What goes in the seller’s declaration when you sell a house in Quebec?

What is the seller’s declaration in Quebec?

It is the OACIQ form Déclarations du vendeur sur l’immeuble. The OACIQ’s English pages call it the Declarations by the seller of the immovable, or the DS form. The OACIQ created it so the buyer can read the condition of the property and the seller can reduce the risk of a later suit. You complete it with the broker, in good faith and to the best of your knowledge, as soon as the brokerage contract is signed. The form is an integral part of that contract, and it is annexed to it. The buyer annexes it to the promise to purchase after signing the acknowledgment of receipt (A report card on a property).

The copy read for this page is the OACIQ PDF for a chiefly residential immovable of fewer than five dwellings, excluding divided co-ownership. Its footer shows DV 00001 and V24, with a copyright line for 2012 and 2022. The note on the form says it is used when a brokerage contract for the sale is entered into with an individual. For a divided co-ownership, the same note says to use the mandatory form Déclarations du vendeur sur l’immeuble – Copropriété divise. The opening says you answer each question in good faith and to the best of your knowledge, you give the broker the available documents that support the answers, and the details go in section D15. Those documents, as the form lists them, include invoices, warranties, plans, specifications, permits, reports, notices and leases. D15 asks for the place, the year, and how the situation was dealt with, if it was. If a question is left unanswered, D15 is where the reason is written (Déclarations du vendeur sur l’immeuble, form DV).

The form is a tool for the broker. The OACIQ says it is not the only verification. The seller’s broker still consults the land register and earlier inspection reports, checks the property taxes, and reads the declaration of co-ownership, so the information given to the other parties can be shown to be accurate. This page does not list every question on the thirteen pages. It says what the form is, and which questions match the facts people ask about.

When is the form mandatory, and when is a private sale different?

On a brokerage sale, the OACIQ says the form is mandatory for the sale, by a natural person, of a chiefly residential immovable containing fewer than five dwellings, including one held in divided co-ownership or in undivided co-ownership. There is a version for a residential immovable and a version for divided co-ownership. If the form is mandatory and the seller refuses to give the information or to sign, the broker cannot represent that seller for the sale. The OACIQ’s English page says the form is not mandatory, and strongly recommends it, for a property containing more than five dwellings, a chiefly commercial immovable, land without a building, or a seller that is a legal person. A building of exactly five dwellings is outside the “fewer than five” rule. This page does not add a rule for that building.

If you are selling on your own and the buyer has a broker, that page is different. The OACIQ tells the buyer’s broker that, where you refuse to be represented by a broker of your choice, the broker completes the declarations form with you. You record what you know, in good faith and to the best of your knowledge. If you will not complete it before the promise to purchase, the promise should include a condition that you provide the declarations within a stated time (Buying from a seller who is not represented by a broker).

If neither side has a broker, the OACIQ rule that makes the form obligatory does not apply, because it is a rule for brokerage sales. You may still put what you know in writing. What still binds you is the Civil Code, which is the next section. How a sale with no broker actually runs, from the promise to the notary, is How do you sell a house without a real estate broker in Quebec?.

What do you declare about water, pyrite, mould, an oil tank, insurance and work?

You declare what you know. The form says the answers are to your knowledge. The OACIQ’s public page gives examples, and it says a problem that can cause long-term damage is declared even if it was remedied, with the remedial work and the invoices. Movement every spring is declared. The questions below are the ones on the PDF read for this page. They are not a complete list.

Water. D4.1 asks whether there has been water infiltration, and where. The basement or crawl space is one of the places. The OACIQ’s guideline for licence holders says a history of water damage, including infiltration, drainage or a sewer backup, can influence a buyer’s decision even after the damage was corrected, including where corrective work, an insurance claim or an expert report was required (Renseignements sur l’immeuble, page in French). A crack, pyrite and pyrrhotite are a different page (Can you sell a house with foundation problems in Quebec?).

Pyrite and pyrrhotite. D13.2 asks whether tests or expert reports have been done, beyond those already mentioned, and it names pyrite and pyrrhotite among them, with radon, ochre deposits, urea-formaldehyde foam insulation, asbestos, air quality, water quality or flow, and the foundation drain. It asks whether you can provide the documents, and, if not, what the report found. D3.1 asks whether soil problems have affected the immovable. The foundation page already cited is where those minerals are described. This page does not repeat that map.

Mould. D7.3 asks whether there have been traces of mould, rot or fungus. What a sale looks like when mould is the fact you know is Can you sell a house with mould in Quebec?.

An oil tank. D3.3 asks whether there has ever been an underground or above-ground tank of fuel oil or oil. D12.4 asks whether the heating system includes a fuel-oil tank. The report-card page already cited points to aging oil tanks as one of the cases to declare. This page does not say what an insurer does with a tank. It says the form asks the question.

Insurance. D2.12 asks whether an insurer, the municipality or the government has sent a notice of non-compliance, and whether you remedied it. D2.13 asks whether an insurer has ever refused to insure the immovable in whole or in part. D2.14 asks whether an insurer has ever refused to indemnify you for damage to the immovable. The guideline sentence above is about a history that included an insurance claim. It is not a list of what a later insurer must do. This page states no such list.

Work and permits. D14.4 asks whether important work has been done, beyond what was already mentioned, and its examples are a change to how the rooms are divided and a change of floor covering. If the answer is yes, it asks you to describe the work in D15, whether plans and specifications were prepared, and whether the required permits were issued for each of those works. The form’s opening, already cited, names permits among the documents you give the broker. The report-card page says this is the moment to show the work done to maintain the property and the improvements, with the contractors’ names and supporting documents if possible.

A condo. Divided co-ownership uses the other mandatory form, named above. The report-card page says the broker’s other checks include the declaration of co-ownership. The papers a file usually gathers, including that declaration, recent minutes and the contingency fund, are on the documents page already cited. This page does not list the divided-co-ownership questions.

What does the legal warranty of quality require?

A sale comes with it unless the contract sets it aside. Article 1726 says the seller warrants the buyer that the property and its accessories are, at the time of the sale, free of latent defects which render it unfit for the use for which it was intended, or which so diminish its usefulness that the buyer would not have bought it or paid so high a price if he had been aware of them. The seller does not warrant a latent defect known to the buyer, or an apparent defect. An apparent defect is one that can be perceived by a prudent and diligent buyer without the need to resort to an expert (Civil Code of Québec, article 1726).

Article 1727 says that if the property perishes by reason of a latent defect that existed at the time of the sale, the loss is borne by the seller, who is bound to restore the price. If the loss results from superior force, or is due to the fault of the buyer, the buyer deducts from the claim the value of the property in the condition it was in at the time of the loss (Civil Code of Québec, article 1727). Article 1728 says that if the seller was aware of the latent defect, or could not have been unaware of it, the seller is bound not only to restore the price, but also to make reparation for the injury suffered by the buyer (Civil Code of Québec, article 1728).

Article 1729 is a presumption, and it is for a sale by a professional seller. A defect is presumed to have existed at the time of the sale if the property malfunctions or deteriorates prematurely in comparison with identical property, or property of the same type. The presumption is rebutted if the defect is due to improper use by the buyer (Civil Code of Québec, article 1729). The seller’s warranty also binds the manufacturer, any person who distributes the property under their name or as their own, and any supplier of the property, including distributors and importers (Civil Code of Québec, article 1730). The article names those persons. It does not name the owner who sells their house.

Article 1731 is a different sale. The French text in force since 1 January 2016 says a sale under judicial control does not give rise to any obligation of warranty of the quality of the property sold. The English consolidation’s 1994 wording says “Sale under judicial authority.” This page follows the French text in force (Code civil du Québec, article 1731).

Good faith is not a heading on the form. It is in the Code, and the form repeats it. Article 6 says every person is bound to exercise civil rights in accordance with the requirements of good faith (Civil Code of Québec, article 6). Article 1375 says the parties shall conduct themselves in good faith both at the time the obligation arises and at the time it is performed or extinguished (Civil Code of Québec, article 1375). The form’s own words are “in good faith and to the best of your knowledge.” A notary or a lawyer applies those articles to a file. This page does not.

Does a sale without legal warranty remove the duty to disclose a known defect?

No. The OACIQ’s guideline for licence holders says that, whether or not the seller sells without the legal warranty of ownership or of quality, the seller is bound at all times to disclose the information or the defects of which they have knowledge. That sentence is in the same guideline already cited, under the heading on a sale without that warranty.

Article 1733 is the Code’s rule on an exclusion, and it has two paragraphs. A seller may not exclude or limit his liability unless he has disclosed the defects of which he was aware, or could not have been unaware, and which affect the right of ownership or the quality of the property. An exception may be made to this rule where a buyer buys property at his own risk from a seller who is not a professional seller (Civil Code of Québec, article 1733). The exception is the opening for the words Éducaloi says must appear on the promise and the deed: the sale is made without any legal warranty, at your own risk. You have to be told before you sign. The exception is not a permission to stay silent about a defect you know.

Article 1732 is the other limit. The parties may, in their contract, add to the obligations of the legal warranty, diminish its effects or exclude it altogether, but in no case may the seller exempt himself from liability for his personal acts or omissions (Civil Code of Québec, article 1732). The OACIQ tells the seller’s broker that the waiver will not protect the seller against an action for defects of which he was aware and which he should have disclosed. The same page says that, on a sale which excludes the warranty, a buyer who later finds a defect they did not know of has no recourse unless they can show the seller acted in bad faith by purposely hiding a defect of which he was aware (The legal warranty of ownership and quality). Éducaloi says the same remaining path in its own words: if the exclusion is real, the claim for a hidden defect is what you give up, and what remains is to show that the seller deliberately hid something so important that you would not have bought, or would not have paid the same price (Immobilier : acheter sans garantie légale). Those are three sources. They are not one sentence this page invented. A court decides which one fits the file. How the clause is written is Selling a house as-is in Quebec.

What happens if a known defect stays hidden?

If the warranty is still in the deed, article 1726 is the warranty, and article 1728 adds reparation for the injury when the seller was aware of the latent defect or could not have been unaware of it. Éducaloi, on the page already cited, says the warranty can be used to require the seller to repair at the seller’s expense, and that the sale can even be annulled if a repair is impossible. Éducaloi also says you cannot use the warranty for a problem the seller declared in the seller’s declaration, or for what a pre-purchase inspection, an up-to-date certificate of location, or the notary’s search of the land register could have shown.

A false answer is not silence. The form is a set of questions. The OACIQ says a declaration that does not reflect reality may involve the seller’s liability, or the broker’s. If you later remember a detail, or the house changes after you signed, the report-card page says you tell the broker. The broker has you complete an Amendments form. The OACIQ says that form is also mandatory in that case. Once it is signed, it is annexed to the declarations and given to any prospective buyer.

If the warranty was excluded, Éducaloi’s remaining path, already cited, is deliberate concealment of a fact that would have changed the decision or the price. The OACIQ’s sentence, already cited, is that the waiver will not protect the seller against an action for a defect he was aware of and should have disclosed. This page will not say which claim succeeds. A notary or a lawyer reads the clause you are about to sign.

How do you prepare the declaration?

Write down what you know before you are sitting with the form. Gather the papers the form names: invoices, permits, reports, notices, and any inspection you already have. D13.1 asks whether the immovable has been inspected and whether you can provide those reports. If you do not know an answer, say so. The OACIQ’s report-card page says a seller who has not lived in the property, which it says is often an estate sold without the legal warranty of quality, or a mandatary, does not have to declare what they are not aware of. They still complete the form, and they state why they cannot answer a question. The PDF says the liquidator answers to the best of their knowledge and may explain that in D15.

On a brokerage sale, the broker completes the sections with you. If a fact changes after you sign, you tell the broker, and the Amendments form is the OACIQ’s next step, already described. On a sale with no broker on either side, there is no obligatory OACIQ form. You still put the same facts in writing for the buyer and for the notary. The notary does not replace that conversation. This page does not say the notary requires the OACIQ form. It says the notary reads the deed.

Bruce Malcolm buys houses himself on the Island of Montreal and the surrounding areas. He holds no broker, agent or appraiser licence. He is not a notary or a lawyer. There is no inspection and no commission. Bruce’s offer is made without the legal warranty. An offer with no inspection condition does not, by itself, set aside the legal warranty of quality. You say what you know about the house when you send the address. The closing date is one you choose once the notary can sign. Sending the address starts a conversation (request an offer). The form does not commit you.