Hidden defects : the basics you need to know

1. What is a hidden defect according to Quebec law?

A hidden defect is a defect or imperfection in a property which was not visible at the time of purchase and which makes it unfit for the use for which it is intended or significantly diminishes it. Under article 1726 of the Civil Code of Quebec (CCQ), the seller is responsible for hidden defects that affect the property sold, even if he was not aware of them.

2. What are the criteria for a defect to be considered hidden?

For a problem to be considered a hidden defect, it must meet the following criteria: Unknown to the buyer at the time of purchase, existing before the purchase, serious and hidden.

3. What recourse do buyers have in the event of a hidden defect?

In case of a hidden defect, the buyer can:

• • Request the cancellation of the sale: This means canceling the sale and recovering the purchase price, often accompanied by compensation for incurred expenses.

• • Request a price reduction: If the buyer wishes to keep the item despite the defect, they can request a reduction in the price corresponding to the value of the defect.

4. What is the deadline for taking action in the event of a hidden defect?

The time limit for taking action in the event of a hidden defect is three years from the moment the buyer discovered the defect, according to article 1728 of the CCQ.

5. What obligations do sellers have regarding hidden defects?

Sellers have an obligation to disclose any known defects that could affect the use or value of the item. Even if they were unaware of the defect, they may still be held liable if it is proven that the defect existed at the time of sale.

6. Should the buyer carry out an inspection before purchasing to guard against hidden defects?

Although the seller has the obligation to disclose known defects, it is strongly recommended that the buyer have the property inspected by a professional before purchasing. An inspection helps detect visible problems and reduces the risk of discovering hidden defects. However, an inspection does not guarantee the discovery of all hidden defects.

7. What are the consequences if the seller does not reveal a hidden defect?

If the seller fails to disclose a hidden defect, they may be held responsible for the resulting financial and legal consequences. The buyer could seek cancellation of the sale or a price reduction. If it is proven that the seller was aware of the defect and failed to disclose it to mislead the buyer, the seller could additionally be liable for damages.

8. Are goods sold “without legal warranty” exempt from the warranty against hidden defects?

Sometimes, even if a good is sold “without legal warranty”, the seller cannot avoid liability for hidden defects. Indeed, this clause does not cover defects of which the seller was aware or could not have been unaware and which render the property unfit for the intended use.