You have just bought a house, building or other property. However, after the purchase, you discover a serious defect that prevents normal use of the good.
According to article 1726 of the Civil Code of Québec, the seller must guarantee to the buyer that the property sold does not have latent defects that interfere with its use. If you are in this situation, you may be entitled to compensation, ranging from a total or partial reimbursement of the property, to coverage of repairs.
Make sure you are dealing with a latent defect
First of all, it is essential to make sure that there is indeed a situation of latent defect. Four criteria are put forward by case law in order to be able to bring an action for latent defects.
Severity of risk
First of all, the defect must be considered serious. The severity of the risk must render the purchased good unusable and significantly reduce its usefulness.
It is important to note that the courts do not qualify as hidden defects according to the seller’s legal warranty deterioration, deficiencies or defects attributable to normal aging.
For example, as the judgment shows Lévesque v. Bélanger , the purchase of a house with a furnace that is at least 21 years old could not constitute a latent defect. Indeed, the buyer should have expected to pay for a new furnace, considering that the average lifespan of this furnace is 25 years.
Existence of the defect at the time of sale
The defect must exist at the time of the sale. If the problem occurs after the purchase, it will not be considered a hidden defect.
The defect must be hidden
The defect must be considered to be hidden and not apparent. This criterion is assessed on the basis of the situation and circumstances. Thus, when buying, you must have been careful to ensure that the property does not have any defects.
If you suspect a hidden defect in the property you want to buy, it is important to call an expert before making the purchase to check if there is really a defect. If you do not consult an inspector despite your doubts, the problem could be considered a visible defect, which would reduce your chances of successfully obtaining a refund or repair for a latent defect.
In the event that you had doubts about a defect and called in an expert, if the latter did not notice anything abnormal in his inspection, but a defect was present, the inspector’s fault will not disadvantage you.
For example, as the case shows St. Louis v. Morin , if you buy a house with mould, and you call an expert because of doubt as to the presence of this defect, if the latter does not find anything because the mould was camouflaged by two access hatches, the fault would not be yours, since you acted prudently and diligently by calling on an expert.
The defect must be unknown
You must not have been aware of the defect at the time of purchase or have reported it to the seller. In practice, it is up to the seller to prove that you were aware of the defect at the time of purchase. To be recognized as a latent defect, the defect must be unknown to both the buyer and the seller.
Procedure for an action for latent defects
Reporting the defect to the seller
As soon as you discover that your property has a defect, you must report it in writing to the seller of the property. This notice of denunciation must explain the nature of the defect and what you are claiming. The denunciation must be made within a reasonable time, as provided for in article 1739 of the Civil Code of Québec.
This period begins from the moment you suspect the seriousness and extent of the defect. However, if the seller was aware of the defect or should have been informed of it, he will not be able to defend himself by invoking the fact that the reasonable time limit for the termination of the defect has been exceeded.
When sending the notice of denunciation, it is important not to start the repair work, except in an emergency. You must allow the seller to examine the property and the defect to check its condition. This is also valid during renovation work, for example; You must cease all work upon discovery of the defect.
Trying to reach an amicable settlement
After the notice of denunciation is sent, you can try to resolve the problem amicably with the seller; that is, through the use of dispute prevention and resolution methods such as mediation, arbitration and negotiation. You can discuss compensation for the costs of repair work.
Take legal action if necessary
If attempts at dispute prevention and resolution methods prove ineffective, it is always possible to turn to the courts. You must then file an originating application with the competent court. This request must be notified to the other party, including the facts you allege as well as what you claim for compensation for the damage caused.
If you are the victim of latent defects, do not hesitate to contact our team of lawyers specializing in latent defects for a rigorous analysis of your situation and a fast, efficient and humane handling of your case.