We asked Mr. Christopher Atchison of the "Atchison Perrault Avocats" office, in St-Lambert, to answer some of the questions asked by our clients, about hidden defects, in order to separate the true from the false in this sometimes complex field. .
Q: Mr. Atchison, if a bona fide salesman declares all the vices he knows about the building, does he release his warranty for hidden defects?
A: The answer is no. In fact, one of the hallmarks of hidden defects is that they are likely to be unknown to the seller at the time of purchase. Thus, even if the seller declares all the defects of which he is aware, he remains subject to the legal guarantee for hidden defects.
Q: Does the good faith of the seller still have an impact in cases of hidden defects?
A: When a seller ignores in good faith hidden defects, he has an obligation to return the price, but he is not required to pay all damages and interest incurred by the buyer.
Q: Is it true that if a buyer has a pre-purchase inspection, then this frees the seller from his legal warranty for hidden defects?
R: Although inspection by the buyer is recommended, it does not release the seller from its legal warranty for hidden defects.
Q: A customer has already asked us if, after the discovery of a latent defect, a verbal denunciation to the seller was sufficient to start the repair work at the expense of the seller.
A: Not at all, a written denunciation to the seller is necessary. Before starting work, it is necessary to allow the salesman to take note of the hidden defect and to remedy it himself or with his contractor.
Q: It is often said that the clause to release the legal guarantee does not have the force of law. Is it true ?
A: No it's not true, it is possible to exclude the legal guarantee of the sales contract by adding a clause according to which the buyer buys the building "without legal warranty for hidden defects and at his own risk". One must be cautious with the drafting of such a clause, because a bad drafting could make the clause inoperative and void in the eyes of the courts.
Q: On the contrary, if there is no mention of the legal warranty in the sales contract, is it included anyway?
A: Yes, absolutely, unless there is a clause excluding the legal warranty, preferably written by a legal professional, this legal warranty for hidden defects is automatically included in the sales contract.
Q: We had several cases where customers discovered asbestos in their home. Is this a hidden vice?
R: No, the presence of asbestos is not covered by the legal warranty for hidden defects according to the case law.
Q: As a final question, if the judge decides that there is a hidden defect, will the purchaser be entitled to reimbursement for all costs associated with the work?
A: Not really, the court will consider the wear and tear of the property to be repaired. For example, if after 15 years, it is necessary to redo the foundations to nine, the court will not grant the total cost for new foundations. It will take into account the fact that the buyer has enjoyed, during 15 years, its foundations, even if they are to redo.
Christopher Atchison specializes in civil and commercial litigation, construction law and real estate law. office Atchison Perrault Lawyers inc. to 450-671-2829.