The Seller’s Responsibility

When it is time for a seller to put his property up for sale, it is neither advantageous nor beneficial for him to remain silent and ignore a situation that could have a definite influence on the final decision of the future buyer to proceed with the purchase or not of the property in question. On the contrary, the seller should be voluble and clearly detail the defects that affect his property.

Obviously, sellers do not like to report all the defects that affect the desired building for obvious fear of scalding a potential buyer and/or seeing the sale price drastically reduced. Yet, disclosing defects to the promising buyer could save the seller not only a lot of headaches, but also unforeseen legal costs in the event of an action by the buyer.

In fact, the case law is quite clear to that effect. The seller must disclose to the buyer all latent defects of which the seller is or ought to be aware. The reason is obvious: the courts want to ensure that the purchaser acquires a property with full knowledge of the facts. However, any sign that could lead us to believe that a defect affects the building, even if the actual cause of the defect has not been discovered, should be disclosed to future buyers.

Thus, a buyer who discovers that an acquired immovable is affected by a latent defect is entitled to demand reimbursement from the seller of the costs incurred for the repair of the defect, whether the seller was acting in good faith or in bad faith at the time of the sale. Even if the seller inadvertently fails to disclose a latent defect, the seller could be held liable and be forced to compensate the buyer.

As stated by Jobin in his treatise,

The sale: “(…) It must have existed at the time of sale, it must be serious, unknown to the buyer, and finally, it should not be apparent at the time of sale, and therefore it must be hidden. »

If it is known to the buyer, the defect is not hidden. It is, therefore, essential for the seller to ensure that the buyer has been notified of all anomalies affecting the property and thus fulfill its disclosure obligations.

The seller can inform the buyer in several ways, but it is recommended that you do so in writing in order to keep concrete proof of this. Moreover, it is in the interest of all parties that the seller indicates the defects in question in the promise to purchase and thus avoid possible legal proceedings.

Please note that even if the seller has never contacted the buyer directly because he or she has mandated a real estate agent to act on his or her behalf, he or she is not relieved of his or her disclosure obligation. To this end, it is possible and strongly suggested to notify buyers through the promise to purchase, in which a paragraph, the seller’s declaration, is specifically provided for this purpose.

Finally, it’s important to remember that it’s not just Latent defects that must be reported, but the seller must also be very careful to Do not make false statements to the purchaser who may vitiate his consent as to whether or not he intends to acquire the property in question or to pay the asking price for it.

In other words, the seller Must be transparent in the representations he makes as to the true condition of his property, so that the buyer is not in any way taken by any unpleasant surprise once he has moved into the premises since he will have purchased the property with full knowledge of the facts.

We’ve already suggested to some of our seller clients, who were worried that their buyers would be the type to challenge and sue whomever they wanted, to have a Pre-Purchase Inspection or even a expertise, which would be given to the future buyer when the promise to purchase is signed. Make sure that the inspection in question reflects reality and that the expert reports all defects affecting the building, even at the risk of losing or deterring an interested buyer. This would have the effect of reassuring the future buyer, notifying them of all possible deficiencies and, above all, demonstrating their good faith.

This would also have the effect of protecting the seller in the event of a possible recourse since he will have taken all possible precautions in notifying the buyer well beyond his obligation. Also, they will have the option of turning against their inspector or expert in the event of a professional error or omission in their report.

On the other hand, if the promising buyer conducts his own pre-purchase inspection, it is strongly recommended that the seller attend the inspection and also draw the inspector’s attention to the signs that may be the source of both an apparent defect and a hidden defect.