LEGAL NEWS | Every month, read two court decisions in dispute in order to stay up to date with the latest news in co-ownership law.
Co-ownership does not escape the general rules of real estate law. A real and perpetual discontinuous servitude may be foreclosed or have its basis reduced from non-use for more than 10 years. On the other hand, the renunciation of the servitude must be explicit on the part of the owner of the dominant estate and in favour of the owner of the servient estate.
Thus, the simple fact of publishing a declaration of co-ownership a few months after having (the same persons) consented to an easement does not in itself constitute – even if the two acts are potentially contradictory – an express renunciation and a legal gesture that is sufficiently clear to extinguish the easement in some way from the start.
In this regard, the Court stated as follows:
« It is true that the designation in the declaration of co-ownership of the parking spaces for the exclusive use of the co-owners of Block FG seems to contradict the terms of the deed constituting the easement.
However, the renunciation of an easement cannot be presumed. It must be explicit and come from the owner of the dominant estate. (…) The absence of publication of a waiver by the Hôtel du Lac constitutes an end to all the arguments of waiver raised by the Syndicate against the Developer » (our translation).
An easement that is initially granted reciprocally is not foreclosed simply because reciprocity is no longer present. Ultimately, it is by establishing that the parking lots in question here were no longer used by the clients, staff, and guests of a hotel after the installation of a chain that the Syndicate will partially succeed. The Court therefore finds that the easement is partially foreclosed and that it is therefore reduced in scope.
Each co-owner uses and enjoys their private portion freely, as long as they do not infringe upon the rights of the community. In the present case, the Syndicate proceeded to verify all the water heaters of the co-owners with the objective of having all those older than 10 years replaced, in order to avoid water-caused disasters. This was done at the request of the building’s insurer administered by the Syndicate.
If the water heaters that are older than ten years old would not be replaced, the insurer would proceed to add a clause to the insurance contract excluding damage caused by a water heater. However, all the co-owners, except one, agreed to changing their water heaters. The Defendant refused to give the Syndicate access to his unit.
The latter did not respond to the formal notices sent to him and failed to appear before the Court at the time of the hearing on the merits. By his actions, the Defendant is not only in contravention of the Declaration of Co-ownership binding the parties, but he is also putting the community of co-owners at risk by reducing the Syndicate’s insurance coverage.
The Court declares that the Defendant must give the Syndicate access to his unit (1066 C.c.Q.) and that he must proceed to change his water heater, all at his own expense. If he fails to do so, the Syndicate may carry out the work, at Mr. Clark’s advanced costs.
Since “(the defendant) is entirely responsible for the situation (…)” (our translation), the Court awards full compensation to the Syndicate for management and administrative costs, extrajudicial fees, and the cost of replacing the water heater, all of which is equivalent to the sum of $8,765.78. Such a decision, which can be applied to other similar situations (installation of water leak detectors, replacement of windows at the end of their life, etc.), is interesting in that the extrajudicial fees were awarded to the Syndicate.
The principle is rather that a party cannot be compensated for the fees paid to their lawyer to assert their rights¹and that only abuse of procedure can be compensated. Exceptionally, they may be awarded if “a party’s conduct on the merits of the litigation is reprehensible, outrageous, abusive, in bad faith” ², which, in the Court’s view, is the case here: “Such expenses would not have been incurred if the defendant had simply responded to the Union’s request” (our translations).
Written by Pierre-Alexis Bombardier and Me Clément Lucas
¹ Viel c. Entreprises immobilières du terroir Ltée., 2002 CanLII 41120 (QC CA), par. 78.