In a judgement of the Superior Court of Québec1, the Court ordered a co-owner to stop cluttering his patio, garden and parking space with personal property, as well as decrease the amount of furniture items inside his dwelling unit, as this violates the declaration of co-ownership and municipal regulations.
The facts according to the Tribunal
The co-owner bought his unit in 1988, and remained owner until November 2007, and he is subject to the declaration of co-ownership, which was published in 1973.
In addition to his apartment which is a privative portion, the co-owner also has access to the common areas of the housing complex, some of which are restricted for his own benefit such as a patio garden at the rear of his apartment and parking spaces located in the basement of the building.
According to the facts presented to the Court, over the years the co-owner has gathered, both inside his apartment and in the common areas for restricted use, an impressive amount of furniture and various household objects whose accumulation exceeded the limits tolerable, in regard to the declaration of co-ownership and municipal regulations on fire safety.
Meanwhile, the Fire Department of the municipality has been alerted by the fact that the co-owner has also accumulated inside his own apartment a huge amount of furniture, boxes, clothes, pots and other objects. According to the municipal inspector, these objects far exceeded the allowable combustible load admitted for this type of condominium unit, so that this accumulation constituted an increased fire hazard and a risk of spreading it to adjacent buildings.
The municipality has therefore formally requested the co-owner to reduce the combustible load contained in his residence so as to conform it to municipal regulations. The manager of the syndicate has also been given notice by the security service of the fire department of the municipality. Concerning this situation which it considered intolerable, the syndicate brought this action for a permanent injunction.
The issue in litigation
The Court asks the question: Does the co-owner violate the declaration of co-ownership because of the use it makes of the common areas and whether the accumulation of furniture in his apartment constitutes an abnormally high risk of fire?
The evidence
According to the evidence presented to the Court, the declaration of co-ownership states that the outdoor patio at the rear of the residence of the co-owner is a common area for exclusive use of the resident who benefits from it.
The Court notes that in the declaration of co-ownership, of which the text is written in English, it is written that “each co-owner must keep the rear yard clean and use same solely as a play area and recreation area, and furthermore must not construct anything in the said area without the approval of the Administrators.”
According to the Court, it is clear from the evidence that the co-owner had accumulated on the rear patio much patio furniture deposited in bulk as well as other bulky items (tires, various containers), all ensuring that the patio was literally transformed into an outdoor shed. According to the Court, it is clear that the accumulation of various objects by the co-owner at this location violated the relevant standard of the declaration of co-ownership mentioned above, and the Syndicate was therefore right to intervene in this regard.
The Court notes that, since the injunction proceedings started, the co-owner got rid of the objects that filled his rear patio and that what he keeps there now is similar to what is kept by the other co-owners placed in a similar situation. The president of the Syndicate insisted, however, that an injunction be issued, even if it were only to ensure compliance with the standard for the future.
According to the Court, the evidence also showed that, until very recently, the co-owner used two indoor parking spaces and that he used them to store, in addition to a car filled with boxes and mattresses, all kinds of furniture (sofa, fan, mattress), boxes, chairs, a bed frame, a bicycle, etc…
The Tribunal notes that the declaration of co-ownership states that indoor parking spaces are also common areas for exclusive use and that “only cars that are operable shall be permitted in the parking space.” In addition, the declaration also states that “nothing shall be stored in the common portions without the prior consent of the Administrators.”
The president of the Syndicate specified in his testimony that the interior parking spaces could, with the approval of the Board of Directors, be used to store, in addition to cars in good working condition, locked bicycles and a limited amount of heating wood.
The co-owner has, before the hearing of this case, regularized the situation with respect to his parking space. However, the syndicate insists that the Court intervenes.
Remains the question of fire hazard caused by the different objects cluttering inside the apartment of the co-owner.
The Fire Department of the municipality intervened because the co-owner kept in his unit of co-ownership almost industrial quantities of objects, boxes, and furniture of all kinds. The amount of objects made moving around inside the apartment of the co-owner dangerous, according to the inspector of the municipality.
Because the Syndicate is also responsible in matters of fire vis-à-vis the municipality and because it has, it too, received from the municipality a notice in relation to the unit of the co- owner, it was therefore in its interest to apply for the appropriate injunction.
It appears that during the last few months, i.e. since the daughter of the co-owner has moved in again with him, the unit has been cleaned and emptied of all its unnecessary and bulky objects. The Syndicate requests, therefore, the maintenance of this new status quo which it hopes not to be precarious.
The daughter of the co-owner testified at the hearing that she bought the unit in November 2007, i.e. after the introduction of the request.
In the opinion of the Court, the Syndicate’s request is still relevant because the acts in question were carried out by the now ex-owner and can always be repeated by him. In addition, the declaration of co-ownership is addressed not only to the owners of the units, but it also imposes restrictions on all those who have access to public areas. Because the owner still lives with his daughter having now become co-owner, the requested injunction remains appropriate.
The Court has therefore granted the permanent injunction and prohibited the former co-owner, to store any property whatsoever in any of the common areas of the co-ownership of the syndicate or clutter these common areas as well as his interior parking space inside. In addition, the Court ordered the former co-owner not to increase the combustible load of the unit he occupies with his daughter.
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1. 505-17-002879-064, 2008 QCCS 1265