A definitive guide to hidden defects

October 16, 2014

To determine what the hidden defects of a property are, from a legal standpoint,you have to see whether the following four criteria apply to them.

A definitive guide to hidden defects

The four attributes of a hidden defect

  1. You must prove that the defect existed at the time of purchase.
  2. The purchaser was not aware of the defect.
  3. The defect was not apparent, so it could not be found during a simple inspection of the building.
  4. The defect must be big enough to have influenced the purchase or the price at the time of purchase, or hinder the proper use of the property by the buyer.

What does a hidden defect look like?

Hidden defects can affect a house or its annexes, such as a swimming pool or a garage. Here are some examples of defects for which the previous owner can be held responsible:

  • Rotten framework
  • Crumbling foundations
  • Swimming pools that display a significant number of cracks
  • Mould inside the walls
  • Faulty plumbing

What can you do?

Should you discover a hidden defect, don’t wait to take action. Inform the seller immediately. You must do so in writing and within a reasonable time (up to about one year after the purchase). Unless the work is urgent, it is preferable not to begin the repairs right away so the seller can see for him- or herself the nature and the scope of the problem. Then proceed to an amicable arrangement, taking care to draw up a written contract.

When is a formal demand notice necessary?

If the former owner doesn’t follow up on your notice, or if you suspect that they won’t answer, you can send them a formal demand notice that contains a description of the hidden defect, your specific request for repairs and a response time in which to reply. You have up to three years following the discovery of the hidden defect to initiate proceedings against the seller if they delay in compensating you. A seller can be held responsible for a hidden defect, even though they may not have been aware of its existence at the time of the sale.

The exception that proves the rule 

As always, it’s best to be aware of the exceptions. When the immovable property at stake has been repossessed, the legal guarantee in the event of a hidden defect no longer applies. In addition, if you purchased a property directly from a non-professional seller and the mention “at your own risk and peril” is included in the sales contract, you won’t be able to bring proceedings against the vendor if there are hidden defects.

An ounce of prevention

Nothing can guarantee that a property doesn’t have a hidden defect. However, a complete inspection by a professional building inspector before you buy could help you avoid any unpleasant surprises.

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