What recourse do we have following a defect?

November 8th, 2022

When buying a home, one of the recurring haunts of new buyers is certainly having to deal with a defect. No one is immune to this type of disappointment. How do you assert your rights as a consumer? Where do you start? The following article will give you information on the subject so that you can deal with the situation.

Reporting the defect to the seller

First of all, the buyer who notices that the property has a defect must notify the seller in writing. This must be done within a reasonable period of time from the time of discovery. The seller will then have the right to determine the nature of the defect and to do the necessary work. If you decide to do the renovations yourself, you run the risk of assuming the costs alone. However, you can make repairs if the defect is dangerous or could seriously damage the property. The Notice of Defect can be in the form of a letter. It is important to include the date it was written and to mention that it is a notice of the defect and that the defect may be hidden. Include your name, the address of the subject property, the date of the sale and the name of the notary who drafted the deed. You can then describe the nature of the defect identified and the date on which you noticed the defect. If you are already dealing with a building expert to identify the nature and severity of the defect, mention this in the letter.

Consult a building expert and legal counsel

The next step is to consult a building expert, who can conduct an examination of the defect. He will be able to determine if it is a real hidden defect, in particular by verifying if the problem was present at the time of the sale or if there were already indications of its existence. The building expert will then proceed with an estimate of the work and costs involved. Once the expert’s report is in hand, you can consult a lawyer. He will be able to determine your chances of success should recourse be necessary.

Negotiating with the seller

After the seller has come to see the defect, you can ask him to repair it. If he does not want to carry out the work at his own expense within a reasonable period of time, it is recommended that you send him a letter of formal notice. In this letter, you will inform the seller of the cost of repairing the defect and the damages and you will offer him the possibility to proceed with the repair of the defect at his own expense or to pay the amount indicated in the letter of formal notice. The seller can then decide to carry out the work and you can accept, refuse or negotiate the work that he thinks he should do. Negotiation is not mandatory, but it can allow you to avoid serious costs and delays related to the processing of your case in court. If you or the seller wants to plead your case, it is the amount of work that determines who you should contact. Claims under $15,000 go to small claims. If the amount is more than 15 000$, you will have to turn to the Court of Quebec and over 85 000$ it will be the Superior Court.

If you think you are dealing with a hidden defect, consult legal services and a building expert as soon as possible. They will be your allies in preventing the situation from turning into a nightmare.


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