Definition : Defect - Latent defect

  Article 1726 paragraph 1 of  the Civil Code of Quebec, provides that " The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. In other words, the latent defect prevents the buyer from enjoying, as he was entitled to expect, the property sold and its accessories.  However, the purchase cannot be done blindly, as the buyer must exercise caution and diligence in the purchase process.  Thus, a defect that was denounced by the seller at the time of the sale is not covered by the legal guarantee since the buyer then acquired the property knowingly. A buyer must therefore be particularly attentive to the representations and declarations of a seller, as well as to the documentation given by the latter before the sale

The law regulates the liability of contractors and building professionals for any problem related to the quality of construction work. In this regard, the legislator has provided for a specific protection regime for divided co-ownership. Section 1081 of the Civil Code of Québec recognizes the legal interest of any syndicate of co-owners to assert the rights of all co-owners to correct defects that appear, in the short or long term. This could occur during the initial construction of the building, or during work carried out several years after its erection. In short, when problems affect the common portions, the syndicate benefits from several legal warranties. Among them is the one against latent defects, design or construction defects. These warranties are worth their weight in gold, because very often, the cost of the work to be carried out in a co-ownership can be substantial.

All co-ownerships have  common portions that need to be maintained. These may include corridors, stairs, gardens and elevators. The syndicate has an obligation to ensure their maintenance, since the declaration of co-ownership generally provides that it is the main person responsible for them. In addition, article 1039 of the Civil Code of Quebec stipulates that the syndicate has the obligation to ensure the preservation of the immovable and, by the same token, the maintenance of common portions. As for the maintenance of common portions for restricted use, for example balconies, it can be entrusted (in part) to the co-owners who have the enjoyment. This reduces the use of external service providers, thereby reducing the amount allocated to common expenses.

The Guarantee Plan for New Residential Buildings differs from the private guarantee plans offered on the market by the nature of the guarantees offered and the mechanisms for asserting its rights. In this regard, the terms and conditions are set out in the the Regulation respecting the guarantee plan for new residential buildings, which is the responsibility of the Régie du Bâtiment du Québec (RBQ). Finally, unlike private guarantee plans, any purchaser of a building covered by this plan automatically benefits from it. As this is a system aimed at the minimum protection of consumers'rights, consumers cannot waive this mandatory guarantee, even if they sign a document to that effect.

The law provides specific provisions, to protect syndicates of co-owners against defective work (article 1081 of the Civil Code of Quebec). The legislator aims to alleviate apparent deficiencies at the end of a project. Regarding work in common portions, the syndicate has several legal warranties. Among these are the warranties for poor workmanship, for hidden defects and for the loss of the work. These rights are worth their weight in gold, since more often than not the cost of work in co-ownerships is very high. In addition to the legal warranties, which apply in any case, in accordance with the conditions that govern them, the contractual liability of the contractor may also be invoked, under the legal contractual regime. The contractor may also offer additional guarantees.

The transfer of ownership will take place at the signing of the deed of sale, as well as the taking of possession which usually takes place on the same day. In return for the payment of the sum agreed to the seller, the buyer will have the full enjoyment of the property sold. In addition, during the transfer of ownership, the seller transfers all the risks associated with the building. In this regard, the deed of sale usually includes a risk transfer clause which stipulates that once you have signed the deed of sale, you become responsible for the risks and losses related to your newly acquired property. It is therefore important to take out the necessary insurance (such as home insurance) from day one.

Even after the transfer of ownership, the buyer benefits from several guarantees. Unless otherwise stated, the sale of a building is subject to a basic guarantee, generally called the "legal guarantee". This guarantee exists by the sole effect of the law, that is to say without it being necessary to provide for it in the contract. Under article 1716 of the Civil Code of Quebec (C.c.Q.), the legal guarantee has two components, namely the guarantee of the right of ownership  (1723 C.c.Q.) and the guarantee of quality (1726 C.c.Q.) against  hidden defects. This guarantee covers the validity of the right of ownership and guarantees the buyer that the building and its accessories are free from hidden defects likely to make them unfit for use or which reduce its usefulness so much that the buyer would not have bought or would not have paid the same price if they had known them.

By buying an apartment in a co-ownership, you will most likely invest the largest amount of money of your life. In order to avoid being caught off guard during the steps prior to this acquisition, you will need to be well accompanied. After finding the condo that suits you, the first thing to do is to appreciate the condition, as well as that of the building that houses it. Remember that the acquisition of an apartment is not limited to the purchase of its walls. You become an undivided co-owner of the common portions, for example the entrance hall, the roof, the interior garage, the elevator or the windows of the building. To do things right, you need to seek the services of a building inspector. The latter will examine the unit and building that are of interest to you.

I am the co-owner of a new condo. Other owners and I have recently discovered cracks in the foundation of the building, as well as water infiltration in the garage. The promoter is mute, and we have not yet transferred the administration. Question: Should we refuse to elect our first Board of Directors, until the issues identified have been corrected? And should I sell immediately before other major problems arise?

In the same way as any other natural or legal person, a syndicate of co-owners is likely to incur civil liability towards third parties, including co-owners. Responsibility is the counterpart of power: where authority is, there is responsibility. A syndicate must act with prudence and diligence in taking measures to prevent accidents that are normally foreseeable, by ensuring that the common portions are safe and free from traps. Furthermore, this responsibility can be translated into the financial contribution of the co-owners, since in the event of a judgment condemning the syndicate to pay a sum of money, this judgement will be enforceable against him and each of the persons who were co-owners at the time the cause of action arose, in proportion to the relative value of their fraction.Therefore the law obliges any syndicate of co-owners to take out insurance covering its civil liability towards third parties.

The Civil Code of Québec confers juridical personality on the community of co-owners. Article 1039 of the Civil Code of Quebec provides that as soon as the declaration of co-ownership is published, the community of co-owners constitutes a legal person called a syndicate of co-owners. Those duties and obligations are mainly aimed to ensure the preservation of the immovable, the administration of the common portions and the protection of the rights affecting the immovable or co-ownership, as well as all operations in the common interest. However, it is essential to understand them well because failure to comply with these duties and obligations towards a co-owner or a third party could lead to the civil liability of a syndicate.

Question: I bought my condo 3 months ago and I just attended my first meeting of co-owners. I just learned, to my great surprise, that very important work must be undertaken on the masonry of the building. My seller never told me about this work, although it is obvious that he must have known about it since all the other co-owners present at the meeting seemed to be aware of it. Could I turn against my seller because they hid this work from me and had a duty to tell me?