Although the conditions for a problem to be qualified as a “latent defect” under the Law require, in particular, that the problem be unknown and not apparent to the buyer, the latter may assert a claim for a latent defect if their seller made reassuring statements regarding the problem in question.
Case law indicates that “reassuring statements made by [a seller], even in good faith, regarding the fact that existing [problems] had been eliminated constitute representations that created a sense of false security in the Buyer, justifying them in not pursuing their examination further” (excerpt from the decision Wilhelm Ahlfors v. Crevier, [2016] QCCS 2803).
Thus, even assuming that the defect is apparent and/or known to the buyer before the sale of the property, the seller’s representations can have the effect of making this defect legally latent.
For example, in the decision Wilhelm Ahlfors v. Crevier, [2016] QCCS 2803, the plaintiff alleges the presence of several latent defects in the building of the property acquired from the defendants and claims damages from them, among other things, for the cost of the corrective work required by the condition of the building.
Before the sale, a mold problem in the basement had been reported to the buyer by the sellers. However, the sellers specified to the buyer that significant work aimed at correcting and eliminating the mold and water infiltration problems in the basement had been carried out. Although this problem was brought to the buyer’s attention before the sale, the Court considered that the corrective decontamination and restoration work in the basement undertaken by the sellers before the sale had not been performed adequately, contrary to their representations to that effect.
The particularity of this case dates back to the time of purchase when the buyer knew that the building they were about to buy had undergone work related to a mold and water infiltration problem in the basement. However, the sellers assured the buyer that the mold present had been eliminated, thereby creating a sense of security for the buyer at the time of the building’s purchase.
In such a context, even assuming the defect was apparent, the Sellers’ representations had the effect of making it legally latent.
It is therefore evident that a seller’s representations indicating that a problem has been corrected can create a sense of false security in the buyer, justifying them in not pursuing their examination further, thus making the defect legally latent for which the buyer has recourse against their seller.
An apparent and/or known defect to the buyer can therefore become a legally latent defect in the presence of specific representations by the seller akin to a conventional warranty given by the seller in favor of the buyer, who acquires the building with a sense of security and believing in good faith that the corrective work undertaken by the seller has truly corrected the situation.
