Claim by the syndicate and four co-owners against the building promoter – action for damages to cover the cost of modernizing building's freight elevator for cars and access to garage – question of whether the building promoter may be obliged to modernize an ageing common portion existing at the time of the conversion to divided co-ownership and sale of the building to co-owners – Syndicate's action for damages granted in part, but without full replacement of the elevator.
The syndicate and owners of garage spaces in a luxury condominium building are asking the Court to order the developer of the condominium building to completely modify the freight elevator, a common portion of restricted use, used to access the garage with their cars, by changing the manually operated double door system with a new fully automated system.
This project involved gutting and re-doing the inside of the building and putting up a new facade. This was a commercial/office building prior to conversion into a residential building.
The co-owners except one, each bought a unit and also a parking space from the Defendant. The only access to the garage for cars is by means of a freight elevator.
In order to access or leave the garage parking area, the driver of a vehicle must use the freight elevator, which involves a nine step process.
The syndicate contends that:
the freight elevator access system to the parking spaces is grossly inadequate and not at all commensurate with a luxury condominium building located in the heart of downtown Montreal;
the building promoter should to be condemned to pay the sum of $220,000 to extensively modify the system into an automated car elevator with a remote control which would operate all the doors and the elevator;
The building promoter contends that:
the co-owners knew the kind of elevator and access system for the garage that existed in the building before signing their deeds of sale and purchasing their parking spaces, no representations of any kind were made to the effect that the freight elevator would be modernized and automated, the original co-owners or garage space purchasers didn't ask if the elevator would be modernized and automated prior to purchasing their parking spaces.
it is not responsible for the cost of such a transformation of the freight/car elevator.
Is the building promoter responsible for the cost of completely transforming the freight elevator? The issue before the Court is, therefore, whether the freight elevator and the way it is configured and operated is a construction defect or faulty design defect that can be set up against the builder/developer.
The court grants the syndicate's action only in part for the following reasons:
The freight elevator is not user friendly, old and has other relatively minor deficiencies which are not necessarily according to code, but which can be repaired at a relatively minor cost
There is no issue of prescription with respect to the Syndicate since the prescription period could not commence until April 11, 2007, when a truly independent Board of Directors of three directors was elected.
The syndicate is not yet at the stage of doing the work but merely trying to obtain the funds to do the work and that if the funds are obtained, then Article 1097 C.C.Q. will be put into operation; this is a valid argument and that the Syndicate had the capacity to sue, particularly after considering Article 1081 C.C.Q. and the Belcourt case decision.
The parties' experts agree that there are some deficiencies in the elevator that need to be repaired, all of which the building promoter had offered to do by letter, but which offer had never been taken up by the syndicate which wants a new elevator.
The Court will order therefore an amount for these repairs gleaned from the similar testimony of the experts who agreed on the majority of the minor deficiencies and will use a combination of the two expert's estimates to establish a cost for these repairs.
The Court will allow the building promoter to either effect all of these repairs itself and if not done so within 90 days of this judgment, will order the building promoter to pay the syndicate the sum of $20,000 to permit it to proceed to have the repairs done with respect to certain items.
However, with respect to the syndicate's request for a new automated system, the Court cannot agree for the following reasons:
the Deeds of Sale of each of the co-owners the section on conditions and obligations stipulates that they confirm having seen and examined the building prior to purchase and are satisfied therewith;
No representations of any kind had been made as to any major changes or improvements that would be made to the freight elevator during the extensive renovations to the Building prior to turning it into condominium units.
No representations had been made regarding any automation of the system, and none of the promotional literature or pamphlets promised a new automated freight elevator.
The co-owners should have determined if the freight elevator was appropriate for their needs, and what, if any, changes were being done to the elevator.
The failure to verify if the freight elevator was adequate or acceptable or commensurate with a modern luxury condo building cannot make the building promoter responsible for the desired modification.
No Québec jurisprudence condominium or real estate law obliges an owner or developer to make such extensive changes, amounting to a wholly new and automatic elevator, unless this change had been a clear selling feature or had been advertised or promised in some way;
The freight elevator access system is not a latent defect, nor is it a faulty design or construction defect of the Building.
The law does not require the building promoter to assume the cost of such a complete modification as requested by the Syndicate or by the co-owners.
The Court will grant costs to the syndicate but only on an estimated amount of the repairs necessary and will therefore use its discretion to order costs in accordance with Class III of the Tariff of Court Costs in Civil Matters and Court Office fees.