Real estate transactions are very delicate operations that involve large sums of money.
The transfer of a property is not treated as an ordinary procedure because it can put all the parts in beautiful sheets when it turns sour.
This is particularly true when involving the sale of houses or buildings with a discovered hidden defect!
Such poor workmanship can ruin the value of a real estate property and force its buyer to carry out major work which will cost him an arm and a leg! To avoid such flagrant injustice, however, the law provides effective mechanisms to remedy the situation and restore a balance of justice. So here is what you should do with the help of a lawyer to discover a hidden defect!
Is there a hidden defect?
The first but not the least important step is to establish the presence of a hidden defect and to check whether the criteria for the problem that affects you is included with those provided by law. While a manufacturing defect can be expensive to correct and irritating, to say the least, if it doesn’t fall under the category of latent defects, there is nothing that a lawyer can do for you. To qualify under the law, a latent defect must have the following characteristics:
- Unknown defect at the time of the sale: If the buyer knows that a part of the house has a defect, he will not be able to use the hidden defect to be compensated.
- Defect of a certain gravity: The seriousness of a defect is viewed, in fact, by taking into account the damage caused, the price to be paid for making the repairs, and any other relevant information.
- The defect must precede the sale: The defect must have been the fault of a previous owner, otherwise the buyer will be solely responsible for the work.
- The defect must be hidden: In addition to being unknown, the defect must also be hidden, that is to say, concealed in the house.
- The defect must exist: It must be possible for the buyer to prove the existence of the defect, and also the damage suffered. Above all, it must meet the definition of latent defect, namely: a defect, a workmanship defect, an imperfection, violation of the standards of the art, etc.
- Quality assurance and the buyer’s right to proper housing: The law provides that buyers have the right to buy quality housing and that a guarantee is even provided to compensate buyers whose rights are violated.
What is the procedure after finding the hidden defect?
After buying your home, if you notice a defect that you believe to be a hidden defect, it is important not to delay to remedy the situation, and this, in all aspects. If the defect compromises the integrity of your home, it is essential to have the repair work done to avoid committing a contributory fault that could cause you to lose your recourse. In terms of the legal procedure, here are the steps to take against your seller to be compensated!
- Notify the seller in writing of the existence of the defect. The law provides that the buyer must notify the seller of the existence of the defect within a reasonable time. This criterion is obviously assessed according to the particular circumstances and the type of defect discovered.
It is also important to do the work only if it is urgent if you do not want to pay for the repair. You must give the seller a chance to see the hidden defect. After finding this hidden defect, the seller will react either by offering to pay for it or by claiming not to be responsible.
- Put the seller on notice: If you are convinced of the negative reaction of the seller, you can always put him on notice immediately, taking care to specify the nature of the hidden defect, your requests regarding it in terms of work to be carried out as well as the time you give him to respond. Hidden defect remedies are among the few lawsuits that require a formal notice to be sent to court.
- Aim for an amicable settlement: This step can take place before or after the bet does not remain. During civil proceedings in Quebec, it is never too late to abandon the prosecution and inform the judge that an amicable settlement has occurred. Thus, you can avoid the adventure of the legal system by agreeing with the seller to correct the defect by taking care to put this agreement in writing.
- Prosecute the seller: The ultimate step used as a last resort is to hire a lawyer to prosecute the seller. The lawyer will ensure that the formal notice is properly drafted and that it contains all the elements necessary to start the prosecution. He will then try to convince the judge that the problem corresponds to the criteria mentioned above!
What are the remedies of the home buyer?
If the judge acknowledges the existence of a hidden defect, what are the terms of compensation to which you are entitled? How will you be compensated for the defect suffered? The answer is not limited to the damages awarded, as this is not always sufficient to repair the damage. A judge will therefore decide from the following options:
- Reimbursement of part of the selling price: By analyzing the defect, the repairs to be carried out and the value of the house, the judge will look at the selling price and the effect that the defect would have had on it had it been known to the buyer. He could, therefore, decide to request a refund of the sale price from the buyer.
- Reimbursement for the work to repair the defect: When the nature of the defect is straightforward and the mere reimbursement of the work is sufficient for justice to be done, a judge may order such reparation.
- Award of damages: In the event that a judge notices a manifest or even malicious intention of a seller to hide the defect from the buyer, he will be able to order the payment of damages, in addition to the reimbursement of the work.
- Cancellation of the sale: The cancellation of the sale applies when an error, simple or fraudulent, is inserted in the contract concluded. The hidden defect has the effect of affecting the quality of consent and tainting a contract. This can, therefore, give rise to the cancellation of the sale of the house when the defect is significant, thus, forcing the seller to recover his property and to return the amount paid.
Can the seller raise a defense against a hidden defect?
It goes without saying that the seller accused of having lied to the buyer in order to sell him a house in disrepair will not give up without replying. It is quite possible that he was unaware of the defect and that the defect dates from before his own stay as owner of the house. For these very reasonable reasons, here are the main defenses that a seller can invoke to exempt himself.
- Challenging the attributes of the defect: A seller may very well claim that the defect was not hidden and that the buyer was well aware of the repairs to be made at the time of the purchase. We will have to look at the documents of the transaction and rely on the testimony of the parties.
- Pretend that the defect results from normal wear and tear: Any problem of breakage in a house is not a cause of latent defect. There is a legal principle of normal wear and tear of the premises. It is, therefore, possible that a plumbing pipe bursts without being a result of a hidden defect.
- Allege the fault of the buyer: The seller can also defend himself by alleging that it was the buyer who caused the reported failures.
- Raise an exclusion of liability clause: If the house has been sold without legal warranty or “at the risk and peril” of the buyer, it will be possible for the seller to waive his responsibility.
Sale without legal warranty and sale at the buyer’s risk
When a house dating from the previous century is put up for sale and has clearly seen better times, it is obvious that a seller is exposed to a risk – that of selling it in the presence of a hidden defect. There are, however, ways in which a seller can sell a home by limiting their liability for such defects. These two mechanisms are the ones that are used in most cases!
Purchase without legal warranty: Quebec law automatically provides that all real estate sales are covered by a legal quality warranty which aims to protect buyers from hidden defects. It is, however, possible to exclude this legal guarantee by contract during the sale by stipulating that the seller does not guarantee the quality of the house and that he, therefore, does not assume the liability of a hidden defect. However, if the seller knows of a defect, one cannot exclude his liability and he has the duty to disclose it. Otherwise, it will be an illegal maneuver.
Purchase “at the buyer’s risk”: This statement is often added to sales without legal warranty and aims to further release the seller from his responsibility vis-à-vis possible defects. Note, however, that these clauses are not absolute and that they do not protect against all prosecution.
It also goes without saying that the advantage of buying a house with such endorsements is the lower purchase price. This is also the reason why such clauses are legal: both the buyer and the seller derive benefits from them.
What can a lawyer do for you when a hidden defect is discovered?
Are you wondering what a lawyer can do for you about a latent defect? He will treat your case as a civil lawsuit so that you don’t have to pay a single penny to fix someone else’s fault. In particular, he will do the following:
- Find the presence of a defect
- Prepare the formal notice
- Negotiate with the seller
- Initiate a civil action
Compare Lawyers can put you in touch with experts in the field of hidden defects!
A lawsuit for hidden defect requires effort, time, and above all, patience. The justice system works at its own pace so you have to know how to navigate it to win your case. This is precisely what the expertise of our partner lawyers brings you! By doing business with them, you will avoid paying for a problem you should have known before buying your house!
You only have one thing to do to find your lawyer which is to fill out the form on this page! You will receive an offer of service from a competent lawyer as soon as possible!
What is the point of waiting when our services are free and do not commit you to anything!