August 30, 2017 Latent defects - Buyer’s remedies
We will discuss the steps that the buyer of real property must take after discovering a latent defect so that he or she can institute legal proceedings against the seller to be awarded damages for the cost of the repairs to the property or seek to have the sale cancelled.

Article 1739 of the Civil Code of Quebec provides that a buyer who ascertains that the property bought is defective must give notice in writing of the defect to the seller within a reasonable time after discovering it. This written notice must be sufficiently detailed so that the seller can clearly understand the extent of the defect in the property. 

Giving written notice of the defect to the seller is essential in order to protect the buyer’s rights, and tardiness in giving such notice will prevent the buyer from bringing legal action against the seller.

In fact, the buyer of real property must give the seller the opportunity to verify that the defect exists and how serious it is, and to ascertain the damages or to repair the defect at his or her own expense. As a result, as soon as the defect is discovered, we recommend that the buyer immediately advise the seller of it in writing. It is best to send the written notice to the seller by registered mail or have it served on the seller by a bailiff. 

Therefore, unless urgent repairs are required or the defect could cause damage to the property and even its loss, the buyer should not undertake any repairs until the seller is allowed to ascertain the defect.

Next, failing an agreement between the buyer and the seller, the buyer may then send a formal demand to the seller, claiming the cost of the work and other eligible expenses and claims from the seller, including in particular the expert costs incurred. 

Finally, we would like to point out that a formal demand must be sent to the seller before instituting any legal proceedings against him or her.

If you think that there is a latent defect in your real property or if you sold property and you have been informed that it allegedly has a latent defect, and you would like more information about what to do to legally maintain your rights, please contact us so that we can give you the proper advice. 

Olivier Tousignant, lawyer