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The notion of water damages generally includes the questioning of the civil liability of the syndicate, the co-owner and the lessee (tenant); the question of who is responsible for this is constantly being raised. Claims related to losses involving the liability of a co-owner are numerous in co-ownerships (condominiums); this is the case for a water heater that spills over several floors, this type of disaster being very expensive and explaining why the amount of insurance premiums and deductibles for syndicates of co-owners has increased considerably in recent years. As for the co-owner, he may incur liability towards the syndicate, other co-owners or occupants of the immovable or even other third party members; as stated in section 1457 of the Civil Code of Québec, every person has a duty to not harm others.
Civil liability of the co-owner
Each co-owner must take accountability for the damages he causes by his own act or that of the property he has in his custody whether he is a co-owner, an occupant or a lessor; this liability is limited by the insurance coverage subscribed by the syndicate which is why the amounts not covered constitute a loss for which he could be held liable towards the syndicate of co-owners in the event that the latter had to undertake at his own expense work to rehabilitate the building.
Presumption of fault
Section 1465 of the Civil Code of Québec stipulates that:
"The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault."
Case law (jurisprudence) has already had the occasion to apply this presumption of fault to a co-owner for the damage caused by the fact of a property in his care because of the breakage of a water heater.
This presumption of fault has the effect of exempting the syndicate of co-owners from proving the fault of the co-owner as well as the exact cause of the loss as soon as it is related to the independent fact of the object; the co-owner is thus presumed to be at fault.
However, in order for him to prevail of this legislative provision, the syndicate must show that the damage for which he seeks compensation is related to the independent fact of an identified property and that it was in the custody of the co-owner; the failure or even the impossibility of establishing a sufficient causality link between the autonomous fact of a property and the suffered prejudice prevents the syndicate from invoking this presumption of fault and liability against the co-owner.
Means of defense of the alleged co-owner at fault
To reject the presumption specified at section 1465 C.c.Q. and to get rid of this liability, it will be up to the co-owner in question or his civil liability insurer to prove the absence of fault on his part; he must show that he has not committed a fault in the custody or maintenance of the property causing the damage or that he has taken all reasonable precautions to avoid foreseeable danger or damages. The co-owner or his insurer may also invoke that the damages result from superior force or due to the implication of a third party such as a manufacturing defect of the water heater.
These co-owners' defenses are not absolute because most declarations of co-ownership contain a clause that makes a co-owner liable towards the other co-owners and the syndicate for damages caused by the fact of property for which he is legally responsible and so, regardless of any fault or negligence on his part.
However, the implementation of this contractual liability regime is less certain since the reform of co-ownership law (section 1074.2 of the Civil Code of Québec); although this issue has yet to be decided by the courts, distinguished jurists Christine Gagnon and Yves Joli-Coeur are of the opinion that this legal regime would still be valid.
WHAT YOU SHOULD KNOW! A syndicate of co-owners may rely on the presumption of fault mentioned at section 1465 of the Civil Code of Québec in order to establish the liability of a co-owner; the latter may reject this presumption and exonerate himself from liability by proving that he has not committed any fault.
WHAT TO KEEP IN MIND: Syndicates of co-owners have every interest in requiring co-owners to install a water leak protection system in their unit and to implement mandatory inspections of all faucets and water heaters.
WARNING! In principle, the syndicate's recourse against a co-owner at fault must be preceded by a demand (formal notice); failure to do so or if it is sent late to the recipient, the syndicate could have its recourse dismissed.
