Article 1726 C.c.Q.: Warranty Against Latent Defects

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.

Civil Code of Québec, art. 1726 C.c.Q.

What this article means

Article 1726 establishes the legal warranty of quality, commonly called the warranty against latent defects. The seller must warrant that the property sold and its accessories are, at the time of the sale, free of latent defects that render it unfit for its intended use or so diminish its usefulness that the buyer would not have bought it, or would have paid less, had they been aware of them.

Four conditions emerge from this article and the case law: the defect must be latent (not apparent), serious (rendering the property unfit or seriously diminishing its usefulness), unknown to the buyer, and prior to the sale. The second paragraph specifies that an apparent defect (one a prudent and diligent buyer can perceive without resorting to an expert) is not warranted, nor is a defect the buyer already knew about.

This article is the foundation of remedies for latent defects, notably when buying a property. It is read with article 1739, which requires the buyer to give the seller written notice of the defect within a reasonable time after discovering it: a step a formal demand lets you complete.

What it means for you

If you are the buyer

The warranty against latent defects concerns the sale of property, not renting: it applies first to the buyer of a property against their seller. If you bought a building or a condo and discover a serious, hidden defect that existed before the sale, this warranty may ground your claim.

In a strictly rental situation, problems with the dwelling fall instead under the landlord's obligations (articles 1854, 1864, and 1912) rather than the article 1726 warranty. If your situation involves a purchase, the first step is usually to give the seller written notice of the defect.

If you are the seller

If you bought a building and discover, after the sale, a serious, hidden defect that existed at the time of purchase, article 1726 grounds your right to require a solution from the seller: repair, price reduction, refund, or damages, depending on the circumstances. An apparent defect, or one you already knew about, is not covered.

The process begins with written notice of the defect to the seller, within a reasonable time after discovering it (article 1739). A formal demand for a latent defect serves this function: it dates your notice, describes the defect, and puts the seller in default. Keep proof of receipt.

Related articles

• Article 1728 C.c.Q.: Seller Who Knew of the Defect: Damages
• Article 1729 C.c.Q.: Presumption of Defect Against a Professional Seller
• Article 1739 C.c.Q.: Written Notice of a Latent Defect