Buying a property is an exciting milestone for many individuals. Aspiring homeowners strive to purchase a flawless property to avoid potential real estate litigation, assuming sellers must disclose defects in the sale and purchase agreement. However, this is not always the case, and it can be quite a surprise to learn that sellers are under no obligations to disclose all defects. This is why it is important for both buyers and sellers to understand the distinction between patent and latent defects.
Patent defects vs latent defects
A patent defect is a visible flaw that a reasonable inspection of the home should discover. Examples include cracks in the wall, broken windows, and stained walls. In comparison, a latent defect is a defect that requires further investigation to discover reasonably. Examples of latent defects include electrical issues, damages to pipes, and a leaking roof.
However, one should not assume that just because a defect is not visible that it is a latent defect. For example, in Purdy v. Russell, it was determined that a foundation defect constituted a patent defect. Despite the buyer’s use of a home inspector and inability to see the underlying structure, the judge held that the defect would have been discoverable if she had exercised reasonable diligence.
Seller’s duty
Sellers are under no obligation to disclose patent defects. However, they cannot deliberately hide patent defects. For example, one cannot paint over water marks to hide a leaky roof. On the other hand, sellers must disclose latent defects. If sellers fail to do so, buyers can choose to take legal action against them. However, if the seller was unaware of the latent defect, they will not be held liable.
Buyer’s duty
Caveat emptor is a legal principle that means “let the buyer be aware.” Applying this principle to real estate litigation means that the buyer is responsible for inspecting before purchasing the property. Thus, it is in the best interest of a buyer to make inquiries about the property. As a buyer, you may benefit from hiring a home inspector to ensure thorough inspection of the property before making the purchase.
If the seller fails to disclose a latent defect, you could bring an action against the seller for damages you suffered. On the other hand, if you were aware of the defect before finalizing the purchase and decided to follow through with the transaction, the seller may not be held liable for the defect.
Takeaways
For sellers, if the buyer is aware of the defect and decides to proceed with the purchase, it may be a good idea to put in a clause into the agreement addressing the defect. Sellers should also avoid covering up defects or attempting to misrepresent the property’s true condition.
If a buyer discovers a defect, the buyer should promptly document the discovery date of any latent defects to be wary of the timeframe for taking legal action.
As experts in real estate litigation, we specialize in resolving disputes for buyers and sellers, ensuring transactions proceed smoothly. Our expertise extends to addressing any property defects that may arise. Sellers and buyers may contact us at any time regarding their questions on their rights.