The obligation of the syndicate of co-ownership to maintain common portions, especially those with limited use such as balconies, skylights, and other common portions, has been the subject of much discussion since 1994. In this regard, article 1039 of the Civil Code of Quebec provides that the community of co-owners constitutes, as soon as the declaration of co-ownership is published, a legal person whose purpose is the conservation of the building and the maintenance and administration of the common portions.
Too many directors ignore this requirement when it comes to the building envelope. A decision rendered on November 4, 2005, in Marchand v. Syndicat des copropriétaires Le Presqu'Ile 600, reiterates the importance of this obligation with respect to a glass roof that was a constant source of water infiltration.
The Facts
The Marchand couple owns a co-ownership unit located on the 15th floor of a luxury building with 88 units and advocating comfort, tranquility and safety for the occupants.
Water infiltration appeared in 2003 and 2004. After botched work by contractors hired by the syndicate, the infiltration continues, and the water now seems to infiltrate through the roof of a glass roof or through the adjacent wall. The glass roof is a year-round living room, open to 17 feet and giving access to the living room and kitchen.
The Procedure
Legal proceedings are initiated by the co-owners. They are asking the Court for an injunction so that the syndicate can have the work done to stop the water infiltration. As a result, the syndicate, through the intermediary of an expert with many hats, carried out tests to find the source of the water infiltration in the Marchand couple's unit.
According to the directors, who were sued personally for their inaction, the syndicate is doing what it "can" and is acting with respect to the plaintiffs "as it would with respect to all the other co-owners." According to the judge, this was an error: it was insufficient to treat co-owners who suffer water damage on a recurring basis as if it were a normal disorder in a luxury co-ownership.
It should be noted that the directors had decided, in the course of the proceedings, to sue the plaintiffs for damages, alleging that they were self-centred and demanding individuals who exaggerated the importance of the problems suffered.
In October 2005, when the plaintiffs collected 12 litres of water in containers, an administrator continued to accuse them of intolerance, incomprehension, impatience and self-centeredness. This was too much for Judge Auclair, who finally granted the injunction on November 4, 2005, mentioning that the syndicate, their directors and even their expert were failing in their obligation of result: to provide a building without water infiltration!
The Decision
Faced with the lack of diligence on the part of the syndicate and the directors, the judge granted the injunction and appointed the architect retained by the plaintiffs as an expert, ordering the syndicate to carry out all the required work under his supervision.
This is the first case in which a co-owner has been able to force a syndicate to carry out work on the building envelope, while retaining the services of the professional in charge of supervising the work, which seems normal in view of the particularly difficult and aggravating circumstances of the case.
Conclusions
Directors and managers, be on the lookout! It is important to understand the nature and degree of your responsibilities when it comes to the maintenance of the building and its envelope, always in the interest of all co-owners.
The maintenance obligation is high. The maintenance of the value of their investment for co-owners is at stake, and this obligation must be taken seriously by all co-ownership administrators and managers. Otherwise, the risk of swallowing up huge sums of money in legal proceedings is colossal and the pill can be bitter.
WHAT YOU SHOULD KNOW ! Article 1039 of the Civil Code of Quebec was amended with the passage of Bill 16. At the end of the first paragraph, referring to the community of co-owners (syndicate), we read the following sentence: "It must, in particular, see to it that the work necessary for the preservation and maintenance of the immovable is carried out.". In the event that the syndicate fails to ensure its maintenance and conservation, it is liable to incur civil liability.
Yves Joli-Coeur, Ad. E.
Lawyer
Dunton Rainville
3055 Boulevard Saint-Martin O
Bureau 610
Laval, QC H7T 0J3
Tél. : (450) 686-8683
Courriel : [email protected]
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