In a recent judgement from the Quebec Court, Small Claims Division¹, a co-owner was sentenced by the Court to pay damages with interest to the syndicate of co-ownership for damages caused by an improper water pipe. The co-owner alleges that it was not he who had installed this improper pipe but rather the one he bought the condo from. Sued for collateral by the current co-owner the former co-owner was ordered to pay damages plus interest in the same amount to the current co-owner. However, the current co-owner sues the syndicate to obtain reimbursement of his legal costs and compensation for loss of time, discomfort and inconvenience.
The claims of the parties
The syndicate of co-ownership claims from the current co-owner of a unit the sum of $6748.11 for a payment he made due to water damage that occurred during the freezing of a cold water pipe which supplies a tap on the outdoor terrace of the co-owner. This amount includes the syndicate’s insurance deductible, attorney fees, expert fees, the cost of certain works and various experts’ fees.
The co-owner denies liability despite the fact that it is clear to the Court that the freezing of the pipe is the cause of the water damage.
In defence, the co-owner invokes that the syndicate has been tolerating for twelve years this improper installation put into place by the previous co-owner of this unit.
In turn, the current co-owner sues the syndicate in this case to claim from it the sum of $4,038.88, or $3,088.88 for the fees of his lawyers, plus a $1,000 for stress, discomfort, inconvenience and loss of time because of the failure of the pipe.
The current co-owner also takes legal action against the former on the grounds that she has installed the pipe without the permission of the syndicate, and in an improper manner. The current co-owner calls it a hidden defect.
Context
The current co-owner’s condominium is located in a building of nine units. It occupies the second and third floor and has a terrace which is a common portion for restricted use according to the Deed of Co-ownership.
A few months after buying the condo by the current co-owner the pipe used to supply the adjacent terrace with water freezes during the month of March, and causes flooding in the condominiums of the lower floors.
The evidence before the Court reveals that the former co-owner had the pipe installed by a plumber in 2003, but that its installation is non-compliant and would need to be drained in the fall of every year.
Analysis by the Court
The Court reminds that the deed of co-ownership submitted in evidence by the syndicate of co-ownership contains provisions to the effect that: 1) each co-owner is liable for damage caused to the building by a lack of maintenance of his private portion, except if the damage is fully paid by the syndicate’s insurance company; 2) the syndicate has the obligation to maintain the common portions of the building, except those to which only a co-owner has access, i.e. the terrace; 3) no owner may alter the common portions, without prior written permission from the Board of Directors; 4) each owner is responsible for maintenance and repairs to electrical circuits and water and sewer pipes located within the bounds of his exclusive portion, except those who also serve other exclusive or common portions.
According to the Court the evidence shows that the defective pipe belongs to the current co-owner of the unit, and that its installation does not conform and that this co-owner was not aware of its existence at the time of the purchase, or the need of draining it for the winter. The former co-owner admitted that she had not obtained the permission of the syndicate before installing this pipe.
The Court considered that the syndicate has proven that the current co-owner is responsible for the damages and that he must repay the amount of the insurance deductible paid by the syndicate to its insurer, as well as the various costs incurred in the amount of $6248.11.
The deed of co-ownership did not however specifically foresee the syndicate’s right to claim from the current co-owner the sum of $500, paid to a member of its Board of Directors in compensation for the long hours required to manage the repair of the damage.
The Court therefore found that this part of the claim could not be granted. Thus, the Court therefore ordered the current co-owner to pay the syndicate the amount of $6248.11.
As for the claim of the current co-owner against the syndicate for reimbursement of his legal fees and his expenses, the Court found that he had not given evidence that the syndicate had made a mistake, or that it had acted abusively. The Court therefore dismissed this request in full against the syndicate.
However, the current co-owner blames the former co-owner for not having obtained authorization from the syndicate before installing the pipe in question. The former co-owner admits not having obtained permission from the syndicate, but she testified that she never had a problem with that pipe.
After hearing the testimony of the former co-owner, the Court concluded that she was unable to prove that the freezing of the pipe was due to a fault on the part of the current co-owner.
However, according to the Court, the current co-owner has managed to prove that the former co-owner was at fault by installing an improper pipe and this without the permission of the syndicate, and that this was according to the Court "a serious hidden defect."
The Court therefore concluded that the former co-owner must compensate the current co-owner for the amounts which the latter must pay to the syndicate, i.e. $6248.11.
For any questions on the subject, as well as on real-estate law in general, do not hesitate to contact our team of lawyers specialized in the matter.
1. 00-32-141170-136, 2015 QCCQ 8826