Question: Our declaration of co-ownership states that exterior windows, incorporated into the walls, are common portions for restricted use. However, the windows of my apartment are heavily foggy, a multitude of water droplets accumulate during the night and hinder the view. A glazier told me that the cause of this problem is a failure in the sealing of the thermos glass itself. The directors claim that the costs of replacing the thermos are borne by the Syndicate and then distributed to the co-owners who have requested them according to the thermos replaced. I disagree with them. Who should pay for the cost of replacing the thermos windows in my apartment?
Answer: The syndicate must maintain the common portions through the board of directors. The duty to maintain the common portions of the syndicate also applies to the common portions for restricted use. The declaration of co-ownership may, however, delegate this charge, in whole or in part, to each of the co-owners who benefit from an exclusive right of enjoyment. The co-owner concerned must therefore keep them clean and functional. This is the case for window washing. The costs that would result from a lack of maintenance would be borne by the co-owner at fault.
The responsibility for carrying out the work and paying the related costs will depend on the qualification of the thermos of the window to the cadastral plans and the declaration of co-ownership. Thus, if the thermos of the windows are common portions or common portions for restricted use, it is the syndicate that must be the prime contractor of the upgrade work.
As for the distribution of these costs, it is worth mentioning article 1064 of the Civil Code of Quebec concerning the contribution of co-owners:
Each co-owner contributes to the common expenses in proportion to the relative value of his fraction. However, only co-owners who have the use of common portions for restricted use contribute to the expenses related to the maintenance and the ordinary repairs of those portions.
The declaration of co-ownership may determine a different apportionment of the co-owners' contribution to the expenses for major repairs to common portions for restricted use and for the replacement of those portions.
It should be noted that the term "loads", which is found in the last sentence of the first paragraph of section 1064 C.c.Q., refers only to minor repairs and maintenance. That said, this section cannot have the effect of making a co-owner responsible for the replacement of a common part for restricted use.
Thus, as for the costs relating to major repairs to the common portions for restricted use, it is the distribution provided for in the declaration of co-ownership that will apply. In case of silence of the declaration of co-ownership, these expenses must be borne by all the co-owners, in proportion to the relative value of their fraction.
