Nightmare by the Lake

When Quebecers do business with a professional, they expect to be supported in the event of a problem. After all, professionals are supervised by an order dedicated to protecting the public. In addition, they are covered by liability insurance in case they ever make a mistake.

But reality can be nightmarish. Richard Côté learned this to his cost…

In 2017, the retiree and his partner bought a house on the shores of Grand Lac Saint-François, in the Eastern Townships, which became his main residence.

As required by law, he uses a notary who carries out the title search. For their part, the sellers provide an up-to-date location certificate, duly prepared by a land surveyor.

In short, everything is done according to standards by professionals who see nothing abnormal in property rights.

Two years later, a bolt from the blue.

Richard Côté receives a letter from the Ministry of Energy and Natural Resources informing him that the lot on which his house is located has belonged to the State since 1917. The problem is widespread around the lake.

To regularize the situation, the Ministry is prepared to sell him the lot for 1% of its value, or $3,000. But the Ministry, which manages the Jules-Allard dam holding back the waters of Grand lac Saint-François, is demanding an easement that would allow approximately 30% of the land to be flooded.

Unfortunately, the house is on this easement. Moving it elsewhere on the land would cost about $350,000.

Richard Côté is stuck. If he refuses, the government threatens to take possession of his residence. He has no choice: he abdicates.

Even if the land is never flooded, it suffers serious disadvantages, particularly because it becomes impossible to obtain mortgage financing for the building.

Judging that the notary and the land surveyor had done their work poorly, Richard Côté turned to their respective professional orders. He was convinced that the case would be resolved quickly, as the error was so obvious.

No way.

The professional liability insurance funds of the two orders would not listen, which forced Richard Côté to initiate proceedings against the notary and the surveyor.

He also sues the former owners. They themselves sue their seller, who in turn sues the estate of the previous seller. This type of chain of proceedings is unfortunately not uncommon in cases of hidden defects. We will come back to this…

Oh yeah, and the former owners are also suing their real estate broker.

For the lawyers, it’s the jackpot! During the preliminary examinations, 22 people are present, including 8 prosecutors. The trial has not yet taken place and Richard Côté has already paid out more than $62,000 in legal fees.

Where will it stop? Where is the public protection in all this? Where is the justice?

Quebec’s 46 professional orders, which have 422,000 members, are there to defend the interests of the public. But liability insurance funds, for their part, look out first and foremost for the interests of professionals, who do not benefit from an increase in their contributions.

The two missions collide.

Except that the insurer has the upper hand against the individual who is gambling with his life savings. It’s David versus Goliath, when we should all be equal before the law.

Most of the time, individuals find themselves high and dry. For example, three-quarters of the files examined by the Chamber of Notaries’ fund were closed without any compensation.

Instead of forcing citizens to fight at great expense, insurance funds should rely on mediation. The courts are already clogged enough as it is!

But it is true that this is more difficult when the case involves several parties who must all agree to find a solution.

This brings us back to the chain of actions, when the buyer who discovers a hidden defect sues his seller who sues his own seller… and so on back to Adam and Eve.

There is no time limit, provided that it can be proven that the defect existed when the person being sued was the owner.

However, this type of cascading lawsuit multiplies the number of lawyers on the case, which greatly complicates the dispute. The rebates accumulate, the deadlines stretch out, the fees swell. And everyone loses their shirt.

When the Civil Code was reformed in 1991, Quebec had planned to limit the time limit on lawsuits for hidden defects. But it dropped the idea, not wanting professionals (architects, engineers, etc.) to escape their professional liability.

Today, it is the ordinary world that is paying the price. It is the couple who sold their house 30 years ago who may find themselves in financial peril, after all these years.

To avoid problems, many owners now sell without legal warranty, which is far from desirable.

It is time to review these rules to ensure a better balance between sellers and buyers. By preventing lawsuits back to Adam and Eve, we would cut the chains of lawsuits that make disputes cost a fortune and are not settled.

The owner would not be able to go back to the dawn of time, but he would emerge from his nightmare more quickly.