It was only with the second letter, dated November 16, 2006, that he claimed a payment of money, $15,125 at that stage of things. 

[88]        The Court will order that interest and the additional indemnity run as of the date of that letter, Exhibit P-3, since no amount was claimed in the first letter.

[89]        We shall grant Nardelli costs, including the fees and disbursements of the expert Ortona, through his company Inspecteval Inc.  The invoices for Ortona's appearance at trial ($423.28) and for preparation of his report ($569.75) that were produced are more than reasonable. 

BASED ON THESE REASONS, the court:

[64]      Grants Plaintiffs action in part;

[65]      condemns Defendants solidarily to pay to Plaintiffs the sum of $47,607.19, with interest and the additional indemnity from November 16, 2006, the date of the first default specifying an amount claimed;

[66]      the whole with costs, including the cost of Inspecteval Inc. in the amount of $993.03.

 

 

_____________________________

BRIAN RIORDAN, J.S.C.

 

Mtre. Pietro Iannuzzi

Attorney for Plaintiffs

 

Mtre. Dominic Bianco

Attorney for Defendants

 

Hearing Dates:  November 30 and December 1, 2, 3 and 6, 2010

 



[1]     [1989] R.J.Q. 2309 (C.A.), à la page 2318.  Voir aussi Lamontagne c. Paris, REJB 2001-23177 (C.A.), et Tremblay c. Galipeau, REJB 2003-44351 (C.A.).

[2]     We refer to the Defendants by the name of only one of them because it appears that the other, Mr. Rosauri, who lives in the Untied States, was more of a silent partner.  Facchini was the only one who intervened with Nardelli.

[3]     This note counters one of Facchini's other arguments that there is no proof that there was a defect in the pipe.

[4]     See Bellemare v. Déry, 2009 QCCA 2429 , para. 6.

[5]     Facchini complains that Nardelli failed to put him into default before performing some work.  However, all amounts claimed under this heading were for work done after Nardelli's three demand letters: Exhibits P-2, P-3 and P-31.

[6]     See photos E, G, H, I and J.  This is further confirmation that the sewer pipe was seriously damaged at the time of the Sale, since rats generally enter a building through holes in that pipe, as several witnesses testified.

[7]     See P-4, page 95:  "toilettes mal fixées - branlantes".

AVIS :
Le lecteur doit s'assurer que les décisions consultées sont finales et sans appel; la consultation du plumitif s'avère une précaution utile.

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