Latent Defect


Questions / Answers

We are lawyers specialized in hidden defects and we are at your disposal to assist you in your procedures. In this respect, we have retained some of the frequently asked questions by our clients in matters of hidden defects.

What is a defect?

We use the term “defect” when a good like a property is affected by a major defect which undermines its quality, considerably reduces its usefulness or makes it defective. In short, the defect must be serious enough to the point that the buyer would not have bought the said property or would of bought at a lower price if he had known about it.

What is considered a latent defect?

As its name suggests, a latent defect must not be apparent, that is to say that another buyer placed in the same circumstances could not have noticed it by a simple visual inspection of the property. In addition to having to exist before the sale, the latent defect must also be serious and unknown to the buyer at the time of the sale.
An apparent defect, on the other hand, cannot be the subject of proceedings because it should be noted by a prudent and diligent buyer, without the need to resort to an expert to evaluate the property.

What is a legal warranty of quality?

In theory, when you purchase a property, the law obliges the seller to sell it to you with the warranty that it is free of latent defects (serious, unknown to the buyer, prior to the sale). This legal warranty is included in any transaction unless you have expressly renounced it.

Is it possible to sell a building without legal warranty of quality?

Yes, a seller can exclude the legal warranty of quality for an entire building by including an express clause to that effect in the promise to purchase and/or in the deed of sale. By accepting such a clause, the buyer agrees to acquire this property as is at his own risk.

What is the role of the professional seller in the context of latent defects?

A professional seller (a real estate broker or a self-builder, for example) must take reasonable precautions to ensure that the property he sells is free of latent defects. It is important to note that upon discovery of a latent defect by the buyer, the professional seller is legally presumed to have been aware of it at the time of the sale.
A latent defect lawyer will advise you on the procedure to follow once you have reported the defect to the seller.

What to do when discovering a latent defect?

You must notify the seller in writing, as soon as possible. It can take the form of a letter of formal notice sent by registered mail or by bailiff.

What is the deadline to notify the seller when you discover a latent defect?

Generally, the buyer has six (6) months to notify in writing the seller following the discovery of the latent defect. It is essential to put the seller on formal notice before undertaking corrective work, failing which, a hidden defect legal action against the seller, more often than none, can’t be instituted.

What are the buyer's remedies?

It is possible for the buyer to request a reduction in the purchase price of the property proportional to the costs of repairing damage to the property. The buyer can also agree with the seller to have the work carried out at his expense. Lastly, the buyer may exceptionally request the cancellation of the sale when:

  • The value of the corrective work is more than half the paid price to acquire the property, or,
  • When there is no reasonable solution to remedy the defect or when the contractual condition to acquire it is impracticable.

In this case, the seller must refund the sale price and the buyer must return the property to the seller. Failing an agreement, the buyer has three (3) years from the discovery of the latent defect to take legal action against the seller.

For more information, do not hesitate to contact our latent defect lawyers. Our experts will be pleased to assist you in your legal steps and clarify your situation.




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