You’ve done it! After weeks of searching, you’ve finally found your dream home. Built in the 1920s, it is charming, cosy, and in the perfect neighbourhood.
During the pre-purchase visit, you noticed a few cracked bricks and a faint odour of dampness, which seemed normal at the time for a house of this age. You fell in love and went to the notary to sign the papers. A few months later, however, your dream house has become a nightmare. The cracks have expanded and the damp smell is constant. So you decide to sue the owner for hidden defects. Your case goes to court. Will you win?
What is a hidden defect in a home?
Generally, a hidden defect can be described as any flaw or defect resulting from inferior design, deterioration, or an unseen construction mistake made prior to sale. Quebec’s Civil Code stipulates that during the sale, an immovable good must be “ ... exempt from hidden vices rendering the building unfit for its intended use or which decrease its usefulness to such an extent that the buyer would not have paid as high a price if he had been aware of said vices ” (Art. 1726, QCC.).
During pre-purchase visits
The law obliges buyers to take certain precautions when buying a home. “The legal guarantee against hidden vices has certain limits; the vendor is not responsible for visible defects that could have been discerned by a cautious, careful buyer without the assistance of an inspector or other expert,” says attorney Nicolas Gosselin.
During pre-purchase visits, be attentive for obvious signs that might indicate future problems. At this stage, do not hesitate to call upon the services of an expert if you see signs of eventual complications. The report could serve as proof in a court case. In fact, a home inspection is recommended if you intend to purchase. There, too, the inspection report can play in your favour if need be.
And if you discover a hidden defect after buying?
Even if you have taken precautions before the purchase, a defect may decide to come out of its hiding place once the transaction is complete – sometimes many years later. How should you proceed if you then decide to pursue the seller?
First, take pictures or have videotape of the defect and its repercussions. Second, ask an expert (an architect, engineer, structural specialist) to find out the precise nature and extent of the defect. Expect to pay between $500 and $1,000 for this service. At the same time, send an “avis de denunciation” to the vendor by registered mail or bailiff. The law obliges you to report the defect in writing to the vendor within a reasonable time after its discovery (Art. 1739 QCC). Do not proceed with repair work until the vendor has answered your notice or until your case has been heard.
Before taking any legal procedures, remember to check and see if the legal fees aren’t higher than the claim itself. A judge will take the building’s devaluation or the added-value that repairs might add to the building, as well as compensation that represents just a portion of the real costs involved in correcting the hidden defect.
Essentially, it is crucial to keep one’s eyes wide open when buying a house. The court could deem a later problem the result of your own negligence… a position you could find yourself in if you are the buyer described at the beginning of this article.
Our thanks to attorney Nicolas Gosselin with Pothier Delisle SENC.
Also read our article intended for sellers, Hidden defects: when the seller is sued.