In a judgment of the Court of Québec, Small Claims Division¹, the tenant of a co-owner simultaneously takes legal action against the syndicate of co-ownership and the co-owner for damages with interest suffered as a result of a fall on slippery stairs.
The context submitted to the Court
The tenant has rented for twenty years a condo unit belonging to the defendant co-owner in a condominium dwelling managed by the other defendant, the syndicate of co-ownership.
The tenant claims the sum of $1784.00 following a fall down the stairs leading from the terrace of his apartment to the grounds of the condominium. The tenant complains that the syndicate and the co-owner have been negligent in the maintenance of this staircase.
For its part, the syndicate argues that the tenant was the author of his own misfortune. It adds to that, without prejudice to this defence, that the amount claimed is exaggerated.
It has to be noted that, although the co-owner had been notified of the complaint before the Court, he did not show up and has not filed a defence. The hearing of the request has therefore proceeded by default against that co-owner.
The legal issues
The Court must then determine whether the syndicate and the co-owner committed a fault that makes them responsible for the tenant’s fall. If so, it must determine whether the amount claimed by the tenant is justified.
The facts presented to the Court
The tenant has been renting for twenty years a type of semi-basement condo at the front of the building of the syndicate of co-ownership. The building has a terrace at the front. A wooden staircase with four steps allows going from the terrace to the surrounding grounds of the co-ownership without having to use the main entrance door of the building.
The tenant testifies that he has a small garden adjacent to the terrace. One day, around 6 p.m., he climbs the stairs of the terrace to get up there. When he goes down again, he slips on one of the steps and falls on his right side.
The tenant testified that he gasped for air, but that he managed to get up and go to the next apartment, where a neighbouring lady helped him to recover.
The next day he goes to a clinic where the physician finds that he has a broken rib; he prescribes a few days of leave for that reason.
Nevertheless, the tenant testified that he was unable to work for seven days following the accident. In the weeks that followed, he continued to struggle to become active again and he still endured pain.
A few days after the incident he notifies the co-owner landlord and the latter’s syndicate in writing.
The syndicate notifies its insurer and a certified claims adjuster mandated by its insurer goes to the tenant to meet him.
Thereafter, the tenant claims from the syndicate a compensation of $784.00, for lost wages of the seven days when he could not work (56h x $14.18/hour).
The syndicate denies the validity of this claim and refuses to pay anything to the tenant. Faced with this refusal, the tenant submits his request to the Court claiming from the syndicate and the co-owner landlord his lost wages ($784.00) and the amount of a $1000.00 in damages with interest for bodily injury and material damage.
The analysis by the Court
The Court noted that under the housing lease between the tenant and the owner, the latter is bound to deliver the leased property in good repair and to provide peaceable enjoyment of it for the entire duration of the lease, according to Section 1854 of the Civil Code of Québec. This section reads as follows:
"1854. The lessor is bound to deliver the leased property to the lessee in a good state of repair in all respects and to provide him with peaceable enjoyment of the property throughout the term of the lease. He is also bound to warrant the lessee that the property may be used for the purpose for which it was leased and to maintain the property for that purpose throughout the term of the lease."
A landlord who fails to comply with this obligation may be condemned to pay damages with interest to the tenant. However, the Court notes to the tenant that this complaint is the exclusive responsibility of the Régie du logement because of the provisions of Section 954 of the Code of Civil Procedure, which reads as follows:
"954. This Book does not apply to actions arising from the lease of a dwelling or land referred to in article 1892 of the Civil Code, to actions for the payment of support or to class actions. Nor does it apply to suits for slander or to actions for the recovery of a claim instituted by a person, partnership or association to whom the claim was assigned in return for payment."
The Court informed the tenant that his request against the co-owner must be dismissed for that reason, and that the Court must do so although the co-owner did not contest the request and was not present at the hearing.
Nevertheless, the Court stresses that the tenant has a remedy against the syndicate under the provisions of Section 1077 of the C.c.Q., which reads as follows:
"1077. The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any counterclaim."
Whether a tenant of a co-owner may be considered a third party for the purposes of this section, the Court confirmed that similar cases decided previously have acknowledged that a tenant is actually considered a "third party" under this section.
The Court informed the parties that there is a presumption to the effect that stairways connecting a property unit are a common portion of a co-owned building. This presumption is contained in Section 1044 of the Québec Civil Code, which reads as follows:
"1044. The following are presumed to be common portions: the ground, yards, verandas or balconies, parks and gardens, access ways, stairways and elevators, passageways and halls, common service areas, parking and storage areas, basements, foundations and main walls of buildings, and common equipment and apparatus, such as the central heating and air-conditioning systems and the piping and wiring, including that which runs through private portions."
The Court specifies that, to win the case, the tenant must prove by a preponderance of evidence, that is to say, that it is more likely that his fall was due to a design or construction fault, or a lack of maintenance of the stairs by the syndicate. He must also prove that there is a direct link between the fall and the damage suffered as well as the appropriateness of the amount thereof.
On the issue of fault on the part of the syndicate, the Court considers that the tenant had not proved that the stairs contained faulty construction or design.
The tenant testified, convincingly according to the Court, that, during the 20 years he has been the tenant, the condition of the staircase had deteriorated over the years. He testified that, gradually, the surface of the stairs had covered itself with a green substance which had become particularly slippery when it rained. One also finds this green material and foam on the edge of the balcony overlooking the terrace and staircase, as well as on the brick walls adjacent to the terrace of his apartment.
According to the Court, the syndicate did not contradict the testimony of the tenant to the effect that the state of the staircase had gradually deteriorated over the years. In light of this evidence, the Court was of the view that, in all probability, it was the green material, made slippery by the rain, that caused the fall of the tenant.
During his testimony, the tenant said he had informed the landlord co-owner and the representatives of the syndicate of the dangerous condition of the stairs. At the hearing, the chairman of the board of the syndicate said he was not aware of this complaint of the tenant, but recognizes that it is possible that the tenant had addressed this issue to other members of the Board of Directors or to the manager of the building.
Consequently, the Court concluded that by its inaction and failure to maintain the staircase in question, the syndicate let endure a dangerous situation and for this reason, it is liable to the tenant.
As for the damages claimed by the tenant, the syndicate did not challenge the evidence that the tenant had been unable to work following his fall, nor the amount of revenue he lost.
The Court notes that the tenant has not produced a medical report establishing a permanent partial disability, but is satisfied that the evidence demonstrates that he has certainly suffered pain and inconvenience caused by his fall during a period of several weeks. Using its discretion, the Court adjudicated the damage and assesses it at $700.00, taking account in particular of the tenant’s pre-existing condition because of the osteoarthritis which he was already suffering from.
However, the Court was of the view that the lack of maintenance of the stairs by the syndicate is not the only cause of his fall. According to his own testimony, the tenant knew the potentially dangerous condition and should have shown more caution.
The Court reminds that the evidence revealed that the tenant was wearing shoes with soles that were not equipped with anti-slip surface and had not taken all precautions that were then needed. Therefore, according to the Court, some of the damage is due to his own carelessness, which the Court assesses at 50%.
For all these reasons, the Court condemned the syndicate to pay him the sum of $742.00, plus interest at the legal rate and additional indemnity according to section 1619 of the C.c.Q. from the date of notice, plus legal costs.
¹. 2015 QCCQ 11279