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Hidden Defects

Have you uncovered undisclosed hidden defects in a property?

What do you do when the home you bought has a hidden defect – or defects – the seller never disclosed before before the sale?


The purchase of a home may be one of the most important investments you make. So what do you do when the home you bought has a hidden defect – or defects – the seller never disclosed to you prior to the sale? Fortunately, the laws in Quebec protect the rights of home-buyers. If you’ve discovered a hidden defect, you may be entitled by law to compensation for repairs, renovations and even damages.

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a hidden defect

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Document the hidden defect and take action

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Sending a letter is the first step to solving your issue

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If you can’t settle, you may need to file a lawsuit

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Try to settle at all costs !

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During litigation, You need to follow specific rules to get through the process

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What is a hidden defect?

A hidden defect is any flaw or defect resulting from inferior design, deterioration, or an unseen construction mistake made prior to sale. In Quebec, the seller of a property is bound by law to inform the buyer of a property of any hidden defects that may negatively affect the quality or use of the property and any extension of it, including a pool, chimney, deck, shed, or garage.

Should you contact a real estate attorney?

Quebec law outlines the criteria a defect must meet for the Warranty of Quality to apply. If the following statements are true about your defect, you may have legal recourse:

  • The defect existed at the time of the transaction
  • The defect is not apparent or obvious and often cannot be noticed by a simple inspection
  • The defect affects the quality and value of the property
  • The defect prevents the buyer from normal use or enjoyment of the property
  • The buyer does not know about the defect and could not have reasonably suspected its presence prior to the transaction

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If you have purchased a property and discovered a hidden defect not disclosed by the seller prior to the sale, a Legal Logik real estate attorney can work to get you:

  • A reduction in the price paid.
  • Reimbursement of the cost of repairs done or that must be done to repair the defect(s).
  • Compensation for damages or inconveniences suffered from loss of enjoyment and use of the property.
  • Exceptionally, cancellation of the purchase, return of the building to the seller and a reimbursement of the purchase price and damages.

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FAQ

A hidden defect is any flaw or defect resulting from inferior design, deterioration, or an unseen construction mistake made prior to sale. By law in Quebec, the seller of a property must disclose to the buyer of a property any hidden defects that may negatively affect the quality or use of the property and any extension of it, including a pool, chimney, deck, shed, or garage.

The most common examples of hidden defects include:

  • Cracks in the foundation
  • Roof or insulation related defects
  • Plumbing or drainage problem
  • Inadequate wiring, plumbing, heating or cooling
  • Mould in the walls or ceilings (or anywhere for that matter)
  • Infestation (vermin, pests, etc.)
  • Suicide or violent death having occurred in the home

When purchasing a home in Quebec, you are protected by the Warranty of Quality. This Warranty is essentially a promise from the seller to the buyer that the property, and any extension of it, such as a pool, shed, chimney or garage, is free and clear of any undisclosed defects.

If you discover a hidden defect, under the Warranty of Quality, you may be entitled to compensation from the seller.

There are several exceptions to the Warranty of Quality.

  1. Defects caused by the buyer: If you move into a home, and your actions cause, for example, plumbing problems, you cannot claim the problem is a hidden defect and take legal action against the seller.
  2. Sales under judicial authority: When a bank, municipal authority, or any other such entity that never had possession of property puts said property up for sale, the Warranty of Quality usually does not apply.

Succession sales: When buying a home from an estate as part of a succession sale, the legal warranty  does not usually apply. If you buy from a succession sale, you typically buy at your own risk.

For home sales between two parties that don’t fall into the above categories, it is also possible to remove the Warranty from the real estate transaction all together. The parties involved in a real estate transaction can choose to exclude the warranty of quality if they wish by mutually agreeing to do so and stating the precise limitations clearly in the deed of sale.

To successfully limit or exclude the Warranty of Quality, the correct and express terminology in the contract is essential.

In addition, there are cases when the Warranty of Quality cannot be limited. If you purchase a property from a professional seller, such as a real estate developer, under Quebec law the Warranty of Quality usually applies.

In most cases, the seller is responsible for hidden defects. In Quebec, when selling a property, the seller is bound by law to disclose to the buyer any latent (hidden) defect(s) in the property which might negatively impact its use or value. If the seller doesn’t do so and knowingly sells a property without disclosing defects of which he is aware (or should be), he can be held liable and obliged by the court to compensate the buyer.

If you have purchased a property and discovered a hidden defect not disclosed by the seller prior to the sale, you may have legal recourse to obtain one or more of the following:

  1. A reduction in the price paid.
  2. Reimbursement of the costs of repairs done or that must be done to repair the defect(s).
  3. Compensation for damages or inconveniences suffered from the loss of enjoyment or use of the property.
  4. Exceptionally, cancellation of the purchase, return of the property to the seller and a reimbursement of the purchase price and damages, where applicable.

Contact one of our attorneys for a free consultation to see how we can help you and to what type of compensation you may be entitled.

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