In a recent judgement of the Court of Quebec, Small Claims Division¹, the Court held that a cracked concrete floor slab did not commit the civil liability of the Syndicate.
The claims of the parties
The plaintiff claims from the defendant party a compensation of $7000.00 due to the presence of cracks and an unevenness affecting the concrete floor slab of his condominium unit. He says he suffered damages of approximately $9482.23 in connection with this problem, but he reduced his claim to $7000.00 in order to comply with the monetary jurisdiction of the Small Claims Division at the time of the submission of the application. (This limit is now $15,000 since 1 January 2015).
For its part, the syndicate of co-ownership argues that it has no responsibility, and that it owes no money to the co-owner.
The facts found by the Court
In 2013, the applicant co-owner buys the condo unit in question and the evidence at the hearing shows that the sale was made without a legal quality warranty from the seller.
The applicant co-owner testifies that, after the purchase, he wanted to renovate the condo according to his taste, and he removed the floating wooden floors to replace them. That’s when he noticed that the floor was then cracked in certain places and that it showed height differences.
The co-owner proves that he has sent a formal notice to the syndicate to demand repair of the concrete floor. He transmits a second formal notice to which is attached the report of a building expert. The expert of this co-owner recounts in his report, as well as at the hearing that, in his opinion, the cracks and differences of level are important and require repairs.
The administrator representing the syndicate testified at the hearing that the syndicate had hired the services of an expert to determine if it was a real problem, before deciding to indemnify the co-owner. According to the administrator, the syndicate wanted to proceed this way because the thirty year-old building had never known structural problems.
According to expert reports obtained by the syndicate, and on which experts testified at the hearing, there were no irregularities, and the cracks were superficial. In fact, according to reports submitted to the Court, the experts of the syndicate conclude that there was a small presence of a fill containing pyrite, but that the possibilities of swelling of this fill were then minimal. So, according to the experts, there was no actual effect on the integrity of the structure, and future risks were minimal.
The syndicate testified at the hearing that it was on the basis of the reports of its experts that it refused to compensate the co-owner.
At the hearing, the co-owner testified that, following the refusal of the syndicate, he had proceeded to carry out the repairs recommended by his expert. He therefore claims from the syndicate a refund of the price paid for leveling the floor, the fees of his expert, the storage fees of his property during the work, the fees of his lawyers for advice, and reimbursement of expenses of the condo paid for the period that he could not occupy the condo because of the work being done. The total amount was $9,482.23, but he reduced his claim to $7000.00 in order to be able to file his claim in the Small Claims Division.
The analysis by the Court
The Court reminds the parties that it is the applicant co-owner who must prove that the cracks and unevenness of the concrete slab stem from faulty design or construction or poor maintenance of the common portions of the building. He must also prove that the defect, if this is proven, has caused him damage.
The Court indicated to the parties that under Section 1077 of the Civil Code of Quebec, the civil liability of the syndicate may be committed when a faulty design, or construction, or failure to maintain a common portion, cause damage to a third party, be it a co-owner, or another person. The text of Section 1077 of the C.c.Q. 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 counterclaim.”
The Court confirms that, under the terms of the declaration of co-ownership of the building, the concrete slab floor of the condo unit is actually defined as a common portion of the building.
The Court also recalls that the co-owner must prove by a preponderance of evidence, that is to say, evidence making the existence of a right or a fact more probable than not.
However, the Court, after having heard all the evidence and arguments of the parties, held that the evidence brought forward by the co-owner, i.e. the report and the testimony of his expert, was not convincing enough to meet its burden of proof.
In the circumstances, the Court concluded that the cracks and unevenness of the slab do not constitute defects in construction or design, and therefore the syndicate’s responsibility is not committed. The Court therefore dismissed the plaintiff co-owner’s claim, and ordered the co-owner to pay the Court costs of $157.00 to the syndicate.
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Last edited by Estelle Fabre .