Buying something brand new doesn’t guarantee a perfect experience. Confronted with many different problèmes after purchase or move-in, certain new homeowners don’t know where to turn to have their rights respected. Let’s take a closer look.
Step 1 – identifying the situation
Before panicking, make sure you have verified which category your issue finds itself in, explains Albanie Morin, administrator of Association des consommateurs pour la qualité dans la construction (ACQC). “Are you protected by the GCR, the obligatory warranty for new homes? If that’s the case, does your problem fall under one of the exclusion of the warranty (detached garage, pool, elapsed delays, etc.)?” Take the time to analyze the warranty that’s offered (or not offered) to you.
Or perhaps you bought a home that was never protected by the GCR – in a condo tower, for example. In this case, are you protected by one of the optional warranty plans? It could be the Qualité Habitation warranty offered by the Association de construction du Québec (ACQ), the Garantie des immeubles résidentiels (GIR) offered by the APCHQ and the Garantie Habitation des Maîtres Bâtisseurs (GHMB). Each promoter not required to use the GCR decides whether or not to adhere to one of these optional warranty plans. Refer to your contract and to the appropriate warranty details to better navigate the following steps.
The good news is that a new organisation is being put together to help inform and help those who benefit from warranty plans, says Mrs. Morin. The organisation should see the light of day in 2020.
Step 2 – bringing it up with the seller / promoter
Whether you’re protected by a warranty or not, trying to find an amicable solution is always a good idea. If the promoter is willing to fix the problem, do make sure you have a trace of your negotations and conversations. You should also make sure not to let the formal procedure delays elapse.
Read: What happens if my builder goes bankrupt?
Step 3 – Begin procedures
If you are protected by a warranty, things will be relatively simple: things will follow the course outlined in the contract. To summarize, the buyer will generally be required to make a formal denunciation of the situation. A requestfor complain will follow, and the administrators of said warranty will inspect the premises. In the absence of an amicable agreement, a report will be produced and the builder will be obligated to conform to any repairs outlined in the report. Of course, it could happen that the builder does not complete this work within the period outlined. In that case, mediation and arbitration will be necessary.
If, on the other hand, your case falls under clauses excluded by the warranty, aren’t covered or have missed any of the deadlines, don’t panic. There’s another option: traditional tribunals. “It’s certain that these are more complex and pricey procedures, as it’s pretty difficult to represent yourself in such a situation (although it is, technically, a possibility),” admits Albanie Morin.
If the damages claimed are under $15 000, you will be headed to small claims court. If the amount is bigger, you will have to make an introductory request to the Superior court. In both cases, a legal summons will be required.
The infamous hidden defect
Me Martin Janson is a lawyer specializing in real-estate law in the cabinet of Janson Larente Roy. He has often, in the course of his work, been involved in cases involving new constructions. “The problem with new dwellings is that people get into the situations with a default positive position, assuming everything is perfect condition. Some aren’t even accompanied by an expert when it comes time for the pre-move-in inspection. It’s a mistake,” says the lawyer.
It’s important to note that, if your problem centers around a hidden defect, the fact that you were not accompanied by an inspector should not hurt your chances. “It isn’t considered negligent, unless the buyer notices something unusual (water stains on the ceiling, for example) and chooses not to investigate fruther. After all, the pre-purchase inspector doesn’t have x-ray eyes!” says Me Janson.
When it comes to hidden defects, the civil code protects elements that careful and diligent buyer cannot discover without the help of an expert. On top of repairs, damages can be requested if bad faith (prior knowledge of said problem) can be proven. “Let’s imagine a problem with the roof as an example. If the tribunal decides that there is a hidden defect, that the roof will cost $20 000 to replacea nd is already ten years old, experts will agree that a roof should last about twnety years. The tribunal will then award you half that amount, given the years that have passed,” illustrates teh lawyer. He also seeks to remind us that in order to have your rights respected when it comes to hidden defects, there is an obligation to report the defect without delay.
On top of hidden defects, you can also end up in front of a tribunal if an obvious defect is found. In that case, there is no need to prove the seriousness or time-sensitive nature of the problem. Simply proving that the construction is not conform is enough. The delay, however, is much shorter (1 year).
In short, there are many options out there for those who buy a new home and are faced with problems following the reception of that home. The best policy, however, remains caution and vigilance!
Suggested reading: Everything you need to know about home ownership programs