In a recent judgment, the Court of Quebec, a Small Claims division¹, focused on a claim for damages from a syndicate of co-owners against a co-owner for damage caused by an intervention of the fire brigade due to a fire in a neighboring unit on the same floor. For his part, the co-owner calls to justice, in the same case, the syndicate for the stress and inconvenience he claims to have suffered as a result of the law suit by the syndicate.
The request and the facts
The syndicate claims from the co-owner the sum of $3,279.09, which represents the value of the damage caused to the door of the condominium unit, smashed by the firefighters during the intervention conducted because of a fire in the neighboring unit. The co-owner claimed $7,000 from the syndicate for stress and inconvenience alleging that the procedure of the syndicate is abusive.
THE FACTS:
According to the evidence presented, on January 12, 2012, blue smoke and a toxic odor emanated from the refrigerator of the co-owner and the latter subsequently called the fire department. As the floor underneath the appliance was hot they wanted to get into the neighboring unit that belongs to another co-owner. The latter being absent, firefighters broke down the door as a precaution because the structure of the building was made of wood.
The problem was quickly resolved and the co-owner who owned the refrigerator replaced it. However, replacing the smashed door cost $3279.09 to the syndicate, a price determined, reflecting on the evidence, by the fact that it was a custom-made steel door.
As the source of the problem was the refrigerator of the co-owner the syndicate sent him a notice on 7 February 2012 requesting from him a compensation equivalent to the cost of the work. At the same time the syndicate asked the co-owner to submit a claim to his personal insurer.
Three days later the co-owner responds to this letter. He informed the syndicate that, following a reading of the declaration of co-ownership by his insurance broker, he is not liable because the entrance doors of the privative portions are common portions of the building according to the declaration of co-ownership.
For its part, the syndicate responds to the co-owner that although the entrance gates are at their base common portions of the building, and therefore normally the responsibility of the syndicate, certain limitations are imposed by the declaration of co-ownership.
The insurer of the co-owner did not want to accept the claim of the co-owner on the grounds that the consequences of the intervention of the fire department service do not constitute an insurable event.
The syndicate chose not to make a claim for damage to its own insurer although it was admissible but subject to a deductible of $ 2,500.
In his challenge at the Court, the co-owner argued that the damage could have been avoided if the neighboring co-owner had given a copy of the key of his unit to the syndicate. He also argues that under Section 1073 of the C.c.Q the syndicate must take out insurance cover against fire, and that a provision of the declaration of co-ownership requires the syndicate to take out insurance with a waiver by the insurer to call to justice the co-owners for damages paid by the insurer.
In addition, the co-owner argued that the calling to justice by the syndicate caused him stress and inconvenience because he was fighting a serious illness at the same time.
ANALYSIS AND DECISION:
According to the Court, as the door is a common portion of the building, the co-owner is right to say that the damage caused to it must be covered by the insurance of the syndicate. Therefore, after deducting the deductible of $2500, the sum of $779.09 should have been borne by the insurer of the syndicate in the event of a claim, and therefore the co-owner is not responsible for this sum.
However, the Court noted that there remains the question of the responsibility of the co-owner in relation to the deductible of $2500.
In the opinion of the Court, the responsibility of the co-owner is certainly committed because the intervention of the fire department was required due to the malfunction of the refrigerator. Moreover, the declaration of co-ownership clearly states that:
“Every co-owner will remain liable in respect of the other co-owners for the harmful consequences caused by his own fault or negligence and that of one of his staff or by the fact of a property for which he is legally responsable².”
Due to the foregoing, the Court finds that the claim of the syndicate against the owner is limited to the amount of the insurance deductible under the insurance policy, i.e. the sum of $2,500.
Regarding the claim against the syndicate by the co-owner the Court reiterates that the latter must prove that the syndicate has exercised its rights in a manner to constitute misconduct or bad faith, or with the intent to cause damage, or in an excessive or unreasonable manner and contrary to good faith.³
The Court agrees with the fact that the co-owner may have experienced some stress when he was called to justice for a loss which, according to him, could have been completely covered by the insurance of the syndicate.
According to the co-owner the syndicate postponed access to the registry of the syndicate by the co-owner, request denied initially by the syndicate on the grounds that the case was under investigation by prosecutors of the syndicate on the day before the annual general meeting of the co-owners. The co-owner has applied to fill one of the vacancies on the Board of Directors but was not elected.
According to the Court these charges against the syndicate do not demonstrate bad faith on his part, or that the legal action taken by the syndicate was revenge against the co-owner.
In conclusion, the Court emphasized that it is the duty of the syndicate to manage well the common expenses of the co-owners, and one can not blame the syndicate for undertaking legal proceedings to claim money to which it believed that it was entitled, and advance fair legal arguments.
For these reasons the Court has rendered justice in part to the syndicate and ordered the co-owner to pay the syndicate the sum of $2,500, in addition to rejecting the request of the co-owner in full.
For any questions, do not hesitate to contact our team of lawyers specialized in real-estate and undivided co-ownership law.
¹. Syndicat des copropriétaires Lot 593 – Hudson Club vs. Reinhold, 2013 QCCQ 12231
². Section 20.10 of the syndicate’s declaration of co-ownership
³. Sections 6 and 7 of the Quebec Civil Code