In a recent decision of the Québec Court, Small Claims Division¹, the Court confirmed that works for replacing a balcony, stairway steps, woodwork and painting in a condominium were not likely to require a vote of the assembly of co-owners under Section 1097 of the Civil Code of Québec. The defendant co-owner could not therefore refuse to pay his share of the work on the grounds that he had not voted for them.
The context
The Syndicate claims the sum of $5,972.41 from one of the co-owners of the building, i.e. his part of a special contribution for work performed to the common portions of the building which has three units.
The Syndicate indicated to the Court that the work involved replacing a balcony, the steps of the outside staircase, woodwork under the balcony and roof slates, as well as painting.
The defendant co-owner is one of three co-owners of the building, and he argues that he should not be required to pay his share of the special contribution. He argues that, in his view, the nature of the work is an alteration or improvement to the common portions, and thus an affirmative vote of the assembly of the co-owners was required under Section 1097 of the Civil Code of Québec. This article reads as follows:
1097. Decisions concerning the following matters require a majority vote of the co-owners representing three-quarters of the votes of all the co-owners:
1º acts of acquisition or alienation of immovables by the syndicate;
2º work for the alteration, enlargement or improvement of the common portions, and the
apportionment of its cost;
3º the construction of buildings to create new fractions;
4º the amendment of the act constituting the co-ownership or of the description of the fractions.
The co-owner argued that the works in question are subject to section 1097 (2), and that they have not been authorized as required by law. He argues that the syndicate needed his approval before proceeding because the two other co-owners do not own, between them, three-quarters of the vote of the co-owners.
However, the co-owner admitted before the Court during his testimony that, if the works must be qualified as maintenance or repairs, the amount claimed is due.
The analysis by the Court
The Court finds from the testimony of the co-owner and the one of the other co-owners that some of the materials used by the syndicate are not the same as those used originally. The contractor who performed the work at the request of the syndicate testified in fact that he used modern materials, more weather resistant, easier and cheaper to maintain than traditional materials such as wood, for instance. However, the contractor specified that the result is visually and functionally identical.
For his part, the co-owner testified that for him, the use of these new materials has certainly given rise to improvement, if not to a transformation of the common portions.
The co-owner also invokes the fact that the permit for the work obtained from the municipality by the syndicate is entitled "Transformation permit". He insists on the fact that, given that the municipality issued such a permit by applying municipal bylaws, then the work must necessarily have an element of "transformation". The co-owner said that the municipality is supposed to know the meaning given by the Civil Code of Québec to the term "transformation" in section 1097 (2), and that the municipal bylaw cannot give it a different meaning.
The co-owner has invoked one of the principles recognized in the field of statutory interpretation, to the effect that it is presumed that the meaning given to a term in a law is uniform. However, the Court’s analysis pointed out to the co-owner that this principle applies to the interior of a statute, or between pieces of legislation on a single legislative governmental level.
On this point, the Court noted to the parties that the Civil Code of Québec is the responsibility of the National Assembly, while the bylaws of the municipality are determined by the latter. Moreover, section 1097 of the Civil Code of Québec is part of the common law of the province concerning the powers of the assembly of co-ownership, while municipal bylaws aim to establish zoning, subdivision and construction regulations. According to the Court, given that these two pieces of legislation emanate from different sources, on different matters, the terms used do not mean the same thing.
As to the provisions of the deed of co-ownership of the building, which substantially replicate the text of Section 1097 of the Civil Code of Québec, it is clear that major work involving an improvement or conversion of the common portions is subject to approval of the assembly of co-owners in accordance with the special majority of section 1097 of the C.c.Q.
According to the Court, when it concerns maintenance work and repair of common portions that does not substantially alter them, these may be authorized by a simple majority vote of the co-owners according to Section 1096 of the C.c.Q. However, the Court did not go as far as saying that the work of maintenance and repair must be authorized by the assembly of co-ownership.
The Court noted that, based on the evidence and testimony, it was clear that the work was required to ensure the safety, the functionality, and, generally, the good condition of the common portions concerned. It concerned repairs that were necessary because of the wear and tear of these portions and their age, and that, following the work carried out, they have the same appearance and the same functionality and usefulness as before the work. For the Court, these have not been transformed because there has been no change at all to their shape, and so they are not substantially different from the original ones.
The Court does not believe that the fact of having used modern, more resistant materials necessarily had the effect of "improving" the portions concerned within the meaning of section 1097 of the C.c.Q.
It is for these reasons that the Court agreed with the request of the Syndicate, and that it sentenced the co-owner to pay the Syndicate the sum of $5,972.41, plus interest at the legal rate, additional indemnity and the court costs.
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¹No. Court: 500-32-140099-138, 2015 QCCQ 10440