In recent years, there has been an explosion of hidden defects prosecutions for buildings of all kinds. A clarification is needed from the outset on a belief too often prevalent that a hidden defect is a defect which the seller knew existed and conceals from the buyer. In fact, it is possible that this situation arises, but the term hidden defect opposes the apparent defect and the seller did not necessarily know the existence of the vice.
Definition of a hidden defect
A hidden defect is a serious construction fault that does not appear, which decreases the value of a building and prevents the new owner from taking full advantage of his building.
Civil Code and Jurisprudence
The law protects the buyer of a building with a legal warranty of quality with Article 1726 of the Civil Code of Québec. The case law has established five (5) conditions to determine whether the legal warranty of quality could apply to our case. We suggest reading the article from Jeffrey Edwards for more details.
- The existence of a vice;
- The vice must be serious;
- It must be unknown to the buyer at the time of sale;
- The vice must be not apparent;
- It must be prior to the sale.
New Code of Civil Procedure
Since the 1er January 2016, the new Code of Civil Procedure entered into force. "In order to reduce court delays, the new Code focuses on amicable dispute resolution methods such as mediation, arbitration or conciliation. These payment methods are more user-friendly, accessible and fast. "
On the website of Quebec Ministry of Justiceit can be read that "the new Code of Civil Procedure provides, inter alia, for the following provisions:
- to pass from 7 000 $ to 15 000 $the amount that may be claimed in proceedings before the Division of small claims of the Court of Quebec. This measure is effective from the January 1er 2015;
- require parties to consider the use of private methods of prevention and dispute resolution before going to court;
- promote the use of joint expertise between the parties rather than the multiplication of expertise, to limit costs and deadlines;
- pass from 70 000 $ to 85 000 $the amount that may be claimed in proceedings before the Court of Quebec, which will now be adjusted periodically by the effect of the law ".
Role of the engineer
The expert engineer observes and analyzes the deficiencies identified by the buyer and determines the extent of these on the operation of the building, the safety of the occupants and the enjoyment of the premises.
In addition, the engineer studies the documents provided by the client to verify whether these deficiencies have been declared or not in the declaration of the owner-seller.
Also, he must check if these deficiencies were mentioned in the pre-purchase report to make sure that the defects were not apparent.
Our engineering consulting firm offers the following services:
- Expertise to note the deficiencies raised by the new owner.
- Analysis of the documents submitted by the buyer (declaration of the owner-seller, pre-purchase report, etc.).
- His professional opinion concerning the deficiencies found in the building under study.
- Writing a report including findings, observations and recommendations supported by photos and diagrams.
- The presence in court as expert witness to support your claim.