In a recent judgement of the Court of Québec, Small Claims Division¹, a co-owner who put up a “For Rent” sign for his condo unit, while such posting is prohibited by the deed of co-ownership, was sentenced by the Court to pay the legal costs incurred by the syndicate of co-ownership.
The parties and their claims
The syndicate of co-ownership of the building claims, from one of the building’s co-owners, the sum of $575.56 as reimbursement for legal fees incurred to send him a notice. The syndicate argues before the Court that the “For Rent” poster displayed by the co-owner in his privative portion is prohibited by the deed of co-ownership.
For his part, the defendant co-owner challenges the claim alleging that the syndicate would have closed its eyes over several violations of the deed of co-ownership by the other co-owners, among others, the posting of “For Sale” signs and the presence of pets.
The co-owner defends himself by saying that it is inappropriate for the syndicate to apply the deed of co-ownership with rigour to him when the syndicate tolerates non-compliance thereof by the other co-owners. He also claims that the syndicate had not complied with the notice-of-violation proceedings and that the lawyer’s formal notice should have been preceded by a notice from the syndicate sent by registered mail. Consequently, he qualifies the complaint by the syndicate as being abusive.
FACTS AND EVIDENCE USED BY THE COURT
It concerns a deed of co-ownership published in 2001, and the defendant co-owner is the owner of a privative unit in the building since 2014. A few days before the signing of the deed of purchase at the notary’s, the defendant co-owner displays a “For Rent” poster in the window of the privative portion of which he will become the titleholder in a few days’ time.
After noticing this poster, one of the administrators communicates with the defendant co-owner to ensure that he has a copy of the deed of co-ownership, and he reports to him that he cannot display this poster in the window of his condo unit.
The co-owner responds to the administrator that the co-owner from whom he had bought the unit had displayed a “For Sale” sign for six months. He then drew the attention of the administrator on the fact that there were then about five “For Sale” signs in the windows of other units in the building. The co-owner informed the administrator that he thought he had the right to put up this poster in the window of his privative portion because he bought the unit to be able to rent it.
A few days later, the syndicate sent a statement to all the co-owners requiring them to comply with the deed of co-ownership, and in particular with the regulation on placards and posters. In this notice the syndicate shall notify all co-owners that tolerance of posters in the windows will cease and that no posters will be tolerated in the windows. Consequently, all co-owners will now have to comply with the prohibition of displaying posters imposed by the deed of co-ownership.
The defendant co-owner denies that he received this statement, but all the other co-owners remove their posters in the following days. The defendant co-owner, however, does not withdraw his. The syndicate noted that all the other co-owners have complied with this notice, except the defendant co-owner whose poster remains in one of his windows.
The syndicate has then advised a lawyer to prepare and submit to him a formal notice to withdraw his poster, and reimburse the legal costs of $225.00 incurred in sending the notice. By this notice the co-owner is informed that in case of failure to comply, the syndicate will undertake injunction proceedings and a procedure for damages with interest to him. A few days later, the co-owner withdrew his “For Rent” poster, but he did not reimburse the syndicate for legal fees. Three months later, the syndicate filed a complaint in Court.
ANALYSIS AND DECISION BY THE COURT
According to the Court, although the co-owner has the free enjoyment of his privative portion and of the common areas of the building, he must respect the deed of co-ownership designated to the building, and he may not harm the other co-owners. The deed of co-ownership may impose specific obligations on the building’s co-owners and the syndicate itself.
The Court reminded the parties that the deed of co-ownership is contractual in nature and that, under Section 1062 of the Québec Civil Code, compliance to it is mandatory for all co-owners. Section 1062 of the C.c.Q. reads as follows:
1062. The declaration of co-ownership binds the co-owners, their successors and the persons who signed it, and produces its effects towards them from the time of its registration.
The syndicate argued and proved that the defendant co-owner has contravened a provision of the deed of co-ownership, which provides:
5.1.13 any sign or poster advertising of any kind will be installed on an exclusive portion.
The Court therefore considers that the “For Rent” sign posted by the defendant co-owner has contravened the deed of co-ownership. The defendant co-owner pleaded that the syndicate had for a long time tolerated infractions of this type against the deed of co-ownership. However, the Court noted that the syndicate had ended this tolerance by its notice to all co-owners, and that they should now all comply with the deed of co-ownership in this regard. The Court noted that the syndicate was therefore entitled to require from the defendant co-owner that he withdraw the poster, like all the other co-owners.
The Court considers that even if it holds true that the defendant co-owner had not received notice from the syndicate, he has nevertheless been verbally informed by one of the administrators, and the deed of co-ownership clearly prohibits display by the co-owners.
Consequently, according to the Court, the defensive argument of a previous “tolerance” by the syndicate cannot be accepted. The Court also noted that nothing in the deed of co-ownership required sending a notice of infraction by registered mail as a preliminary step to sending a notice by a lawyer. According to the Court, the syndicate had therefore not acted prematurely.
The Court pointed out to the parties that under the deed of co-ownership the syndicate could hold the co-owners accountable for damage caused to the syndicate by not following the deed of co-ownership, in this case the legal fees that the syndicate had to pay to ensure compliance with the deed of co-ownership.
Nevertheless, the Court reminds the syndicate that the claimed cost of legal services must be proportionate and reasonable. Notice given by a bailiff of the claim was not justified and could have been done by registered mail. Therefore, the Court has cut the bailiff’s expenses, and the lawyer’s fees for taking knowledge of the notice given.
The Court then sentenced the defendant co-owner to pay the syndicate the sum of $440.46 with interest at the legal rate from the date of formal notice.
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File 200-32-062210-140, 2016 QCCQ 6681