In a recent decision of the Court of Quebec, Small Claims division¹, the Court had to decide whether the request of two co-owners for damages caused to their unit by water infiltration was late, and if it is not, is the syndicate responsible for damage caused in their privative portion?
The facts
The Court notes the facts following witness from the parties:
As of the month of April 2003, the owners occupy a unit situated on the top floor of a residential tower of several condominium units purchased from the developer/general contractor, now bankrupt. In October 2004, following the infiltration of water into the unit of the co-owners, the developer sends workers to do some remedial work, including the laying of cement on the balcony to correct a reverse slope.
On 13 April 2005, the owners request by letter from the developer to fix the problems by ensuring that the floor of their living room and the adjacent room are curling, delaminate and have mold. In the following months, the problem is identified as the water that accumulates on the balcony, of which the slope is still reversed despite the work done to it in 2004, and eventually ends up entering the unit.
Initiatives, as much from the Syndicate as the Owners, with a warranty plan that administers the quality assurance of the work are futile. According to the manager retained by the Syndicate since August 2009, the situation of the balconies is the result of a defect of execution and not a design flaw or a manufacturing defect.
In December 2006 the Syndicate mandates a law firm and confirms to the Owners that their case was presented to them. The manager testified that the lawyers have a report establishing at 5 million dollars the cost of required repairs and dealing with the problems with the balconies.
On 15 October 2007, while the water continues to infiltrate, the applicants notify the new president of the Syndicate at the time, who asks them to be patient. On 22 January 2009, the Syndicate, represented by the law firm, begins suing.
In the spring of 2009, the slope of the balcony is corrected at the expense of the Owners. Tired of waiting, the owners have the floors of their unit redone in July 2010, with the exception of the master bedroom, at the cost of $8522.06; they send a letter of formal notice to the Syndicate on September 24, 2010, and commenced this present action on 27 October 2010.
The analysis by the Court
The Court must resolve the question whether the action of the owners comes too late and is therefore inadmissible and it retains the following:
The Syndicate argued that the damage goes back to 2004 and that the action was not brought forward within three (3) years of these, so it is prescribed, that is to say, the owners have lost their rights due to the simple passage of time².
However, the Court noted that the owners want to enforce the rights that Section 1077 of the C.c.Q gives them. This section reads as follows:
“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 counterclaim³.”
The Court notes that the reverse slope of the balcony was corrected in the spring of 2009, and that means that the inaction of the Syndicate, all throughout this period, has resulted in the fact that the water infiltration continued to cause floor damage. In the Court's view, the situation is therefore one of continuous and progressive damage, in which case the rule stipulates that the victim can claim for damages incurred during the three (3) years immediately preceding the commencement of its action. In this case, it means that the owners can claim for damages from 27 October 2007 and the moment when the work correcting the cause of the damage took place in the spring of 2009.
Moreover, and independently of the foregoing, the Court added that there was, in this case, proof of implied waiver by the Syndicate for the benefit of elapsed time, by having the mandate to prosecute confided and seek the compensation desired by the owners.
The Court added that the alleged prescription argument made at the hearing by the Syndicate is itself too late because it was not alleged as a reason to protest.
Accordingly, the Court refuses to declare the required action prescribed and must consider the second issue in litigation, which is that of the responsibility of the Syndicate.
The Court noted that the responsibility of the Syndicate in this matter stems more specifically from Section 1077 of the C.c.Q. cited above, and agreed with the opinion of judge Paradis in Potvin v. Syndicate of the co-ownership les Condominiums St-Michel 4 which summarized the main points of the doctrine and jurisprudence in this matter as follows:
The Syndicate of the co-owners is responsible for damage caused to the co-owners by faulty design or construction or lack of maintenance of the common portions (section 1077 of the C.c.Q.) and not those of the liability of the seller of a property (sections 1726 et seq. of the C.c.Q.)
The recourse of a co-owner against a Syndicate of co-ownership for damage resulting from faulty construction or design or lack of maintenance is limited to direct damages.
It is a responsibility that is not of a contractual nature, but the responsibility thus incurred by the syndicate is absolute. It applies automatically when the preconditions are established.
Indeed, section 1077 is of public order (the Syndicate can not be waived), and this also applies to the common areas, including the ones the enjoyment of which is exclusive to some owners.
The obligation extends to the repair of construction defects, and in case of failure to solve a problem (maintenance, design or construction), the Syndicate may be held liable for any incidental damage, for example, to a co-owner.
The common portion for limited use, more in particular doors, windows, exterior walls and balconies, remains a common portion and its replacement is the responsibility of the syndicate. And this, especially, if it stems directly from a manufacturing defect and/or design.
The Court notes that the Syndicate argues that the balcony is a common portion for restricted use, under the sections Declaration of Co-ownership, and that it was up to the Owners to ensure the repair and that in not doing so, they were the authors of their own damage. However, the Court did not accept this argument on the ground that it is not up to the co-owners to correct defects in construction and design affecting the common areas, even those with limited use.
The damages awarded by the Court
The Court recalls that the Owners can only claim direct damages resulting from faulty construction. However, it stressed that the Owners had a duty to mitigate their damages once they saw the inaction by the Syndicate.
The Court considers that because the Owners have reduced the amount of their claim to the amount of $7000.00 and considering also that they did not file a claim for the floor of the master bedroom which also seems to have been affected, the action is therefore allowed in the amount of $7000.00 claimed, plus interest and court costs.