Latent and hidden defects lawyers

Latent and hidden defects

Hamelin & Vrkic, avocats est un cabinet spécialisé en droit du travail et de l’emploi au Québec.
You have purchased a property but you begin to notice that its quality is affected by hidden defects ? Do not hesitate to seek assistance from a real estate lawyer from our firm located in Montreal specializing in hidden defects. Recognized for our expertise in hidden defects claims, we are regularly solicited to assist and represent both residential, commercial or industrial buyers and sellers in cases related to all kind of hidden defects before the common or administrative courts. 
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    in latent and hidden defects
    You have noticed that water is leaking from your foundations or mould is growing on your walls. Yet the seller or its designated representative did not disclose any particular problems when selling your home. You may be in the presence of a hidden defect. In such circumstances, a warranty of quality is legally protecting you against such hidden defects. However, in order to be protected by such warranty, the defects affecting your property must have been hidden.

    What are the conditions in order to benefit from the quality warranty protecting against latent and hidden defects?

    First of all, a defect, which is defined as a flaw or problem, is making the property unfit for its intended use or diminishes its usefulness. However, signs of dilapidation of a building, which is the normal process of damaging through use, is not a hidden defect.

    The said defect must be serious enough that if the buyer had known about it, he would not have purchased the property or would have bought it at a lower price.

    The defect must be unknown by the buyer at the time of the sale. The seller must therefore be able to prove that he had reported the defect to the buyer at the time of the sale.

    The defect must not have been apparent at the time of the sale. In order to determine whether or not a defect is apparent, the courts assess whether an ordinary buyer could have noticed such a defect. As a result, it is not necessary for a buyer to seek an expert during the pre-purchase examination of your property, except in certain circumstances, especially when there is evidence of potential defects, but it is certainly recommended by the lawyer at our firm.

    Exclusions or additions of warranty or buy at your own risk

    The deed of sale of a property may sometimes include a clause that excludes the warranty of quality. Indeed, when you purchase a property at your own risk and peril, you lose the protection against hidden defects. In addition, the words “bought as seen” or “purchased as is” do not amount to a waiver of the said warranty of quality. In contrast, the seller can add to the warranty by guaranteeing all defects, whether hidden or not.

    Reporting a hidden defect within a reasonable time

    If you discover a hidden defect in property, you must report and denounce it in writing to the seller, and this within a reasonable time of approximately 6 months, unless of special and urgent circumstances. We also advise you to report the latent defect as soon as it is discovered, in order to allow the seller to see for himself the damage and to carry out an inspection of the property, if necessary. In order to guide you in this crucial step, do not hesitate to consult a lawyer from our firm specializing in hidden defects claims.

    Rely on an expert

    After reporting and denouncing in writing the defect to the seller, you can mandate an expert to define (1) the nature of the latent defects, (2) the damage caused by such defects, (3) the required work to correct the said defects, the cost of such corrective work and, if applicable, (4) the depreciation rate to be applied on the cost of such corrective work.

    Getting a bid quote from a contractor

    Under certain circumstances, it may be useful to get a quote submitted by a contractor in order to get a cost estimation of the required work. In such circumstances, do not hesitate to consult a lawyer from our firm to determine the relevance behind those quotes.

    The formal notice to the seller

    If no settlement has been reached with the seller despite being given the opportunity to acknowledge the defect and to fix it, you must hence send a formal notice to the seller demanding (1) to repair the flawed property at his own expense or (2) to bring the appropriate compensation to cover the costs related to any repairs carried out by a contractor. A lawyer of our firm specializing in hidden defect claims can best assist you in such procedures.

    Remedies for the buyer

    Usually, the buyer directly sues his seller and the latter can sue his own seller, and so on and so forth. However, the buyer will have the option to sue the intermediate sellers directly, as long as the defect existed at the time of the sale.

    Regarding the remedies available to the buyer, the annulment of the sale may be requested or a reduction in the selling price, which is generally equivalent to the cost of the required corrective work to repair the defect, while taking into account the loss in the value of the property at the time of its repair.

    The buyer can also claim damages if the seller was aware of the hidden defect or in the event that he could not ignore it.

    In the event of you finding a hidden defect problem affecting your property, we recommend that you swiftly consult a lawyer at our firm, whether it is to seek advice regarding the reporting of such a defect, the use of an expert or a contractor, or the writing of a formal notice to your seller.

    Hidden Defect FAQ

    What Is a Hidden Defect?
    Definition of a hidden defect

    A hidden defect is one or more defects in a building that are not visible to the naked eye at the time of purchase.

    To legally be considered a hidden defect, a problem must be serious and significant. Furthermore, it must have escaped the scrutiny of an intelligent and conscientious buyer under the same circumstances. The hidden defect must also be present at the time of purchase. Finally, for a defect to be considered a hidden defect, it must be shown that the defect in question caused the property to be purchased in such a way that a careful and conscientious buyer placed in the same circumstances would not have purchased it or would have purchased it at a different price.

    What are some examples of hidden defects in a house?
    • The foundations of the property are defective (major cracks not visible)
    • The absence or lack of running water
    • The presence of termites has led to pre-sale damage
    • One or more cracked concrete slabs
    • Uneven tiling
    • Mould in the walls, moisture, and a lack of waterproofing
    • Defects in the electrical circuit
    • Premature wear of the exterior cladding
    • Failure to declare that the property is in a flood plain
    How to protect yourself from hidden defects as a homeowner?
    There is no way to avoid these problems and prevent hidden defects. To remedy this as much as possible, examine and maintain your property regularly. As a homeowner, you should conduct visual inspections yourself at least twice a year.

    For example, following the winter and fall seasons, take a tour of your house, paying special attention to:

    The foundations to detect signs of cracks;
    The entrance to ensure that there is no water leakage.

    After a few years, ask a building inspector to conduct a preventive inspection.

    How to protect yourself from hidden defects as a buyer?
    Before approving a purchase containing hidden defects, the buyer must demonstrate that they acted with care and diligence. Problems that could have been avoided but which were not caused by negligence are not covered by the legal guarantee against hidden defects. In other words, not conducting a pre-purchase examination is effectively accepting the property as is.

    The choice of a qualified building inspector will provide you with a detailed, high-quality inspection report. By having as much information as possible about the condition of the building (with photos) at the time of purchase, you will protect yourself from grey areas, since everything will be in the inspection report.


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