SYNDICATE OF THE CO-OWNERS OF MESNIL vs. GAGNON et al., COURT OF QUEBEC “Small Claims Division” 2008
Damage - Claim for lawyers’ fees of the syndicate - non-observance of the declaration of co-ownership - wooden floors - access to the privative portions
SUMMARY
The applicant, the Syndicate of co-owners of Mesnil, claims from the co-owners defendants, the payment of the sum of 596,06$ representing the lawyers’ fees which it had to spend in order to lead them to respect the declaration of co-ownership relative to the wooden floor coatings and the access by its representatives to their privative portions within the framework of the achievement of its syndicate of co-ownership responsibilities. The defendants claim that they do not have to pay the claimed sum because it is justifiably so that they believed themselves to be authorized to install a wooden floor and to refuse the access to their privative portion to the representatives of the Syndicate since they misused, according to them, their right of access to the privative portions.
The Court gives right to the claim of the syndicate for the following reasons:
• Under the terms of articles 14.2.18 and 14.2.18.1 to 14.2.18.6 of the declaration of co-ownership the co-owners were to request the authorization from the Board of Directors before being able to carry out the installation of a wooden coating of the floor, which they did not do.
• The defendants claim that they discussed with the manager of the building who would have said to them that there was no problem to proceed with their project since it was about a floating floor rather than a fixed floor.
• The person responsible to the manager stated not to remember this conversation. He affirmed that there is no difference on the level of the application of the declaration of co-ownership between a fixed floor and a floating floor.
• The fact of the installation of the floor discovered by a representative of the Syndicate at the time of a visit connected to water damage, the manager wanted to inspect the floor in order to establish if it was in conformity with the standards of sound-proofing envisaged by the declaration of co-ownership, which was refused to them by the defendants.
• After several exchanges with the defendants and aborted attempts in order to penetrate in their privative portion, the syndicate has had to utilize a lawyer who wrote to the defendants in order to remind them of the extent of their legal obligations towards the Syndicate, in particular the obligation for any owner to let the Syndicate inspect the floor.
• It was also carried to their attention that the terms of the declaration of co-ownership stipulated that the co-owner who worsens the common costs by this fact supports only the expenses and additional expenditure to cause.
• The parties, after discussion, arrived at an amicable agreement concerning the floor installed which could be left in place under certain conditions.
• The defendants have testified that they were convinced that they had obtained the approval of the manager. They prohibited access to their exclusive portion to the representatives of the syndicate because they found that these were arrogant and that the Syndicate misused its rights.
• Under the terms of the rules enacted by article 1457 of the C.c.Q., any person has the duty to comply with the codes of conduct which, according to the circumstances, the custom and the law, are essential for it, so as not to cause injury to others. The person who makes such a fault is responsible for the injury caused by this fault and is held to make good for this damage done.
• The Syndicate, under the terms of articles 1080 and 1084 of the Civil code and under the terms of the declaration of co-ownership had the right to require the prior approval by the council of the installation of a wooden floor coating and to inspect the floor. The defendants could not be opposed to the exercise of these rights without valid reason.
• Concerning the approval which they would have obtained from the manager, no dominating proof makes it possible to retain their version of the facts. Their refusal to let the representatives of the Syndicate penetrate in their exclusive portion, rested only on their will not to collaborate regarding as to what they perceived wrongly as being bad intentions towards them on behalf of the Syndicate. In spite of the amicable agreement arrived at, the defendants, by their attitude, all the same, have made a fault which generates their civil liability and the obligation for them to make up for the pecuniary damage caused represented by the account of lawyers’ fees paid by the Syndicate.
• By their fault, they worsened the common costs of the co-owners. They are held under the terms of article 15.2.2 of the declaration of co-ownership to only support its aggravating parts.
The Court accommodates the request, and condemns the defendants to pay to the applicant the sum of 596,06$ with interest, the additional allowance envisaged by the Civil code of Quebec, and the legal expenses.