Hidden defects against apparent defects

One of the most frequent questions in expert consultations is where the apparent defect ends and where the hidden defect begins. The distinction is not always obvious, since it depends on what could reasonably be seen at the time of purchase and what was hidden behind coverings, furniture elements or simple circumstances of the visit.

General criterion

The starting criterion is simple: if an attentive buyer without specialized technical knowledge could see the defect during an ordinary visit, it is considered apparent. If to detect it it was necessary to dismantle, carry out exploratory openings, measure with instruments or remove furniture, it is a reasonable candidate for a hidden defect.

When is it likely to be a hidden defect

These are common situations that usually fit as a hidden defect, always to be assessed on a case-by-case basis:

• Dampness under coverings, floorboards or false ceilings that did not have visible stains.
• Electrical or plumbing installations that do not comply with regulations, hidden behind finishes.
• Structural cracks covered with paint or putty shortly before sale.
• Vehicle engine with internal faults not detectable in a short driving test.
• Mileage manipulated in a second-hand vehicle.

##When it probably isn’t

In these cases, the classification of hidden defect is usually discarded:

• Visible damage to the façade, windows, floors or bodywork with the naked eye.
• Normal wear and tear elements depending on the age of the property.
• Defects that the seller expressly communicated in writing before the purchase.
• Breakdowns caused by use after delivery.

Reasonable diligence of the buyer

An important aspect is the so-called reasonable diligence. The buyer is not required to act as an industry professional, but is required to exercise regular attention. In housing, a normal visit; in vehicle, a driving test and a basic visual inspection.

When the buyer is a professional in the field (for example, a builder buying an apartment) the criteria may be toughened, since greater detection capacity is presumed. This nuance must be assessed by the lawyer.

What the expert report provides

The report describes whether the defect could be detected in an ordinary visit, what elements hid it and what technical evidence supports its pre-existence. It also clarifies whether the defect is of construction, use or maintenance origin.

To see specific cases by type of property, consult the articles on housing, commercial premises or vehicles. If you wish to commission a report, you can go to Contact.