Extinctive prescription: two regimes, two time limits

The administrator of the New Residential Buildings Guarantee Plan rejected the claim of one of your customers on the basis that the warranty coverage for hidden defects has expired and you have just received a small claims request from the same customer regarding the same problem. An easy challenge in your opinion... It's in your pocket, right? Not necessarily!

Most of the time, entrepreneurs are surprised to find that they can be held responsible for a problem involving a residential building that they built several years ago, while the guarantees of the Guarantee Plan for New Residential Buildings have already expired.

However, it is the same defect that affects the same building. Why should the required corrections be made according to one and not according to the other?

Obviously, asking this question shows a lack of knowledge of the distinct legal regimes that constitute the Civil Code of Quebec and the Regulation on the guarantee plan for new residential buildings.

Without doing an exhaustive analysis of the differences between the two regimes, let us focus on the question of the extinctive prescription for defects and deficiencies, which differs, a source of many conflicts and, above all, of great disappointments.¹.

Regulation on the guarantee plan for new residential buildings

It's in article 10² that the Regulation enact the maximum deadlines for discovering the problem in order for it to be eligible for warranty coverage³, which differ according to the type of defects or deficiencies in the building:

Completion of the work, visible defects and defects: 3 days following receipt
Existing and invisible defects: 1 year following receipt
Hidden defects: 3 years following receipt
Design, construction or construction defects and soil defects: 5 years following the end of the work.

This means that a problem, for example a hidden defect, discovered four years after the building was received will no longer be able to benefit from warranty coverage since it would have expired. It could then be said that the claim for a latent defect within the fourth year of the reception of the residential building is not admissible under the Regulations.

Civil code of Quebec

It is article 2925 of the Civil Code of Quebec that establishes the extinctive limitation period for the majority of claims:

2925. An action which seeks to assert a personal right or a right in rem movable and whose limitation period is not otherwise fixed is time-barred by three years.

In short, a person who wishes to take legal action under the Civil Code of Quebec must apply to the civil courts within three years of becoming aware of the problem. Otherwise, his remedy will be prescribed, and therefore extinguished.

For example, someone who discovers a hidden defect on their residential building who wants to take legal action based on the quality guarantee against their seller⁴ must file his case within three years of becoming aware of the problem. It is therefore possible for him to file a legal claim regardless of the number of years spent before he discovered this problem since the quality guarantee of an asset is for a limited period of time, which corresponds to the normally expected lifespan of the property.

In other words, it should be noted that the legislator made the choice to differentiate the limitation periods of the two legal regimes according to the starting date for the calculation of these periods: in civil matters, it should be noted that the limitation period is calculated according to the date of knowledge of the situation, while under the Regulation, it is calculated according to the date of receipt of the building.⁵.

Did you know that?
Any provision of a warranty plan that is inconsistent with the New Residential Buildings Guarantee Plan Regulation is void.

¹ Here, it will only be a question of the extinctive prescription itself and not of the notice period, which has already indicated a column by the same author on the subject.
² For condominiums, refer to article 27 of the Regulation on the guarantee plan for new residential buildings.
³ The beneficiary being required to report in accordance with the requirements of the Regulation.
⁴ It is article 1726 of the Civil Code of Quebec that establishes the existence of a guarantee of quality.
⁵ The date of completion of the work in the case of defects in design, construction or construction and defects in the ground.

Consult the source publication