Liability of a co-owner: the importance of the formal notice

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14 January 2018
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In a recent judgement of the Court of Québec, Small Claims Division¹, the Tribunal held that, although the co-owner could be held liable for damage caused to the dwelling by his tenant, the fact that the syndicate had not given notice to the co-owner before proceeding with the repair is definitely unacceptable.

The parties and their claims
The syndicate of co-owners claims from one of the co-owners of the dwelling the amount of $13,765.70 in compensation for damage caused to the garage door of the dwelling by the tenant of that co-owner. The syndicate also sues the tenant directly as another defendant in the same case.

The co-owner called the tenant in warranty and held him liable for the damage caused, but the tenant did not show up in this case and did not contest.

The syndicate alleges in its claim that the tenant would have struck the garage door of the building with his vehicle. According to the syndicate the garage door was completely destroyed by this collision, and work to secure the premises and replace the door cost him $8765.70.

In its complaint the syndicate refers to have proceeded with the work required and the replacement of the door, but before the co-owner was notified and held liable by a formal demand from the syndicate. In fact, the syndicate confirms that the formal notice was sent to the co-owner more than one year after the event.

The syndicate states at the Court that a liability clause in the deed of co-ownership makes the co-owner liable to the syndicate for damages that he himself caused to the syndicate, or damages caused by any other person for whom he is responsible.

According to the syndicate the same clause provides that the co-owner may be held liable for legal costs incurred by the syndicate for the recovery of damages owed to the syndicate. On the basis of this clause, the syndicate adds to its claim the sum of $5,000 as reimbursement of its legal expenses.

The co-owner does not dispute the costs of repair and replacement of the door claimed by the syndicate, but argues that he cannot be held responsible for the damage caused by his tenant and that the latter is the only person who is liable.

As he considers that he is not responsible, the co-owner denies having to reimburse the legal expenses that the syndicate claims to have incurred.

For its part, although it is producing evidence of the invoices paid for the replacement of the garage door, the syndicate is not capable to produce any invoice or account whatsoever proving the amount of $5,000 it claims to have incurred for its legal costs.

The co-owner also alleges that he was made aware of the incident and of the fact that the syndicate held him liable and claimed the costs of replacing the door, only when he received a formal notice from the syndicate more than one year after the incident.

The Court noticed from the testimony of the syndicate’s representative that the latter had addressed a notice to the tenant only about ten months after the incident in order to hold him accountable. However, the syndicate testified that this tenant never acted on the formal notice and that the syndicate had not sued the tenant.

The co-owner also testified that he had never had direct contact with the tenant because he had entrusted the short-term rental of his unit to a rental agency.

The Court’s analysis
After reviewing the evidence of the parties and the provisions of the Law and the deed of co-ownership, the Court found that the tenant was the person directly responsible for the damage caused to the garage door, pursuant to section 1457 of the Civil Code of Québec.

According to the Court, the syndicate had proved the correctness of the amount of $8765.70 claimed for damages to the garage door.

As to whether the co-owner can be held liable for the damage caused by his tenant, the Court held that the liability clause contained in the deed of co-ownership had the effect of rendering the co-owner liable for the damage caused by the tenant who occupied his unit.

However, the Court remarked to the syndicate that the combined effect of sections 1590, 1595, 1597 and 1602 of the Civil Code of Québec imposes on the syndicate an obligation to give notice in writing to the co-owner, but this before proceeding with the work of repair. The Court pointed out that, according to doctrine and jurisprudence, the sending of a written notice beforehand is essential to request compensation for damage caused and that the absence of notice before proceeding with the repair is fatal and constitutes an inadmissibility of the claim.

Consequently, the Court held that, given the syndicate’s failure to notify the co-owner before proceeding with the work, the co-owner could not be condemned for damages. Thus, the Court dismissed the syndicate’s claim against the co-owner, but found that his claim against the tenant was well founded, so the latter was ordered to pay the syndicate $8,765.70 plus interest at the legal rate, additional compensation plus legal costs.

Should you have any questions on the subject or about the real-estate law in general, do not hesitate to contact our team of lawyers specializing in this subject-matter.

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