In a recent judgment of the Court of Quebec, Small Claims Division, a co-owner who did deforesting, pruning and clearing of the common portions work for a Syndicate of co-ownership without permission is sentenced to pay damages to the latter.
The facts according to the Court
The Syndicate of co-ownership consists of ten privative portions, and luxury townhouses backed by a railway. A cedar hedge of a height of about 40 feet serves as a visual screen that hides the view of the railway track and of the other houses on the other side thereof.
The declaration of co-ownership for the property, which binds all the co-owners, stipulates that the co-owners can not carry out any work whatsoever on the common portions of the building without the permission of the Syndicate.
During the summer, one of the co-owners is preparing to do work on the common portion in front of his townhouse. The members of the Board of Directors of the Syndicate are alerted by the situation and they inform the co-owner in question. They give him notice that he can not do work without permission and without having previously submitted to the Board a plan of the work envisaged as well as a date of completion of the work. The co-owner answers the Directors that he has no permission to ask and that he intends to proceed.
A month later, another co-owner informs the Board of Directors that the co-owner referred to above has cut trees and the cedar hedge to open a gap towards the railway track and the houses at the other side, for himself and his neighbours. He also alters the landscaping on the property of the railway and he fills up the ditch that separates the grounds of the co-ownership from those of the railway company. To do this he sawed the padlock on the access gate of the grounds to be able to drive around there in his car.
One of his neighbours files a complaint to the members of the Board to the effect that the enjoyment of his house is now reduced due to a decrease in his privacy.
The administrators confront the co-owner who did this tree cutting and this work and ask him to restore the site to its original state which he verbally refuses to do. The Syndicate sends him a notice to restore the site in state at his own expense, but the co-owner does not follow suit.
Faced with this refusal, the Syndicate proceeds by replacing the cut cedars, at a cost of
$2101.91. This contractor’s bill bears an interest of 2% per month in case of late payment. The Syndicate gives notice to the co-owner to pay this amount, but receives no payment from the co-owner.
The Syndicate therefore takes legal action against the co-owner before the Court of Quebec, Small Claims Division, and claims the following amounts from him:
- Cedar hedge: $2,101.91
- Replacement of a padlock: $25.20
- Registered mail expense: $10.18
- Parking fees, travel of the administrators, gasoline, and miscellaneous: $350
In his written objection the co-owner totally denies the facts of the request and claims that it is not lawful.
Analysis and assessment by the Court
The Court begins by reminding the parties that the dispute is governed by the principles of Section 1457 of the Civil Code of Quebec, which reads as follows:
“1457. Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature. He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.”
Consequently, the Syndicate must therefore, in order to obtain compensation, prove the fault of the co-owner and the injury directly resulting from it.
The Court notes that it is not disputed that the co-owner has cut or pruned trees being part of a green screen situated between the applicant’s property and the railway which is contiguous to it.
The co-owner acknowledges that his work has created a breach in the green screen but he argues that he did not commit a civil fault within the meaning of Section 1457 of the Civil Code of Quebec because the former owner of his unit had obtained written permission from the Syndicate to cut down cedar trees. In addition he alleges that the cedars were sick. He produces the letter in question, which is signed by the members of the Board of the time. In it is written:
“This is to confirm that the space provided on the CN field behind the condo # 49 is for the exclusive use of the owner who lives in condo # 49.”
However , the Court notes that this letter does not allow to conclude that the applicant has authorized the felling or pruning of some trees being part of the green screen because it only allows the use of a plot of land and not its transformation. Moreover, the argument to the effect that the trees felled or pruned did not belong to the applicant but, in his testimony, the defendant admits that some of these were situated on a common portion of the co-ownership.
According to the Court the evidence does not allow to determine the proportion of felled or pruned trees that were on the grounds of the applicant but this information has no effect.
The Court determines that the applicant was not allowed to cut or prune trees subject of the dispute. So, in the absence of authorization, nobody has the right to cut or prune trees that are situated on land that does not belong to him, and that, whatever the identity of the owner(s) of these trees.
The co-owner who carries out such work does not comply with “the rules of conduct which, according to the circumstances, usage or law, he is bound by, so as not to cause harm to others” and he therefore commits a civil fault within the meaning of Section 1457 of the Civil Code of Québec.
According to the Court, however, there is no evidence that the cutting of trees was necessary due to the condition of the trees. On the contrary, it is reasonable to conclude that the trees felled or pruned by the defendant were comparable to all the other trees that make up the green screen and the photographs shown at the trial indicate that they adequately fulfill their function, i.e. which is to conceal the railway track.
The Court decides therefore that the defendant committed a civil wrong when he cut and pruned the trees, subject of the dispute, and this has caused injury to the Syndicate because of the opening created in the green screen.
Consequently, the claim of $2101.91 is received by the Court.
As for the cut padlock, the Court notes that it is not disputed that the gate allowing vehicular access to the applicant’s property is locked by a padlock.
The testimony of the representative of the Syndicate determines that the co-owner has sawn, twice, the padlock placed on this gate because he had to move around there with vehicles during the execution of his work. It is however recognized that the co-owner has replaced, at his expense, one of the two padlocks.
The Court did not accept the version of the co-owner on the grounds that it would be unlikely that the applicant has unnecessarily bought a padlock. The Syndicate is therefore entitled to a refund of the sum of $10.18 disbursed to transmit, by registered mail, a letter of formal notice to the co-owner. The Court notes that there is however no evidence to support the claim for “miscellaneous expenses” to the amount of $350 and it will be rejected.
The request is therefore received by the Court in the amount of $2,137.29. In the absence of a written agreement to this effect the Syndicate has the right only to interest at the legal rate, plus the additional indemnity provided for in Section 1619 of the Civil Code of Québec.
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