Buying a home is often the most important investment of a lifetime. Seeing this step turn into a nightmare following the discovery of a hidden defect is certainly not the scenario that most buyers expect. This is understandable but the key is to act quickly to maximize your chances of getting compensation.
However, are you sure that the principle of hidden defect applies in your situation?
The mere fact that your house has imperfections is not sufficient reason to seek compensation and claim for a latent defect and the repairs that result from it.
JuriGo can explain to you the criteria for bringing legal action after discovering a hidden defect.
What are the conditions for a hidden defect?
How is a hidden defect defined? A hidden defect is defined as a defect that makes a house or a building unsuitable for its intended purpose. In many cases, it is a defect that is so important that if the buyer in question had known about it, he would not have purchased it or would have done so at a lower price . When all the conditions of a hidden defect are met, the sale of the house can be canceled.
Where does the right to claim compensation for a hidden defect come from? From the legal guarantee of quality to which the seller of a house is bound! In fact, under Quebec law, the seller of a property undertakes to ensure that the property will give the buyer the full enjoyment that he or she anticipated from the property. In other words, the property must be functional and meet the qualities describing it.
In the case of a house, finding hidden defects obviously compromises this guarantee of quality, but other specific conditions are required for it to be considered a hidden defect as defined by law.
Not noticeable: It is not called "hidden" without a reason. In fact, to fall into this category, a defect must not be apparent to a buyer who is considered "prudent and diligent". The latter is responsible for defects that he can detect himself or that he should presume to exist.
For example, a house that is outdated, such as an ancestral home, could very well have defects without these constituting hidden defects. The roof of such a house may well have reached the end of its useful life and it is up to the buyer to be wary and to make reasonable inspections.
Defects unknown to the buyer: A buyer who purchases a house knowing that it is marked by various defects loses all recourse against these hidden defects. The law requires that a hidden defect must be unknown to the buyer at the time of the sale, and if the buyer is aware of them, he is presumed to have accepted them.
Defect existing at the time of the sale: A defect that arises after the purchase of the house cannot be considered a hidden defect and therefore, has no legal recourse. It is the buyer who must prove that the defect dates from before the sale, but it is not necessary for the defect to have manifested itself before the transaction. The defect can have existed in a latent state and this complies with the obligation of precedence.
For example, water infiltration and rot can cause progressive damage to the house for years before showing signs of damage to the walls, ceilings, and foundation. The mere fact that the defect exists "in the making" before the sale is sufficient to meet this criterion.
If your defect meets all of these conditions and you are convinced that you have a case of a hidden defect, this is an excellent start . However, the case has not been won yet. Read on to know what you must do to claim compensation.
What to do if you discover a manufacturing defect or faulty workmanship?
The fact that you discover a hidden defect in your property does not mean that your seller intended to pass it on to you in bad faith. In some cases, the seller was also unaware of the defect but this does not exonerate him from liability.
What it means, however, is that you must follow certain formalities with respect to the seller when a hidden defect is discovered.
The first step to take is to notify the former buyer of the defect, along with a formal notice . This must be done quickly because the Civil Code of Quebec provides that the denunciation of a latent defect to the seller must be done "without delay" and must indicate precisely the nature of the alleged defect.
This is also a precaution for the buyer because the sooner he denounces the defect, the less likely it is that he will be accused of having aggravated it through negligence. The formal notice obliges the seller to remedy the defect within the stipulated period. The buyer also has the obligation to give the seller the chance to examine the defect.
Can you do the repairs yourself? Unless the defect causes an emergency situation such as water damage, you should never start any repair work before giving the seller a chance to examine the defect since the seller could have decided to remedy the defect by himself. Such an act could cause you to lose your recourse for a hidden defect.
What are the buyer's obligations at the time of the sale?
The average buyer is considered to be a diligent person and the law requires him to ask questions and make inquiries in order to fulfill his obligations regarding hidden defects.
The careless and reckless buyer who does not take the time to inspect the house purchased is not protected by the legal warranty and, therefore, by hidden defects.
Is the assistance of an expert mandatory? Contrary to popular belief, it is not mandatory to use the services of a home inspector before purchasing a home. While this is a precaution that every prudent buyer should take, it is considered that the determining factor is not whether an expert would have found the defect, but whether a prudent "buyer" would have seen it. Consequently, the failure to hire an inspector may make it more difficult to prove the defect without losing recourse.
However, the buyer is not required to discover defects that are detectable only to experts! In matters of latent defects, the law does not require the buyer to discover defects that only a person with expert knowledge would be able to discover. For example, a buyer is never required to open the walls to see the presence of mold or to raise the floor covering.
Defenses of the seller against a claim due to latent defects
A seller accused of having transferred ownership of a property with a latent defect is not left without defense. Several circumstances surrounding the sale, the discovery of the defect, or even the nature of the defect itself may allow the seller to be exonerated.
A sale without legal warranty is the first case that allows the seller to limit his liability against the alleged defect. In fact, the law allows for a sale that excludes the legal warranty of quality to which the seller is usually bound.
In such circumstances, the sale is made "at the risk of the buyer" who purchases the house knowing that it may be defective. This does not, however, allow the seller to lie to the buyer or make any misrepresentation, as this would constitute fraud.
Aggravation of the defect is also part of the seller's defense against a buyer who has delayed in reporting the defect or who, by his own negligence or contribution, has contributed to the aggravation of the defect. For example, a buyer who discovers water infiltration and is slow to report it contributes to the damage, which may compromise his or her claim.
The appearance of a defect is also a defense frequently raised against a latent defect, as is obsolescence. The lawyer representing the seller will argue that the alleged defect was apparent to a prudent and diligent buyer who asks enough questions to know the quality of the property he is buying.
If you are on the "seller's side" of the transaction, finding a lawyer specializing in cases of hidden defects is in your best interest so you can successfully invoke one of these defenses.
JuriGo is here to make this process easier. Just fill out the form at the bottom of this page and we will connect you with the best real estate lawyers!
What is the impact of a sale without a legal warranty?
Many homebuyers have heard the phrase "home sold without a legal warranty". What does this mean? It means that the seller is offering a home that he or she suspects is not in perfect condition and waives any responsibility for defects that a buyer may find. Is this legal?
Yes! A non-professional seller, such as one who puts his house up for sale, can limit his liability for latent defects if he sells the house without a legal warranty of quality at the risk of the buyer, depriving the latter of a recourse.
However, the fact that the buyer purchases the property at his own risk does not change the fact that the seller must disclose any defects that he knows about . He cannot, under any circumstances, lie about the condition of the house in an attempt to cheat the buyer.
This constitutes a fraudulent maneuver, whether it is a misleading statement or withholding essential information. In either case, the buyer will have recourse to cancellation or reduction of the sale price, depending on the circumstances, and may even demand payment for damages.
If you have discovered a defect following the purchase of a house sold without a legal warranty of quality, do not delay in contacting a lawyer as the situation could quickly become complex!
Does a hidden defect justify canceling the transaction?
It is normal to jump up and down when a hidden defect is discovered and immediately want to cancel the transaction. This reaction is human and understandable, but it is not always necessary or advisable.
However, there are other remedies that are possible, depending on your circumstances and the seriousness of the defect discovered.
The rescission of the sale by the court due to a hidden defect can take the form of a cancellation of the transaction. However, this remedy is considered exceptional and will only be available in cases of serious defects. The buyer has an important burden to bear, as he must prove that if he had known about the defect, he would not have purchased the house in question.
The most common remedy for a latent defect is a price reduction as it is easier to satisfy. In order to obtain this remedy, the buyer must not only prove the conditions of the defect, but also the fact that if he had known about it, he would have paid a lower price. When this proof is made, the court can force the seller to reimburse a part of the sale price to the buyer.
The claim for damages for latent defects is limited in scope to the seller's knowledge . The law gives the buyer the opportunity to claim damages in addition to the reduction of the price or the resolution of the sale when it is proven that the seller knew of the defects and did not reveal them.
It is important not to waste any time. The prescription period has begun to run! The recourse for hidden defects is not eternal. From the moment you discover the defect, you have 3 years to assert your right against the seller.
This makes it absolutely necessary to contact a lawyer quickly once a defect is discovered.
File a claim for a hidden defect with a JuriGo partner lawyer!
If you think you have a claim for a latent defect, don't waste any more time and suffer the damage any longer!
You can take action now to claim compensation. Hidden defects can amount to tens of thousands of dollars in damages, and you don't have to carry the burden alone.
A hidden defect claim requires extensive expertise and experience in the field if you want to win your case. You've come to the right place because many of JuriGo's partner lawyers are experts in hidden defect cases!
Cracked foundations, a poorly installed roof, a completely clogged drain, whatever the problem afflicting your home, a lawyer referred by JuriGo can represent you.
Fill out the form at the bottom of the page and tell us the details of your situation. We will be happy to refer you to a competent lawyer, free of charge and without obligation!