OBLIGATIONS CHART

ATTACHED CHART REGARDING THE OBLIGATIONS OF THE BUYER AND SELLER[1] :

 

 

WAS THE BUYER PRUDENT AND DILIGENT?

 

 

Step 1

 

Did the buyer conduct a summary or sufficient investigation that would allow him/her to see indications of the appearance of a potential defect?

 

Taking into consideration :

 

-The status of the seller(professional or not) :

 

-The status of the buyer(professional or not)

 

-Characteristics of the property(age, price, location, nature, etc.)

 

-information obtained prior to purchase(sellers declaration, invoices, photos, etc.)

 

 

If the investigation was properly performed and there is no apparent indication of an apparent defect

 

 

 

If the investigation was properly performed which revealed some indications of a defect

 

 

 

 

 

If the investigation was poorly executed but there could have been indications to reveal the possibility of a defect had it been properly performed

 

 

If the investigation was poorly performed but there were no indications that would have revealed the possibility of a defect by a prudent and diligent buyer

 

 

The defect is latent

 

Step 2 is required

 

Step 2 is required

 

The defect is latent

 

 

 

 

 

Step 2

 

In the event that there are apparent signs of a potential defect that could have been revealed or would have been revealed if the investigation was properly performed in Step 1, did the buyer take reasonable measures to dissipate his/her doubts?

 

Taking into consideration :

 

-The type of defect (nature and extent of the symptoms and the visible signs);

 

 

 

 

If the buyer made no reasonable effort to dissipate his/her doubts (generally
to hire the services of an expert or an equivalent person)

 

 

 

 

 

If the buyer retained the services of an expert from the beginning to proceed with the investigation which did not reveal any apparent signs of a defect or omitted to recommend an expert in the field to push his/her reflection
further

 

 

If the buyer retained the services of an expert to investigate the apparent signs of a possible defect and the conclusions by the expert did not reveal anything abnormal

 

 

 

 

The defect is apparent but the analysis of step 3 is still required

 

The defect is apparent but the analysis of step 3 is still required

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

The defect is latent

 

Did the seller fail in his duty of information?

 

 

Step 3

 

Did the seller provide false and misleading information or declarations, hide the defect in question or omit to divulge the defect or provide a false sense of security for the buyer, irrespective of his good faith or bad faith?

 

If the seller failed in his duty of information by providing false and misleading information or created a false sense of security for the buyer

 

 

 

 

If the seller respected his duty of information

 

 

 

 

 

The apparent defect could be qualified as a latent defect but the judge has the discretion to balance the facts in light of the circumstances

 

 

The defect remains apparent

[1] Translated from French to English: VIENS, Isabelle, La prudence et la diligence de l’acheteur en matière de vices cachés : un concept à définitions multiples dans Droit immobilier – Deuxième colloque, vol. 15, Cowansville, Éditions Yvons Blais, 2012, p. 43

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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.