Patent and Latent Defects
Know the Difference


Undisclosed latent defects in resale homes are a

prevalent problem in today’s real estate market

It goes without saying that buying a home is arguably the most significant financial commitment most people will ever make in their life. The emotions involved typically can include everything from excitement and nervous anticipation to sorrow and stress.

Every buyer strives to negotiate the best price possible, and to actually end up getting what they pay for. But sometimes, after the furniture is moved in, when most of the stress is history and objectivity returns, upon closer examination of the new abode, patent or latent defects in the house are discovered that were previously unseen during the hustle and bustle of the buying process. And they were undeclared by the seller.

Such latent defects could be a potentially leaky foundation crack, a faulty shingling job that could lead to a leaky roof, or hidden mold in the corners of the attic. Depending on the severity of the defect, the remediation cost could be overwhelming for the buyer. After all, they invested their entire savings into the purchase price and closing expenses.

If the defect was something known by the seller, but not disclosed prior to the purchase contract being executed, the buyer may commence legal action to recoup such unexpected costs of remediation and the related, foreseeable damages suffered as a result of the failure of the now previous homeowner to disclose.

Defects are legally regarded as being of two types - latent and patent.

Patent defects are those that can usually be found by a personal or professional home inspection. With respect to these easily seen flaws, the ordinary rule is caveat emptor, or buyer beware.

Latent defects, on the other hand, are those which would not necessarily be revealed by any reasonable inquiry by a buyer, and sometimes even a home inspector, before entering into a firm and binding contract.

Legally speaking, a seller is not under any obligation to disclose a patent defect because a buyer could or should have detected the defect by doing a reasonable investigation of the house and property, including hiring a qualified home inspector. For example, a broken window is easily detected, thus a buyer would have no legal recourse after completion of the sale against the seller for such damage. An exception here is if such damage occurred after the sale was made firm and prior to completion of the sale, the time period during which the seller is obliged to maintain the property in the same condition, save for normal wear and tear, as when viewed by the buyer.

If a seller was aware of a latent defect, but failed to disclose it, this could be deemed misrepresentation. A potentially worse situation occurs when a seller attempts to mislead a buyer by concealing a patent defect. For example, the seller might lean some paneling against a foundation wall to hide a crack. Such an action could be construed as fraudulent misrepresentation for which a buyer could have legal justification to recover against the seller for the cost of repair.

A true latent defect is one that was not known to either the seller or the buyer at the time of sale and as a result, was not disclosed. If no evidence can be found to prove that the seller had knowledge of a defect and deliberately failed to disclose it, then the seller would likely be found not liable for the resulting repair costs.

However, liability for the seller becomes an issue when it can be proven that a defect was known to the seller, but could not have been discovered by the buyer, even with a home inspection. In essence, it could be said that the defect was patent (obvious) to the seller, but latent (hidden) to the buyer. Typically, this could lead to the issuance of a claim against the seller for negligent misrepresentation, and the seller could be ordered by the court to reimburse the buyer for any legitimate damages that resulted from the non-disclosure by the seller.

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NEGLIGENT MISREPRESENTATION

A claim for negligent misrepresentation against a seller will likely be successful if it is determined that a duty of care existed between the parties based on a “special relationship”, if the representation is judged to be untrue, inaccurate or misleading, if the seller acted negligently in making the representation, if the buyer relied in a reasonable manner on the negligent misrepresentation, and if that reliance is proven to be detrimental to the buyer in the sense that damages resulted.

LIABILITY OF HOME INSPECTORS

It is commonplace for buyers to hire a certified home inspector to inspect the premises. Nevertheless, even after a thorough inspection, defects which were not identified by the inspector might be discovered following completion of the Agreement of Purchase and Sale (APS). 

So, was the home inspector negligent? Inspectors usually have the buyer sign a waiver releasing the inspector from future claims in relation to their inspection. Needless to say, though, but such a release is meaningless in the event of gross negligence wherein an inspection was not in keeping with industry standards.

In deciding on the appropriateness of pursuing your home inspector as a co-defendant, lawyers and buyers must understand that, while home inspectors are hired for their expertise, they're limited in how thoroughly their inspections may probe. If they can't see a feature, such as the foundation wall behind finished drywall, then they can be assured there's no crack.

LIABILITY OF REAL ESTATE AGENTS

Being aware of the difference between patent and latent defects is critically important to understand. And before you lay down your hard-earned money, or even sign an unconditional APS for your own personal castle, it's important for a buyer to be fully informed of both the clearly visible patent defects of a property and building, and those not typically visible latent defects. As I said, even a thorough home inspector might miss them.

Be aware of the risks of buying a house, including your legal rights, prior to making a commitment that you might regret after you've moved into your new home. As I said earlier, the maxim, caveat emptor, is very applicable, no matter what you're buying, especially since the repair cost for patent defects is not usually recoverable from the seller.

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How do you protect yourself with respect to
latent defects?

Hire a competent home inspector to perform a thorough inspection BEFORE you make a commitment to buy the property. If you're in a competitive scenario with other buyers, you may have to bite the bullet before submitting your unconditional offer by having the inspection done before offering. This will obviously cost you a few hundred dollars, but in such a potentially expensive situation, better to be safe than sorry. Look at the expense as a reasonable insurance against a substantial potential future loss.

Do your own thorough investigation of the house - inside and outside. If you lack the expertise and objectivity to do so, bring along a contractor or a family or friend who has the necessary experience. Don’t automatically accept the seller's Realtor's assurances, for they may be unaware of any defects, or they may not tell the truth. Click here for more info about the accuracy of listing details provided by the seller's brokerage.

Carefully review the Seller Property Information Statement (SPIS), which is a disclosure statement designed to disclose facts regarding the major elements of a building’s structure, including any latent defects known to the homeowner. And follow-up on any concerns. Though not compulsory, and not always available, this statement can be incorporated into the APS.

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Since most APS contain a “no other representations or warranties clause” in the contract body, it would be prudent to include any seller representations or warranties that entice you to buy the home into your APS.  For example, if the seller has claimed that the award-winning fruit trees in the yard will provide you with lots of fruit and profit for years to come, unless that representation is written into the APS, you may have no legal right to recover if that statement turns out to be false.

Provided the market is not a hot one, wherein homes are selling quickly, visit your potential home at different times of the day/week. Some issues with a home are only discoverable under certain conditions. So, make sure to visit during different weather  conditions or times of the week. For example, if you visit the property only once, say, on a weekend, you might not be aware of the voluminous rush-hour traffic on the street on a weekday. Such a trait might render that particular property less desirable, or at least worth less to you or any other discerning buyer. And since such a characteristic would be considered patent and not a latent defect, it would fall within the realm of buyer beware.

Ask the seller directly about any major concerns with the home you might have, emphasizing how important this is to you. And get the answer in writing! Ask your Realtor to include a representation clause in the APS. For example, if you are allergic to pet dander, share with the seller that this is a material concern for you and ask if they have or ever had pets living with them. If such a representation, which could very well deal with a latent defect, is incorporated into the APS, you would have the right of action based on breach of contract if that representation proves false. Such an inclusion could conceivably assist in recovering against the seller on the basis of misrepresentation.


So, is differentiating between patent and latent defects critical when buying real estate? Absolutely.

Having offered all this information on patent and latent defects, kindly keep in mind that I am not a lawyer. If you find yourself in such a position, I urge you to consult with your local legal representative.

Would a stigma be considered a latent defect? Click here for some ideas in this regard.

For more information and examples of what a seller is responsible to disclose to a prospective buyer of their property, visit RECO.

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