In a recent judgement of the Court of Québec, Small Claims division 1, the Court held that a co-owner of a building had not proved that the plant-sprinkling water from his neighbour, three floors up, was responsible for the deterioration of the painted surfaces of his balcony. The syndicate of co-ownership, called in as warranty by the prosecuted co-owner is not responsible either, according to the Court.
The claims of the parties in the Court
The plaintiff and the defendant own condominiums located respectively on the 24th and 27th floors of the building. The plaintiff accuses the defendant of having badly maintained the balcony of his condominium, thereby causing the flow of wastewater. The applicant therefore claims from him $4,300 in compensation for water damage to his balcony. The defendant denies all responsibility and involves the syndicate of co-owners in the building as a co-defendant, citing additionally that it is the syndicate that is responsible for the maintenance of the common portions for restricted use of the building.
The facts presented to the Court
The applicant has been the owner of a condominium located on the 24th floor for about fifteen years. Three floors up, the defendant and his wife have been owners of two condominium units, and this for twenty-five years. The two units comprise two balconies each, for a total of four balconies. The applicant and his spouse testify about a wastewater flow on their balcony for about three years. In their testimony they connect the flow of water to the watering of plants or the cleaning of the upper balconies by the defendant. They allege that these discharges are regular and continuous, even in winter, thereby causing the formation of ice cubicles. In his testimony, the applicant explains that the regular flow damages the paint and concrete walls of the balcony, as well as some ceramic tiles. The plaintiff claims that the defendant is liable because he frequently waters the flowers and plants that adorn his four balconies during the summer season.
Specifically, the plaintiff and his wife show that the waters that damage comes from one of two balconies of the defendant, i.e. the one directly above the one of the defendant.
The defendant answers that assertion by saying that the balconies have a depth of nine feet, and that the natural plants that he puts there are placed along the wall of the building of the syndicate, and not along the guards of the balconies. The defendant notes to the Court that eleven other units are located on the two floors that separate them (the 25th and 26th) and that he has received no complaints from the other co-owners to the effect that wastewater from irrigation fell on their balconies. The building superintendent testified at the hearing to once have seen a significant amount of water on one of the balconies of the defendant. He testified to have inspected the balconies of the units located on the 25th and 26th floors, and that he saw no water there.
For its part, the syndicate did have as a witness a member of its Board of Directors who explains that the balconies are under the responsibility of the syndicate as well as the brick wall, the roof and other common portions of the building. He informs the Court that the syndicate, with the help of professional services of an architect and an engineer has set up, several years ago, a preventative maintenance program and a program of planning of contingency work. In this context, maintenance and repairs are performed annually, as recommended by these professionals. The administrator has testified that extensive work was undertaken three years ago to repair the concrete of six balconies that were crumbling and that caused a danger which required urgent repair. As part of this process, the syndicate inspected the applicant’s balcony, and it was determined that it was in good condition structurally and that no repair was necessary.
The analysis by the Court
The Court reminded the parties that under the Civil Code of Québec, with respect to evidence, the plaintiff has the burden of proving that his claim is well based on a balance of probabilities, i.e. that it is more likely than not that the defendant committed a fault which caused damage to the applicant. Compared to the facts presented by the plaintiff’s evidence, the Court notes to the latter that nothing in the evidence submitted allows the Court to connect the wastewater to the damage caused to the balcony of the applicant. According to the Court, the testimony of the superintendent to the effect that he had seen a significant amount of water on the applicant’s balcony, once, proves nothing that could allow the Court to conclude that the defendant would have committed a fault. The Court notes that the applicant never asked to inspect the balcony of the defendant, or the balconies of the 25th and 26th floors.
The testimony of the superintendent was not convincing at all. There is also the fact that two floors separate the unit of the applicant from those of the defendant, and that the building has a 28th floor above the floor of the defendant. The Court notes that, in the absence of convincing evidence, the allegations against the defendant are more speculative than real, and therefore insufficient to impose liability on the defendant. As for the syndicate, the Court specifies that under section 1039 of the Civil Code of Québec, it must not only administer the co-ownership, but also guarantee the maintenance and conservation of the common portions of the building. Section 1077 of the Civil Code of Québec states that the syndicate commits its liability if it does maintain the common public portions and those for restricted use such as the balconies of the building. The Court must answer the question whether the syndicate has itself committed a fault. The Court noted from the testimony of one of the administrators that the syndicate seems to take care of the building seriously and that it is aware of its responsibilities and acts accordingly: it has set up a committee of administrators responsible for the maintenance of the building and it has hired the services of professionals to plan maintenance and major repairs, and it acts according to the recommendations of the latter. According to the testimony of the administrator, the majority of the balconies of the building are in good condition in the opinion of professionals. The applicant’s balcony, just like the other balconies, shows a slight erosion of the surfaces, but nothing that would require an immediate or short-term special intervention. As for the normal maintenance of the balcony, the Court notes that the applicant admits to have done no painting or any basic maintenance of his balcony for about seven years. However, the provisions of the deed of co-ownership, the law and jurisprudence on the subject are to the effect that he must assume the general maintenance costs of his balcony and see for himself that it is done. This includes the act of cleaning and repainting the concrete when it is peeling. According to the Court, the compensation claimed by the plaintiff aims at paying the maintenance work to his balcony and not to make a major repair that would be the responsibility of the syndicate of co-ownership.
For all these reasons the Court has then rejected the plaintiff’s claim, against the defendant co-owner as well as against the syndicate. The applicant was ordered to reimburse the defendant and the syndicate their $125 and $175 protest fee respectively.
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