Articles & Resources
The Seller’s Obligation to Disclose Defects in the Property
Where a defect is readily discoverable upon an ordinary inspection, which is known as a patent defect, the onus is often on the purchaser to inspect and discover patent defects. This is known as the doctrine of caveat emptor or buyer must beware. The seller is under no obligation to disclose a patent defect that is visible or discoverable through a reasonable inspection.
This means that a defect, which might not be observable on a casual inspection, may nonetheless be patent if it would have been discoverable upon a reasonable inspection by a qualified person.
Issues may arise if there is fraud, active concealment or misrepresentation. But absent these elements, a purchaser takes existing property as they find it.
Common examples of patent defects are holes or cracks in the wall, broken window or stains on the wall from a leaking roof.
A latent defect, on the other hand, are those which could not be discovered by a reasonable inspection before completing the purchase. Because latent defects are very difficult for a seller to discover, caveat emptor does not apply. A seller has a duty to disclose latent defects. If the vendor fails to disclose such hidden defects and issues arise after the sale is completed, the purchaser may have a claim against the vendor. However, if the defect was not known to the seller, the seller cannot be held liable for the defect and the damages that arise from the defect.