Each month, read about two court decisions in dispute to stay on top of the latest news in co-ownership law.
In this decision, the Quebec Court of Appeal examines the validity of amendments to a Declaration of Co-ownership in light of the new majority provided for in Article 1097 C.C.Q. It should be noted that this article was amended on January 10, 2020. It now provides that the decisions which it lists are taken by the general meeting of co-owners, representing three quarters of the votes of the co-owners, present or represented at this meeting.
As an additional feature, the amended Declaration was initially published in 1989, i.e. prior to January 1, 1994, the date on which the Civil Code of Québec came into force. The Declaration contained a clause requiring unanimity to change the destination of the immovable. On both of these issues, the Court provided several lessons that are very useful in practice.
The decision covers several other aspects (e-mailing of syndicate communications, injunction, etc.). We retain only some of them for the present purposes. The appellant claimed that the amended Declaration imposed a change in the destination of the immovable. According to the appellant, the possibility for a co-owner to exercise certain professional activities “not involving a continuous flow of visitors” (our translation), was contrary to the residential destination of the immovable.
Both the Superior Court and the Court of Appeal reject this interpretation and affirm that the destination of the building is subject to change. The arrival of telework justifies such a mention in the amended Declaration, and this, without modifying the type intended for the building, its vocation and/or its allocation. The Court adds that the destination of the immovable affects “all of the fractions making up the co-ownership and not, and only, the private fractions” (our translation), such as the criticized amendment. The modification brought about by the amended Declaration therefore constitutes an amendment to the constituting act of co-ownership (1097 C.C.Q.).
Furthermore, the Court of Appeal analyzes the Superior Court’s decision regarding the maintenance of provision 38.2 of the amended Declaration. This provision modifies the unanimous vote rule provided for in the 1989 constituting Declaration for the modification of the destination of the immovable. The provision in question was adopted by the co-ownership meeting in 2018 by a vote of 75% of the co-owners present or represented at the meeting.
Mr. Lejay claims that such an amendment is illegal, as it contravenes article 53 of the Act Respecting the Implementation of the Reform of the Civil Code, which is of public order. According to the latter, article 53, which states in its second paragraph that “any stipulation of the declaration of co-ownership which establishes the rule of unanimous approval for decisions changing the destination of the immovable is maintained notwithstanding article 1101 of the new Code“, prevents the meeting from modifying the unanimity rule.
The Court disagrees. It states that “this provision (art. 53 of the Reform Act) merely maintains the unanimity rule contained in the Declarations of Co-ownership established before January 1, 1994. It does not prohibit the possibility of modifying it at a later date” (our translation), and this, considering that the vote required is the one set out in article 1097 C.c.Q. (simple amendment to the constituting act of co-ownership).
Ostensibly, this judgment is one of many of the same type rendered by the Small Claims Division at the Court of Quebec. It involves the Syndicat des copropriétaires Zuni (“Syndicate”), the co-owners of unit 414, Mr. Legault and Ms. Perreault, and the tenant of the unit in question, Mr. Lavallée. Their respective insurers are also referred to as defendants.
A water damage originating from the washing machine of unit 414 occurred on October 22, 2019. The Court established that the legal regime in place at the time of the occurrence of the damage in question applied, namely the first version of article 1074.2 C.c.Q. This article would take precedence over the articles of the declaration of co-ownership. It is also mentioned that “this article was amended on March 17, 2020, but the amendment does not have retroactive effect to events which occurred previously” (our translation).
Consequently, the Court affirms that the fault of the co-owner and/or the tenant must be proven in order for their respective liability to be engaged. However, the submitted evidence revealed that Mr. Legault was advised by his tenant, during the summer of 2019, of a problem with a drain coming from one of the household equipments of the unit which he rented. He left it to Mr. Lavallee to determine the cause of the problem, which the Court considered to be a failure to act on his part.
The fault of the co-owners of unit 414 having been established, they (and their insurer) are condemned to pay the costs incurred by the Syndicate to repair the loss, namely the sum of $13,884.74 in addition to the latter’s legal costs. The failure to act by co-owners who neglected to assume their obligations, even though they were duly notified, therefore constitutes a fault covered by the co-ownership liability insurer, which is jointly and severally condemned without any depreciation being applied. The notice to the co-owner to act could, for example, take the form of a building by-law imposing to change or verify such and such a private component.
A subsequent failure to act could, if found to be the cause of the loss, constitute the fault for charging costs to the co-owner and their insurer.