In any divided co-ownership the day will come when the windows of the privative portions will have to be replaced. When the time comes these important works give rise to questions, from administrators and managers as well as from co-owners. Who, between the syndicate and the co-owners individually, must have this work carried out and the costs paid?
In a recent judgement of the Court of Québec, Small Claims Division¹, the Court reminded a syndicate of co-ownership that, in the absence of an express provision in its deed of co-ownership, it was not for the co-owners to pay the cost of their window replacement, but rather to the syndicate by employing its contingency fund.
The claims of the parties
The applicants, who own a condominium unit in a building of divided co-ownership, are claiming $2,448.83 from their syndicate of co-ownership, i.e. the cost of replacing the windows of their condominium ($1,948.83) and damages with interest for disturbances and inconveniences ($500).
The syndicate, for its part, is challenging the request on the grounds that it has adopted and implemented a program which makes it the responsibility of each one of the co-owners to assume the cost of replacing the windows in his unit. This measure is adopted in order to avoid the payment of a special contribution. It claims that the applicants have joined the program and cannot demand that the syndicate reimburse them.
Highlights according to the Court
The plaintiffs are the owners of one of the 48 condominiums in the syndicate whose deed of co-ownership was published in 1990.
In 2004, the Syndicate was informed for the first time that the sliding windows in the rooms of all the condominium units were completing their lifecycle. However, the syndicate was already planning a major roof repair project, and a special contribution was planned. The special contribution was necessary because the funds available in the contingency fund were insufficient for the project to repair the roof.
In order to avoid having to manage both projects at the same time, as well as to avoid an additional special contribution, the board of directors adopts a resolution to the effect that the co-owners can change their own windows on a voluntary basis at their expense. During the following years, several co-owners are acting in this sense and have their windows replaced at their expense.
In 2008, the new real-estate manager hired by the syndicate is challenging the syndicate’s program because, based on his knowledge and experience in co-ownership management, the program does not appear to respect the deed of co-ownership. Indeed, he finds that the windows of the units are part of the restricted common portions of the building and that there is no express provision in the deed of co-ownership to the effect that the co-owners have to change their windows themselves, as well as for paying the cost of the work.
According to what he knows, the windows of this syndicate are common portions reserved for the exclusive use of the co-owners. According to the manager, the replacement of the windows must be paid by the syndicate and paid out of the contingency fund or a special contribution, if any.
The manager informs the board of directors of the syndicate, who decides that the rules of its program should be specified to the co-owners who have not yet changed their windows. Indeed, the syndicate determines a cut-off date for the voluntary change of windows, after which the syndicate will have no alternatives other than to change the windows of those who have neglected to do so, and claim the cost of the work from the co-owners concerned. The deadline date is set at December 31, 2012.
On August 3, 2012, the plaintiffs are asking the syndicate to replace only the window panes of two windows in their unit, which are fogged. In September 2012, the syndicate refuses this request because, in its opinion, these co-owners must have them changed themselves and at their expense before the cut-off date of December 31, 2012.
The plaintiffs decide to change the windows at their own expense in order to satisfy the conditions of an offer to buy on their unit. They pay $1948.83, taxes included.
Subsequently, the plaintiffs filed a lawsuit against the syndicate on November 29, 2012 in order to claim the reimbursement of the replacement cost of the windows ($1,948.83), plus damages of $500 for troubles and inconveniences they have suffered. They testify at the hearing that they felt they had to deal with unforeseen disadvantages that slowed down the process of selling their condominium.
The plaintiffs argue that it is the responsibility of the Syndicate to proceed, from the contingency fund or from a special contribution, if necessary, with the replacement of the windows which are defined as a common portion in the deed of co-ownership. For its part, the syndicate contends that, according to its interpretation of section 1064 of the Civil Code of Québec, the co-owners must assume any charge related to a common portion for restricted use, and that its program respects this principle.
ANALYSIS AND DECISION
Following its analysis of the evidence, the Court finds that:
According to the Court, the Syndicate does not comply with the applicable provisions of the Deed of Co-ownership and sections 1064, 1071 and 1072 of the Civil Code of Québec, when it implements its voluntary window replacement program.
The Deed of Co-ownership, the Court notes, establishes that windows are common portions, that each co-owner has exclusive use of windows to which his/her exclusive portion gives sole access, and that he/she is entitled to use and enjoy exclusively the inner surface of his windows. Based on its analysis of the relevant provisions of the deed of co-ownership, the Court finds that, under the deed of co-ownership, common charges for co-ownership include the maintenance, cleaning, replacement and operation of the common portions reserved for the exclusive use of specified co-owners. These expenses are allocated among the co-owners according to the share of the expenses of each one.
The Court notes to the parties that the Deed of Co-ownership does not authorize the Syndicate to delegate to the co-owners the responsibility of replacing the windows which are common portions. In addition, the Deed of Co-ownership does not provide for a different treatment for common portions when the latter are for exclusive use.
According to the Court, Section 1064 of the Civil Code of Québec must be interpreted according to the existing reasoning but recently reiterated by the Court of Appeal2, to the effect that the term “charges” used in Section 1064 of the C.c.Q. covers minor repair and maintenance costs related to the use of the common portions, but not major repairs and replacements of these portions.
The Court specifies that the Deed of Co-ownership does not provide that charges relating to restricted common portions must be exclusively borne by the co-owners who use them and therefore cannot rely on Section 1064 of the Civil code of Québec to validate its voluntary window replacement program.
The Court concludes that the plaintiffs are entitled to reimbursement of the expenditure for replacement of the windows, i.e. $1,948.83.
As to the plaintiffs’ claim for damages with interest, the Court finds that the evidence heard at the hearing does not warrant the award of such damages.
For these reasons, the Court condemned the Syndicate of co-owners to pay the plaintiffs the amount of $1,948.83 with interest at the statutory rate and the additional indemnity plus the application fee in the amount of $103.
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