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Latent defects: you may have to do an in-depth examination of the state of the property, even if access is difficult

Categories:

Real estate and construction, Civil and commercial litigation

In a previous article, we examined the dynamic between the Plaintiff and the Defendant regarding the onus in demonstrating the existence of latent defects.

This article considers the duty of a buyer, who is notified of a potential problem, by his inspector or otherwise, to further his research on this problem so as to meet the criteria of a defect actually being hidden.

In a fairly recent case, the Plaintiff brought an action for price reduction and damages against the Defendants, alleging the existence of hidden defects resulting from the infiltration of water and the existence of mould.

The Defendants contested the suit for a number of reasons including the fact that the buyer’s pre-purchase inspection report disclosed several facts that should have led to a more thorough inspection, which would have allowed for the discovery of the problems that had arisen.

After a thorough analysis of the evidence, the Court concluded that the defects in questions were not hidden. On one hand, the construction of the building dated back to the 1920’s, and on the other, the warnings of the buyer’s inspector should have led to further and more thorough investigation. Furthermore, the Court added that the difficulty in accessing the source of the defect cannot serve as a justification for not investigating.

In summary, always be careful when being a property. Proving the necessary criteria in a latent defect lawsuit is not always very easy and a mistake in this regard can be expensive.

 

Harry Karavitis, Attorney-at-Law

Alepin Gauthier Avocats inc.

 

Latent defects: you may have to do an in-depth examination of the state of the property, even if access is difficult
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