Vices cachés
Vices cachés en copropriété divise : qui peut poursuivre ?
L’achat d’une unité de condominium implique deux éléments pour l’acheteur : l’acquisition d’une partie privative (soit l’appartement dont il devient propriétaire) ainsi qu’une portion indivise des parties communes de l’immeuble, laquelle est déterminée selon la quote-part du droit de copropriété indivis indiquée à la déclaration de copropriété.
Ainsi, lorsque le propriétaire découvre un vice caché suite à l’acquisition de son condo, des recours s’ouvrent à lui et ce, peu importe si le vice touche sa partie privative ou les parties communes de l’immeuble.
Si cela est votre cas, le cabinet Azran avocats, vous propose un entretien téléphonique gratuit afin de cerner votre situation. Rien ne remplace l’expérience d’un avocat en droit de immobillier dans les affaires de vices cachés 514-499-2010
Hidden defect in real estate: definition
Under article 1726 of the Civil Code of Quebec,
The seller is required to guarantee that the good and its accessories are, at the time of sale, free from hidden defects which make it unfit for the use for which it is intended or which reduce its usefulness to such an extent that the buyer would not have it. bought, or would not have given so high a price, if he had known them. It is, however, not required to guarantee hidden defects known to the buyer or apparent defects; is apparent the defect which can be noted by a prudent and diligent buyer without needing to resort to an expert.
Thus, the defect must meet the following four conditions to be considered a hidden defect:
1. The defect must be serious;
2. The defect must predate the sale;
3. The defect must be unknown;
4. The defect must be hidden.
It is also provided for in article 1739 C.c.Q. that the buyer who notices a defect has the obligation to report it in writing to the seller within a reasonable time of discovery.
Why pursue with a lawyer
In the specific context of divided co-ownership , the syndicate is responsible for the conservation of the building, the maintenance and administration of the common areas, the safeguarding of the rights relating to the building or co-ownership, as well as all operations of common interest. Thus, when a defect is discovered in the buyer’s private portion and it affects a common portion (general or exclusive), the buyer must, in addition to the legal denunciation to the seller, notify the syndicate’s directors as soon as possible. Article 1077 C.C.Q. states that the syndicate is liable for damages caused to co-owners by a defect in design or construction or a lack of maintenance of the common portions, without prejudice to any recourse action.
Recourse against the syndicate of co-ownership
This recourse available to the co-owner against the syndicate only concerns direct damages suffered by the syndicate’s failure to adequately maintain the common areas, but is not relevant in the context of an action for price reduction following the discovery of a latent defect since the syndicate is not a party to the sale.
In addition, when it comes to latent defects, article 1081 C.C.Q. provides that the syndicate may bring any action based on a latent defect, a defect in the design or construction of the building or a defect in the soil. In the event that the defects concern the private portions, the syndicate cannot act without having obtained the authorization of the co-owners of these portions.
This section gives the syndicate the possibility of bringing an action for latent defects, but at no time did the legislator intend to exclude the rights of the buyer to bring such an action against his seller, even if the dispute concerns the common elements.
In concrete terms, if a defect affects the common portions and the buyer wants to file a claim for price reduction (or cancellation of sale) against the seller, it would be illogical for the co-owner not to have the required interest if the common portions are affected, especially if his private portion is also affected by the defect.
However, in a situation where the developer is the person who sold the unit to the co-owner, it may be preferable to leave it to the syndicate to manage the lawsuit, especially since the said contractor could carry out the required corrective work on the common areas, under the supervision of the syndicate.
In fact, the co-owner would not be able to carry out (or supervise the execution) of work relating to the common areas of the building since only the syndicate is legally authorized to do so.
Managing a latent defect is complex
The discovery of a latent defect is a difficult experience for a new buyer to manage, especially when this defect affects the common areas of a building held in divided co-ownership.
It is therefore good to know that the co-owner has sufficient interest to pursue and invoke this guarantee of quality, even for a common area.
It will therefore be necessary to determine the nature of the defect and the damage suffered, to then see if it would be preferable for the buyer to proceed with the recourse himself, or rather to let the syndicate do its thing in order to reduce the costs related to the legal process. The nature of the judicial remedy chosen will also be decisive in this decision-making process.
For additional information regarding latent defects in divided co-ownership, do not hesitate to contact the undersigned attorneys.