A couple seeks to buy a condominium, and after two visits, one of which being to the interior parking, and one week after the first visit, the woman buys the condominium. The husband is not one of the purchasers in title, but intervenes in the act of purchase.
Two interior parking spaces are included in the sale. The husband notices that his truck is too tall to enter the parking because of the safety guards which are installed to protect the piping on the ceiling of the parking garage. He adopts the habit of using the exterior parking for visitors. The Syndicate warns the couple in writing that this isn't allowed, but the situation worsens, and the vehicle is towed away a few times by a towing service hired by the Syndicate. A safeguard order is issued by the Superior Court requiring the couple to immediately cease and desist from parking the pick-up truck on the building exterior parking, and this until the case can be heard and judged on merit.
The couple take action against the Syndicate on several fronts:
• By amending the declaration of co-ownership, in 2006, the Syndicate changed the destination of the building and its common portions without obtaining, as required by law, the unanimous consent of the co-ownership. Consequently, the provisions which prevent the man from parking his truck, either inside or in the outdoor public spaces are illegal. These restrictions on their right of ownership are not justified by the destination of the building and that measures should have been taken to respect this right.
• Damages totaling 45 339,49$
• The applicants ask that for a permanent injunction against the Syndicate, ordering it to withdraw the lateral guard installed in the garage to allow the man to park his truck, and to also allow to him to park this vehicle on the common exterior portions of the parking lots. They also ask that articles 8.16 and 7.3.2 of the declaration of co-ownership modified which were modified in 2006 should be declared invalid.
Arguments in defence
• The Syndicate argued that these co-owners had the opportunity before purchasing the property to see how the parking was built and the limitation to its height, and to read the declaration of co-ownership containing the restrictions of the use of the parking more than one year after the amendments brought to the declaration of co-ownership of 2006.
• That the husband doesn't have the required legal interest and standing to ask the court to render such orders since he is not an owner in title of the property.
• There was no change of destination as for the parking spaces, all the provisions of the Civil code were respected and that in any event, the couple's recourse to ask for the cancellation of the declaration of co-ownership of 2006 is prescribed.
• The damages claimed are exaggerated, excessive and their action is futile and vexatious.
• In accordance with article 1103 of the Civil code of Quebec, the Syndicate claims monetary damages amounting to 19 445,43$, equivalent of the fees and extra-judicial costs of their lawyer in order to defend itself against the applicants action.
THE QUESTIONS IN LAW
The inadmissibility of the husband's action
In the Court's opinion, the husband clearly doesn't have the required legal interest and standing to ask for injunction order, nor to contest the Syndicate's decision to modify the declaration of co-ownership, or to claim damages for a reduction to his right of ownership which he doesn't possess in any event.
As for the damages claimed, certain of them cannot be claimed by the husband, but others can be considered to be extra-contractual which could give rise to a damage claim if the extra-contractual fault of the Syndicate is proven. In view of this, the Syndicate's argument that the action is inadmissible cannot be granted.
The change of destination of the building
In this case, the Court concludes that regulating the use of parking space does not constitute a change to the destination of the building which still remains residential. The Court cannot subscribe to the couple's argument that the adoption of the new declaration of co-ownership of 2006 constituted such a change.
The dispute over the adoption of the new declaration of co-ownership in 2006
The Court has already ruled that the new declaration of co-ownership of 2006 did not constitute a change to the destination of the building. Consequently, it is not article 1098 (1) which applies, but rather article 1097 (4) of the Civil code of Quebec. The evidence shows that the result of the vote testified to by the notary who prepared the the modification satisfies all the requirements of article 1097 C.c.Q. since 80% of the co-owners were in favor.
The time limit for contestation under article 1103 C.c.Q.
The husband does not have the necessary legal interest or standing to contest such a decision. As for the wife, it is necessary to to determine whether her action to contest the decision falls within the framework of article 1103 C.c.Q., that is to say one of the four cases foreseen by the law: that the decision was partial, or taken with the intention to harm the co-owners, or that an error was made in the calculation of the votes, or that the decision taken in contempt the co-owners' rights. It is clear that the wife is invoking the latter of these reasons. On the other hand, her contestation wasn't filed within the 60 days of the general meeting as the law requires. When the couple filed their action with the Court to have the 2006 decision cancelled, several years had clearly passed and they are clearly beyond the time limit.
The couple hasn't cited the work of any legal expert which would make it possible to avoid the issue of the 60 day deadline specified in the Civil Code, and the jurisprudence which they have cited in their written arguments is of no help to them on this particular question. Certain exceptions do exist, that is to say when a rule of public order has been violated in the process, when the decision is discriminatory or violates the couple's fundamental rights, but that is not the case here. The Court considers that articles 7.3.2 and 8.16 of the declaration do not constitute an infringement on the couple's fundamental rights, but rather to regulate the use of the parking lots and spaces within the principles established by Kilzi decision, and are a reasonable restriction within the meaning of the Morgan decision.
The purchasers' assent
When the wife, with the husband acting as an intervenor in the transaction, buys the condo, the notary, by the husband's own admission, completed reading of the act of purchase before its signature, and which act made reference to the declaration of co-ownership, its amendments and to the act resulting from is full revision. Neither the husband nor the wife thought to obtain a copy of the declarations of co-ownership, or to question the notary, the seller or the real estate agent, yet today they are invoking their unawareness of the content of the declarations of co-ownership.
Article 1062 C.c.Q. clearly states that the declaration of co-ownership binds the co-owners, their successors and the people who signedit and it produces its effects towards them from the time it is published. The publication of the declaration of co-ownership of 2006 in the Land Registry dates from Autumn 2006. Moreover, articles 2941 and 2943 of the Civil code of Quebec stipulate that the publication of a right renders it opposable to third parties and a right published in a registry regarding property is deemed to be known by the acquirer or whoever publishes a right on the same property.
The interior parking
Article 1056 C.c.Q. stipulates that the declaration of co-ownership cannot impose any restriction on the rights of the co-owners, except those which are justified by the destination of the building, its character or its situation.
The Syndicate limited the maximum height to 6 feet in order to protect the piping which is on the ceiling of the parking. This height limit is very clearly visible by the installation of a red guard that the couple saw, or must have seen at the time of their first visit before the purchase. It is a reasonable measure whose only purpose is to protect the common property, in this case the piping, against a possible accident. This was not done on a whim, or with the intention to discriminate, but is solely a reasonable measure.
The length and the width of the truck exceed what is allowed by the declaration of co-ownership. The couple have argued that this doesn't impede access around this space and that they are legitimately exercising of their right of ownership within its boundaries.
In the Court's opinion, this means that if everyone were to do as the husband and occupy the full area of their parking space, nobody would be able to open the doors of their vehicles, and once parked, and everyone would have to remain in them. This is a completely erroneous view of the right of co-ownership, of the good citizenship required in such circumstances and translates to a lack of consideration for the rights of the other co-owners.
The Court considers that the restrictions imposed in the declaration of co-ownership concerning the dimensions of the vehicles authorized to park insidoors have the completely reasonable aim of allowing each co-owner to exercise his or her rights within the collectivity, at and that it is the type of regulation of which propsective purchasers need to inform themselves, not after having purchased, but before doing so. In co-ownership, when there is no infringement of basic rights, the co-owner must adapt to the regulations adopted in the common interest, and should not insist that the regulations adapt to them, their whims or particular requirements. The Court concludes that the couple's claim regarding the interior parking is unfounded.
The exterior parking
Article 8.16 of the declaration is not an innovation due to the fact that before its adoption in 2006, a similar provision existed within the framework of the regulations regarding the common portions.
If the applicants had taken the time to read the declaration of co-ownership they would have been aware of this provision. All the Court's comments regarding the interior parking apply equally to the exterior parking. This is in line with the principles exposed by our Court of Appeal in Kilzi and Morgan and which is in line with the «life philosophy» of the co-ownership explained in the 2006 version of the declaration of co-ownership. Consequently, the couple's claim regqrding the exterior parking cannot be granted.
The Syndicate's claim
In the lawsuit, the Syndicate's attorney pointed out that its claim for 19 415,43$ is not founded on the Québec Court of Appeal in the case of Viel, but on the third paragraph of article 1103 C.c.Q. which provides that the Court can, if the action is futile or vexatious, condemn the applicant to damages.
The procedings brought by the couple are multi-faceted and constitute an all-points attack against the Syndicate and a considerable confrontation with all the co-owners of the building. The Syndicate had no other choice than to defend itself and it must also obtain an interlocutory injunction to ensure social peace between the co-owners,
Is the legal action brought by the applicants futile or vexatious? Vexatious, no, futile, yes. Futile is that what has little value, which lacks seriousness: it is the usual meaning of the term employed by the legislator in article 1103 C.c.Q. All of the couple's claims are dismissed by the Court.
The essence of the problem is that the applicants only saw fit to take note of their rights and obligations under the declaration of co-ownership, not prior to the purchase, but afterwards. The applicants, though living in co-ownership with all the known restrictions, don't wish to abide by the the rules laid down by the 71 other co-owners, but seek that all the other co-owners be subjected to their rules. This is particularly true in the case of the husband who is intransigent and impulsive although he is not within his rights to do so.
Considering the futility of their case, the Court believes that it is necessary to condemn the applicants to pay damages. After correction, these add up to the sum of 19 445,43$, they were not contested by the applicants.
The Syndicate did not choose to be involved in this litigation, but was forced to do so by the applicants. This was a direct result of the couple taking legal action to annul the a decision made by the general meeting of co-owners in 2006. Without this action to nullify it, there would have been no need for a permanent injunction nor for a claim damages. The applicants should have been conscious of the futility of their action and put an end to their suit once the safeguard order was issued, which they did not do. Consequently, the Court orders them to pay the sum claimed by the Syndicate for attorney's fees, that is to say 19 415,43$.
The couple's damages
The Court can nonetheless establish the quantum of the damages claimed by the couple, even if it is evident that their claim isn't granted.
The damages alleged are contained in paragraph 52 of the introductory motion dated April 21, 2009 and includes 11 claims for alleged damages. For the Court to award them damages, the applicants must prove that the Syndicate committed a fault that is either contractual or extra-contractual.
On the contractual level, the applicants failed completely. On the extra-contractual level, and this only concerns certain of the husband's claims, the latter also failed to prove any fault on the Syndicate's part. No fault has been proven and none of the extra-contractual claims can be granted. For the same reasons, it is necessary to dismiss the couple's conclusions asking for a permanent injunction, whether cocerning the interior or exterior parking. The applicants did not produce any evidence which could lead the Court to grant these conclusions.