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Real Estate Talk:
Latent Defects

What is unseen can become a major issue

By Joseph Marovitch

Updated March 27, 2019

Clients often tell me that they are not worried about latent defects because they had an inspection by a certified inspector. They are confused. A latent defect is a hidden defect in the home that a certified inspector did not see, nor search for. General home inspectors are mandated to inspect a property and report only what they see.

Home inspectors are not responsible for what they cannot see. The inspector will search for cracks around and in the house. They will search for stains that indicate water infiltration and markings that indicate possible mold. The inspector will turn on the faucets to examine water pressure. They will look for loose railings, rotted mouldings and roofs. They will examine plugs to insure they are grounded and do not cause harmful shocks. If the inspector has a thermal imaging device they will check for heat loss, live wires and lack of insulation.

General home inspectors are mandated to inspect a property and report only what they see.

Inspectors will not look for cracks in the lining of the fireplace nor the foundation. They will not check the wiring in the walls, nor the plumbing under the floor. They will not open the walls to see if there is vermiculite or asbestos waiting.

The inspector is only responsible for what they can see. They may find clues to hidden defects but then the inspector will tell the buyer to get a foundation, roof, pool or mold specialist to examine the issue further.

Hidden defects are issues that would not normally be visible, reduce the value of the home and are not known by the seller.

The issue is that a home that is sold with warranty means that the seller is responsible for that hidden defect even after the property has been sold. Not only is that seller responsible even if they do not live in that house, but the owner before them is responsible as well, and so are all the owners before that, who are living. If there was an owner who sold the property without warranty, they are not responsible.

So, if you purchase a home with a fireplace, and move in, then one day make a fire in the fireplace only to discover that your house is filling with smoke on the second floor due to a tear in the lining of the fireplace, you can hold the previous owner responsible.

‘The issue is that a home that is sold with warranty means that the seller is responsible for that hidden defect even after the home has been sold.’

In terms of remedy the buyer can have the seller refund part of the sale price, pay for reparation, or in some cases, the buyer can cancel the purchase and ask for their money back. In theory, these remedies are all possible. In practice, it is never that easy. If the buyer contacts the seller years after the purchase, the seller may refuse the buyer’s demands. In this situation, the buyer would have to sue the seller and wait for the judge to decide. This process takes time, energy and money. However, if the issue is serious, expensive to repair and not the fault of the buyer, then we do what must be done. When you sell a house, it must be usable.

Sellers can choose to sell without warranty, but this usually causes the sale price to be discounted in lieu of the buyer taking a risk that the house is in good working order. Homes are sold without warranty when they are inherited. The seller never lived in the house, so they do not know if there are issues.

Another reason to sell without warranty is that the house is very old, the seller does not maintain it and believes there may be hidden defects. These sellers are prepared to sell without warranty for a lower price for the peace of mind that the buyer will never come back at them. One other reason is that the seller is moving far away and does not want to return due to a hidden defect.

Selling without warranty can also take longer to sell.

Should you have questions or comments, please refer to the comments section at the bottom of the page. As well, to view past articles, click here.

Have a great week!

Next article: Windows of opportunity, the best months to sell


State of The Market

The real estate market in Montreal has had four consecutive years of growth and prices continue to rise. This is wonderful news for Montreal and for sellers. However, for many, the idea of purchasing a home seems to be out of reach as prices continue to rise, until now. The Canadian Government recently announced the budget for 2019. In this new budget, the department of finance introduced the First Time Home Buyer Incentive plan, which would allow thousands of Canadians the ability to afford their own home.

The incentive would allow first time home buyers who have the minimum down payment, to finance a portion of their mortgage with the CMHC (Canadian Mortgage and Housing Corporation) through a shared equity mortgage plan.

In effect, the buyer would acquire a mortgage from a financial institution for part of the loan and take a smaller mortgage from the CMHC for the balance. The CMHC would not require ongoing payments as the financial institution would, therefore, the buyer’s mortgage payments are reduced.

‘… the department of finance introduced the First Time Home Buyer Incentive plan, which would allow thousands of Canadians the ability to afford their own home.’

Buyers of new construction homes would be eligible for 10% of their loan financed by the CMHC. Buyers purchasing existing homes would be eligible for 5% of their loan financed by the CMHC.

There are specific requirements to be eligible for a CMHC shared equity loan such as the maximum household income and other factors so that those who actually require assistance to purchase a home are addressed.

The 2019 budget has also increased the amount buyers can withdraw from RRSPs, tax free, to purchase a first home, from $25,000 to $35,000.

Image: StockPholio

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Joseph Marovitch has worked in the service industry for over 30 years. His first career was working with families from Westmount and surrounding areas, hosting children between the ages of 6 to 16 as the owner and director of Camp Maromac, a sports and arts sleep away summer camp established in 1968. Using the same strengths caring for the families, such as reliability, integrity, honesty and a deep sense of protecting the interests of those he is responsible to, Joseph applies this to his present real estate broker career. Should you have questions please feel free to contact Joseph Marovitch at 514 825-8771 or josephmarovitch@gmail.com

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