What is a hidden defect?

November 3rd, 2021

When you buy a house or a building, the words “hidden defect” may come to mind and scare you. It is therefore important to understand what a hidden defect is and, above all, to know the recourses available to you if you discover one in your home after the purchase. The following blog post will attempt to clarify the concept of a hidden defect so that you are well prepared if you have to deal with such a situation.

What is a Hidden Defect?

A latent defect is an imperfection or flaw that affects your property and that could not be seen with the eye at the time of purchase. For a problem to be legally recognized as a hidden defect, it must be a serious problem. It must also have escaped the scrutiny of a prudent buyer who would have been in the same circumstances as you at the time of purchase. In addition, it is important to understand that the problem must exist at the time of purchase. Finally, for a defect to qualify as a latent defect, it must alter the property sufficiently that another diligent buyer in the same circumstances would have refused the purchase or would have purchased it at a lower price, which would have considered the defect in question. It is therefore important to be aware that all these conditions must be met for a particular problem to be recognized as a defect.

What Can be Done?

Obviously, this type of situation is unfortunate. No one wants to find themselves with a hidden defect after buying the property of their dreams. Fortunately, the Civil Code of Quebec provides protections for you as a buyer, in other words, guaranteeing quality. The latter applies by default to any property sold. However, a seller can exclude this clause by indicating on the deed of sale: sold without legal warranty. If you are faced with a situation that looks like a hidden defect, there are four questions you should ask yourself to make sure it is one. Here are the questions:

Is the Default Hidden?

This may seem like a simple question, but it is a crucial one. If a prudent buyer cannot detect the defect by eye, a problem can be recognized as a hidden defect. This is even easier to prove if you have had a professional inspect the home and he or she has not indicated the defect in question in his or her report.

Was the Defect There at the Time of Sale?

A seller cannot be held responsible for a problem that occurred after the sale. However, a more serious problem may appear after the sale with a cause that was present before the purchase. It is best to seek expert advice to ensure that the problem was there before your purchase.

Is the Defect Serious?

The defect must be serious enough to make the property inappropriate for the use for which it was intended. In other words, if the buyer had been aware of the problem prior to purchase, he or she would either not have purchased or would have negotiated the price down to include the potential repairs. If the repairs to be made are considered minimal from a financial point of view, the problem will not qualify as a latent defect. Note that the burden of proof is on the buyer.

Have you Informed the Seller of the Defect?

Every buyer is obliged to inform the seller of a defect within a reasonable period (usually 6 months). This denunciation must take the form of a letter of formal notice. The purpose of this letter is to put the seller in default of respecting the guarantee of quality to which he is bound by law. He may then decide to fulfill his obligations. To do so, he will have to have access to the property, observe the defect and decide whether to proceed with the repairs himself or contest the defect by denying his responsibility.

If you believe you are facing a hidden defect, do not hesitate to contact a building expert who can give you a professional opinion on the matter.


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