The behavior of the seller prior to the transaction is an important factor to consider when determining whether a defect can be considered a ‘latent defect’ for the purpose of legal warranties found under the Civil Code of Québec
An omission by the seller to inform the buyer of relevant information will engage the seller’s legal responsibility. In such circumstances, the seller will be prevented from arguing the lack of due diligence by the buyer as a defense against a claim in latent defect.
The seller is under an obligation of good faith which prevents him from inducing the buyer in error by either concealing information, or making false declarations. The jurisprudential trend is for courts to hold otherwise ‘apparent’ defects as ‘latent’ when the seller breaches his duty of good faith through behavior or declarations.
Therefore, the seller is bound by a certain minimum of transparency during the negotiations. Failure thereof will influence the extent of the seller’s liability in a latent defect proceeding.
A defect will be considered ‘apparent’ if it could have been revealed through a prudent and diligent visual inspection of the property by a buyer, or a pre-purchase inspector.
The behavior of the seller will influence whether a defect is to be considered ‘latent’ or ‘apparent’ through the degree of transparency offered by the seller. An apparent defect coupled with false or misleading information will turn the defect into a latent defect.
Concealment of information or misrepresentations by the seller which induced the buyer into purchasing a property may also be considered fraud, therefore vitiating the consent of the buyer, and consequently giving the buyer the right to ask for annulment of the contract in addition to damages.
If your recently purchased property was sold with a latent defect, contact an attorney who specializes in real estate law in order to enforce your rights in this unfortunate situation.
OBLIGATIONS OF BUYERS AND SELLERS
Placement Jacpar v. Benzakour, (C.A. 1989-09-20).
 Lahaie v. Laperrière, 2009 QCCA 1285, at para 40.
 Translated from French to English: Viens, Isabelle, La Prudence et la diligence de l’acheteur en matière de vices cachés : un concept a définitions multiples, dans Droit Immobilier – Second conference, Vol. 15, Cowansville, Éditions Yvons Blais, 2012, p.43.
 Lahaie v. Lapierrière, 2009 QCCA 1285, at para 49.
 Note: The buyer retains his recourses against the inspector who failed to conduct the inspection in accordance with the norms of the industry. This recourse may be coupled with recourses against the seller in cases of fraud.
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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.