Hidden defect in your property: what to do when you discover problems after the purchase, and what are the deadlines to claim?

The move is done, the first rain arrives — and with it the water infiltration that the fresh paint was hiding. Or the chronic clogging, the leak inside the wall, the crack that keeps reopening. Every buyer asks the same question at that moment: “is this my problem now?”. The law's answer is: it depends on three things — the nature of the defect, who sold the property and, above all, how quickly you act.

A hidden defect is a flaw that existed before the sale, could not be seen, and makes the property unfit for its intended use or lowers its value — to the point that the buyer, had they known, would not have bought it, or would have paid less (art. 441 of the Brazilian Civil Code). In this article, we cover what counts as a hidden defect, the buyer's rights, the deadlines (which are short and unforgiving), the differences between buying from a private seller and from a developer, and the step-by-step response.

What is (and what is not) a hidden defect?

The analysis asks whether the defect already existed, whether a diligent inspection could identify it, and whether it affects use or value. Concealed leaks, faulty installations behind finishes and structural problems may qualify. Visible wear and genuinely subsequent damage are not automatically redhibitory defects, although other warranties may apply. A problem appearing later can have an earlier cause: technical evidence helps distinguish these situations.

What are the buyer's rights — and the deadlines to exercise them?

Where the requirements are met, article 442 allows a redhibitory action to unwind the sale or an estimatory action for a proportional price reduction. Article 443 distinguishes the consequences according to the seller’s knowledge. Article 445 provides one year from delivery for real estate; where the buyer already had possession, the period runs from the sale and is halved. For defects discoverable only later, the STJ distinguishes a manifestation window of up to one year from the one-year period running from discovery (REsp 1.095.882). Under article 446, these periods do not run during a contractual warranty, but the defect must be reported within 30 days of discovery. Negotiating does not replace a case-specific deadline calculation.

If delivery was also delayed, see our construction delay compensation calculator. It does not estimate compensation for construction defects.

I bought from a developer: what changes?

In a consumer transaction, CDC article 26 provides 90 days from manifestation of a hidden defect. A proven complaint to the supplier prevents the time bar from taking effect until an unequivocal negative response; messages, email or other reliable evidence may prove it. Strict liability does not dispense with examining the defect and causal connection. Reversal of the burden of proof requires a judicial decision based on plausibility or the consumer’s vulnerability under article 6(VIII). Civil Code article 618 provides a five-year soundness and safety warranty for the construction contracts it covers. Its sole paragraph provides 180 days from appearance of the defect for an action enforcing the right assured by that article. Damages claims may follow different periods; the warranty is not a universal litigation deadline.

The step-by-step response: document, notify, act

1. Prioritize safety and preserve evidence: take dated photographs and videos before repairs where this is possible without danger;
2. Expert report (engineer or surveyor): origin, pre-existence and cost of repair — it is the heart of the case;
3. Make a provable complaint to the seller or developer describing the defect and the remedy sought; in a consumer transaction, assess CDC article 26 and the supplier’s unequivocal negative response;
4. Negotiation with a set deadline — and, if there is no solution, a lawsuit within the legal time limits;
5. Address emergencies to prevent further harm. Document when safe and keep invoices: reimbursement depends on necessity, causation and proof of the expense.

Hypothetical example: Marcos and Paula’s house in Lapa

Suppose widespread leaks appear 40 days after moving into a R$720,000 property. A technical report identifies an old waterproofing failure and estimates R$48,000 in repairs. Recent paint may be a lead to investigate, not automatic proof of bad faith. A hypothetical R$55,000 settlement could resolve the dispute, but would depend on the evidence and both parties’ agreement. The names, figures and outcome are illustrative, not a firm case result or a promise of compensation or timing.

The most common (and costly) mistakes

1. Renovating without preserving evidence when it was safe to do so. Work may remove clues to the cause. Risk: losing evidence of relevant facts; safety emergencies must still be addressed.
2. Negotiating without tracking deadlines. Risk: assuming any conversation prevents the time bar. Under the CDC, proof of the complaint to the supplier and its response matters. WhatsApp can provide evidence, but a vague conversation does not offer the same assurance.
3. Confusing a hidden defect with buyer’s remorse. Visible or subsequent defects do not automatically fall within this warranty; other liability grounds require examination. Risk: bringing an unsupported claim and facing costs and legal fees.
4. Skipping the expert report “to save money”. Risk: without technical proof of the origin and pre-existence, the claim becomes word against word.

Actionable checklist when you discover a defect

• Dated photographs and videos without exposure to danger or worsening the damage;
• Sales listing, photos from the time and inspection report filed away;
• Expert report: origin, pre-existence, severity and repair estimate;
• Documented complaint and calculation of the applicable deadline;
• Urgent safety measures, with work records and invoices;
• No settlement within the set timeframe: file the lawsuit before the deadline expires.

Frequently asked questions

What counts as a hidden defect in a property?

It is a pre-existing defect that a diligent inspection could not identify and that affects the property’s use or value (Civil Code article 441). Concealed leaks and hidden structural problems may qualify. Visible wear and genuinely subsequent damage do not automatically qualify; a defect appearing later may nevertheless have an earlier cause requiring technical assessment.

What is the deadline to claim for a hidden defect in a property?

Civil Code article 445 provides one year for real estate, with delivery and prior-possession rules. For defects discoverable later, distinguish the manifestation window of up to one year from the one-year period after discovery, and consider any contractual warranty under article 446. The CDC provides 90 days from manifestation of a hidden defect; a proven supplier complaint prevents the time bar until an unequivocal negative response. Article 618’s five-year warranty concerns soundness and safety, with a 180-day period for an action enforcing the right under that article. Other claims may have different deadlines. Negotiations do not remove the need for immediate assessment.

I found the defect: can I undo the purchase or only ask for a discount?

Where the requirements are met, article 442 allows a redhibitory action to unwind the sale or an estimatory action to retain the property with a proportional reduction. If the seller knew of the defect, article 443 also provides for damages. Severity, evidence and the applicable legal framework guide the choice; not every defect justifies rescission.

The seller says they did not know about the defect: are they still liable?

The warranty against redhibitory defects does not require the seller’s knowledge. On rescission, article 443 provides for repayment and contractual expenses if the seller did not know, and also damages if the seller knew. Recent painting or earlier repairs can be indicators, but do not by themselves prove bad faith.

When should I see a lawyer about a property defect in São Paulo?

As soon as the problem is discovered, to preserve evidence and calculate deadlines before negotiations or non-urgent works. If there is danger, prioritize safety and document measures where possible. Legal analysis and a technical report guide repair, reduction, rescission or damages claims. Good documentation helps negotiation but does not guarantee a settlement.

Hidden defects: evidence and deadlines must be addressed together

Buyer protection depends on the defect, evidence and applicable law. Control safety risks, record the problem where possible, obtain technical assessment and make a documented complaint while tracking deadlines. This helps identify a suitable remedy without guaranteeing an outcome.

At Falchet e Marques Sociedade de Advogados, in São Paulo (Av. Paulista), we handle hidden and construction defects through technical evidence, notices, deadline management and assessment of the appropriate claim against sellers and developers.

Talk to our team on WhatsApp: +55 11 95901-1854 — describe the defect you found and how long ago you received the property, and find out which deadlines and rights still run in your favor.