A hidden defect of which the seller was unaware.

Sometimes, after buying the house of your dreams, you discover a structural or construction problem that wasn’t apparent at the visit. In this case, it may be a defect.

What happens if the seller is unaware of this fact?

A small wooden house that had obviously been burned on a table, surrounded by a contract and a judge's gavel.

How do you define a defect?

First of all, what is known as a “defect” in the real estate industry is a major fault that prevents the buyer from enjoying the property he or she has purchased. A “hidden defect” occurs when a problem was not visually apparent when the property was visited, and the future buyer was not informed of it by the seller. Had he been aware of the defect, the customer might not have decided to purchase the property.

For example…

  • leaks causing infiltrations (walls, roof, foundations, etc.)
  • hidden mold
  • defective electrical wiring
  • basement or flood-prone land
  • termite damage (prior to purchase)

A particular noise nuisance (noise from an appliance, for example) or a threat to occupant safety may also be considered a hidden defect.


What happens if the seller was unaware of the hidden defect?

Under article 1726 of the Civil Code of Quebec, the seller must respect the warranty of quality, even if he was unaware of the defect in question prior to the sale; he may therefore be held liable. However, it cannot be held liable for an apparent defect. When the new owner discovers a problem that was not detectable during the visual inspection, he or she must notify the seller in writing as soon as possible. The latent defect must be very significant to cancel the contract for the sale of a house; other options may be considered (price reduction, repairs).

How long do I have to declare a hidden defect?

The buyer has three years from the discovery of the latent defect to take legal action against the seller. It is strongly recommended to call on the services of a lawyer specialized in latent defects in real estate to undertake this type of action.

What can I do if the seller has been dishonest?

Unfortunately, some sellers, to avoid jeopardizing the sale of the property, decide to reassure the customer by specifying that everything is in good order, which does not correspond to reality. Or, if the future buyer notices the defect, the real estate agent tells him it’s nothing major. In both cases, the defect is “legally hidden”. The seller is obliged to inform his customer of any defects of which he is aware affecting the property for sale. Had he been aware of the situation, the customer’s decision would probably have been influenced. In order for the seller to be held responsible for this situation, the new owner must be able to demonstrate that the building lacks the quality he or she would have expected. A careful and diligent visual inspection* by the future buyer must, however, have been carried out before signing the contract. It’s important to know that a professional real estate agent cannot sell a qualified property “at your own risk” or without a legal warranty.

*To be considered as having exercised due care and diligence, a buyer must have carried out a careful visual inspection of the property. He must have looked for apparent signs of defects. He must have looked for apparent signs of defects.

Hidden defects and special situations

If the property was purchased with the “at your own risk” option, this means that you bought it as is, and cannot sue the seller for latent defects. Here are some other situations in which an observed problem cannot be considered a hidden defect…

  • if it could have been detected during the visit and before the sale;
  • if the defect was already known to you before the sale ;
  • when a defect has been caused by misuse on your part;
  • when a clause in the sales contract (signed by both parties) limits or
  • even excludes the seller’s liability.

A latent defect lawyer can help you find a solution to this problem.


What should I do if I’m accused of a hidden defect?

If, as a seller, you have just received a written complaint about a hidden defect from the purchaser of the property, you need to know how to react. This letter had to include an expert’s report and photos of the defect in question. It is important to respond to this complaint in writing, by registered mail, within a reasonable time.

By consulting a lawyer specializing in this field, you will have more means of defense at your disposal. For example, your lawyer will be able to prove (if this is the case) that the defect is due to normal wear and tear of the building. He or she may suggest that you have a professional inspect the building for further advice. It will also be possible for him to negotiate an arrangement with the new owner on your behalf.

A hidden defect problem, even if the seller is unaware of it or has not been transparent, can be handled by a real estate hidden defect lawyer.

NOTE: This article does not constitute legal advice or a legal opinion. It is intended solely to inform readers of certain aspects of the laws surrounding latent defects and real estate law in the province of Quebec.