Complaint of a co-owner against the syndicate - electricity expenditure – common portions for restricted use - concept of contribution according to the right of user - interpretation of article 1064 of the C.c.Q. - category of the duties connected to the common portions for restricted use - complaint by the co-owner of the incurred legal expenses - allegation of inertia with regard to the administrators
SUMMARY
• A co-owner claims from the current and former administrators, as well as from the syndicate of the co-owners, an amount of 1178,60$ comprising electricity expenditures wrongly assumed by it (108,22$) and of expenditure incurred within the framework of the objections raised against the management of the co-ownership (1070,38$);
• The co-owner claims not to have to take care of the electricity expenditure adding up to 108,22$ for the lighting and the heating of a corridor used by her and another co-owner;
• According to the co-owner, the expenditure of electricity attached to this common portion must be assumed by the whole of the co-owners and not only by herself and the other co-owner as has been the case since a few years;
• The co-owner supports his claim on the fact that several years ago, work of painting took place in this corridor and it is the whole of the co-owners which assumed the cost of it, that it concerns a common portion within the meaning of the declaration of co-ownership and the administrators have a responsibility to see to the provisioning and the payment of the expenditure connected to electricity and lighting under the terms of this declaration;
• The syndicate explains that it is customary that the co-owners having a right of restricted use of a common portion assume between them only the expenses resulting from this and bases itself on article 1064 of the C.c.Q. to support its claims;
• The co-owner also complains about the inaction of the current administrators, as well as of the preceding administrators concerning a problem connected to the presence of a gas bottle not in conformity. She affirms to have retained and paid for the services of a lawyer in order to be advised, in particular with regard to the question of the safety of the co-owners, to have also transmitted letters by registered mail and incurred several expenses for stationary on this subject;
• According to the co-owner, the administrators are personally responsible because of their inaction;
• The syndicate summarizes the work done by the current administrators concerning the problem of the gas bottle and denies the allegation of the applicant whereby the current administrators would have been inactive in this respect;
• The Court recalls, by quoting article 1064 of the C.c.Q., that each co-owner contributes, in proportion to the relative value of his fraction, to the duties resulting from the co-ownership and the exploitation of the building, as well as to the contingency fund made up pursuant to article 1071. However, the co-owners who use the common portions for restricted use only contribute to the duties which result from it;
• In the case Syndicat des copropriétaires de Verrières I, the Court of Appeal states, firstly, that article 1064 of the C.c.Q. is one of law and order. In addition, the Court of Appeal evokes the principle contained in the last sentence of article 1064 whereby the co-owners who use the common portions for restricted use are the only ones held responsible for the costs which result from this;
• One of the two categories of costs related to a common portion for restricted use precisely corresponds with the minor expenditure of repair and maintenance costs, and these are costs which refer directly to the use of the common portions for restricted use, and they must be distributed between the users according to article 1064 of the C.c.Q. in fine, insofar as the calculation of a particular quota of costs is possible and significantly useful;
• The proof presented at the hearing makes it possible for the Court to conclude that the expenditure of electricity claimed by the applicant aims at the lighting and the heating of a corridor which, although it is a common portion, is used only by two co-owners, who must assume the expenses, resulting from this, alone, and the Court rejects the complaint of 108,22$ of the co-owner for this reason;
• The amount of 1070,38$ corresponds to the lawyers’ fees defrayed by the co-owner in order to be advised concerning various subjects, in particular on the gas bottle, but the lawyers’ fees do not constitute per se damage being able to be compensated except in the event of abuse on behalf of the opposing party;
• No proof has shown any form of abuse on behalf of the administrators or the syndicate, quite to the contrary;
• The current administrators have refuted the allegation of inaction of the co-owner concerning the problem of the bottle of gas and the recourse of the co-owner in this respect must also be rejected;
• The recourse of the co-owner on a purely personal basis against the current administrators and the former administrators of the Syndicate is badly founded, and there is indeed no proof making it possible to the Court to believe that these people did not behave in a careful way, diligently, honestly and loyally and that they exceeded, in one way or another, the mandate which was entrusted to them;
• The Court rejects thus, with expenses, the recourse of the co-owner with regard to the current, and former administrators and the syndicate of the co-owners.