The denial trap

The housing market has been so turbulent for two years that we are seeing a new and disturbing phenomenon. More and more buyers, in desperation, are offering to waive the legal quality guarantee in order to make their purchase offer more attractive. This is risky and even frankly “cowboy”, because in normal times this condition should be set by the seller rather!

A legal quality guarantee protects the buyer from the risk of hidden defects when buying a home. This provision is enshrined in law and applies automatically – if the buyer does not give written consent to the acquisition of property “without a legal guarantee of quality, at the risk and risk of the buyer” (this is an established formula).

In a normal market, waiving the legal guarantee of quality implies a discount of about 10%, taking into account the risk incurred. Therefore, it is absolutely not normal to see buyers offering to do away with this guarantee and interrupting the market. Because if a hidden defect was discovered, they could lose a lot of money.

Certain types of sellers are required to offer a legal guarantee of quality and cannot avoid it. These are builders of new houses and professional sellers who sell real estate (brokers are only intermediaries in this). Conversely, the practice of eliminating legal quality assurance is almost automatic in cases of succession or withdrawal of funds by a financial institution. Why ? Because the owners, who did not live in the building, logically cannot give a guarantee against defects for which they are not responsible and about which they cannot know.

“This practice introduces fluidity into the market, otherwise sellers of real estate or repossession will hesitate to sell,” Ms. says.as well as Sandra Barrett, director of certification and information center for the Organisme d’autoréglementation du Courtage Immobilier du Québec (OACIQ), answers questions from tens of thousands of people every year. “Brokers are required to clearly explain to sellers and buyers the risks associated with the transaction, without a legal guarantee of quality. »

House full of vices

The Armored Hard Gold Legal Warranty does not protect you from a defect claimed or reported at the time of purchase as it is not hidden. And the fact that it is hidden does not mean that it was deliberately hidden by the seller. “And that’s why the law requires the seller to make a statement about what he knows about his building,” says Ms.as well as Sandra Barrett.

Because a normal house is full of vices. There are so-called obsolescence defects, which are normal, and so-called obvious defects, which are perfectly visible. And there are the most vicious vices, hidden vices for which there is no visible solution.

A latent defect must meet four basic conditions: be genuinely serious to the extent that it could affect your intent to buy or price, be unknown at the time of sale, not be obvious, and be before the sale – it could be back for 50 or 100 years ago, no prescription.

The waiver of the legal guarantee of quality does not deprive the buyer of all remedies, on the contrary, it is precisely in the event that a cover-up has taken place. If a hidden defect is discovered that the seller deliberately hid, it is possible to sue for fraud. This is a strange word that comes from the Latin dolosusmeans cheating. Fraud according to Large glossary of terms“a misleading act intended to induce the other party to commit a legal act that it would not knowingly do, or to impose unfavorable conditions on it.”

In other words, revoking a legal quality guarantee does not necessarily protect the seller 100%. But it is difficult to convince the judge that fraud has taken place, because you need to prove that the seller really hid the hidden defect. “Therefore, it is necessary to be especially vigilant during the purchase and order a thorough check before buying,” says Ms.as well as Sandra Barrett.

Moreover, sellers who forgo this verification practice have a very poor understanding of their own obligations. “This pre-sales inspection protects both the buyer and the seller,” Mr.as well as Barrette. Even without a legal guarantee of quality, the seller cannot evade his obligations of good faith. »

What to do

As a buyer, you should never offer to waive a legal quality guarantee. And if you agree to refuse it, it should be written in the contract that you agree to this at the request of the seller.

Conversely, if you, as the buyer, proposed this waiver, it would be in your best interest if the contract did not indicate that it was your initiative. A judge would rightly see this as reckless on your part, especially if you also didn’t do any pre-purchase testing.

You should try to limit this failure as precisely as possible. For example, on appliances, a barn, a swimming pool, a roof, an outer wall, and not on all property.

If circumstances force you to swallow this snake, try to influence the wording of the paragraph in your favor. The judges believe that vague wording like “sold as is” or “purchased as is” does not deprive the legal guarantee of quality in the same way as the well-established formula – “no legal guarantee of quality, at the risk and risk of the buyer” is unambiguous.

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