Steps to follow in the event of a hidden defect
- Ponce Avocats
Notice of hidden construction defect
The law requires you to inform the person who sold you the property and to give them the opportunity to examine the defect you discovered (article 1739 of the Civil Code of Quebec).
It is important that your notice is in writing, and you should retain proof of receipt of this notice. In a 2018 ruling, the Quebec Court of Appeal explained the objective of this written notice to the seller: "In addition, the purpose of the notice is to allow the seller to note the existence of the defect, to verify whether the buyer could be responsible for this or to remedy the defect."
The written notice
Once the seller has been informed of the hidden defect, you must send him a written formal notice, asking him either to carry out the corrective work at his expense or to compensate you.
This is a new opportunity given to the seller to remedy hidden defects and deliver goods free of defects. It is important to remember that in most cases, the seller was also unaware of the problem affecting the property being sold. It is therefore essential to give the seller a chance before undertaking repairs yourself. You have the right to supervise the type of work the seller wants to do and to refuse an incomplete work quote.
In conclusion, it is important to remember that after the discovery of a hidden defect, several steps must be followed in order to take legal action against the seller. Each step is subject to deadlines, and it is crucial to act quickly, otherwise you could lose your right to appeal.
The request for compensation
When a hidden defect actually affects the property sold, the buyer has the right to request compensation for the damage caused by this defect. He may also request the cancellation of the sale and reimbursement of the purchase price if the defect is of such importance that the court considers that the transaction would not have taken place if the defect had been known.
It is not necessary for the seller to be aware of the hidden defect to be ordered to compensate the buyer. The judgment in favor of the buyer does not depend on the seller's knowledge of the defect.
However, if the seller was actually aware of the defect and did not disclose it to the buyer, he will be required not only to repair the damage caused (or to reimburse the price in the event of cancellation of the sale), but it must also compensate the buyer for all damages and related expenses suffered, whether foreseeable or unforeseeable, provided that they are proven at trial.