As a buyer, you have legal protections if you discover a hidden defect in the property you have purchased.
According to the Civil Code of Quebec, a latent defect is a defect that you could not see during the purchase and that prevents the normal use of the property.
What are your protections as a buyer facing a latent defect?
Legal guarantees against hidden defects
Article 1726 of the Civil Code of Quebec establishes a legal warranty for buyers who face latent defects. This guarantee explains that the seller must guarantee that the property sold and its accessories do not have hidden defects that hinder the use of the property.
However, you must be vigilant at the time of purchase. The warranty does not apply if you were already aware of the defect or if it was visible during the inspection.
In order for the warranty to be applicable, you must prove that the defect is serious, hidden, that it already existed at the time of purchase and that it is unknown to the buyer.
In addition, if you have special knowledge in a field, you should be even more careful when buying than someone with basic knowledge. For example, a construction contractor who wants to buy a house must be more attentive to potential defects in walls, foundations and signs of moisture, since he has acquired some knowledge in the field.
Possible remedies
If you are facing a latent defect, there are several recourses available to you.
Repair
If you are in a situation where you are facing a latent defect, it would be more useful to remedy the situation by repairing the defect.
Let’s take the example of a complete basement renovation. When the work began, part of the floor and a wall were stripped. You discover a complete subsidence of the foundation and water infiltration.
At the time of discovery, you must stop all work. Then, according to the law, you must report the hidden defect in writing to the seller within a reasonable period of time. The reasonable period of time for reporting the defect established by case law is 6 months following the discovery of the defect.
You must also give a reasonable period of time to allow the seller to report the defect and, subsequently, to remedy the situation by making the necessary repairs. This period may vary from one situation to another. Failure to comply with the written notice or to give the seller a period of time to report the situation could jeopardize your chances of winning your case.
However, if the property you have purchased presents problems that appear gradually, the reasonable period of time to report the defect in writing begins from the moment you suspect that it is serious according to article 1739 of the Civil Code of Quebec. For example, if after buying your home, you notice an unusual smell coming from the soil where the foundation was dug, it could indicate that the soil around your home is contaminated.
As soon as you become aware of the possibility of the presence of the defect as well as the seriousness and extent of the problem, the time limit for reporting it begins to run. It is therefore important to be diligent and act quickly by reporting the defect to the seller within a reasonable time, in accordance with the law.
However, although it is a priority to notify the buyer of latent defects so that he or she can carry out the repairs himself, the exception to this rule is the state of emergency. This criterion of urgency is described by an element of dangerousness, risk of deterioration or loss of the property requiring immediate repair.
Resolving or terminating the contract of sale
You may also request the rescission or termination of the contract of sale as provided for in article 1604 of the Civil Code of Québec.
To do this, you will have to prove that the property has a hidden defect that is so serious that it considerably interferes with the use of the property. Basically, you have to prove that if you had known about the defect, you would not have bought the property. Generally, the proof you must provide to demonstrate the seriousness of the defect must be very convincing, since the court does not easily grant the rescission or termination of a sales contract on the grounds of a latent defect.
Of course, when the termination of the contract is granted, it is accompanied by the reimbursement of the price of the purchased property. It is also possible to claim reimbursement of the costs of repairs carried out on the property.
For example, as the case illustrates Transport E.N.G. inc. v. Aubé , if you buy a truck and, after using it, you find that it requires major repairs, particularly due to the breakage of the poorly repaired chassis, you could be faced with a hidden defect. Some time later, realizing that the truck is in very poor condition, you ask the seller to take back the property, but he refuses. In this case, the chassis breakage can be qualified as a major latent defect, as it significantly affects the use of the truck. As a result, you may be able to obtain the termination of the sales contract. In addition, the seller may be required to reimburse you for the price of the truck as well as the repair costs incurred by this latent defect.
Reimbursement
Finally, if you are in a situation where you are facing a latent defect, you may be compensated by the seller for both the main property and the components related to it as provided for in article 1727 of the Civil Code of Quebec.
For example, as the case illustrates Basque v. Alpha , if you buy a house with a fireplace, and the latter has a hidden defect that makes it defective, causing a fire that destroys the house and the goods on it, you will be able to claim the house indemnity and not only the household indemnity.
Indeed, the compensation is not only limited to the cost of the household, but rather to the overall cost of the repairs necessary to make the property usable again.
Discovering a hidden defect in a recently acquired property can be stressful, but you are not without recourse. Whether you’re considering a repair, a claim, or the termination of the sales contract, it’s essential to act quickly and strategically.
At Lambert Avocats, we support buyers like you in defending their rights. Our experienced team in real estate law and civil litigation offers you clear advice and effective strategies to assert your claim.
Do you think you are the victim of a latent defect? Contact us for a quick consultation!