Patent and Latent Defects in real estate law

By: Nelly Pohl, law student at Delaney’s Law Firm

If you are thinking of buying or selling a house, or if you have bought a house and are only now discovering faults, understanding the difference between patent and latent defects will be helpful.

Patent Defects

A patent defect is a defect that is obvious enough that it should be discovered during a reasonable inspection of the home. The legal principle of caveat emptor, or “let the buyer beware” applies to patent defects. According to this principle, the buyer alone is responsible for ensuring that the house they are buying fulfills their expectations. If the buyer does not inspect the property before buying, and subsequently discovers patent defects, the seller cannot be held liable. This is because the buyer was responsible for discovering all patent defects before agreeing to buy.

Examples of Patent Defects: These are defects that a capable home inspector would be able to spot. Patent defects include cracks in the wall, a door that doesn’t close, or staining on the walls from a leaking roof.

Latent Defects

A latent defect is a defect which could not have reasonably been discovered by a non-invasive home inspection. Because latent defects are very difficult for a seller to discover, caveat emptor does not apply. If the latent defect was not known to the seller, the seller cannot be held liable for the defect. However, if it can be proven that the seller knew of the defect and deliberately failed to disclose it, the seller may be held liable.

Examples of Latent Defects: These are defects that cannot be discovered during a reasonable inspection. They include damage inside walls (such as pipes), a leaking roof with no obvious leak marks, or electrical issues.

What this means:

As the Seller:

You are not responsible for disclosing patent defects. However, you cannot deliberately hide patent defects (such as painting over leak marks to conceal defective roofing). You are responsible for disclosing any latent defects that you are aware of.

If you cover up a patent defect or fail to disclose a latent defect that you are aware of, the buyer may successfully hold you liable.

As the Buyer:

Because you are responsible for discovering patent defects, make sure to hire an experienced and qualified home inspector. You can only hold the seller liable for patent defects if the seller made efforts to hide these defects. You are not responsible for discovering latent defects. However, the seller can only be held liable for these if the seller was aware of them.

If you do discover hidden patent defects or latent defects, you have two years from the day on which you discover them to start a lawsuit. However, you lose your ability to start a lawsuit 15 years after the seller should have disclosed the defect to you, even if you have not discovered the defect yet.

It is important to beware of how these two types of defects establish your responsibilities as buyer and seller. As always, hiring good realtors, home inspectors and lawyers is the safest way to avoid headaches down the line.