Hidden Defects In Immovable Property: What Remedies Are Available To Unsuspecting Buyers?

It would not be an understatement to say that the Maltese property market is one that is tumultuous and fast-paced. Given the high demand and the soaring property prices, prospective purchasers often hurry to commit to the purchase of the property, wary that excessive caution and delay may cause them to lose the deal of a lifetime to a competing buyer.

What if, in all the rush to get the deal closed, hidden defects in immovable property go unnoticed by the prospective buyer? While it has become customary that promises of sale are made subject to architectural inspections and planning compliance, structural defects can still slip through the cracks, such that they are only discovered after the sale is completed.

This was the case in the judgement in the names Simon Zammit Cutajar et vs George Bonnici, decided at first instance by the First Hall of the Civil Court on the 25^th September 2025, and more recently at appeal stage by the Court of Appeal in its Superior Jurisdiction on the 2^nd February 2026. This case illustrates the remedies available to the purchasers upon their discovery of hidden defects in the immovable property purchased.

Facts of the Case

Purchasers, plaintiffs Zammit Cutajar, sued defendant Bonnici, from whom they had purchased an immovable property in Naxxar, for a partial repayment of the price of said tenement. Shortly after purchasing their new home from the defendant, the plaintiffs applied for a development permit to carry out alterations, construct a pool, demolish existing rooms, and extend the ground floor level of their property. Upon the commencement of said alterations, there came to the fore significant structural defects which were previously unknown to them. Some of the defects with which the property was alleged to be afflicted were the following:

1. there was a cracked concrete roof at the second floor, such that a 'Removal of Dangerous Structures' application was submitted and approved by the Planning Authority;
2. that when the wood plastering covering the beams of some of the other roofs was removed, it resulted that said beams were also afflicted with cracks and lacked sufficient support; and
3. that once the surrounding wall of the property's garden was cleared from the trees and the shrubs that covered, it resulted that said wall was not of sufficient thickness, such that it was placed solely on third-party property, and not shared between the two adjacent tenements.

The Elements of an Action alleging Hidden Defects in Immovable Property

What constituted the legal basis for the purchasers' action in the case in question was the warranty against latent defects. By default, sellers in a contract of sale are bound to warrant the object sold against latent (that is, hidden) defects. A breach of that warranty entitles the purchaser to either restore the thing and have the price repaid to him (the actio redhibitoria), or retain the thing and have a part of the price repaid to him, which part shall be determined by the court (the actio aestimatoria).

Since in the Simon Zammit Cutajar et vs George Bonnici, the purchasers were asking for a reduction of the price of the immovable property, the action they were exercising was the actio aestimatoria. Both Courts, the Court of Appeal in particular, illustrated in detail the requirements for this action's success:

1. the defect must have been serious and grave (such that it renders the thing sold unfit for the use for which it is intended, or diminishes its value to such an extent that the buyer would not have bought it or would have tendered a smaller price);
2. the defect must have been hidden (such that the purchaser could have noticed it on their own, from which it followed that expert assistance during the time of the sale was not a requirement); and
3. the defect must have existed at the time of the sale.

One noteworthy aspect of this action is that the seller's knowledge of the defect is not a prerequisite for the action's success: unless an express caveat to this effect is agreed, a seller is responsible for latent defects even if he was not aware of them. Indeed, in this case, the Court found that the seller had no knowledge of the defects, and found no bad faith.

The Courts' Findings

When applying to the facts of the case the above legal principles governing hidden defects in immovable property, the Courts opined as follows:

1. Insofar as the cracked roof is concerned, the Court was convinced that this was a grave defect the extent of which only became visible when works commenced on this roof. The Court found that the cracks in this roof were caused by structural problems, and the Court had no reason to doubt that these problems existed at the time of the sale.
2. On the alleged defect in the beams of the roofs, the Court found that while there was indeed cracking in these beams, this defect was neither hidden (since it could be easily discovered at the time of the sale) nor grave (since this cracking could and be easily fixed). The Court of Appeal had a different opinion. It found that the defect was indeed hidden: cracks in the beams could not be discovered at the time of the sale, since the beams were covered by wood plastering at the time. The Court of Appeal did agree with the Court of first instance, however, that these defects were not sufficiently grave to satisfy the requirements of the actio aestomatoria.
3. On the insufficient thickness of the wall at the property's perimeter, both Courts agreed that the plaintiffs did not require any professional help to notice, before the sale of the property, that the wall in question was not as thick as the purchasers expected. The wall was only covered by a number of low planters, which were not sufficiently large to hide the true size of the wall. For this reason, even if one was to consider this lack of thickness to be a 'defect', it could certainly not be considered a hidden one.

It was concluded therefore that it was only insofar as the cracked roof was concerned that the plaintiffs' action could succeed, entitling them to a partial refund of the price paid. The Court deemed that this partial refund should be equivalent to the amount of expenses incurred by the purchasers in connection with the defective roof.

Conclusion

The cautionary tale of Simon Zammit Cutajar et vs George Bonnici is a reminder of the diligence that purchasers of real estate are expected to exercise when buying a new property. Although sellers of immovable property are to guarantee that said property is bereft of defects, said guarantee applies only insofar as hidden defects are concerned. Purchasers do not enjoy the protection afforded by this guarantee for any defects in the property which they could have discovered for themselves, stressing the importance of due inspection before purchase.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.