Buying · Latent defect · Civil Code
A sincere seller who never saw the problem is still liable. That is not unfair, it is the logic of a warranty that attaches to the house rather than to the person.
It is the most common answer a seller gives: I did not know. It is often true, and it does not release him. Article 1726 of the Civil Code of Quebec binds the seller to warrant that the property is free of latent defects at the time of the sale, without requiring that he knew about them. The warranty of quality is objective: it bears on the condition of the property, not on the seller's state of mind. What good faith changes is the extent of what is owed. Article 1728 provides that if the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer. A seller in good faith answers for the defect; a seller who knew also answers for the consequences.
Article 1726 is written without any reference to what the seller knew: 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.
Article 1716 points the same way: these warranties exist by operation of law, whether or not they are stipulated in the contract of sale. The seller promised nothing in particular, and he is bound all the same.
The reason is simple. Between two people in good faith, the buyer and the seller, the law places the risk of the hidden defect on the one who received the price, because the buyer paid for a usable home.
It changes the extent. Article 1728 provides that if the seller was aware or could not have been unaware of the latent defect, he is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer.
The phrase could not have been unaware matters. It does not target only lying. A seller who had his basement pumped every spring for five years, who paid for sealing work, or who received a notice from the municipality, could not have been unaware of the problem even if he never measured its extent.
Article 1739 ends with this: the seller may not invoke the tardiness of a notice from the buyer if he was aware of the defect or could not have been unaware of it. A seller who knew therefore loses one of the best defences available. That is why the inquiry into what the seller knew matters as much as the technical expert report.
The declarations by the seller form is the document in which the seller writes down what he knows about his property. It does not create the legal warranty, which exists anyway, but it fixes in writing the state of the seller's knowledge on a specific date.
Two consequences follow. What is declared can no longer be a latent defect for you, since you knew. What is denied while traces show otherwise becomes a heavy exhibit against the seller. Our page on the declarations by the seller form covers how to fill it without trapping yourself.
Disclosing almost always costs less than staying silent. A disclosed problem is negotiated once, at the time of sale, often for less than a court will award three years later. A concealed problem is paid in price reduction, expert fees and damages.
A seller's pre-inspection exists for exactly this: knowing before listing, so you can disclose precisely rather than carry a warranty in the dark. See the seller's pre-inspection (French).
An owner who never occupied the building, such as an estate or an investor, has good arguments about what he could not have known. That bears on article 1728, so on damages, not on the warranty of quality itself.
Article 1733 provides that a seller may not exclude or limit his liability unless he has disclosed the defects of which he was aware or could not have been unaware, with an exception where a buyer buys property at his own risk from a seller who is not a professional seller. The clause therefore has real effect for the sincere seller and none for the one who knew. See the legal warranty in English.
Then it is not a latent defect. The warranty covers defects existing at the time of the sale. The whole question is whether what surfaced afterward already existed before, which brings you back to anteriority. See proving a latent defect.
The latent defect file: the four tests, the deadlines, the formal notice, the proof, the expert report, the six steps, small claims court, who pays, the seller who did not know, older homes, water infiltration, the roof, the inground pool and the septic system and the well.
Every article quoted here is reproduced from the official English text of the Civil Code of Quebec and the Code of Civil Procedure published by Légis Québec, both read on September 11, 2026. We give the article numbers so you can read them yourself. We are real estate brokers, not lawyers: we can tell you what the law provides and what your transaction left behind as evidence, but the analysis of your file belongs to a lawyer. When the amount at stake runs past a few thousand dollars, that call happens before the formal notice, not after.
The Loaa & Manseur team, led by Lotfi Manseur and Loaa Al Daow, is the number 1 team at RE/MAX Platine in 2024 and 2025, 6th RE/MAX team in Quebec, 15th in Canada and in the global top 50 of large residential teams according to the official RE/MAX ranking, computed on actual transactions. Its Google profile counts more than 220 reviews with a 4.9 rating. Its offices are at 55 avenue de l'Équinoxe in Brossard, one bridge from the island, and every broker's licence can be checked in the OACIQ public register. Three things to verify yourself before calling us, and to demand of any other broker.
Also available in French: version française de ce guide.
Published September 7, 2026 by the Loaa & Manseur team, the number 1 team at RE/MAX Platine in 2024 and 2025, 6th RE/MAX team in Quebec, 15th in Canada and in the global top 50 according to the official RE/MAX ranking. Tell us about your project.
Équipe no 1 de RE/MAX Platine en 2024 et en 2025, 6e au Québec, 15e au Canada et dans le top 50 mondial au classement officiel RE/MAX. Réponse en moins de 24 heures, sept jours sur sept.