Despite a reasonable inspection report during the real estate transaction, it is not uncommon for condo buyers to discover a non-apparent problem in their condominium shortly after their acquisition that the seller neglected to mention. This is known as a hidden defect.

The Civil Code of Québec provides a legal warranty of quality—that is, the seller is responsible for any property defects, even if they are unaware of their existence. To learn more about what a hidden defect in a condominium is and what recourse is possible, Condo Stratégis invites you to check out this article.

What is a hidden defect issue in a condominium?

Hidden property defects in a condominium may affect the private and/or common portions such as the hallways, stairs, garage, and roof.

Hidden defect definition

Hidden or latent defects are non-apparent construction faults or alleged damages that existed at the time of purchase. They are so serious:

  • that they make the building unfit for its use;
  • or that they clearly limit its usefulness, so much that the buyer would not have purchased the property or would have bought it at a lower purchase price at the time of the sale because of the cost of the work.

This physical defect may involve a single-family home as well as a building belonging to one owner or in a divided or undivided co-ownership.

The different types of latent defects

Coming in various forms such as a maintenance defect or a design flaw, hidden property defects may include:

  • a non-apparent house foundation crack;
  • excessive condensation in the windows;
  • hidden water damage or infiltration from the basement, windows, exterior walls, or roof;
  • insufficient soundproofing;
  • a deficient piping or electrical wiring system;
  • polluted land.

What to do in case of hidden property defects?

Building experts who conduct contingency fund studies, which are now mandatory since the entry into force of Bill 16, can generally support you if you have discovered latent defects in your condominium.

Recourse for property defects

The buyer must report the material latent defect in the condo to the seller via formal notice within a reasonable time—commonly agreed to be 6 months—following its discovery in order to exercise the warranty of quality.

As part of its condo management mission, the syndicate of co-owners must bring an action based on a hidden defect:

  • affecting the common portions;
  • affecting the private portions, provided that it has received authorization from the co-owners in question.

In accordance with the Civil Code of Québec, proceedings for latent defects must be brought against the seller within three years of their discovery.

The responsibility of the syndicate

It should be noted that the condo syndicate, which is responsible for the management and maintenance of the common portions, has every interest in having an ordinary inspection of the condo building performed as soon as the developer transfers the administration of the condominium. It can therefore initiate proceedings immediately in the event of the presence of one or more hidden defects that escaped the visual pre-purchase inspection of the previous managers.

On the other hand, if it does not act when a latent defect issue is found, it incurs its own liability due to a lack of diligence inspections.

Where the warranty of quality comes into play

It is not uncommon for developers, despite having been duly notified, not to carry out the corrective work unless forced to do so by a judgment.

In this case, the condo syndicate usually carries out the corrective work before having won its case. It then calls for reimbursement of the corrective work paid for by the community of co-owners.