• The syndicate claims from the defendant co-owners the sum of 383,78$, representing the cost of the repairs carried out on the ceiling of the bathroom of the owner of the private portion unit 608 located directly below that owned by the defendants.
• The syndicate claims that the source of the damage originated in the bathroom of apartment 708 owned by the defendants.
• The defendants deny owing this amount, arguing that it was never proven that the damage resulted from a problem with the toilet of their apartment.
• They add that their son went to investigate apartment 608 but did not see any spot nor trace of water damage.
• According to the testimony of the property manager, the superintendent was notified by the owner of the apartment 608 that water damage had just occurred on the ceiling of his bathroom and that the drywall was wet.
• The superintendent went to the defendants' apartment - who unfortunately speak neither French nor English – and noted that the problem came undoubtedly from the wax gasket of their toilet, which is located just above the water damage in the apartment below.
• According to the manager's testimony, the superintendent afterwards notified one of the defendants' sons who agreed to have the toilet repaired, after which the syndicate could carry out repairs to the ceiling of the bathroom of the apartment below.
• However, after one week, the bathroom ceiling was still leaking.
• The manager then contacted the co-owners' son who asked him for the telephone number of the plumber who usually works in the building because he wanted to have him fix his parents' toilet.
• This repair – carried out by some unknown person – was done sometime between the 20th and the 28th of October, since it was on the last day of this period that the manager asked his usual contractor to repair the lower apartment's ceiling.
• The invoice for this ceiling repair totalled 340$ plus taxes.
• The manager testified that the plumbing located under the toilet is part of the private portions and belongs to each co-owner.
• The building manager sent an initial demand letter to the defendants on the syndicate's behalf holding them responsible for the damage caused to the ceiling of the apartment beneath theirs. But, according to the co-owners' son's testimony they never received the letter.
• The manager sent a second letter claiming the cost of the repairs charged on the contractor's invoice which he attached to the letter.
One of the sons answered the syndicate in writing, although he testified at the hearing that this letter was written by his brother. However, that isn't what the aforesaid letter indicates.
• In this letter, the son acknowledges the existence of a four square inches area on the ceiling of the bathroom of the lower apartment, but said that he found the invoice a bit exaggerated for such minor damage. He adds that the building's insurer should cover this damage.
• A third letter is sent by the property manager to the defendants, reiterating the syndicate's demand that they pay the sum of 383,78$ and indicating the syndicate's intention to take legal action if the defendants persist in his refusal to reimburse the costs incurred in the interest of the co-ownership.
• The defendants' son testified to the Court that he owns several dwellings and has renovated many of them himself regardless of the fact that he doesn't hold any certification in a construction trade. He nonetheless does carpentry, plumbing and electrical work.
• He also added that he completely renovated his parents' bathroom in 2006.
• The son testified that he is convinced that the syndicate is attempting to recover money it paid to his father for past unspecified damage to his car.
• He ended his testimony by mentioning that the lower apartment was being renovated during this period and that what he saw on the bathroom ceiling was not a four square inch spot but the hole left open by the removal of the lighting.
• In accordance with articles 2803 and 2804 of the Civil code of Quebec, the complainant party must show to the Court, by preponderant proof, the seriousness of its claims.
• The Court must evaluate the credibility of the two versions of the facts of which several aspects are contradictory.
• For the reasons given, several elements of the defendants' son's testimony aren't credible and the defendants' son attempted to discredit the syndicate by filing documentary evidence composed of doctored photocopies of the same document filed by the syndicate.
• In accordance with article 1039 of the Civil code of Quebec, the Syndicate of co-owners has the duty to preserve, maintain and manage the common portions, as well as safeguard of the rights related to the building or the co-ownership.
• In addition, even if each co-owner owns his fraction and uses his private portion and the common portions freely, in accordance with article 1063 C.c.Q. he has a duty not to infringe on the rights of the other co-owners.
• Each co-owner is thus responsible for the damage caused to third parties, to the common portions and to the private portions of the building. The defendants, defective toilet caused a water leak between the defendant's apartment and the one below (via the common portions) as well as damage to the bathroom ceiling of the unit below (also a private portion).
• The evidence shows that this toilet was repaired in 2006 by the defendants' son, who admitted to having no construction trade certification. Could the repair have been adequate considering it lasted only a short time? The question arises.
• Lastly, the evidence showed that the syndicate's insurance coverage stipulated a 2500$ deductible. The repair costs being less than the deductible amount, it is the co-owner who is responsible for the damage who must bear the cost, either personally, or through his personal insurance.
• The Court thus concludes from all of the evidence presented that the syndicate has proved its claim against the defendants.
Source: Syndicat des copropriétaires Manoir II vs. Nehmé 2011 QCCQ 1776