The failure to send a demand letter providing a sufficient time period for allowing the seller to correct the alleged defects can be fatal to a buyer’s recourse

This post, published on Éditions Yvon Blais’ blog on latent defects on April 2, 2019 (FR), discusses the judgment in Dionne v. Climatisation Labelle 1996 inc. (Full Text), in which the court determines the impact of failing to send a notice providing a sufficient time period for the seller to remedy the alleged defects with respect to the legal warranty of quality on a residential geothermal system. Ultimately, the court concludes that the failure to send such notice providing a sufficient time period is fatal to the buyers’ recourse.

In this case, the buyers sent a demand letter providing the seller and the designer of a residential geothermal system installed on their property with a 10-day period. The buyers notified the seller and the designer that upon the expiry of the 10-day period, they intend to proceed with the work required to render the geothermal system functional.

During this 10-day period, the seller and the designer requested further clarifications as to the nature of the problem. The buyers provided the requested explanations, but only well after the date on which the work was carried out.

In determining whether or not the notice was sufficient, the court concluded in the negative. Specifically, in this context of the buyers having taken the law into their own hands, the court rejected the buyers’ $92,607.66 claim.

Therefore, the court found the buyers’ failure to communicate the details of the alleged defects in their demand letter, their failure to respond in a timely manner to the defendants’ request for further information following their receipt of the demand letter, as well as their failure to provide the defendants with a sufficient time period to allow them to ascertain the presence and extent of the alleged defects and to remedy the alleged defects to be fatal to the buyers’ recourse, despite the presumption of the professional seller’s knowledge of the defect provided for in section 1729 of the Civil Code of Quebec.

This decision emphasizes the importance for the buyer to collaborate with the seller and to give him a reasonable time period within which he can fulfill his obligations, as well as the importance of sending the seller a sufficiently-detailed notice so that he may be fully aware of the nature of the defect of which he is being notified.