Mainville, Sansfaçon, Beaupré

Appeal from a judgment of the Superior Court declaring a call in warranty inadmissible for lack of legal basis. Dismissed.

In March 2003, the respondent sold one parcel of land to the appellant and another to the impleaded party, Marjolaine Tremblay. These sales followed a first sale, a few days earlier, of another parcel of land by the respondent to a third party, Gercom Construction inc. The three sales were with legal warranty. In March 2004, the appellant and Gercom sold their land to Marjolaine Tremblay, who thus became the owner of the three lot parcels. She then transferred all the land to the appellant in July 2017, this time without any warranty. The deed of transfer also included a note that the transferee agreed to take the immovable in the condition it was in. In September 2015, the appellant sold the land to the impleaded parties Maltais and Émilie Tremblay, who built their house on it. In 2019, when they wanted to resell the immovable, they discovered that a strip crossing the property and giving access to the river from the public road had been acquired, in 1969, through an expropriation by the National Harbours Board. They brought proceedings for a declaration of inoperability of the notice of expropriation citing various grounds that, in their view, made this expropriation null. They also asked to cancel the sale for defect of title and damages from various stakeholders, including their seller.

At trial, the expropriation was declared valid against all parties. The appellant, who was a defendant in the application to cancel the sale and for damages, called his own seller, Marjolaine Tremblay, in warranty. The call in warranty also concerned the respondent, one of the previous owners of the land. The trial judge granted the ground for dismissal she raised based on Blais c. Laforce (C.A., 2022-05-19), 2022 QCCA 858, SOQUIJ AZ-51854503, 2022EXP-1747. He concluded that the legal warranty waiver clause under article 1733 of the Civil Code of Québec (S.Q. 1991, c. 64) (CCQ) also applied to the warranties of quality and of title.

While the appellant’s action may continue against his own seller, that is, Marjolaine Tremblay, the warranty exclusion clause in the contract of sale breaks the earlier chain of title and excludes any recourse based on a warranty found in an earlier deed of sale.

Indeed, the warranty exclusion clause in the deed of transfer from Marjolaine Tremblay to the appellant does not stipulate that the appellant was buying “at his own risk”, as required under the second paragraph of article 1733 CCQ. The condition of expressly stipulating that the buyer is purchasing the immovable at his own risk adds to the waiver of warranty. Both stipulations must be included in the deed of sale. Without them, non-professional sellers cannot argue an exclusion of liability if they knew of the defect and failed to disclose it to the buyer.

Thus, while the warranty waiver clause may in part be set up against Marjolaine Tremblay if she knew about the alleged defect of title and failed to disclose it to the appellant, this waiver of warranty remains valid with respect to both its effects regarding defects that were unknown to the seller or those that were disclosed to the buyer and its liberating effects on the seller’s warranty as it applies to earlier sellers in the chain of title.

Finally, the appeal must also be dismissed because the appellant’s recourse against the respondent is prescribed. The appellant intended to exercise the rights of Marjolaine Tremblay, his transferor, against her author, the respondent, from whom she acquired a parcel of the land in dispute with legal warranty. More than 15 years passed between the time Marjolaine Tremblay was told of the property defect and the time the appellant filed his recourse in warranty against the respondent.

Text of the decision: http://citoyens.soquij.qc.ca