Patent Defects and Latent Defects

Property defects are divided into two types: patent defects and latent defects.

A patent defect is a fault in the property that is readily observable to the untrained eye of a potential buyer.

Examples of Patent Defects:

• a broken pane of glass

• old roof shingles or peeling paint

• a screen door that doesn’t close tightly

• seal broken in a window  

• a serious crack in the foundation that has been covered over with paneling

• improper wiring covered by drywall

• a rodent infestation

These items can be easily seen at time of the property viewing.

A latent defect is a fault in the property that would not be discovered by a reasonably thorough building inspection. 

Examples of Latent Defects:

Material latent defects can have a serious impact on the value of the property or involve health and/or safety issues.  The seller may not be aware of latent defects.

Sellers are required to disclose any known material latent defects; otherwise they may be liable to the buyer for the cost of repairs.

 How does this affect the Agreement of Purchase and Sale

Patent defects are not intended to be renegotiated after an agreement is in place. They are defects that were evident at the time of writing an offer to purchase.  Latent defects, discovered at a building inspection, may or may not be addressed in an amendment to the agreement of purchase and sale if requested by a buyer. 

In summary, the seller MUST disclose any know material latent defects and buyer should have a building inspection in order to be assured that no unknown material latent defects exist.