Bad smell can alter a real estate deal

Former building owner ordered to pay $20,915 to buyer for repairs, lost rent

Every month, Quebec judges and regulatory agencies issue dozens of rulings that, without making headlines, set the ground rules for how business is conducted in Quebec.

Here are a few of the offbeat and/or consequential rulings returned in recent weeks. Is a bad smell hidden defect?

It can be, a recent Quebec Court judgment confirmed.

Judge Richard Daoust ordered a former owner to pay $20,915 to the person who bought her building to cover the cost of repairs needed to eradicate odours.

The former owner, who had been there 15 years, said she told the buyer about a lingering cigarette smell from a tenant who smoked. The

in a home a buyer denied it. There was no mention of it in any of the listing information, though there were air purifiers in the downstairs unit when he visited.

The buyer said he discovered the smells after acquiring the three-unit property in 2012 and renting out the downstairs flat. One week after moving in, the tenant complained of sewer, food and cigarette smells, and eventually moved out.

The buyer ended up having to make costly changes to the stove and dryer vents and floor drains.

Judge Daoust said the seller’s own assertion she told the buyer about a cigarette smell a week before the sale amounted to an admission there was an odour problem, something she’d denied on her vendor declaration.

Even if the odours were not permanent, they were frequent enough to represent a hidden defect, he said.

His total award included repairs, lost rent and professional fees. A woman who discovered paperwork suggesting a sizable loan to one of her sisters while going through her late mother’s financial records failed in her bid to have a Superior Court judge order the loan repaid to the mother’s estate.

According to the will, the three sisters were supposed to share the estate equally after the mother’s death in 2006.

The promissory note, for $375,000, was dated 1991. The sister named in the document, who had stayed with and cared for the mother in her later years, acknowledged the note’s existence, but said she never received any money, and in any case, the note was long past having any legal validity.

Superior Court Judge Gérard Dugré agreed with her. He said that under the Quebec civil code, promissory notes expire three years after the signing date.

The sister who took legal action as liquidator of the estate “appears to have wanted to make a public inquiry into the transactions her mother made from 1990 to her death in 2006,” he noted, adding that the mother was perfectly capable of managing her own affairs.

Judge Dugré did agree to a request by the other two sisters to be reinstated as liquidators of their mother’s estate. They’d been named originally in the mother’s will along with the third sister, but acceded to the other sister’s 2007 request to go it alone because she lived in Montreal and they resided out of the province.

The sister who served as solo liquidator also will have to pay the $40,000 in the legal costs for the court challenge out of her own pocket, rather than from the estate. Because the initiative was her idea, and abusive, she’s responsible for that cost on her own, the judge ruled. If you’re going to use false numbers in documents to try to avoid taxes or divorce obligations, don’t expect the courts to bail you out if you have problems.

A local man who sold two duplexes in 2008 for a reported $255,000 sued the buyer for damage to his belongings after being evicted from one of the units in 2009.

He claimed to still be owed $45,000 in cash that was part of the original agreement, but excluded from the notarized deed of sale because he didn’t want the woman he was divorcing to know about it.

The buyer said he didn’t owe $45,000 and evicted the seller because he had vandalized his unit by spilling insecticide in it.

Superior Court Judge Mark Schrager sided with the buyer, saying the only verifiable evidence showed a documented sale price of $255,000. The pretension to an additional $45,000 had nothing to back it up and fraudulent motives in any case, he said.

The claim to damages was also rejected. Judge Schrager noted that the buyer had taken the trouble to hire a mover and store the property for the tenant, rather than simply put it at the road. Why would he then damage it?

And if the sofas and mattresses were rendered unusable by an insecticide smell, the seller had only himself to blame, the judge said, rejecting the claim completely.