A seller is always liable for hidden defects, except in cases where the property is sold without any warranty and the buyer agrees to acquire it at their own risk. However, the seller is obligated to disclose any existing defects they are aware of.
During the sale of a property, we are always subject to legal action for hidden defects, except in cases where the property is sold without warranty and the buyer consents to acquiring it at their own risk. Even in such circumstances, the seller must disclose any known existing defects.
After discovering a hidden defect, the buyer who wishes to maintain their recourse against the seller is normally required to provide written notice of the defect before carrying out any repairs. This allows the seller to verify the defect, dispute the extent of the damages, and, if desired, to repair or replace. Case law, however, has made exceptions in certain cases, such as in situations of emergency or when there is an implicit waiver of notice by the seller.
For example, a buyer discovers a major hidden defect one year after acquiring a property. After conducting various studies, the buyer proceeds with the necessary repairs to correct the defect. Two years have passed at this point. Once the repairs are completed, the buyer sues the seller for over $200,000. The lower court dismisses the action on the grounds that the notice of the hidden defect was not given within a reasonable time from the knowledge of the defect.
The Court of Appeal* first urges "caution before dismissing a claim" for late notification. It overturns the decision rendered in the Superior Court and rules that the seller, despite the late notice, was still "able to verify the existence and seriousness of the defect," even if the repairs were already completed.
If a person who is informed is worth two, it is always important to be well-prepared before sending a notice, as one might feel quite alone.
*C.A. 500-09-018861-088
