Latent Defect Claims in Quebec

Latent defects • Published on May 21, 2014 (Updated 5 June 2026)

Me Vanessa Blais

A member of the Barreau du Québec since 2025, Vanessa Blais focuses her practice on civil and commercial law, particularly latent defects, construction defects and corporate law. Drawing on more than eight years of experience as a paralegal, she combines a solid command of procedure with exceptional rigour to provide efficient services tailored to her clients’ needs.

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In this article, we present the various concepts you need to know about latent defects.

First, the concept of a latent defect refers to the legal warranty of quality provided for in articles 1726 and following of the Civil Code of Québec.

This warranty applies by default to every contract of sale and protects every buyer of property, whether movable property (for example, a recreational or motor vehicle) or immovable property (for example, land or a building).

What are the criteria for applying the legal warranty of quality?

There are 4 cumulative criteria for a claim based on the legal warranty of quality:

1. The defect is serious
2. The defect is unknown to the buyer
3. The defect is hidden
4. The defect existed before the sale

Let’s now look at these concepts in detail.

Seriousness of the defect

A defect is considered serious when it makes the property unfit for the use for which it was intended or so diminishes its usefulness that the buyer would not have paid the same price, or simply would not have bought the property, if they had known about the defect (art. 1726 para. 1 C.C.Q.).

This means that a minor defect does not give rise to a claim. The factors to consider include the cost of the repairs, the drop in market value, the loss of use and the inconvenience suffered by the buyer. The damage must be probable or foreseeable; it does not necessarily have to have occurred.

For example, land contaminated by heating oil or a building with a rotten structure are serious defects.

Defect unknown to the buyer

The second criterion requires that the defect be unknown to the buyer, not merely hidden, at the time of the sale (art. 1726 para. 2 C.C.Q.).

The seller will not be liable if they disclosed the defect to the buyer verbally or in writing, in the seller’s declaration or the property’s listing sheet, or if the pre-purchase inspection report identifies the defect. However, the seller has the burden of proving that the buyer knew about it. It is therefore important for a seller to disclose everything they know about the property to the buyer.

Hidden defect (as opposed to “apparent”)

The “hidden defect” criterion is different from the defect being unknown (see above). It is assessed by asking whether a prudent and diligent buyer with the same expertise, in the same circumstances, would have discovered the defect. The buyer must therefore inform themselves about the property.

Hiring an expert or a pre-purchase inspector is not mandatory (art. 1726 para. 2 in fine C.C.Q.), although it is recommended, since the inspector may find signs that something is wrong.

For example, when excavation is needed to see the defect, the defect is considered hidden. However, it is considered apparent when the buyer ignores the warnings of their pre-purchase inspector and does not investigate further. In that case, the buyer is presumed to know about the defect, and their latent defect claim will be dismissed. This is even more true for an older building, because the buyer must expect some defects.

Defect existing before the sale

The defect must exist at the time of the sale (art. 1726 para. 1 C.C.Q.), even if it is dormant or has not yet appeared.

The buyer can benefit from a presumption of fact when they took possession of the property recently or the defect is at an advanced stage, such as mould. We recommend that the buyer hire an expert to support their evidence, if needed.

However, abnormal use of the property releases the seller from liability if the seller proves it.

Giving notice of the defect within a reasonable time

There is a preliminary step before a latent defect claim. The buyer must send the seller a notice of the defect within a reasonable time after discovering it (art. 1739 para. 1 C.C.Q.).

Also, the work to repair the defect must not be done before the notice is sent.

The available remedies

Depending on the circumstances, a latent defect claim can give rise to the following remedies:

1. Reduction of the price or resolution of the sale (arts. 1604 and 1726 para. 1 C.C.Q.)
2. Damages when the seller knew or could not have been unaware of the defect (art. 1728 C.C.Q.)

Excluding the legal warranty of quality

Exclusion clause

The law allows the parties to a contract of sale to exclude the legal warranty of quality, in whole or in part. To do so, it is enough to state it in the contract of sale.

The clause “without legal warranty of quality and at the buyer’s own risk” completely excludes the warranty against latent defects, except for a professional seller or the manufacturer. However, there are certain limits to this exclusion, including:

-The seller’s personal acts

-Defects that the seller knew about and did not disclose to the buyer before entering into the sale (fraud)

Disclosures by the seller

As mentioned above, the buyer’s knowledge of the defect defeats a latent defect claim. Consequently, when a seller discloses the various defects affecting the property before the sale is concluded, this excludes any future claim by the buyer.

Total exclusion (sale at the buyer’s “own risk”)

A sale at the buyer’s “own risk” means, for all practical purposes, that the property is sold without any warranty, even for defects the seller knew about or could not have been unaware of.

Only non-professional sellers can include such an exclusion in a contract of sale. A professional seller cannot use such a clause to exclude the legal warranty of quality entirely.

However, the courts have held that an “own risk” clause remains subject to the general rules of obligations and contracts. The buyer can therefore have the sale annulled if they can prove that they made an error and that the error was caused by the seller’s fraud (deception).

To learn more

For more information about the seller’s legal warranty and latent defect claims, we invite you to contact one of our latent defects lawyers in Québec City and Lévis.

Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.