Damage claim by a co-owner - water infiltrations through the roof – question of whether the roof is a common or private portion of the building – dismissal of the co-owner's claim
A co-owner files a court claim against the syndicate of co-ownership for $1558,00 for the damage caused to his private portion following water infiltrations through the roof of his unit.
In defence, the syndicate argues that the roof is a private portion of the co- ownership and that consequently the syndicate isn't liable.
The Court must answer the question whether the co-owner,s roof is a “private” portion or a “common” portion?
According to the facts presented, the co-owner noticed that water dripping along a wall in his unit. Following an investigation, the origin of this leak is the roof directly above the housing unit.
The co-ownership's manager, the other defendant party in the case, informed the co-owner that the repair of the roof and the damage inside was the co-owner's responsibility under the terms of the declaration of co-ownership.
The declaration of co-ownership specifies that the private portion of a fraction is composed of all the elements which are inside the survey boundary lines, that is to say the roof.
However, upon initial examination it is unclear whether the roof is inside survey lines, or itself constitutes the boundary line , which would then exclude it.
According to the Court, if it is found that it is a private portion the co-owner's claim must fail because the maintenance, repair and the replacement, if necessary, of the roof is the sole responsibility of the co-owner. On the other hand, if it a common portion, the Syndicate is then responsible by application of article 1077 of the Québec Civil Code.
The declaration of co-ownership does not err through and over-abundance of clarity.
In the description of the composition of the private portions, the declaration specifies that “each private portion is made up of all that is included inside the boundaries of each one of these portions” and that when one then looks at the described elements, this would appear to be one of the said boundaries. If such is the case, the private portions would be inside the boundaries - which excludes the boundary itself, and thus, the roof.
However, an analysis of the entire declaration of co-ownership gives rise to a different conclusion, when one considers the plan prepared by the land-surveyor. This plan shows that whatever is not included in the common portions is private.
The share of the private portion of the co-owner is thus excluded from the common portion.
Another clause of the declaration of co-ownership specifically refers to the roofs, and stipulates that a co-owner must obtain the authorization of the general meeting of the co-owners to make modifications to the roof. This mention would not exist and would not be the case if it were about a common portion.
Consequently, the understanding is that the roof belongs to the private portions.
In the section which defines the terms used, one can read that the words “apartment”, “private portion” are used synonymously in the declaration, which leaves the impression that each housing unit must be considered as if it were about a single-family house, unless otherwise noted.
Consequently, the roof belongs to the private portion.
The Court concludes that the roof which is the point of origin of the damage caused to the co-owner's unit is included in the private portions of the fraction, and that consequently the co- owner is solely responsible for the damage caused to his property by the unexpected water leak.
In the circumstances and considering the ambiguity of the declaration of co-ownership, the Court dismisses the co-owner's claim, but without costs.