Syndicate of co-ownership Les Maisons de ville Lebourneuf v. Brousseau, CQ (Small Claims div.) 2007
Water leakage coming from the water-heater of a co-owner - Damage repaired by the syndicate - the syndicate directly claims the costs of repair from the owner of the water-heater - Damage lower than the insurance franchise of the syndicate - Counterclaim of the co-owner for work badly carried out – Previous discussions of the syndicate about the responsibility of the co-owners for the water-heaters - Responsibility of the co-owner because of a good of which he is the owner.
The proof reveals that the water-heater located in the unit of the defendant has caused the damage. According to article 6 of the declaration of co-ownership, the privative portions include their contents and their accessories. The water-heater only to be used by the defendant, is part of its exclusive portion and is under its responsibility. Article 95 paragraph 7 of the declaration lays this down indeed:
“Any co-owner remains responsible, with regard to the other co-owners and of the syndicate, for the detrimental consequences brought about by his fault or his negligence and the one of his employees or by the fact of a thing for which he is legally responsible.” (underlining by the Court)
The responsibility of the guardian connected to the fact of a thing results from article 1465 of the Civil code of Quebec stipulating the following:
“A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.”
In the following cases, the complaint of a syndicate corresponding to the amount of the insurance franchise, was accommodated, the responsibility of the co-owner (as in the species) having been proven. It is mentioned there that it would be against the legal provisions to make support by the whole of the co-owners the losses resulting directly from the fault of one of them:
• Syndicate of the co-owners of the Terrasses Lulli, AZ-500098399 (2001) (C.Q.) • Syndicate of the condominiums Le Château du Parc vs. Raymond Guay et al., AZ50254144 (2004) C.Q. • Syndicate of the co-owners of the Laurier de l' Île Paton vs. Noël, AZ-50311825 (2005) (C.Q.)
It is not because the applicant wanted, at a certain time, to make the declaration of co-ownership more precise, that it should be concluded from it that it is not enough to regulate the litigation. Moreover, it could not cause to repeal article 1465 of the above-mentioned Civil code of Quebec.
The amount of damage having been proven, the applicant is entitled to her claim of 812,94$ against the defendant.
In addition, the counterclaim must be rejected. The defendant did not fill the burden of the proof which fell on to him under the terms of articles 2803 and 2804 of the Civil code of Quebec.
The claim of 3 541,99$ is rejected since evaluated work was not carried out and because the defendant did not undergo a loss at the time of the sale of his unit. Moreover, the applicant did not receive a notice following which the renovation work would have been badly done.
The defendant does not have any right either to the claimed publicity expenses of 517,56$, because there is no proof that her tenant left following the water damage. Moreover, these expenses were incurred for her only benefit.
The applicant is not responsible either for the expenses of replacement of the water-heater which belongs to the unit of the defendant.
Lastly, the claim relating to the legal expertise is rejected since there is no proof of legal abuse.
PRINCIPAL REQUEST ACCOMMODATED
COUNTERCLAIM REJECTED