Buyer's Guide
New Home Warranty in Quebec: The GCR Plan
Behind every new home sold by an accredited builder in Quebec sits a mandatory warranty plan. It does not cover …
On a Centris listing, the mention fits on one line: sold without legal warranty of quality, at the buyer’s own risk and peril. Many read it as an admission that something is wrong. Others sign it without realizing they are giving up a remedy they would otherwise have had without asking for anything. Both are mistaken, and the difference between those two wordings decides what you will have left if a defect appears.
What the legal warranty covers, without you having to ask for it
Article 1716 of the Civil Code sets the base: the seller is bound to deliver the property and to warrant the right of ownership and its quality. These warranties exist by operation of law, with no need to stipulate them in the contract.
The warranty of quality is article 1726. The seller warrants that the property is, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended, or which so diminish its usefulness that the buyer would not have bought it, or would not have paid so high a price, had he known of them. Two limits are written into it: a latent defect the buyer already knew about, and the apparent defect, the one a prudent and diligent buyer can notice without calling in an expert.
If the seller knew of the defect or could not have been unaware of it, article 1728 requires him, on top of restoring the price, to make reparation for the injury suffered. The OACIQ adds the point sellers forget: the fact that the seller does not know of the defect, or that it only shows up after the sale, takes nothing away from the warranty.
Excluding the garantie légale de qualité or selling at the buyer’s risk and peril: two different clauses
Article 1732 allows the parties to add to the obligations of the legal warranty, to reduce its effects or to exclude it entirely. One limit only: the seller may not, in any case, exempt himself from his own personal acts.
Article 1733 has to be read twice. First paragraph: the seller may not exclude or limit his liability if he failed to disclose defects he knew of or could not have been unaware of. Second paragraph: this rule admits of an exception where the buyer buys at his own risk and peril from a non-professional seller.
That is where the two wordings stop being synonyms. Excluding only the garantie légale de qualité (the legal warranty of quality) deprives you of the ordinary latent defect remedy, but leaves the first paragraph in play: if you show that the seller knew of the defect and did not disclose it, the exclusion does not protect him. Add the words “aux risques et périls de l’acheteur” (at the buyer’s own risk and peril) in front of a non-professional seller, and the second paragraph knocks that protection out.
The Court of Appeal has spelled out how far this goes. In Blais c. Laforce, 2022 QCCA 858, confirmed by Tremblay c. Immeubles Perron ltée, 2024 QCCA 719, it holds that the complete exclusion clause is a serious warning that the property is sold without any warranty whatsoever despite the defects that may affect it, and that it allows a presumed knowledge of their existence to be attributed to the buyer. The OACIQ draws the consequence: a seller’s silence about a known defect no longer automatically amounts to fraud in a sale “aux risques et périls”.
That complete clause also breaks the chain. According to the OACIQ, the buyer then gives up the warranty of his immediate seller and those of the previous sellers. The warranties are reset starting from that sale.
| Wording in the contract | What falls away | What remains |
|---|---|---|
| Exclusion on certain components | The quality of the named elements | The warranty on everything else |
| Exclusion aimed at the immediate seller | The remedy against the current seller | The warranties of previous owners |
| Without any warranty, at the buyer’s risk and peril | The remedy and the whole chain | Proof of fraud, a heavier burden |
The OACIQ strongly recommends that brokers stop using the general mention “sans garantie légale à ses risques et périls”, so as not to needlessly wipe out earlier warranties.
What the seller can never erase
His personal acts. Article 1732 allows no exception. A seller who repaints an infiltration stain the night before the showings, or who answers falsely on the Déclarations du vendeur form (the seller’s declarations on the immovable), does not get to hide behind the exclusion.
Fraud. The exception in the second paragraph of 1733 does not cover deceit. After Tremblay, the buyer has to prove more: the seller’s knowledge of the defect, but also that his silence was intentional and determinative in the decision to buy. Heavier, not impossible.
The seller’s status. The exception only plays with a non-professional seller. A professional seller stays under the first paragraph, and article 1729 adds a presumption against him: the defect is presumed to have existed at the time of the sale if the property deteriorates prematurely compared with property of the same kind.
The OACIQ points out, finally, that the exclusion does not cover bodily or moral injury caused to others: a buyer can claim for health problems caused by mould the seller concealed.
Why estates and repossessions sell this way
The clause is not a confession. The OACIQ lists the situations where a complete exclusion can be justified, and the first is the seller’s limited knowledge: a repossession or an estate. Then come the building of generally poor quality or slated for demolition, the seller who refuses to warrant the compliance of a change of use planned by the buyer, and the elderly person who wants to avoid a claim against her estate.
In an estate, the liquidateur (the liquidator of the succession) has often never lived in the building. The Déclarations du vendeur form nonetheless remains mandatory, the OACIQ specifies, and a liquidator who cannot answer must write at clause D15 who he is and why. A form with justified blanks is not a missing form. The rest of the file is in inheriting property in Quebec.
A financial institution, on the other hand, is not a natural person. The form is mandatory for the sale, by a natural person, of a mainly residential immovable of fewer than five dwellings. For a seller that is a legal person, it is only strongly recommended, the OACIQ citing the case of financial institutions repossessing a building: so you will not always have declarations to read. And if the sale takes place sous contrôle de justice (under judicial authority), article 1731 settles it: it gives rise to no obligation of warranty of quality.
What a sale without legal warranty in Quebec changes for inspection and financing
The inspection stops being a formality. With the warranty, the line between an apparent defect and a latent defect carries real stakes. Without the warranty, it loses its point: anything not found before signing will be yours. The OACIQ asks the broker to insist on a detailed pre-purchase inspection and to warn the inspector about the exclusion.
The inspector must meet four regulatory requirements: professional liability insurance covering faults, errors or omissions, a recognized inspection service agreement, a recognized standard of practice, and a written report. Stretch the inspection deadline, since specialized tests have to be scheduled: the costs and the timing are in home inspection in Quebec: what it costs and when to do it.
Financing follows its own rules. What is verifiable: the Déclarations du vendeur form and the documents attached to it form an integral part of the promise to purchase and must be sent to the mortgage lender, who then sets the terms of the loan in full knowledge. What I cannot claim: no official source lets me say that a lender automatically refuses a property sold without legal warranty. Ask the question before you file the offer, not after.
What to demand in exchange
Giving up a right has a price. The OACIQ asks the seller’s broker to inform him that the exclusion could, depending on market conditions, reduce buyer interest and affect the price, and the buyer’s broker to tell him that the price offered should take that into account. No official source sets a percentage: the discount is justified by the estimated cost of the work you will carry alone. Set your benchmark with the property value estimator, then subtract that costed risk.
- A tailored clause rather than a general one. Exclude only the immediate seller’s warranty, or only on the pool, the fireplace, the heating or the air conditioning. The OACIQ’s 3.5 model clauses are laid out that way.
- The warranty of the right of ownership, kept. The OACIQ writes that a licence holder must not recommend excluding it, save in very rare exceptions.
- Written questions, with the answers on file. A seller who is asked should, the OACIQ notes, break his silence and declare the defects he knows of.
- Legal advice before the promise. Given how serious the consequences are, the broker must recommend that the parties consult a legal adviser.
When to pass
Three signals justify stepping back. The seller refuses the tailored clause without explaining why the exclusion has to be total. The inspector flags an area he could not examine and the seller refuses to let it be tested. The discount granted does not cover the worst case costed by a contractor. In that last case, you are not buying a house, you are buying an option on work whose price you do not know. The other signals are gathered in walking away from a property: seven red flags.
Frequently asked questions
Does “without legal warranty” mean the house has a problem? No. The OACIQ ranks estates and repossessions among the cases where the exclusion is justified by the seller’s limited knowledge. The clause says who is selling and what he agrees to warrant, not what condition the building is in. It is the inspection that answers that second question.
Does the seller still have to complete the seller’s declarations? Yes, when a natural person sells a mainly residential immovable of fewer than five dwellings, estates included. The OACIQ specifies that a broker cannot sign a brokerage contract with a seller who refuses to complete and sign that form.
If I find a defect after the sale, do I still have a remedy? It depends on the text you signed. With an exclusion of the warranty of quality only, the first paragraph of article 1733 leaves you a remedy if you prove the seller knew of the defect and did not disclose it. With the words “aux risques et périls” in front of a non-professional seller, you have to prove fraud. In both cases, give written notice within a reasonable time, article 1739.
Can I resell with the legal warranty later on? Yes, but it will bind only you. A complete exclusion breaks the chain of transmission, and your buyer will not be able to turn against the previous owners. The broker must in fact check the earlier sales, which the title search reveals.
To round it out, read the notary’s work, step by step and seven failures that derail a transaction.
Interested in a property listed without legal warranty? Write to me. We look at the exact clause, the documents available and the kind of inspection to plan for.
Georges Matar
Residential Real Estate Broker · RE/MAX DU CARTIER INC.
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