Latent & Hidden Defects Lawyers
What is a latent defect according to the Civil Code of Quebec?
After buying a property, did you subsequently notice a hidden defect that was not disclosed at the time of sale?
This could be a hidden defect. Article 1726 of the Civil Code of Quebec stipulates the possible remedies in the event of the discovery of a hidden defect. According to this provision of the Civil Code of Quebec, a hidden defect is defined as a defect that renders the property unfit for its intended use or that diminishes the usefulness of the property to such an extent that the buyer would never have bought it or paid such a high price.
Essentially, a latent defect is present when it is serious, was not apparent, was not disclosed to the purchaser and was present before the time of purchase.
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What problems can be considered as hidden defects?
Some examples of common hidden defects in the real estate field include mold, problems related to heating or insulation, water infiltration and structural cracks in the building's foundation or a poor composition of the soil affected by pyrite or iron ochre.
It is important to note that a latent defect can concern several types of real estate, such as a house, a condo, a lot or a building. It is also possible to have a recourse for latent defects for movable property such as a car, a machine, appliances or electronic devices, but several other remedies are available to you for movable property. For more information, you are invited to visit our page on civil and contractual disputes.
The latent defect mainly occurs in sales or business and construction contracts. For more information on latent defects affecting immovables in construction projects, see our page on construction law.
If you rent a property, you can ask the landlord to make major repairs, but this will not be a remedy for latent defects, as explained in our page on housing law.
What to do after the discovery of a hidden defect?
When a hidden defect is discovered, it is important to document the damage by videos, photos and expert's evaluation, and to make a formal denunciation sent in writing that informs the seller of the problem within a reasonable time. It is imperative to do this before proceeding with your own work or renovations correcting the latent defect, otherwise you risk losing your recourse or seeing your claim reduced.
The denunciation is necessary, because the seller must have the opportunity to inspect the defect, determine its seriousness, and the damage caused by the defect on the property and have the opportunity to repair the property. In the absence of a sufficiently complete and precise notice sent to the seller within a reasonable time, the action may be dismissed or the damages claimed may be reduced.
It is also a good idea to consult a real estate latent defect lawyer quickly to have a strategic analysis of your case, prepare the next steps and analyze your chances of success and the amount you could claim.
How to defend yourself against a claim or cancellation of sale for latent defect?
A comprehensive review of your case
Generally, the burden of proof is on the purchaser to demonstrate that the criteria for a latent defect claim are met.
As a seller, you can defend yourself in court against the claim for a reduction in the sale price or annulment of the sale for hidden defects. Under certain conditions, you could also make your own lawsuit against a previous seller or another person responsible for the issue or even force their intervention in the original lawsuit.
The best things to highlight on defense
The best defence for the seller is to have already denounced the latent defect in the seller's declaration or to have made the buyer sign a waiver of the legal warranty stating that the property is sold "without legal warranty, at the buyer's own risk".
The importance of evidence in real estate disputes
The defence is also an exercise in gathering evidence, preparing court documents, and closely following the rules and deadlines of civil procedure.
Following the denunciation of the defect, you would normally have had the chance to inspect the property affected by the latent defect and draw your own conclusions. Even better if you have had it examined by your own expert or have your own estimate from a construction company for remedial work. You can keep the expertise and estimate to counter the buyer’s claim later. Under certain conditions, you will be able to choose your own expert in legal proceedings, although joint expertise is often requested by the courts. Given the complexity of latent defect cases, the expert opinion is a central element of the evidence in these cases.
Examples of defenses in a case involving hidden defects in real estate
To defend your interests, you can demonstrate that the defect is not really "hidden". To do so, you must either contradict the plaintiff's claims with sufficient evidence to obtain the dismissal of the claim or a reduction in the claim, or establish certain facts yourself, such as the following:
- The defect was actually known to the buyer at the time of the sale.
- The contract states that the property has been sold as is, at the buyer's own risk, without any legal warranty.
- The defect was obvious at the time of the sale.
- The defect is due to improper use or maintenance by the buyer.
- The defect is not serious.
This is not an easy exercise, and it is recommended that you consult a lawyer with an established practice in latent defects or real estate as soon as possible in order to properly orient your defence strategy, identify solutions and ensure effective representation.
Why call on a lawyer for a latent defect?
A complete analysis of your file
Latent defects in real estate law are known to be voluminous files, which stretch over several years and involve several parties and experts. Whether it is for a commercial building or a first home, the consequences are serious for all parties, and the services of a lawyer can make all the difference between a successful or unsuccessful recourse.
In case of uncertainty about a hidden defect, the real estate lawyer will allow you to obtain a clear legal evaluation adapted to your situation. He or she will analyze your case and determine your chances of success, consolidate court proceedings and provide effective representation if necessary.
An approach adapted to your situation
Each property has its own unique characteristics, and each buyer or seller has different motives or interests in the transaction. The real estate lawyer uses his legal and practical knowledge acquired from previous cases and his negotiation or representation techniques to find the best possible solution for his client.
Thanks to our in-depth knowledge of civil law and real estate law, our real estate lawyers can accompany you, defend you and protect your interests during legal proceedings relating to a latent defect.
Support in negotiation and litigation
At Boavista Legal Services, our lawyers have a rigorous approach based on listening attentively to your needs and developing innovative solutions to settle your case.
Our lawyers accompany you throughout the process, thus avoiding mistakes that could lead to financial and legal consequences detrimental to your case.
Our lawyers can also assist you in prevention and amicable settlement methods, such as negotiation, mediation or arbitration. These innovative approaches provide practical solutions to maintain connections, encourage communication and minimize expenses.
Frequently Asked Questions
A latent defect in Quebec law is governed by the Civil Code of Quebec, in particular by articles 1726 et seq. which state that a latent defect includes a serious, non-apparent defect existing at the time of sale or acceptance, making the good and its accessories unfit for the intended use. To determine the existence of a latent defect, four facts must be present, and their existence must be more probable than not:
- The defect must be serious;
- The defect must be non-apparent;
- The defect must be unknown to the buyer at the time of the real estate sale;
- The defect must predate the sale of the property.
The process concerning a latent defect file can begin with mediation, negotiation or arbitration. If this fails, the legal procedure concerning a latent defect dispute may include several steps, including sending a letter of information, drafting and sending a demand letter, drafting an originating application for damages and representation in court, if applicable.
Billing for the services of a lawyer varies according to several considerations, including the lawyer's years of experience, the complexity and difficulty of the case, the time and effort devoted to the case, the importance of the case to the client and more. Attorney's fees and billing model are discussed during the initial consultation with the attorney.
Hidden defect litigation brought before the courts can incur significant costs: there are expert fees, legal costs and damages that can be claimed by the party who wins the case in court. Lawyers' fees are also a significant expense for each party, but cannot be claimed from the other party, except in exceptional circumstances.
In addition to legal actions, there are very promising avenues to settle more efficiently and at a lower cost while respecting your interests: negotiation, arbitration or mediation.