Who is Responsible in a Hidden Defect Case?

The sale of a home can be a complicated and time-consuming process. Home buyers need to get their finances in order, scour the market for available properties, put in offers, and navigate a series of counteroffers and other steps before the sale is finalized.

But what happens after you buy a home and you discover a serious hidden defect? While a hidden defect lawyer can help you determine if you have a case, it is important that you act responsibly as a buyer and understand just where liability will lie.

Who Can’t Be Held Liable?

First, it’s important to understand that in real estate transactions, the real estate broker and home inspector can rarely be held liable for any hidden defects. The building inspector conducts a thorough visible inspection for any maintenance issues, but their responsibilities do not extend to uncovering problems that can’t be seen with the naked eye.

Building inspectors can typically only be held liable if gross negligence occurs (such as the oversight of a major defect that a competent inspector should have noticed). However, once a maintenance item goes onto an inspection report, it is no longer “hidden.” Repairs for items mentioned in the inspection report will typically be negotiated between the buyer and seller prior to finalizing the sale.

Seller vs. Buyer Liability

Though sellers tend to have the greatest responsibility for hidden defects, the buyer’s behavior will also be taken into account during a court case. For the seller to be held liable, the buyer has to prove that a major defect was present before the closing of the sale. By definition, a “hidden” defect cannot have been communicated by the seller or mentioned on the inspection report. Buyers must also act quickly to report the problem.

Perhaps most notably for hidden defect cases, property owners are forbidden to hide major repair issues that would impact the property value when making a sale. Even exaggerating the level of quality of the property in question could qualify as manipulating the buyer. When a seller engages in these dishonest practices, they will likely have to pay damages in addition to compensating the buyer for the repairs or diminished property value.


Though a successful hidden defect case will help you receive compensation for issues with your home, buyers should always perform their due diligence before they buy. By paying close attention to the home during walkthroughs and hiring a reputable inspector, you can identify (and address) serious concerns before move-in day and hopefully avoid the need for such cases altogether.