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Apparent Defect (Legal Definition: All You Need To Know)

What is an Apparent Defect under Quebec laws?

How do you legally define it?

What are the essential elements you should know!

Keep reading as we have gathered exactly the information that you need!

Let’s dig into our Quebec real estate laws!

Are you ready?

Let’s get started!

What Is An Apparent Defect In Quebec

An apparent defect (known as “vice apparent” in Quebec, is a defect affecting a property that is easily detectable by a reasonable and diligent person.

In other words, you do not need to be an expert to determine that there’s a defect.

For example, if you are buying a real estate property and there is a major hole in the roof that can easily be detected, that’s considered an “apparent” defect.

Under Quebec laws, a buyer of a property having apparent defects will be responsible for the defect in question.

The logic is simple.

If the buyer paid for a property having a visible and apparent defect, then he or she bought the property in that state or condition.

Apparent Defect Legal Definition

How does the Civil Code of Quebec define apparent defects?

Article 1726 Civil Code of Quebec states that:

The seller is bound to warrant the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them.

The seller is not bound, however, to warrant against any latent defect known to the buyer or any apparent defect; an apparent defect is a defect that can be perceived by a prudent and diligent buyer without the need to resort to an expert.
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In essence, an apparent defect is a type of defectiveness that can be perceived by a careful buyer without having to hire an expert.

This means that an ordinary person can reasonably tell that something is not functioning well or is not in a proper condition.

Apparent Defect vs Latent Defect

What is the difference between an apparent defect (“vice apparent”) and latent defect (“vice caché”).

A defect that is visible and noticeable by a person is considered to be an apparent defect.

On the other hand, latent defect is a type of defect that a buyer cannot detect upon close and diligent inspection of a property.

Latent defects manifest themselves after the purchase of a property and have a significant impact on the usability of the property or its market value.

If these defects are not disclosed by the seller upon the sale of the property to the buyer, then the seller can be held responsible for the damages caused or reduction in the property value.

Latent defects have the following characteristics:

  • They are not visible upon inspection
  • The buyer was unaware of its existence upon purchase of the property
  • The defects were present prior to the sale to the buyer

Warranties On Apparent Defects

Buyers purchasing a property must be aware that they are responsible for the apparent defects.

As a result, the law does not protect buyers against apparent defects in Quebec.

In other words, Article 1726 of the Civil Code of Quebec states that the seller of a property is bound to warrant that the property is free from latent defects rendering it unfit for the use for which it was intended or affecting its usefulness for the buyer.

The law clearly states that the seller “is not bound” to warrant against latent defects known to the buyer or “any apparent defect”.

For example, if you are buying an old property where the roof is visibly damaged and the foundation clearly cracked, you will be responsible for the consequences of costs associated with fixing these defects in the future.

However, if a seller had deliberately covered up cracks in the foundation and failed to disclose them to you upon purchase, the seller will be responsible for the costs associated with latent defects.

Pre-Purchase Professional Inspection

Buyers are not required to mandatorily inspect a property before purchasing the same.

However, it is best practice to hire a professional and qualified building inspector to evaluate the condition of the building or property being purchased.

Generally, an inspector qualified in real estate properties can quickly determine some of the most common causes of defects and damages affecting a property.

When a buyer chooses not to perform an inspection, in the event of a future discovery of an issue, a court may consider that the buyer was not diligent or took the risk of buying the property in the condition that it was.

To avoid potentially diminishing the value of any possible legal recourse against a seller, it may be worth having the property inspected to make an informed purchase decision.

“Apparent Defect” Takeaways 

So what is the legal definition of Apparent Defect?

Who is responsible for a property’s apparent defects?

Let’s look at a summary of our findings.

Apparent Defect Meaning

  • An apparent defect is a type of defect that affects a property that an ordinary and reasonable person can detect without having to hire an expert or inspector
  • To be considered an apparent defect, the defect must be detectable with the naked eye 
  • A latent defect (or “vice caché” in Quebec) is a type of defect that could not be visually detected, that affects the usage of the property or its value, and that was already present at the moment of the sale
  • When buying a property having ‘apparent’ defects, buyers are responsible for future damages or costs whereas the seller will be responsible for undisclosed latent defects 
Civil lawsuit 
Compensatory damages
Contract of sale 
Enterprise contract
Latent defect
Notice of claim
Real estate transaction
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Deed of sale
Duty of good faith 
Duty of information
Legal warranty 
Offer to purchase
Preliminary contract
Promise to purchase
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