Patent and Latent Defects! BUYER & SELLERS Beware!

Thursday, August 23, 2018 Written by Emmanuelle in Real Estate industry

The law in Ontario makes a distinction between

  • patent defects (problems with a home that are easily observed by the untrained eye during an inspection of a property) and
  • latent defects (problems that are not easily seen and might not even be found by an expert such as an engineer, contractor, or experienced home inspector.

A patent defect is a problem with a home that is easily observable, such as a broken window, a missing door or a visibly leaking basement.

Sellers (and their agent) are not required to disclose patent defects to potential buyers, so it's the responsibility of the buyer to find them. That's the reason why I encourage my buyer clients to hire an experienced home inspector or specialized inspector, if the need arises, and to make any offers conditional upon the successful completion of a home inspection. I always ask appropriate questions to the Sellers agent in order to know more and help my clients know what they are buying.
On the other hand Sellers must disclose latent defects that they know about, and which could make a home dangerous or unfit for habitation to potential buyers. I am always having an open conversation with my Seller clients to make sure I will be in the best position to represent their interests only (I never represent Buyers and Sellers in the same transaction).When asked questions from the Buyer’s agent, I always answer only asked questions, in my clients best interests.
Still, Sellers also cannot actively conceal a latent defect that renders the property dangerous or uninhabitable. If a seller does not disclose a latent defect, they put themselves at risk of being sued by the buyer.
The doctrine of caveat emptor, or buyer beware, generally applies in Ontario residential real estate transactions — with certain exceptions.

  • It’s your responsibility as a buyer to exercise your due diligence before making an offer on a property,
  • So it’s up to you to ask the right questions and inspect the property carefully to ensure it’s suited to your needs.
  • It’s also up to you to seek input and support from the right experts.

Source:The Hamilton Spectator/ the Sun August 2018