Latent Defects: What You Need To Know Before Purchasing Your Home

Latent Defects: What You Need To Know Before Purchasing Your Home

Latent Defects: What you need to know before purchasing your new home


Purchasing a new home is a big step, whether it’s your first home or your tenth, and being aware of latent defects and how to prevent any unwanted surprises from them is an important step to protecting yourself and your investment.


What is a latent defect?


A defect is defined as “a flaw in the quality of a building”.  To be a latent, or otherwise known as a ‘hidden’ defect, the flaw has to meet three requirements:


  1. It is not obvious, just by a simple look you can’t see the problem,
  2. The Buyer had was unaware that the flaw exists,
  3. The flaw has been there since the time of purchase.


In practice, here’s how a latent defect can affect you:


As an example, you have just purchased a beautiful new home, to discover soon thereafter or while while doing renovations that there is mould growing in your living room walls.  The mould behind the walls is definitely a latent defect.


However, latent defects do not always have to be inside your home.  They can also be found in the swimming pool, the deck, the shed, the chimney, etc.


How can you protect yourself when buying a new home?


Even though there is no legal requirement to have a building inspection done, in order to protect yourself from a latent defect, it is strongly recommended that you have a building inspection done before purchasing.  This way you have a professional inspect the home to look for potential defects that you may not have noticed when examining the building yourself.


Sellers are expected by law to tell the buyer about any defects that they know about.  They cannot lie about the existence of the defect, exaggerate to get a better price or omit important information to add to the chance of a sale.


What are the remedies after finding a latent defect in your home?

Legal remedies against latent defects do not cover apparent defects, which are those that can be seen by simple examinations, making having a building inspection that much more important.


Although each situation is different, the law offers a few remedies in the case of a latent defect detected after the purchase.


  • The first thing to do is advise the vendor and give them the opportunity to repair the defect.


  • The most serious remedy is the entire cancellation of the sale, being the property goes back into the possession of the seller and the buyer receives a full refund of the purchase price that they paid for the property.


  • The most common remedy is a decrease in the purchase price and reimbursement for repairs required as a result of the latent defect. If the latent defect has caused harm, the buyer can claim and receive a reimbursement to repair the defect and for the harm suffered.


  • In each of these cases it is important to document everything related to the latent defect to make your claim credible. You can do this by taking pictures or videos of the damage from the latent defect, having an expert come in to assess the latent defect.  Always be sure to maintain a record of any expenses made due to repairs, damages, examinations, etc.  The more evidence you have available, the easier your claim will be to pursue.


If you believe you have a latent defect in your home and a claim against the seller, contact a legal professional to assist you with the matter.


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Ken Adessky

KENNETH S. ADESSKY ATTORNEYS | KENNETH S. ADESSKY AVOCATS Suite 525 - 4150 St. Catherine Street West Montreal, Quebec H3Z 2Y5| T: 514-288-8070 ext. 22 F: 514.288-8655

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