In Quebec law, a latent defect is a serious defect affecting a sold good, often an immovable, that is not apparent and that considerably diminishes its usefulness or value. For a defect to qualify as a latent defect, it must meet several criteria. First, the defect must be non-apparent, meaning that it could not have been detected during a reasonable inspection by the buyer. In addition, it must be sufficiently serious to render the property unfit for its intended use, or significantly diminish its value.
Recognizing a latent defect
For a latent defect to be recognized, it must have existed at the time of sale, even if it was not immediately perceptible. The buyer must prove that the defect was present before taking possession of the property, which may sometimes require technical expertise. If the hidden defect arises after the sale and was not latent at the time of purchase, it will not be considered a latent defect. The buyer is therefore protected against defects that existed before the purchase of the property, but not against subsequent deterioration.
Seller’s responsibility
In addition, the seller may be held liable for latent defects, unless he has informed the buyer of their existence or the buyer has purchased the item “at his own risk”, particularly in the case of a sale without a legal warranty. In such cases, the buyer agrees to assume the risks associated with the condition of the good, unless the seller has acted in bad faith by deliberately concealing a defect. In the case of a sale with a legal warranty, the seller is obliged to guarantee the quality of the property sold, including the absence of hidden defects.
Finally, if a latent defect is discovered, the buyer has a short period of time from the date of discovery to take legal action. The aim of this action is to obtain a reduction in the sale price, compensation or even cancellation of the sale in the most serious cases. However, the buyer must demonstrate that he was unaware of the defect at the time of purchase, and that he acted promptly upon its discovery.
Allen Madelin Lawyers provide consultations and representation in real estate cases. In need, please contact us by phone: 1 514 904 4017 or by email: info@amlex.ca.