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Latent defects: limited accessibility is not an excuse when deciding whether an in-depth examination of the state of the building is appropriate


Real estate and construction, Civil and commercial litigation

On a number of prior occasions, we have mentioned that the buyer of real estate has the onus to prove that a given defect was latent and hidden. Often, such a defect is brought to the attention of the buyer by his expert during the pre-purchase inspection.

It should also be noted that the buyer who is notified of a potential problem - by his inspector or otherwise - has a duty to further investigate the matter. In fact, this duty remains in force even if the defective area of the property is difficult to access.

As an example, in a recent case, a buyer (the plaintiff) brought an action for damages and price reduction after alleging the existence of latent defects resulting from the infiltration of water.
As expected, the vendor contested the claim for a number of reasons, including the fact that the pre-purchase inspection of the building raised several issues that should have led to a more thorough investigation by the buyer. Indeed, the vendors argued that had a more in-depth investigation taken place, the buyer would have been made aware of the problems that were later discovered.

In this case, the Court concluded that the defects in question were not latent (or hidden). On one hand, because of the age of the property, which dated back to the 1920s and, on the other, because of the warnings of the buyer’s inspector before the sale which should have led him to investigate the matter further. On this last point, the Court also added that the limited accessibility of the affected area was not a valid reason to fail to do a more detailed inspection.


Me Harry Karavitis, Attorney-at-Law
Alepin Gauthier Avocats Inc.

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