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Patent Defect: What Is A Patent Defect And What To Do

Wondering what is a patent defect?

What is the difference between latent and patent defects?

If you buy a house or property with patent and apparent defects, who is responsible?

In this article, we’ll go over patent defects in detail so you know all there is to know about it.

Let’s get started…

What is a defect

Broadly speaking, a defect is a problem or a flaw affecting a property or a thing rendering it unfit for its intended use.

For example, if you purchase a property and you discover the roof leaking, that’s a defect.

A defect can be minor or very serious.

When you are buying a property, you must make sure you buy a property without major defects potentially rendering your home unfit for its intended use.

If a defect is discovered, we’ll need to assess whether the defect was a latent defect or a patent defect so we can define whether the buyer or seller is responsible to assume the consequences of the defect.

What is a patent defect

A patent defect or a visible defect or an apparent defect is a defect that is visible and discoverable through a reasonable inspection.

The Cambridge Dictionary defines a patent defect as “a fault in a product, property, or document that could be noticed by careful examination, and is usually noticed before a sale or agreement”.

If you are buying a property, you may want to inspect it to ensure there are no major visible defects.

If you discover patent defects, it’s up to you to decide if you want to continue purchasing the property.

Typically, the buyer of the property will be responsible for patent defects or defects that were visible at the time of the purchase.

So you want to make sure you do an inspection when you are buying a property to know what you are buying.  

Patent defect vs latent defect

While a patent defect is visible through a reasonable investigation at the time you are purchasing a property, a latent defect is a hidden defect that cannot be easily detected.

The latent defect is a defect that is not detectable even through a diligent inspection, it was present at the time you purchased the property and it manifested itself after the purchase.

For example, patent defects can be visible signs of aging, mold, mildew, excess humidity or cracks in the foundation.

These defects are visible and may be symptoms of much greater problems affecting the property.

Latent defects are not visible or discoverable at the moment of the purchase.

Some latent defects examples are problems with the foundation of the property or problems with the property structure violating the construction or standards.

Latent defects are not visible through a visual inspection and will require a certain level of demolition, excavation or an intrusion to detect the defect.

For instance, latent defect affecting the foundation of the property will manifest itself through cracks in the foundation or cause problems to the property structural integrity.

If upon purchase of the property, there were no visible signs or cracks in the foundation but suffered from a defect or a flaw, if that defect manifests itself after the purchase, then the seller may be responsible.

Responsibility of seller for latent defects

The seller of a property is responsible to sell you a property free from latent defects rendering it unfit for use or diminishing its usefulness.

A vendor has an obligation to truthfully disclose the extent of defects to the buyer at the moment of the purchase.

If the purchaser inspected the property and could not detect any important defects but a flaw existed at the moment of the purchase manifesting itself later, the seller can be held responsible.

If the sale was done on an “as-is” basis or “at-your-own-risk”, then the buyer will be responsible even for a latent defect.

Responsibility of seller for patent defects

If the seller has an obligation to provide a warranty that the property sold is free from latent defects, what about patent defects?

When it comes to patent defects visible at the moment of the purchase or detectable through a reasonable and diligent inspection, the buyer will be responsible for those defects.

The seller does not have an obligation to guarantee the property against defects known to the buyer at the moment of the purchase or patent defects that could have been perceived by a prudent buyer without having to hire an expert.

If a property had clear signs of cracks in the foundation at the moment of the purchase and the buyer detected it or failed to do an inspection to detect it, the buyer will be held responsible in most instances.

The seller does not necessarily have an obligation to disclose the visible defects to a buyer as these defects are evident or clearly visible.

Generally speaking, the seller has an obligation to disclose to the buyer the extent of defects that it is aware of at the moment of the sale.

Recourse for patent defects

In most cases, a buyer will be responsible for patent defects.

In other words, if the buyer bought a property with visible and discernable defects at the moment of the purchase, even if the sale was done under legal warranty, the buyer may not claim damages from the seller.

In this context, the buyer and the seller have competing legal obligations. 

On the one hand, the seller must inform the buyer of defects affecting the property.

On the other hand, the buyer must exercise prudence and diligence when buying a property by carefully inspecting it and asking questions.

When a buyer intends to pursue the seller for a defect, the question the court will ask is whether or not the defect was visible at the moment of the purchase and how diligent was the buyer.

The court will also look at the circumstances surrounding the seller’s knowledge of the defect or the extent of disclosures made by the seller.

If the defect was hidden or latent, then the buyer should follow the legal process regarding a latent defect to legally notify the seller.

At the end of the day, the word of advice to a buyer is “buyer beware”.

To all buyers out there, when you are purchasing a real estate property make sure you carefully inspect the property.

If you detect patent defects, make sure you examine the seriousness of the defect and either negotiate the to compensate you for the defect or don’t purchase the property if the defect is major.

Takeaways 

A patent defect, visible defect or an apparent defect all refer to the same thing.

A patent defect is a defect that was both visible and present at the moment of the purchase of a property.

If you buy a house with cracked walls, cracked foundation and visibly damaged roof, you will most likely be responsible for any damages caused to you after your purchase.

The idea is if you saw the patent defects and you bought the property anyway, you implicitly accepted the responsibility for those defects.

As a buyer, you are expected to exercise diligence and care when buying a property.

This means you should inspect it yourself if you know what you are doing or have an inspector do the inspection for you.

If there are defects, you should ask to understand what they entail and the severity of the defects.

Are the visible defects serious enough for you to negotiate the purchase price or even abandon the purchase altogether?

That’s a decision that comes to the buyer to make.

If you discover latent defects, being defects hidden and not detectable even through a close inspection, then the seller will be responsible towards the buyer provided the property was sold under legal warranty.

We hope this article helped you better understand patent defects.

Should you need the guidance and advice of a real estate lawyer regarding patent defects affecting your property, don’t hesitate to reach out to us.

We wish you the best of luck in resolving the defects!

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