Real Estate Law
At the time of the purchase of a house, there is a well‑known principle to the effect that a seller is bound to warrant to the buyer that the property is free of latent defects. But, in accordance with Article 1726 of the Civil Code of Québec: “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 any need of expert assistance.”.
Thus, in a situation where a latent defect is perceived after the sale without the buyer having had an inspection done, it can be difficult to establish the type of defect (latent or not) because the seller can allege that there were visible indications that revealed the defect was apparent. Without the proof of a professional to contradict the seller’s allegations, the chances of succeeding before the courts are grandly diminished. With the same perspective, there is a disposition under the Real Estate Brokerage Act as well as in its rules of application that was adopted with a view to protect the public. Indeed, Article 81 of the Regulation Respecting Brokerage Requirements, Professional Conduct of Brokers and Advertising provides that: “A broker or agency executive officer must recommend to the person proposing to acquire an immovable that the person have a full inspection performed by a professional or a building inspector who (1) has professional liability insurance covering fault, error and omission; (2) uses a recognized inspection service agreement; (3) performs inspections according to recognized building inspection standards; and (4) submits a written report to the party that requested the inspection services. The broker or agency executive officer may furnish a list of more than one professional or building inspector meeting the requirements of the first paragraph.” (the underlining is our emphasis). As we can see, a real estate broker has the obligation to recommend to his/her client, prior to acquiring an immovable, that a property inspection be performed by a professional, but it is always the client who takes the final decision. This obligation is conditional upon the four (4) above‑mentioned conditions which exist with the objective to ensure that the client hires a competent professional who has liability insurance. Thus, with the perspective that the broker adequately explains to his/her client all the legal obligations that will arise from the decision that will be taken, his/her obligation will have been met. Moreover, the broker does not have the obligation to provide to his/her client a list of names of professionals. A broker with several years of experience will often have more facility to give professional contacts than a less experienced broker. And of course, the client will always appreciate this aspect of his broker since it will avoid him/her from doing this task. But, it is obligatory for a broker to respect the following two (2) rules when providing such a list to his/her client: recommend an inspector that will respect the four (4) criteria stipulated at Article 81 of the Regulations and to propose a list of property inspectors to his/her client containing more than one (1) name. Thus, a broker cannot direct its client towards a specific inspector, despite the fact that he/she is re‑known, since he/she will be putting at stake his/her professional responsibility. In conclusion, we note that the law does not oblige a presale inspection before acquiring an immovable. But, in order to avoid the burden and useless expenses for defect repairs, we consider essential that all diligent buyers proceed with a presale inspection. Thus, the real estate broker has an important role in the process of assuring that his/her client is accompanied during the inspection of his/her future immovable by a recognized inspector. Maître Karl De Grandpré Azran & Associés Avocats Inc.