In a recent judgement of the Court of Quebec, Small Claims Division, the Court ruled that the Syndicate did not breach its duty to maintain the common portions of the building where rodents have damaged a sofa on the terrace of two co-owners.
The facts according to the Tribunal
The co-owners are joint owners of a condominium unit located in a building of which one of the common portions is a closed atrium which encloses an interior garden with plants and tropical trees. The terrace of their unit, like the ones of the other owners, opens onto this atrium.
The co-owners sue the syndicate for the amount of $7,000 for damage to their sofa on the terrace done by field-mice. According to the estimate produced in evidence by the co-owners, the damage amounts to $8,000, but they have chosen to reduce their claim to $7,000 for compliance with the monetary limit for claims to the Small Claims Division at the time of opening the file.² The co-owners argue that the syndicate breached its duty of maintenance of the common portions and of failing to take the necessary measures to prevent rodent damage to their sofa.
For its part, the syndicate argues that its directors have taken all reasonable and necessary steps in the circumstances to control the presence of rodents coming from outside of the building.
The co-owners testify that they noticed the presence of rodents on their terrace in 2011. They say that they notified the manager of the syndicate who informed them that an exterminator could not come for a few days. Meanwhile, the manager had provided traps at their disposal, which they installed, and the co-owners bought and spread poison in several places on the terrace.
The professional exterminator intervened after that and laid his own traps and poisonous products. He confirmed to the co-owners that field-mice had been present in the atrium since 2010.
Despite the measures taken by the exterminator the co-owners testify that the problem was not resolved, and that the field-mice continued to damage their sofa and to leave droppings in there. However, no capture was made. The syndicate’s manager advises the co-owners to submit a claim to their personal insurer.
The co-owners still persist in their testimony that the damage is due to the presence of field-mice, and that the syndicate will have to compensate them for the damage caused. Faced with this insistence, the President of the Board of Directors visited the unit of the co-owners to assess the situation.
The co-owners showed in evidence an estimate of the damage which amounts to $8000, as well as pictures of the damage and the excrements.
The co-owners have heard as a witness another co-owner who said he had discovered a field-mouse in his unit a few weeks ago.
For its part, the syndicate has heard the manager who confirmed the position of the syndicate, and a representative of the extermination firm who confirms that its services had been used by the syndicate for many years, and that a follow-up had been conducted weekly since 2010. He confirmed that the field-mice problem began in 2010 when the syndicate had carried out work to replace the water basins of the atrium, and that measures had been taken since then to control the situation.
The analysis by the Court
First, the Court reminds the parties that, pursuant to Section 1039 of the C.c.Q., the syndicate must maintain and administer the common portions, in this case, the atrium. The Court also confirmed that, when the syndicate did not adequately maintain the common portions, it is under Section 1077 of the C.c.Q., that it becomes responsible for damages caused by this breach.
The Court reminds the parties that it is the co-owners who must prove by a preponderance of evidence that the syndicate breached its obligations in order for it to be held liable for damages. In other words, the evidence of the co-owners must be sufficient so as to make it more likely than not the responsibility of the syndicate.
For the Court, it is clear from the evidence heard and filed that the rodents are coming from the atrium and that the atrium is a common portion whose maintenance is the responsibility of the syndicate.
However, the Court considers that the syndicate has not breached its obligations because it has kept for several years the services of an exterminator company to keep rodents away from the atrium and to eliminate them when they succeed to infiltrate into it.
The Court considers that the presence of rodents on the co-owners’ terrace is an isolated event, and this even if the terraces are open to the atrium. According to the Court, it is clear from all the evidence that the measures taken by the syndicate were appropriate and adequate, so that it meets its obligation to maintain the premises.
It is for these reasons that the Tribunal found that the claim of the co-owners should be dismissed.
For questions about the condominium law, as well as about real-estate law in general, do not hesitate to contact our team of legal experts in the field.
1. 500-32-136337-120, 2015 QCCQ 576
2. From 1 January 2015 onward this limit is now increased to $15,000.