MONTREAL- Often discovered after a buyer purchases their home, latent defects can cause major problems.

Is there recourse? How can homeowners protect themselves?

Commonly known as a hidden defect, a latent defect diminishes a home's use, explained construction law attorney and McGill lecturer Jeffrey Edwards.

"A latent defect is any defect or problem in a property which impairs its use, which may make the property unfit for its use or otherwise diminish its use," he said.

Conditions for recourse

For homeowners who find hidden defects after purchasing their home, legal action can be taken against an inspector or homeowner if they have proof of several key conditions:

  • The defect must be unknown to the buyer
  • The defect has to exist at the time of the sale, and not after it.
  • The defect must be serious

"It can't be a minor problem," said Edwards. "It has to have a serious impact on the usefulness, so much so that you have to establish that the buyer would not have bought at all, or would have insisted on a price reduction."

  • The defect must be hidden

"If a thorough inspection was done and there was really no way for the buyer to see the defect, then in that case it would be considered hidden and the last condition would be met," said Edwards.

Use an independent inspector

Edwards advises getting a qualified inspector to survey any potential real estate purchases, and not to use any inspector recommended by your real estate agent.

"It's best to find an inspector who is only loyal to your particular interest and not whether the sale actually goes through," he said.

Reasonable expectations

Normal wear and tear is not considered a latent defect, said Edwards, but reasonable expectations are protected.

If a defect is discovered, a written notice must be sent in the following month of the discovery.

Legal recourse must be taken no later than within three years.

The majority of cases are settled out of court.

Expensive lesson

The Dizazzo family has hired a lawyer after they discovered their Ile Perrot home had what they believe are latent defects.

They bought their waterfront home four and a half years ago, and discover the hidden issues after the glass on his patio door simply cracked one day.

"There's water in the basement, flooding issues, ceiling leaking water, windows breaking, patio doors not being able to open, dust," said Antonio Dizazzo, who plans to sue the homeowner and inspector.

"Now we're basically here trying to do our best," he said, adding that "it's stressful… hard core stress… I wouldn't put this on anybody."

The former owner declined CTV Montreal's request for an interview, adding that any issues should be dealt with legally.