LEGAL PROCEEDINGS REGARDING LATENT DEFECT

What will your remedy be should you decide to start a lawsuit?

Prescription: 3 years from the date of knowledge:

A lawsuit must be instituted within 3 years of the discovery of the latent defect.

There are many different possibilities that can arise in a latent defect case and the proper remedy will often be handled on a case by case basis.

Recourse before the courts:

Your recourse and remedy can be as follows:

  1. Damages including troubles and inconveniences and punitive damage;
  2. Reduction in the purchase price;

This reduction in the purchase price may be calculated by the loss of value of the property from the latent defect, from the cost of repairing the latent defect or by how much the latent defect will affect the life span of the property. In certain cases, if it can be proved that the knowledge of the latent defect would have lead the buyer not purchase the property at all or if the seller tricked the buyer into the purchase by omitting to reveal certain information, the contract may be nullified.

  1. Cancellation of the deed of sale and nullification of the contract

You may request to cancel the purchase of the property but it is less common that the request for a reduction in the purchase price or a claim in damages.

Remedies used by the courts

The courts determine and evaluate taking into consideration one of the three methods:

  • the depreciated value and cost of the latent defect
  • the costs of the repairs of the latent defects or
  • the reduced life expectancy of the latent defect in question.

Certain examples (non-exhaustive list) where the courts have recognized latent defects are as follows[1]:

  • Issues regarding the foundation[2]
  • Absence of vapour barrier in a wall[3]
  • Installation of an agricultural drain malfunctioning or inefficient[4]
  • Construction of an immovable under a ground water[5]
  • Presence of carpenter ants[6] or bats[7]
  • Problems with the conception of a roof[8]
  • Absence or insufficient insulation[9]
  • Contamination or pollution of the immovable[10]
  • Condition of the soil[11]

Latent defects are unfortunate for both buyers and sellers of immovable property because by their very nature they are only discovered after the sale contract has been signed, leaving the buyer to deal with the flaw and the seller to defend his claim.

It is for this very reason that contacting an attorney when discovering a latent defect is paramount. Seeking legal advice will help ensure that as a buyer or as a seller, you are not held responsible for the latent defects on your immovable property. An attorney specialized in this area will help protect and enforce your rights and obligations to serve your best interests.

[1] Geneviève COTNAM, Le caractère caché du vice dans Droit immobilier, vol. 5, Cowansville, Éditions Yvons Blais, 2010, p. 90

[2] Chicoine c. Normandin, AZ-97021273 (C.S.); Singh c, Seiffert 2006 QCCQ 18135

[3] Ouellet c. Gouin, Az-50127564 (C.S.); Spence c. Bouchard, 2010 QCCQ 2224

[4] Martel c. Desbiens, Az-50187660 (C.S.)

[5] Lulham c. Roy, AZ-50150586 (C.S.); Bélanger c. Turcotte, AZ-99021774 (C.S.)

[6] Paquet c. Forgues, AZ-50187881 (C.S); Coutu c. Savard, 2009 QCCQ 357

[7] Sauvageau c. Roy, 2006 QCCQ 4927

[8] Béland c. Pilote 2003 CanLii 33255(C.S); Chevalier c. Gariépy, Az-87018237 (C.A)

[9] Grenier c. Nadeau, AZ-00021774(C.S.); Léger c. Partenza, AZ-00021233 (C.S.)

[10] Laforest c. Chabot, 2008 QCCS 4340; St-Germain c. Levesque, 2009 QCCS 4455; Oldford c. McDonough-Sinclair, 2006 QCCS 5132

[11] Ruel c. Lavoie, AZ-92011589 (C.A.)

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.