Latent vs. Patent Defects and Property Inspections
May 21st, 2008 Categories: Definitions
The BC Supreme Court case of Cardwell v. Perlien provides an interesting overview of the current state of the doctrine of caveat emptor (”let the buyer beware”)
The distinction between latent and patent defects is important, because sellers are obligated to disclose material latent defects that they are aware of, but buyers are expected to discover patent defects on their own. Patent defects are described as those that can be discovered by conducting a reasonable inspection and making pertinent inquiries about the property.
Significantly, however, the judge goes on to say that a “defect which might not be observable on a casual inspection may nonetheless be patent if it would have been discoverable by a qualified person…In some cases, it necessitates a purchaser retaining the appropriate experts to inspect the property…”
This highlights the importance of buyers having inspections done, and where a generic home inspection would be inadequate, retaining the person with the specific expertise to do the job (i.e. building envelope expert or well inspector).
In a hot market, offers subject to conditions may be be practical. In addition, a common obstacle to having inspections done is the unwillingness of the buyer to pay for them. Unfortunately, it is precisely the frugal buyer who will be looking for someone else to pay if defects are subsequently discovered.
In either case, the Real Estate Board of Greater Vancouver advises all licensees acting for a buyer, as standard practice, to discuss making the offer subject to the appropriate inspections and the risks of not doing so. In a hot market you can do the inspection prior to making the offer.
What is your experience? Have you made an offer without a builiding inspection and if so, were there any major consequences? Alternatively, have you discovered items during a building inspection that convinced you it was a prudent ‘due diligence’ on your part? Have a superb building inspector you’d recommend and if so, what made him stand out from the crowd?
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I have a colleague who purchased a $600,000 country property without a proper home inspection.
As it happened the septic tank needed to be replaced – the cost – $30,000
Buyer Beware!!!
indeed! it’s always the things one never expects.
Hi Maggie,
We purchased a country property and even if we did inspect and asked a lot of questions to a lying seller we still found after closing a lot of things that weren’t the way we were told, the main one was that all carpets were full of urine, animal we believe. The seller requested an inspection from us the night before closing & a few hours prior she had all carpets fastly steam cleaned so we couldn’t walk on them and no stains were showing. We have witnesses to whom she stated that her elderly dog couldn’t retain himself but she couldn’t bring herself to put it down. The subfloors were filled with black mold due to all the urine. WE even found crystal meth in the duckwork. It cost us over $7,000 to clean all the mold and properly prepare the floor for new flooring adding to the cost of the flooring would this be classify as LATENT defect? thank you Dianne
Yes, I found myself in a conundrum because I really like this particular property (had loads of potential) but I was concerned with the age and the visible lack of maintenance. I called one home inspector (shall remain nameless) in to do an assessment. He told me everything checked out…I was shocked. Aren’t home inspectors’ sole purpose in life to find faults??? Normally I would have been thrilled but something wasn’t sitting right with me. I called in another company, Crocan Construction. Man, best move I ever did. Turns out the house tested positive for asbestos and the cost to remediate would have been close to $25K!!
Get a good home inspector or you’ll get screwed!!!
Hi
I bought a mobile home about a year ago.
After the first month of living in, we notice that the toilet was not flushing properly. It was stated in in the buying contract that we were sharing the septic tank with a neighbour. The septic tank is taking care of by the trailer park manager as stated in the agreement.
Would this be consider as a latent defect?
Leave your response!
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