In a recent judgment of the Court of Quebec, Small Claims Division, a Syndicate of co-ownership was sentenced to pay damages to the owners of a nearby building for damage caused by the flow of rainwater coming from the building of the syndicate.
The facts according to the Court
This is about an action for damages resulting from water seepage from the property of the Syndicate of co-ownership after the rains of 2010 mainly.
The Court found that the un-contradicted evidence presented at the hearing revealed that the properties of the parties are located on each side of an alley between two streets in Montreal. It is recognized by the parties that this lane has a natural slope facing the plaintiffs’ property and the Court noted that these must agree to receive the rainwater falling on this alley.
However, according to the evidence, the syndicate has temporarily moved a gutter on the side of its building in July and October 2010 so that the output thereof is situated directly opposite the entrance to the neighbours’ garage. These complain that the water from the roof of the property of the syndicate flows through this gutter, crosses the alley way and flows into their garage.
The syndicate denies its liability and principally raises the three main arguments that follow.
The Syndicate argues that the output of the gutter is directed to the east while the neighbours are located to the south and the water flows over a strip of land with a width of three feet and forty feet along the property of the syndicate.
In the opinion of the Court this argument is contradicted by the photographs produced in evidence by the plaintiffs, which rather show that the water from the gutter crosses the alley in a straight line and goes directly into the driveway of the plaintiffs’ garage.
The Syndicate also brings up that the plaintiffs did change the natural slope of the alley way by accentuating it towards their property to facilitate access to their garage located under the 1st floor of their residence. In addition, according to the Syndicate, there is no threshold at the bottom of the garage door to block entry of water.
On this point, the Court noted that it is certain that these shortcomings do not improve the situation but they are not the primary cause of the water infiltration into the garage.
As a final argument, the syndicate suggests that it concerns more likely an inversion of the flow of the sewer at the plaintiffs’ because their neighbours do not complain of any water infiltration.
However, the Court is of the opinion that the fact that the exit of the gutter is in front of the plaintiffs’ garage explains that the neighbours are spared, and that the water discharge is an interesting hypothesis, but unsupported by the evidence.
Based on this analysis, the Court is of the opinion that the testimony and photographs allow to conclude that this is a situation called “a worsening of servitude” - that is to say that the plaintiffs receive not only the water that flows naturally from the slope of the alley way, which they must tolerate, but that they also receive an amount of water from the roof of the building of the syndicate, which then contravenes Section 983 of the C.c.Q. which reads as follows:
983. Roofs are required to be built in such a manner that water, snow and ice fall on the owner’s land.
The Court noted that the proof of damages suffered by the plaintiffs is particularly deficient for the following reasons:
1) the claim for the purchase of two mobile bases has passed the date stipulated since this expenditure took place more than three years before the institution of proceedings.
2) the claim for bad faith on the part of the syndicate is unfounded since according to testimony, representatives thereof have instead done everything to remedy the situation, though so far without success.
The Court also held that the amounts claimed by the plaintiffs to obtain copies of cadastral maps and sales slips are not granted because they do not provide the documents required for the resolution of this dispute.
As for the materials for repairs and the garage door, in the opinion of the Court the evidence produced at the hearing by the plaintiffs are only unsigned submissions for works of repair and with no details or explanation. The Court finds that their value as evidence is therefore zero.
The Court condemns the Syndicate to pay the plaintiffs the sum of $950.70 as compensation for repairs actually made, for trouble and inconvenience and for postage and photographs.
For any questions, do not hesitate to contact our team of lawyers specialized in real-estate law.
1. Luc Doré and Caroline Racine v. Syndicat de copropriété 2250-2254 Messier, 2013 QCCQ 16423