As part of its missions, the syndicate must authorize, if necessary, any work undertaken by co-owners, whether in the private portions or the common areas for restricted use. Co-owners should not forget that in co-ownership, certain rules apply. In this regard, certain declarations require co-owners to provide the board of directors with a description of the work to be undertaken in a private portion, in order to verify the scope and the consequences in terms of noise, so that the board of directors can give the co-owner its authorization.
Failure by a co-owner to comply with the requirements of the declaration of co-ownership exposes him or her to legal action that may lead to an award of damages and a court order requiring him or her to dismantle the floor.
Syndicate authorisation in relation to fundamental rights and freedoms
When the declaration of co-ownership prohibits the co-owner from carrying out landscaping work on the balconies, and the syndicate confirms this impossibility by a refusal on the part of the board of directors, the co-owner has few options. However, if fundamental rights recognized by the Charter of human rights and freedoms are at stake, the situation may well be reversed in favour of the co-owner.
A significant case was decided by the Supreme Court of Canada on June 30, 2004, in Syndicat Northcrest v. Amselem. In a decision that was very divided (5 votes to 4), the Court authorized the installation of succahs on the balconies or terraces of a condominium that the declaration forbade.
Facts
In 1997, in one of the phases of the "Le Sanctuaire du Mont-Royal" real estate complex in Montreal, four co-owners of the Orthodox Jewish faith decided to install cabins called "sukkahs" on their balconies (common areas for restricted use). These cabins serve as their temporary residence during the celebration of Sukkot, an annual holiday commemorating the exodus of the Jewish people into the desert and taking place between September and October (for about 10 days).
However, the declaration of co-ownership prohibits any installation on balconies and terraces, except for the usual outdoor furniture (garden chairs, etc.). Faced with the syndicate's refusal to grant succahs, a conflict broke out: the co-owners challenged the strict application of the building's regulations, which would infringe on their freedom of religion. The succahs were installed on their balconies in October 1997.
Procedure
The syndicate obtained an injunction against these co-owners before the Superior Court. Dissatisfied and supported in their demands by the League of Human Rights "B'nai Brith Canada", they appealed.
Before the Court of Appeal, the co-owners' claims were again rejected. The co-owners then took the case to the Supreme Court of Canada.
The debate, unprecedented in the field of divisive co-ownership in Canada, took place at a hearing on January 19, 2004, in the presence of many organizations that came to support the co-owners: the Christian Legal Fellowship of Canada, the Seventh Day Adventist Church of Canada, the Evangelical Fellowship of Canada, the World Sikh Organization of Canada and the Ontario Human Rights Commission.
Decision
The Supreme Court of Canada clearly decides that a restriction on installing or constructing anything on balconies is justified and that it has a purpose rationally related to the administration of the building. First, these restrictions are intended to preserve the market value of co-owership units. They also protect the right of co-owners to enjoy the common areas for private use by ensuring the preservation of the building's character and its exterior aesthetics as a luxury building, and by allowing the use of balconies for the evacuation of the building in case of danger. The restrictions are justified by the purpose of the immovable, its character and its location, in accordance with article 1056 of the Civil Code of Québec. In addition, the prevention of obstructing the passageways between the balconies acting as an emergency exit protects the right to life and safety of each of the co-owners.
However, as a matter of religious practice, the Supreme Court has upheld the right of co-owners to set up a sukkah on their balcony for the duration of the sukkot, but under certain conditions:
While this decision upholds the validity of restrictions prohibiting the installation of structures on balconies as justified and in connection with the administration of the building, it nevertheless indicates that a right or freedom protected by the Canadian or Quebec Charters may prevail over these restrictions, provided that the inconvenience to the community is deemed minimal.
