You want to buy a building or a house. Before concluding the purchase, you want to exercise caution to ensure that the property does not have any hidden defects.
What steps should you take to prevent hidden defects in your real estate purchase?
It is important to remember that as a buyer, you benefit from a form of protection: the legal warranty. Indeed, according to article 1726 of the Civil Code of Québec, the seller of a property is required to guarantee that it does not contain latent defects that hinder its use. If such a defect is discovered, several remedies can be considered, including repairing the property, reducing the price or cancelling the sale.
However, it is possible to avoid this type of situation by taking preventive measures before purchase, including checking for the presence of hidden defects through an inspection by a professional. This may allow you to give up on buying or give you some negotiating leverage on the price.
Pre-purchase inspection
If you want to buy an immovable, you cannot avail yourself of the protection offered by the legal warranty if you knew that the immovable was affected by a defect or that the defect was apparent at the time of sale. You must then exercise caution and diligence when buying to ensure that the property does not have defects that have an apparent appearance. Thus, before buying, it is advisable to call an inspector, so that he can carry out this examination and determine if there are any apparent defects, especially if you have any doubts about the presence of these.
The inspector’s role will be to detect if the property you want to buy has any clues that could lead to defects in the building. If this is the case, he or she will be able to recommend an expert who can make a more in-depth analysis of the situation.
The role of the inspector
The inspector is required to carry out a careful visual examination of the property. This means that he is not required to perform manual procedures to determine the presence of a defect, such as making openings in the walls, or digging around the foundation walls, for example.
However, he is obliged to inspect everything that is accessible to him, whether inside the building or outside. When there are doubts about the presence of a defect, the inspector must conduct a thorough inspection of the building, in particular by asking to move objects that are in the building.
It is important to emphasize that the inspector cannot rely only on the seller’s claims. He must take all possible measures to provide the potential buyer with a detailed report that shows the entire building. This report must include its observations in detail, as well as its recommendations on the elements that require further expertise.
The inspector’s responsibility
The inspector is not obliged to guarantee that he or she will discover all the defects in the building you want to buy. However, he has an obligation to act with prudence and competence during his inspection. He may be held liable if he has failed to report a defect that he should have noticed to the potential buyer, as a reasonable inspector would have done in the same circumstances.
For example, as the case shows Séguin v. 9259-9679 Québec inc. , a pre-purchase inspector will not incur professional liability to the buyer simply because the buyer has not noticed any problems affecting the exterior envelope of the building. In this case, these problems led to water infiltration, revealing the presence of rot and mould around a window. However, the inspector’s obligation is limited to examining the visible and accessible elements, which was not the case here, since the defects were not visible during the inspection. In addition, there was no evidence that the defects were apparent or detectable at the time of purchase.
The inspector’s responsibility therefore depends on whether the inspector behaved as a professional would have behaved in the same situation and acted with care, diligence and competence?
The seller’s declaration
The seller of a building is required to make a declaration when selling his property, in order to describe the condition of the property. This statement should allow you to assess whether an inspection or specialized expertise is necessary before purchase.
For example, as can be seen in the case of Rivard v. Asselin , a buyer cannot be held liable for a lack of care or diligence in not having called an inspector if the seller’s statement revealed only slight problems, in this case a small water infiltration, and there was no indication of the presence of major defects, such as mould, rot, an insect infestation, or problems with insulation and electricity.
Otherwise, if the seller’s declaration has alarming elements that the building has and that make you doubt the presence of defects, it is your responsibility as a prudent and diligent buyer to call on a pre-purchase inspector and an expertise if necessary.
In any case, it is preferable, or even recommended, to have a property or building inspected before acquiring it. The same rule also applies to buyers, i.e.: the prudent and diligent buyer, placed in the same situation, would have had the property inspected, since he knows that he does not have the skills required to identify the risks or signs that a defect is affecting the property. Court decisions often refer to the reasonable person or the prudent buyer.
In short, the best protection against unpleasant surprises is to be careful and diligent before buying a building. The pre-purchase inspection and the careful verification of the seller’s declaration are essential steps to limit the risks.
However, despite all possible precautions, a hidden defect can sometimes be discovered after purchase. In such a situation, it is crucial to act quickly and assert your rights. Do not hesitate to call on our team specializing in litigation relating to latent defects: we will be able to advise you and defend your interests rigorously.