In a recent judgement of the Court of Québec, Small Claims division¹, a syndicate of co-ownership was ordered to pay damages to a co-owner because of water seepage from a common portion for restricted use.
The claims of the parties according to the Court
The co-owner claims $6796.48 from his syndicate of co-owners for damage to his condominium after a water leakage from a terrace of which he has limited use.
The co-owner claims $296.48 for plaster work and painting in his living room, $5,000 to re-insulate the floor of his terrace and $1,500 for hardship and inconvenience arising from the syndicate’s refusal to indemnify him.
For its part, the syndicate argues that it is the co-owner who is the sole responsible for the maintenance of the terrace at his exclusive use. However, the syndicate, in a counterclaim, is demanding $1,000 for disbursements, unrest and inconvenience caused by the fact that it is obliged to defend itself against the claim of the co-owner.
The issues in litigation according to the Court
The Court must determine whether the terrace repair expenses must be paid by the co-owner or the syndicate. Second, if the syndicate is responsible for it, what then are the damages that the co-owner can claim? Third, is the syndicate entitled to claim damages from the co-owner because he has sued the syndicate?
The facts presented to the Court
The co-owner testifies that he bought his unit in 2009. The unit is located on the top floor and the co-owner enjoys restricted use of a roof terrace. This terrace is located on the roof, directly above the living room of the condominium unit. In the winter of 2013, water coming from below the terrace seeps through the roof and damages the ceiling of the living room.
According to the evidence at the hearing it occurs that other co-owners had experienced the same situation in the past, and that they had paid the required repairs themselves.
The administrators of the syndicate testify at the hearing that the co-ownership is managed according to principles they describe as “congenial,” without really paying close attention to the provisions of the declaration of co-ownership. According to the administrators, the affairs of the syndicate are decided by the annual general assembly and that the owners and managers make decisions based upon “good common sense.”
The administrators of the syndicate testified that by applying this principle the co-owners have always agreed that work to restricted usage terraces, although being common portions, were the sole responsibility of those who profited from them.
For his part, the co-owner recognizes that he has an obligation to maintain his own terrace at his expense, but he insists that major works are the responsibility of the syndicate.
However, before making repairs to the terrace, the co-owner is informed by the administrators that he had full responsibility for the work, and that the syndicate had no obligation to pay anything.
Given this stance by the syndicate, the co-owner had not given notice to the syndicate about his performing work at his own expense. He therefore commissioned the work to be done by a contractor without presenting his submission to the board of directors of the syndicate.
The analysis by the Court
For the Court it is clear that under the declaration of co-ownership the terrace of the co-owner is a common portion for restricted use.
Concerning the syndicate’s and the co-owners’ obligations in relation to the building’s reserve fund, the Court reminds the parties that sections 1064, 1071 and 1072 of the Quebec Civil Code, read together, specify that the contingency fund established by obligation by the syndicate is used for major repairs and replacement of common portions, whether or not they are for restricted use. Moreover, the contribution of the co-owners to the fund may be more important for those who enjoy their exclusive use of certain common portions.
The Court stipulates that the share of expenses of the joint owners, including the one of the applicant co-owner, determined by the declaration of co-ownership, is actually higher.
On the question of what is the difference between a minor and a major repair expense the Court cited the rule set in a judgement of the Quebec Court of Appeal², to the effect that the “expenses” which a co-owner must assume relative to the common portions of which he has limited use, are limited to the cost of minor repairs and maintenance, because they are related to the use he makes of it. The Court of Appeal ruled that major repairs are related to the undivided ownership of common portions, and it is for this reason that major repairs and replacement of common portions (including those with restricted use) must be paid by all of the co-owners via their emergency funds.
The Court draws the attention of the parties to the fact that the declaration of co-ownership of the building repeats verbatim the provisions of the sections of the Civil Code of Quebec. The Court also reminds that the rule established by Section 1064 of the Civil Code of Quebec is of public order, and that the syndicate cannot decide to go against it.
Section 1064 of the CCQ reads as follows:
1064. Each co-owner contributes in proportion to the relative value of his fraction to the expenses arising from the co-ownership and from the operation of the immovable and the contingency fund established under article 1071, although only the co-owners who use common portions for restricted use contribute to the costs resulting from those portions.
It appears from the evidence that the co-owner took care, annually, and at his expense, of minor maintenance of the terrace, such as applying paint.
The testimony of the contractor who performed the repair work has demonstrated, according to the Court, that it was major work.
The Court, therefore, concluded that the repairs were thus major, and that the syndicate had the obligation to pay the costs. The Court stresses that the fact that other owners have not urged the syndicate to be reimbursed for major repairs to their terrace does not deprive the applicant co-owner of his right to claim damages from the syndicate.
As to the amount of damages, the Court notes that the evidence indicates that the syndicate was informed of the damage suffered and was able to inspect the premises before repairs, which allowed it to take a position to the effect that it would pay nothing. The Court therefore considered that the syndicate was then in default by operation of law, as required by Section 1597 of the Quebec Civil Code, even if the co-owner did not send him a written request prior to the work.
The Court was of the view that the damages claimed as reimbursement for painting and re-insulation work are proved, and he was entitled to the sum of $5,296.48. However, the Court found that the trouble and inconvenience, about which the co-owner complained, were not caused by fault or neglect of the syndicate. The syndicate had a reasonable belief that its refusal was well founded, and therefore the claim of the co-owner for unrest and inconvenience was deemed unfounded by the Court.
Consequently, the Court found that the claim of the syndicate for its unrest and inconvenience is also unfounded.
For these reasons, the Court ordered the syndicate to pay the owner the sum of $5,296.48 plus interest at the legal rate and the additional indemnity and Court costs of $167.
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