Selling a building without a legal warranty: Is it unwise to buy a building without following the recommendations of a building inspector?

Buying a property is an important step in life: whether you are buying a house to settle in and live in, or a flat or condominium to invest in, buying property requires vigilance, and the sale of a property must fall within the legal framework laid down for this purpose.

When you buy a building…

When buying a property, it is strongly recommended that you have an inspection carried out by a certified building inspector, although this is not compulsory.

Having an objective, expert and independent report enables the buyer to make a free and informed purchase.

But if an inspector suggests a more thorough inspection, for example, because he or she did not have access to certain areas of the building, at what point can failure to follow the pre-purchase inspector’s recommendations be characterized as negligence or recklessness on the part of the buyer?

That’s what we’re going to explore here and see the extent of the buyer’s responsibility and obligation when he receives recommendations from his pre-purchase inspector.

There are two main trends in case law

Before going into the details of this case, it is first necessary to explain that there are two lines of case law concerning the buyer’s behaviour in relation to recommendations made by an inspector.

One very clearly states that the buyer is not obliged to follow the recommendations of a building inspector, while the other states that a buyer who disregards the inspector’s recommendations has no basis for recourse before a judge.

It is possible that these two contradictory trends in case law can be explained by the judge’s assessment in concreto.

In other words, whether the buyer’s conduct is imprudent, negligent or reckless seems to depend on the precise factual circumstances of the case.

Croteau v. Désilets, 2012 QCCS 171

For example, in Croteau v. Désilets, 2012 QCCS 171, the issue was the presence of ferrous ochre.

The defendant (seller) argued that the buyer had been careless and therefore negligent in not following the recommendations of the pre-purchase inspector, who suggested a more thorough inspection of the drainage system.

The defendant goes even further, claiming that a reasonable buyer would have gone as far as excavating the drain to examine the issue of iron ochre in greater depth.

The judge in this case considered that, firstly, it was very hypothetical to claim that the problem with the drainage system could have been discovered by excavating, since it would have been necessary to excavate a site located under the stoop of this house, and therefore to destroy the stoop.

The judge went on to say that “the suggestion that a promisor-buyer should, in these circumstances, carry out extensive analyses, including excavating the foundations to determine the condition of the drain, is untenable.

A buyer does not have to excavate the foundations of a two-year-old house or break the concrete slab in the basement to check the condition of the drain, given the presence of iron ochre, which, more importantly, was not a problem either when the house was purchased in 2006 or when the loss occurred in 2008. [63].

This case shows that the factual circumstances have clearly defined the threshold below which the defendant cannot claim negligence.

This may also be the case if the inspector was unable to carry out an inspection because he simply could not gain physical access to the area to be examined.

Leroux c. Gravano, 2016 QCCA 79

These are the facts in Leroux v. Gravano, 2016 QCCA 79, where the inspector stated in his report that he was unable to inspect the attic because there was “no access hatch to the attic. We were unable to check: insulation, ventilation, vapour barrier, roof structure and signs of water ingress.

Before buying a property, it is very important to have it checked. » [50]. The judge understands this paragraph as the inspector making a finding, that of not having been able to access the attic to find – or not – evidence of defects.

This does not, in itself, constitute proof of a latent defect.

This is not in itself proof of a latent defect, but simply a statement that it is impossible to prove whether or not a defect exists. In this case too, the buyer was not considered negligent or imprudent.

In these two cases, it seems that the judge did not wish to place an unbearable burden on the buyer, who did not have to undertake any work to carry out a thorough examination of the building, nor was he responsible for the lack of a hatch to access the attic.

But when is it negligent or imprudent to buy?

Once again, it is the circumstances of the case that will determine whether the buyer’s behaviour is reckless or negligent.

For example, in the Cistellini c. Jinchereau, 2012 QCCS 1776The judge pointed out that “when the buyer has already called in an expert, the presence of signs indicating a potential defect obliges the expert to carry out a more thorough inspection, failing which the defect will be deemed to be apparent…”. [49].

This means that in such a case, the a priori hidden defect becomes apparent in legal terms, and will be considered as such by the judge.

What’s more, in this case, the inspector himself admitted that buyers could sense that there was a problem with the structure of the home. The inspectors decided to disregard the inspector’s recommendations, and the Tribunal deemed the defect to be apparent.

Similarly, in the Parent c. Allard, 2008 QCCQ 1130The Court emphasised that the inspection’s recommendations had been “purely and simply disregarded” by the buyer, [41].

The buyer “must then find out”.

The judge goes on to state that the plaintiff (the buyer) “cannot remain passive” when informed by a building inspector that the building has a [42] problem. This ruling specifies that the buyer “must then find out the cause of the problems, at the risk of having his claim rejected” [43].

It is understandable that the Court ruled that the buyer’s behaviour was therefore below the threshold of reasonableness and was therefore considered imprudent.

Conclusion : Sale of property without legal warranty

In conclusion, consideration of the buyer’s behaviour with regard to the recommendations made by the pre-purchase inspector depends largely on the factual framework in which it is set.

In all cases, you can enlist the help of our specialist civil and property lawyers, who will be able to advise you on the best course of action.

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 governing civil liability in the province of Quebec and in Canada.