There are two categories of problems you must know about that can affect any real estate transaction. They carry with them obligations for both the buyer of a real estate property or the seller of one. One is totally your responsibility, the other you can and should get legal help with advises Arsen Krekovic, in Vancouver with the law firm Hoogbruin & Company. He specializes in real estate litigation in British Columbia and sheds light on patent defects and latent defects.
How patent defects and latent defects in real estate law affect buyers and sellers
Patent defects are what you would discover during a casual walk through a home and during a home inspection of a premises. And so, the buyer is responsible for their discovery and the seller is not held liable for patent defects.
The legal principle of caveat emptor applies. You may have heard it as, “buyer beware.” Read a previous post on 3 common reasons for real estate disputes.
Patent defects fall into a buyer’s obligation to ensure the real estate property they are buying meets their expectations. The buyer should inspect the property. As a purchaser they should endeavor to discover and identify and these defects do not necessarily have to be disclosed by the seller. Read a previous post on disclosure obligations
Patent defect examples include: a door that may not close, a leaky roof, stains on walls or surfaces and cracks in the wall.
Latent defects are those defects which are not easily discovered without a more invasive look. They would not reasonably be discovered by a seller, or even a home inspector that might even render the premises under consideration dangerous or even uninhabitable. So, the principle of caveat emptor does not apply.
In this case, the seller is responsible to identify and disclose to the potential buyer, before the transaction is completed.
However, if the seller did not know of the latent defect, they cannot be held liable for the defect.
This is one type of real estate dispute where an experience real estate litigator can help. If it can be proven that the seller knew of the latent defect and did not disclose it, deliberately, the seller may be held liable.
Latent defects examples include: defects that cannot be easily discovered during a reasonable inspection. The term reasonable is used as the defects may be damaged pipes, or other damage inside walls, electrical and wiring issues not easily visible and a leaking roof with no obvious leak marks.
Review: patent defects and latent defects in relation to real estate:
- Not responsible for disclosing patent defects, but cannot deliberately conceal major issues such as leaks by painting over any marks as an example.
- If you fail to disclose a latent defect, the buyer and real estate law may successfully find you liable. Read a previous post on disclosure obligations
- Latent defects you are aware of must be disclosed
- Not responsible for discovering latent defects, however they are responsible for discovering patent defects.
- It is wise to hire a qualified and experienced home inspector. If however, a seller can be found to have hidden a patent defect on purpose and knowingly concealed issues with the real estate property, the buyer may be successful in seeking compensation and resolution.
- Given all the nuances of real estate law, hiring a real estate litigation lawyer is recommended. Again, the seller can only be held liable for latent defects if it can be proven that they were aware of them.
Time bound legal action on hidden patent defects or latent defects
A buyer has two years from the day on which actionable defects are discovered to start a lawsuit. Again, nuances may apply to this timeline. Limitations exist even if years have passed since the seller should have disclosed the defect to you, and you may yet to discover the defect.
These are all things we can assist you with at Hoogbruin & Company.
If you have any questions about a house that you bought or you think you were lied to or had things hidden from you during the purchase process – please do call us. We are happy to have a chat with you and figure out if you have a claim that we can assist you with