What is a latent defect? | ScriptaLegal
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What is a latent defect?

To be qualified as latent/hidden defects, the problems affecting the immovable/real estate property must have existed at the time of the sale. Accordingly, the problem of which cause occurred after the closing of the sale cannot be considered as a latent defect, therefore excluding any remedy against the seller.

The problems must be concealed, meaning that they cannot be discovered through an inspection by a reasonable and prudent purchaser prior to the closing of the sale. Thus, courts have repeatedly ruled that a careless buyer who failed to inspect the property before the closing of the sale cannot afterwards institute an action against the seller for latent defects if these problems could have been discovered through an inspection. However, it is not required that the inspection be conducted by an expert to be deemed sufficient, though the general practice is that a building inspector is hired for this purpose.

The problem that is revealed by the seller before the closing of the sale, or that is discovered by the buyer upon his inspection of the property before the purchase can no longer be considered as a latent defect: the option then offered to the buyer is to request a reduction of the purchase price based on the estimated cost of the work required to remedy the problem. However, the apparent defect which is minimized by the seller through misleading statements may be considered as a latent defect.

There is a host of case-law about the warranty against latent/hidden defects. For example, courts have established that the warranty against latent/hidden defects must be adjusted according to the age of the building: normal wear and aging constitute hidden defects only if they result in a disproportionate reduction of use.

Furthermore, it was ruled that a construction defect or defect in design is a latent defect only if there has been a violation to the applicable building standards at the time of construction of the building. For example, we may consider that the lack of French drains (weeping tiles) in a newly built building is a hidden defect; However, it will be considered normal for a building that was built decades ago to not have such French drains, since at that time it was not in the standards to install such drains, which will therefore not be considered as a latent/hidden defect.

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