When you buy a property such as a house, the seller guarantees that the property does not have any hidden defects that could interfere with the use of the property, according to article 1726 of the Civil Code of Quebec.
However, to use the legal warranty, you must make sure that you are indeed in the presence of a hidden defect. Indeed, you cannot bring an action for latent defects if, in reality, the defect is simply normal wear and tear of the property.
It is then a question of establishing the difference between these two concepts: latent defect or simple normal wear and tear of the property?
Normal wear and tear of an asset
Indeed, all property has a lifespan and degrades over time. Thus, the handling of a property over time causes its wear and tear and obsolescence.
To determine whether the legal warranty applies, it is a question of determining whether the lifespan of the property is indeed what a reasonable buyer would expect. Thus, we must rely in particular on the average lifespan of the property purchased. To do this, you can rely on the normal lifespan of other goods of the same kind that are subject to the legal warranty.
Therefore, the deterioration of a property resulting from normal wear and tear does not constitute a defect within the meaning of the Civil Code of Québec, and the legal warranty is therefore not applicable.
By way of illustration, in the case Adjenad v. Coriolanus , if you buy a building and after the purchase, it sags due to normal wear and tear, it is not a hidden defect. The legal guarantee provided for by law is therefore not applicable in this case.
Generally, Quebec courts directly exclude the application of the legal warranty for latent defects when it comes to deterioration, normal wear and tear of the property or defect resulting from the aging of the property, since a reasonable buyer should have expected it.
Abnormal wear and tear of an asset
However, it is important to ask yourself what the expectations of a reasonable buyer are regarding the normal duration of the property purchased. If the property deteriorates or wears out abnormally and thus faster than a reasonable buyer anticipated, this could constitute a hidden defect resulting in a loss of use covered by the legal warranty.
For example, as the case clearly shows Groleau v. Allard , if you are buying a home and subsequently discover an advanced state of decay of the back wall of the foundation caused by abnormal wear due to an excessive freeze/thaw cycle, prolonged exposure of the concrete to water and the presence of an open window, this could be considered a latent defect. Indeed, you could exercise recourse by taking into account the age of the building and the normal life of the foundations.
Also, if you buy a house and, after the sale, you discover wear and tear or dilapidation, i.e. its deterioration over time, this could be considered a latent defect, insofar as such a state of wear and tear was unexpected by a reasonable buyer for a house of this age.
In the opposite case, as in the case of Zoghlami v. Payette , if you buy a house built in 1976 and after the purchase, you find that the French drain is non-functional due to wear and tear and obsolescence, you will not be able to claim the seller’s legal warranty, since a French drain has a lifespan of 25 years. Thus, it was your responsibility, as a prudent and reasonable buyer, to provide for the replacement of the French drain when buying the house.
Wear and tear and latent defects can interfere with the use of an asset and make it unfit for its intended use. It is important to distinguish between these two concepts in order to determine whether you can claim the legal warranty against latent defects against a seller, because normal wear and tear of a product does not always give rise to this warranty.
Wondering if you have any recourse against the seller? Our latent defect lawyers can help you take stock of your situation and defend your rights. Contact Lambert Avocats today for an evaluation of your case.