In a recent judgment of the Court of Quebec, Small Claims division¹, the Court reminded a syndicate of co-ownership that, in the absence of an express provision in its declaration of co-ownership, it is not up to the co-owners to pay the cost of replacing their windows, but rather to the syndicate using its contingency fund.
The parties’ claims
The applicants, who are the owners of a condo unit in a condominium building, demand $2448.83 from their syndicate of co-ownership, i.e. the replacement cost of the windows of their condominium ($1948.83) and damages with interest for trouble and inconvenience ($500).
For its part, the Syndicate disputes the claim on the ground that it has adopted and implemented a program that places on each co-owner the responsibility to assume the cost of replacing the windows of his/her unit. This measure is adopted in order to avoid the payment of a special contribution. The syndicate claims that the plaintiffs have joined this program and cannot demand that the syndicate reimburses them.
The highlights according to the Court
The plaintiffs are the owners of one the 48 condominiums being part of the syndicate of which the declaration of co-ownership was published in 1990.
In 2004, the Syndicate was informed for the first time that the sliding windows located in the rooms of all the condominium units were reaching the end of their useful life. However, the syndicate was already planning a major project to repair the roof, and a special contribution was planned. The special contribution was necessary because the available funds in the emergency funds were insufficient for the proposed re-roofing project.
To avoid having to manage both projects simultaneously, and to avoid an additional special contribution, the Board of Directors adopts a resolution to the effect that the co-owners can change their own windows on a voluntary basis at their cost. During the following years, several co-owners act in this way and are replacing their windows at their expense.
In 2008, the new property manager hired by the syndicate challenges the syndicate’s program because according to his knowledge and experience in condominium management, the program does not seem to respect the declaration of co-ownership. Indeed, he notes that the windows of the units are part of the common portions for restricted use of the building, and that there is no express provision in the co-ownership declaration to the effect that the co-owners must change their windows themselves, as well as pay the cost of the work.
As far as he knows, the windows of this syndicate are common portions for the exclusive use of the co-owners. According to the manager, window replacement should be taken care of by the Syndicate and paid from the contingency fund or through a special contribution, if any.
The manager informs the Board of Directors of the syndicate about this, which decides that it is appropriate to clarify the rules of its program to the co-owners who had not yet made the change of their windows. In fact, the syndicate sets a deadline for the voluntary change of the windows, after which the syndicate will have no alternative but to conduct itself the change of the windows of those who will have neglected to do so, and claim the cost of work from the co-owners concerned. The deadline is 31 December 2012.
On August 3, 2012, the plaintiffs ask the syndicate to replace just the glass in two windows of their unit, which are fogged. In September 2012, the syndicate refuses this request, because, in its opinion, these co-owners must make the change themselves and at their expense before the deadline of 31 December 2012.
The applicants decide to change the windows at their own expense in order to meet the conditions of an offer to purchase their unit. They pay $1,948.83 including taxes.
Subsequently, the plaintiffs filed a lawsuit against the syndicate on November 29, 2012 in order to claim from the latter repayment of the window replacement cost ($1948.83), plus damages with interest of $500 for the trouble and inconvenience they had suffered. They testify at the hearing that they feel they have had to deal with unforeseen drawbacks that have slowed the process of selling their condominium.
The plaintiffs argue that it is the responsibility of the Syndicate to proceed, with the contingency fund or from a special contribution, if necessary, with the replacement of the windows which are defined as a common portion in the declaration of co-ownership. For its part, the syndicate argues that, according to its interpretation of Section 1064 of the Civil Code of Québec, the co-owners shall bear all expenses related to a common portion for restricted use, and that its program meets this principle.
ANALYSIS AND DECISION
After its analysis of the evidence, the Court finds what follows:
According to the Court, the Syndicate does not comply with the applicable provisions of the declaration of co-ownership and with Sections 1064, 1071 and 1072 of the Civil Code of Quebec, when implementing its voluntary replacement program of the windows.
The declaration of co-ownership, says the Court, determines that the windows are common portions, that each co-owner has exclusive use of the windows to which his exclusive portion provides exclusive access, and that he is entitled to use and enjoy exclusively the inner surface of his windows. According to its analysis of the relevant provisions of the declaration of co-ownership, the Court finds that under the terms of the declaration of co-ownership common expenses of this co-ownership include maintenance, cleaning, replacement and the operation of the common portions and common areas for the exclusive use of specific co-owners. These expenses are divided among the co-owners according to the share of the costs of each.
The Court advises the parties that the declaration of co-ownership does not allow the Syndicate to delegate to co-owners the responsibility to replace their own windows that are common portions. Moreover, the declaration of co-ownership does not provide for different treatment for the common portions where these are for exclusive use.
According to the Court, Section 1064 of the Civil Code of Québec must be interpreted according to the existing reasoning but recently reiterated by the Court of Appeal² to the effect that the term “costs” used in Section 1064 of the C.c.Q. aims only at minor repair expenses and maintenance costs associated with the use of the common portions, but not major repairs and replacement of these portions.
The Court stipulates that the declaration of co-ownership does not provide that the expenses related to the common portions for restricted use must be exclusively borne by the co-owners who use them, and so it cannot rely on Section 1064 of the Civil Code of Quebec to validate its voluntary replacement program of the windows.
The Court finds that the plaintiffs are entitled to reimbursement of the cost of replacing their windows, i.e. $1948.83. As for the plaintiffs’ claim for damages with interest, the Court concludes that the evidence heard at the hearing does not justify the granting of such damages.
For these reasons, the Court has condemned the Syndicate of co-owners to pay the plaintiffs $1948.83 with interest at the legal rate as well as an additional indemnity, plus the costs of the request in the amount of $103.
For any questions in real-estate law, do not hesitate to contact our team of legal experts in the field.
1. 2014 QCCQ 11438, Court number 550-32-020719-123
2. Gestion Almaca v. Syndicat des copropriétaires du 460 St-Jean, 2014 QCCA 105
Who pays for the replacement of the windows? The syndicate of co-ownership must comply with the provisions of the Civil Code of Quebec
