What is the Difference Between an Obvious and a Hidden Defect?
A patent defect is open and obvious – one which can be discovered after inspection. On the other hand, a latent defect is one that is hidden or concealed, and which is not discoverable by reasonable inspection. A latent defect becomes patent when it is discovered or should have been discovered. Whether a defect is patent or latent is generally decided on a case by case basis, although Florida has determined that certain defects, such as leaky roofs, are necessarily patent and obvious.
Determining when a defect becomes patent is important because it impacts the statute of limitations – the deadline for bringing a lawsuit. The deadline for breach of construction contracts is four years from the time the defect was discovered but in no event more than 10 years after the date of the issuance of a certificate of occupancy, the date of abandonment of construction if not completed, or the date of completion or termination of the contract between the professional engineer, registered architect or licensed contractor and his or her employer. Even if the defect is discovered after the expiration of a warranty, the limitations period does not begin to run until the defect is discovered.