Derogation from the National Building Code: The Importance of Demonstrating a Deficit of Use


May 17, 2017 Real Estate and Construction

Mtre Michaël Lévesque

This post, published on Éditions Yvon Blais’ blog on latent defects on May 15, 2017 (FR), discusses the judgment in Gingras v. Millaire (Full Text Fiche Quantum) and the importance for a buyer in a recourse for latent defects to prove a deficit of use.

The Court reminds us that it is not enough to simply demonstrate the existence of a defect; it is important to also prove that the defect in itself results in a deficit of use. Therefore, the Court does not accept a hypothetical potential damage as sufficient for a recourse for latent defects.

In consideration of this principle, the Court finds that derogations to a building code do not always constitute latent defects covered by the legal warranty of quality. These derogations only constitute grounds for a recourse if the buyer demonstrates that said derogations have the effect of rendering the immovable unfit for the use for which it is intended, namely they result in a deficit of use.

It is, therefore, important to retain from this decision that it is not enough to simply demonstrate the existence of a defect, but rather the damage to the immovable caused by this defect must also be proven, all in order to demonstrate its seriousness and meet the condition that in order to be covered by the legal warranty of quality, the latent defect must be serious and result in a deficit of use.

This bulletin provides general comments on recent developments in the law. It does not constitute and should not viewed as legal advice. No legal action should be taken on the basis of the information contained herein.

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