The Standard for a Buyer’s Prudence and Diligence

This post, published on Éditions Yvon Blais’ blog on latent defects on February 17, 2017 (FR), deals with a fundamental concept in matters of latent defects: the applicable standard of conduct for a buyer, namely that of acting as a prudent and diligent buyer.

While it is not mandatory to retain the services of an expert, the fact of not retaining an expert’s services may, in some cases, result in the buyer failing to meet his obligation to have acted as a prudent and diligent buyer. As the Honourable André Rochon, then a judge at the Superior Court, had mentioned in his judgment in the 1999 leading case Lavoie v. Comtois (Full Text | Fiche Quantum), still frequently cited by the courts today, the buyer "cannot prove to have acted prudently and diligently when there were perceptible signs for a layperson if he does not take measures (including retaining experts’ services if necessary) to ensure the immovable is free of defects” (our translation).

However, this post reminds us that regardless of whether the buyer retains an expert’s services before the sale, such as a pre-purchase inspector, the buyer will still be evaluated according to the same standard for a buyer’s conduct, namely that of acting as a prudent and diligent buyer, and will not be held to a higher standard.

Therefore, we cannot reproach a buyer for his expert/inspector not having done more and carried out more thorough verifications when there were no elements visible to a prudent and diligent buyer at the time of the inspection.

Accordingly, it is not a matter of whether an expert should have seen the latent defect, but rather whether the defect was hidden for a prudent and diligent buyer.

As the Honourable Louis Dionne, j.s.c. mentioned in April 2016 in the judgment in Pleau v. Figueira-Andrinha (Full Text | Fiche Quantum), “we must not allow the debate to deviate towards the buyer’s expert’s lack of competence […], who should have inspected further, as in such a context, the buyer’s prudence in retaining an expert’s services would be strangely turned against him. The test of section 1726 C.C.Q. is that of a prudent and diligent buyer and not that of a meticulous expert on whom would rest a type of obligation of result” (our translation).

In this decision, the Honourable Judge Dionne distinguishes the pre-purchase inspection from the expertise. Specifically, he reminds us that "pre‑purchase inspector must examine the immovable carefully and seriously, but rather quickly, without going too far” (our translation).

Therefore, a seller cannot hold a buyer responsible on the grounds that his pre-purchase inspector should have done more, inspected more thoroughly, or sought another expert’s assessment, when, at the time of the inspection, there was no sign that could have led a prudent and diligent buyer to suspect the existence of a defect or any other problem.

Additionally, this post also reminds us that a buyer is only required to carry out a reasonable inspection of the property to be sold before the sale, and not to obtain another expert’s assessment, except in the event of serious, visible signs that could lead to suspicions as to the presence of a defect, in which case such an expert’s assessment will be necessary.

This post also addresses the leading cases of St-Louis v. Morin (Full Text | Fiche Quantum) and Marcoux v. Picard (Full Text | Fiche Quantum), which confirmed the uniformity of the standard regardless of whether the buyer retains an expert’s/inspector’s services.