The Need for Distinguishing Between Corrective Work and Improvements and the Consequences of Failing to Do So

This post, published on Éditions Yvon Blais’ blog on latent defects on October 2, 2017 (FR), discusses the importance for a buyer of an immovable, who makes a claim for latent defects against the seller, to distinguish between the cost of corrective work, which can be claimed, and improvements, which cannot, as well as the consequences for the buyer who blindly claims sums relating to both corrective work and improvements, between which the supporting documents provided by the buyer in support of his claim make no distinction. 

Unfortunately, in the context of their claims for latent defects, too often, we see buyers invoking a bundle of invoices for both corrective work and improvements, without the possibility of distinguishing between the two. It is then difficult for the seller in defence, as well as for the judge, to discern between the corrective work and the improvements when the supporting documents do not allow for it and the buyer provides no proof for distinguishing between the two.

It is particularly unfortunate to see some buyers attempting to claim, through their recourses for latent defects against the seller, the reimbursement of unnecessary improvements, such as renovations that have nothing to do with the defects in question. In such a situation, the seller will be subjected to a claim for the reimbursement of the entirety of the invoices that concern and contain both corrective work and improvements, with said invoices often providing no possibility of distinguishing between the two. 

What, then, must a judge do when the buyer submits supporting documents that do not allow for distinguishing between corrective work and improvements, without submitting any proof as to how to distinguish between the two?  What happens when certain pieces of evidence provided by the buyer, such as invoices and other supporting documents, do not allow for determining the costs of the corrective work for the defects?

In Deslauriers v. Desmangles (Full Text | Fiche Quantum) (in French), Judge Marc St-Pierre provides a drastic, but interesting solution: he dismisses literally all of the supporting documents that include or may include improvements without allowing for the identification or quantification of the work that was purely corrective in nature. The court emphasizes that the buyer bears the burden of proving the corrective work required due to the defects, and that the invoices and other supporting documents provided by the buyer including both corrective work and improvements, without the possibility of distinguishing between the two, did not allow the buyer to meet his burden of proof regarding the work referred to in said invoices and supporting documents.

In this case, it was impossible for the court to discern between the corrective work and the improvements in some of the supporting documents (invoices) provided by the buyer. 

This decision provides an interesting argument to the litigator who is confronted with supporting documents that include both corrective work and improvements when the buyer has provided no proof that allows for distinguishing between the two.

The litigator in demand in a recourse for latent defects must therefore be able to distinguish the costs of the corrective work from those of the improvements on the supporting documents he files with the court, under penalty of seeing them dismissed entirely.