The Court of Québec confirms the retroactive scope of former article 1074.2 of the Civil Code of Québec.

On April 28, 2022, the Honourable Diane Quenneville of the Court of Québec ruled on the application of the new version of article 1074.2 of the Civil Code of Québec. The case pitted a Syndicat des copropriétaires against the owners of a private unit (Syndicat de copropriété Terrasses Le Bourget-1 v. Yassine 2022 QCCQ 2330), from whom it claimed reimbursement of an insurance deductible. According to the Syndicat demandeur, the Defendants failed to adequately maintain the water and sewer systems, resulting in water damage on January 14, 2019, which damaged not only their private portions, but also the common portions of the building. It is important to note that, at the time of the damage, the Defendants were renting their unit to third parties. In support of his claim, the Plaintiff produced a series of photos showing extensive damage to the cupboard under the kitchen sink. However, ruling that this evidence is insufficient to conclude that the Defendants are liable, the Court distinguishes between the old wording of article 1074.2 of the Civil Code of Québec and the new one, adopted on March 17, 2020, which establishes a presumption against the co-owner. We can see the differences by comparing the two versions below:

 

Old version :

1074.2 Sums incurred by the syndicate for the payment of deductibles and the repair of damage caused to property in which it has an insurable interest cannot be recovered from co-owners other than by their contribution to the common expenses, subject to the damages it may obtain from the co-owner required to repair the damage caused by his fault.

Any stipulation derogating from the provisions of the first paragraph is deemed unwritten.

 

New version :

1074.2 Sums incurred by the syndicate for the payment of deductibles and the repair of damage caused to property in which it has an insurable interest cannot be recovered from co-owners other than through their contribution to the common expenses, subject to the damages it may obtain from the co-owner required to repair the damage caused by his fault and, in the cases provided for in the present code, the prejudice caused by the act or fault of another person or by the act of property in his custody.

Any stipulation derogating from the provisions of the first paragraph is deemed unwritten.

 

More specifically, to demonstrate the Defendants’ liability, the Plaintiff had to show that the Defendants themselves had been negligent, having been advised by their tenants of the dilapidated condition of the premises, and failing to advise the Syndicate. Consequently, and according to the Court, there is no presumption of liability on the part of a co-owner for damages caused by the act or fault of another person or of property in his custody. Consequently, for any recourse instituted for an event occurring before March 17, 2020, the plaintiff will have to prove the direct fault of the co-owner.

 

By François Fournier

Share this publication