The eligibility of a claim after a “reasonable” delay

The Regulation on the guarantee plan for new residential buildings provides that deficiencies, in order to be eligible for warranty coverage, must in particular be reported to the administrator within a reasonable time. Exit the deficiencies reported after the deadline?

We already know that case law considers that a reasonable period of time is usually within a range that should not exceed six months to one year of knowing the situation, all depending on certain circumstances.¹.

The Regulation is a mandatory provision intended to protect the public, which means that in certain situations, for example the bankruptcy of the entrepreneur, it is the only possibility for beneficiaries to be compensated.

Also, in order to ensure that the guarantee starts on the right foot, that the beneficiaries are fully aware of the coverage of the guarantee and that the guarantee is applied quickly, the Legislator has indicated in the Regulation a list of obligations that must be respected by the contractor and the administrator. If these obligations are not respected by the contractor or the administrator, they cannot appeal for the failure to comply with a deadline for appealing or implementing the guarantee by the beneficiary, unless they are in a position to demonstrate that this breach of obligations had no impact on the beneficiary's failure to comply with the deadline or unless the period for appealing or implementing the guarantee expired more than one year ago.². Here are some of the obligations that must be met:

• Before receiving the building, the contractor must conduct a joint inspection with the beneficiary (and the person of his choice if he wishes). In the case of an inspection of common areas, the inspection must be carried out jointly by the contractor, the building professional selected by the syndicate of co-owners and the latter. In all cases, the inspection is based on a pre-established list of items to be verified provided by the administrator.³;
• The warranty contract must meet the requirements set out in the Regulation and the beneficiary must receive a copy.⁴;
• The administrator must send to the beneficiary, upon receipt of the application for registration of the building or, as soon as the beneficiary is known, the explanatory document on the application Regulation prepared by the Régie du Bâtif⁵;
• The administrator is required to comply with certain deadlines in the framework of the implementation of the guarantee.⁶.

In short, in some situations, a claim that was not filed within a reasonable time may still be eligible for warranty coverage if a breach of certain obligations is demonstrated.

Moreover, in order to increase the protection of beneficiaries, it is not possible to oppose the non-compliance with a deadline against a beneficiary when the circumstances make it possible to establish that the beneficiary was led to exceed this deadline as a result of representations by the entrepreneur or the administrator. For example, a housing delay that is usually considered unreasonable will not be considered as such if there is evidence that the contractor's promises of future interventions delayed the denunciation.

In these circumstances, both the contractor and the administrator must ensure that they comply with the requirements of the Regulation in order to avoid the extension of the time limits for recourse or the implementation of the warranty. This necessarily requires knowledge of these requirements, but also the ability to demonstrate compliance with them, in particular by keeping records when required.

DID YOU KNOW THAT?
The guarantee of a plan benefits any subsequent purchaser for the term that remains to run under the guarantee.

1 For this purpose, see in particular the article: The Regulation respecting the guarantee plan for new residential buildings — Reasonable period, published on March 9, 2016 on ACQConstruire.
2 Sections 19.1 and 33 of the Regulation.
3 Article 17 of the Regulation.
4 Articles 132 to 137 of the Regulation.
5 Article 69.1 of the Regulation.
6 Sections 17, 17.1, 18, 18, 33, 33, 33, 3.1 and 34 of the Regulation.

Consult the source publication