Ontario Real Estate Glossary

Patent Defects

Visible flaws in a property that a reasonably prudent buyer would discover on a normal inspection — cracked tiles, peeling paint, broken windows, sagging gutters. Sellers do not have a duty to disclose patent defects under Ontario's caveat emptor rule, though they cannot actively conceal them.

What is a patent defect in real estate?

A patent defect is a visible, observable flaw in a property that a reasonably prudent buyer would discover on a normal inspection. Examples include cracked tiles, peeling paint, broken windows, water-stained ceilings, sagging gutters, and damaged flooring. Patent defects are the seller's "buyer beware" zone under the Ontario caveat emptor rule — the seller has no statutory duty to point them out, the buyer is expected to find them, and the price the buyer pays should reflect what they could have seen.

Patent vs latent defects

The patent-vs-latent distinction is one of the most heavily exam-tested concepts:

Patent defect	Latent defect
Visibility	Observable on reasonable inspection	Hidden, not reasonably discoverable
Examples	Cracked tile, broken window, water stain	Recurring basement flooding, mould inside walls
Seller's disclosure duty	None under caveat emptor	Yes, if dangerous or unfit for habitation and known
Buyer's protection	Inspection, conditional offer, price negotiation	Can sue seller post-closing for non-disclosure
Code of Ethics	Registrant cannot actively conceal	Registrant must disclose if known

A defect can shift between categories depending on whether it's accessible to inspection. A small foundation crack visible from the unfinished side of the basement is patent. The same crack hidden behind drywall on the finished side is latent.

What sellers cannot do, even with patent defects

Caveat emptor protects the seller from disclosure obligations, but active concealment is a separate violation:

Repainting over a water stain to hide it
Plastering over a foundation crack
Pushing furniture against a damaged wall to obscure it
Running fans during a showing to dry a known damp basement

Active concealment of a patent defect can ground a civil claim for fraudulent misrepresentation. It also breaches the registrant's Code of Ethics duty against concealment of pertinent facts.

A typical exam scenario

A buyer views a home on a sunny day. The kitchen ceiling has a faded brown ring around a recessed light — clearly water-related but old. The seller does not mention it. The buyer asks no questions, waives the inspection condition, and closes. A month later, the same fixture leaks again during a heavy rain.

The buyer's claim fails on the patent-defect ground: the water stain was visible on the showing, the buyer was on notice, and the seller had no duty to disclose. Caveat emptor protects the seller. If the buyer had asked about the stain and the seller said "it was a one-time leak, fully fixed," and the seller knew that wasn't true, the analysis shifts — that's misrepresentation, not non-disclosure.

Where this appears in your Humber program

Patent defects, the patent-vs-latent distinction, and active concealment are core content in Course 2: Residential Transactions under the property condition and disclosure modules. Patent-vs-latent classification scenarios appear on every Course 2 exam and in simulation papers.

Frequently asked questions

What is an example of a patent defect?

Common examples of patent defects include cracked floor tiles, broken or chipped windows, water-stained ceilings, sagging gutters, peeling paint, damaged or stained flooring, missing fixtures (light fittings, appliances), unfinished installations, and doors that do not close properly. The common thread is that any of these would be obvious to a buyer walking through the property on a normal viewing.

Do sellers have to disclose patent defects in Ontario?

No, sellers in Ontario are not required to disclose patent defects under the caveat emptor rule. The buyer is responsible for discovering anything observable on a reasonable inspection, and the price the buyer offers should reflect what they could see. However, sellers cannot actively conceal a patent defect — repainting over a water stain to hide it, for example, can ground a civil claim for fraudulent misrepresentation.

What is the difference between a patent defect and a latent defect?

A patent defect is visible and discoverable on reasonable inspection — buyers are expected to find it. A latent defect is hidden and not reasonably discoverable — buyers cannot find it without specialized investigation. Sellers have no statutory duty to disclose patent defects, but they do have a duty to disclose latent defects that they know about and that make the property dangerous or unfit for habitation.

Can I sue for a patent defect after closing?

Suing for a patent defect after closing is generally unsuccessful because caveat emptor protects the seller. The exceptions are when the seller actively concealed the defect (e.g., painting over water damage), made a specific misrepresentation when the buyer asked about it, or where the defect was not reasonably discoverable despite being technically visible. In all three cases, the claim becomes one of misrepresentation rather than non-disclosure.

Practice this topic

ExamAce covers patent-vs-latent classification, active concealment scenarios, and the registrant's overlapping Code of Ethics duty in the Course 2 question bank, with mixed-defect scenarios across the simulation papers.

See it in practice

Walk through a realistic Ontario scenario where Patent Defects matters — with the decision point, the correct move, and the pitfall.