Each month, read about two court decisions in dispute to stay on top of the latest legal developments in condominium law.
The issue of tacit modification of a declaration of co-ownership was first addressed by the Court of Appeal in Brown v. Syndicat des copropriétaires des Manoirs de Terrebonne.
The issue has now been resolved. No component of the declaration of co-ownership, not even the by-laws of the immovable, can be tacitly modified. The body of case law recognizing this possibility has now dried up. In particular, the earlier decision of the Court of Appeal in Lavallée v. Simard is no longer relevant.
It was thus at the cost of an error of law that the first judge had applied this jurisprudence.
Article 1059 al. 1 C.c.Q. clearly excludes any possibility of tacit modification of two of the three components of the declaration of co-ownership, i.e. the act constituting the co-ownership and the descriptive statement of fractions, from the outset, i.e. January 1, 1994. As for the by-laws of the immovable, the legislator intervened on January 10, 2020 to specify in article 1060 C.c.Q. that any amendment to the by-laws must be made expressly.
Article 1069 C.c.Q. also stipulates that any such modification must be decided by the syndicate by a majority of the co-owners’ votes. In addition, the legislator indicated that these amendments are declaratory, so that they are retroactive to the day these two provisions came into force on January 1, 1994. This is what the Court of Appeal clearly states in this decision.
The Court of Appeal also addresses the ” cowards ” theory, which is an ” equity ” theory, imposing diligence on a party seeking an ” equity ” remedy, including performance in kind of a contractual obligation. In this regard, the Court of Appeal stated that “these equitable theories have no place in Quebec law of obligations, at least since the consecration of performance in kind as a general mode of implementing the right to performance of private law obligations”.
It also added that “it cannot be concluded that the appellant (the Syndicat) has, by its silence and inaction over the years, renounced the benefit of these provisions (…) it seems to me that it would be inconsistent to recognize the possibility of tacitly renouncing the benefit of a provision of a declaration of co-ownership when it can in no case be tacitly modified” (our translation).
On this basis, the Syndicat’s request for an injunction is granted, and the first-instance judgment declaring it abusive is reversed. This is an important decision by the Court of Appeal, for which DJC was pleased to act as counsel at the appeal stage.
Managing vulnerable people is a major challenge in condominiums and elsewhere. The behavior of certain occupants is sometimes incompatible with communal living. This leads some syndicates to request, often as a matter of urgency, outright eviction, or at the very least, orders for the protection of people and property. The Superior Court’s response can sometimes vary, bearing in mind that each case is unique.
In Jardins du Parc Jarry – Phase 1-A v. Cloutier, the Plaintiff, the syndicat de copropriété Jardins du Parc Jarry – Phase 1-A (“Syndicat”), initially sought an order to evict the occupant of a condominium unit that was causing multiple problems.
At the hearing, the Tribunal indicated that it did not intend to issue a safeguard order evicting the occupant. According to the Tribunal, this is “a situation that cannot be resolved by putting a person with obvious mental health problems out on the street. In the Tribunal’s view, the steps that should be taken with regard to this person are those aimed at obtaining a psychiatric assessment and offering him appropriate care. This is the responsibility of the person’s close relatives and friends, if any, of the health services, of a physician who is seized of the situation, of a peace officer, or of any other interested party within the meaning of the Civil Code” (our translation).
The Syndicat therefore amended its proceedings forthwith to request that the order be directed at the owner of the unit instead, so that the latter would be obliged to put a stop to the occupant’s disturbing behaviour by taking all reasonable means. The Tribunal granted this request.
In Bouliane v. Syndicat de la copropriété du Havre St-Laurent, phase II, the defendant, the syndicat de copropriété, sought a safeguard order to evict an occupant, in this case Mr. Henri Boulianne.
In the alternative, the union is seeking an order of protection to prohibit Mr. Boulianne from circulating in the building, except for his entrances and exits, and an order to cease all contact with the building’s administrators and concierge. In support of its requests, the Syndicat alleged several incidents involving Mr. Boulianne, who had been the subject of several complaints to the police for, among other things, striking the building’s concierge in the face with his cane.
The Court rejected the union’s request for eviction at the interlocutory stage, ruling that such a request should be dealt with at the trial on the merits “where the parties will have the opportunity to present all their evidence and be heard” (our translation).
It adds that article 1080 C.c.Q. could offer an alternative solution. This being said, the Court agreed with the Syndicat’s subsidiary conclusions, stating that the defendant’s behaviour “raises a serious concern about the climate in the condominium and the safety of the occupants. The parties must keep their distance” (our translation).
It is interesting to note that, contrary to the Court’s decision in Bouliane v. Syndicat de la copropriété du Havre St-Laurent, phase II, in Jardins du Parc Jarry – Phase 1-A v. Cloutier, the Court refused to issue an order against the problematic occupant, preferring instead to grant an order against the co-owner deemed capable of remedying the situation.
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