In a recent judgment of the Court of Quebec, Small Claims division¹, the court held that the syndicate pursued by the co-owners was responsible for the costs of corrective work to a chimney of a condo unit.
The claims of the parties
The co-owners of a condominium unit demand from the syndicate $2793.21 for reimbursement of corrective work they had to pay because the chimney serving their unit did not meet the requirements of the National Building Code ("NBC"). They also claim $706.12 for the fees of their lawyer, who they hired for the purpose of determining the liability of the parties as to the payment of the work.
For its part, the syndicate contested this claim on the ground that the use of the fireplace is exclusive to these co-owners, and for this reason, it is not liable at all for the payment of corrective work. As for the legal fees, the syndicate argues that the co-owners were free to consult a lawyer for advice, but the syndicate cannot be held responsible for these charges.
The syndicate called as collateral in this case the numbered company that built the building, and which ultimately, according to the syndicate, is responsible for the design or construction defects.
The facts found by the Court
The unit of the co-owners plaintiffs has a fireplace.
In a letter, the Municipal Fire Department has advised the co-owners that there is reason to believe that the installation of the fireplace chimney of their unit is at risk of potential spread in the event of a fire. The Fire Department forbids them to use the fireplaces before the syndicate can have them inspected by a qualified expert.
At an information session, to which are invited the officers and directors of the syndicate, the Fire Department confirms that it bans the use of fireplaces of the condominiums’ units due to improper configuration of the applicable standards and the deficient sealing of the flues in the chimneys. So it would be a construction defect according to the Fire Department.
An engineer hired by the syndicate inspected the foyers of two units with a fireplace, and concludes that the prefabricated fireplaces for wood and for gas, including the one of the unit of the plaintiffs, have serious deficiencies with respect to their installation which does not, in several instances, respect the standards applicable at the time of construction. According to the Fire Department, this is a serious risk of fire, and it therefore recommends significant remedial work.
The syndicate gets bids according to the plans and specifications prepared at the request of the syndicate by a technologist, of which one is chosen at a general meeting of the co-owners. A few weeks later, the work is carried out in the affected units, including those of the co-owners plaintiffs.
However, the co-owners, including some who have no fireplace in their unit, feel that they should not have to bear the cost of these works via common expenses, and that only co-owners whose unit is equipped with a fireplace must pay.
Once this position by some co-owners is known by the co-owners plaintiffs, they retain the services of a lawyer specialized in co-ownerships to obtain a legal opinion on the question of responsibility for the costs of remediation.
In his legal opinion, the counsel concludes that all the co-owners of the syndicate must assume the costs associated with the repair or replacement of the two chimneys, even if only two units have a fireplace.
The co-owners plaintiffs transmit that legal opinion to the other co-owners and the syndicate, but the co-owners maintain their refusal to participate in the cost of remedial work.
Because the remedial work is done and has been found to comply with the Fire Services of the municipality’s regulations, the co-owners plaintiffs are paying the cost of the work, as well as the fees for the legal advice obtained from their lawyer, then they claim reimbursement by the syndicate.
The applicable law and the analysis by the Court
According to the evidence of the engineering expertise retained by the syndicate and the evidence heard, the installation of the chimney of the plaintiffs’ condominium unit did not meet construction standards and safety regulations in force at the time of construction of the plaintiffs’ unit and presented a serious fire hazard.
According to the report and the testimony of the engineer, it concerns a faulty construction or design.
In the circumstances, the co-owners or plaintiffs argue that the co-owners syndicate’s responsibility derives from Section 1077 of the C.c.Q:
"1077. The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any counterclaim."
In spite of section 1077 of the C.c.Q, the syndicate argues that it is not required to repay to the plaintiffs what they paid for remedial work, since the fireplace is a common portion for restricted use of which they are the only ones to benefit. It refers to Section 1064 of the C.c.Q.:
"1064. Each co-owner contributes in proportion to the relative value of his fraction to the expenses arising from the co-ownership and from the operation of the immovable and the contingency fund established under article 1071, although only the co-owners who use common portions for restricted use contribute to the costs resulting from those portions." (The court emphasizes.)
However, the Court reminds the parties that the Court of Appeal² has clarified the interpretation to be given to that article and made the difference between the maintenance of the common portions for restricted use to which only their co-owners are required, and the major repairs to which all co-owners are required. On this point, the Court of Appeal has concluded that the term "charges resulting" refers only to the cost of minor repairs and maintenance, and not to the cost of major repairs and replacement of the common portions.
The syndicate has not disputed the fact that the deed of co-ownership does not address the chimneys or fireplaces, it does not specify if the chimneys are common portions or common portions for restricted use.
The Court believes that while the fireplaces are located within the walls of the unit of the plaintiffs which is a privative portion, the chimneys are common portions for restricted use, intended for the exclusive use of the co-owners considered individually. According to the Court they can be assimilated with doors, windows, exterior walls and balconies.
The Court notes that it is not disputed by the parties that the deed of co-ownership has no specific clauses to waive the rule of the Court of Appeal, such as a clause allowing the syndicate to consider the use of the common portions for restricted use to establish the contribution of the user co-owner.
The Court finds that the syndicate must reimburse to the co-owners plaintiffs the cost of remediation work of the chimney of their unit, i.e. $2793.21.
Moreover, the Court does not grant to the co-owners plaintiffs reimbursement of fees paid to their lawyer. The benefit of this legal opinion has only been purely personal to the co-owners plaintiffs.
As far as the builder of the complex is concerned, according to the Court, the syndicate was right to appeal in this case given the nature of the defect affecting the unit of the plaintiffs and section 1077 of the C.c.Q which expressly provides for the possibility to take legal action against him. According to the Court, the builder shall therefore indemnify the syndicate for the sentence imposed in this case, in principal, interest and costs.
For these reasons, the Court condemned the syndicate to pay the plaintiffs co-owners the sum of $2793.21 with interest at the legal rate and the additional indemnity under section 1619 of the Civil Code of Quebec from the filing of the demand, plus court costs of $132.
The Court also condemned the numbered company, builder of the complex, to pay to the syndicate all of this present conviction in principal, interest and costs.
1. Court No 505-32-029835-122, 2015 QCCQ 9572
2. Gestion Almaca v. Syndicat des copropriétaires du 460 St-Jean, 2014 QCCQ 105. (C.A)