In a recent judgment of the Court of Appeal of Quebec1 the Court considered the question as to how soon a co-ownership syndicate can require testing acoustic performance after replacing the floor coating in a co-ownership unit?
The syndicate turned to the Court of Appeal because its motion to introduce proceedings for a permanent injunction had been denied in Superior Court on the ground that its right to require such tests, and access to the unit to carry them out, was overdue (prescribed) because too much time had elapsed since the installation of new floor coating by the owner.
In 2004, this co-ownership had adopted a regulation providing an estimate of sound insulation for floors for the owners who wanted to replace the carpets with hard flooring surface. In 2006, an alternative estimate was adopted at the annual meeting of the co-owners. It provided that the co-ownership syndicate or any person authorized by it could conduct inspection visits during the works. It could also require tests allowing to assess the acoustic performance of the work, following the execution thereof.
Here is the text of the regulation in question:
“Following the completion of the work acoustic tests may be conducted to confirm the acoustic performance of the completed facilities. These tests may be conducted when the furniture will have been re-installed. Coordination will have to be organized by the owner and/or the administrators of the building to allow access to the residence located directly under the unit where the hard-surface floor had been installed. Access to this residence is required for the acoustic tests. These tests will be coordinated according to the availability of the occupants and the consultant.”
In 2007, the co-owner had floating floors installed in his unit after informing the syndicate and after he had sent a form in this regard. The syndicate had, moreover, also visited the work and would have received a sample of the membrane used. It was not until a year later that the syndicate informed the respondent that it considered that the coating had been installed without permission and it was not until 2009 that it had asked to conduct acoustic tests, a request that would be repeated in 2011. Procedures were undertaken by the syndicate on June 28, 2011, more than 4 years after the end of the work.
The Court of Appeal rejected the syndicate's request for the following reasons:
The starting point of the limitation period corresponds to the first time a party, having a right to claim in Court, can require it. The syndicate could have requested the right to conduct tests from the end of the work in February 2007.
The right to conduct such testing is not imprescriptible as the inalienable rights enshrined in the Charter of Rights and Freedoms, or those who are closely linked to the personality of an individual.
The right of the appellant derives from the declaration of co-ownership and is not intrinsic to his person.
The right of the co-ownership syndicate to conduct acoustic testing is a personal right (prescriptive for three years) that allows the syndicate to require from the co-owner his collaboration in such tests.
The right to require acoustic testing is not a real right (related to the building) which itself is directly exerted on one thing without going through the intermediary of another person.
The right to require acoustic tests in the context of alternative estimates is therefore prescribed by three years and it is prescribed.
If the owner refuses to allow such tests, the syndicate must apply to the Court before the expiry of a period of three years from the date of completion of the work to obtain an order requiring the co-owner to allow such tests. The fact of submitting such a request to the Court within that period shall have the effect of stopping the prescription until the case takes its course until a final judgment.
We invite you to contact our team of lawyers specialized in real-estate law for any question about this subject.
REPLACEMENT OF FLOOR COATINGS IN A CONDOMINIUM
