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 opposed a Syndicate of Co-owners to the owners of a private unit (Syndicat de copropriété Terrasses Le Bourget-1 v. Yassine, 2022 QCCQ 2330), from whom it claimed the reimbursement of an insurance deductible.

According to the Syndicat plaintiff, the Defendants failed to adequately maintain the water and sewer systems, which resulted in water damage on January 14, 2019. As a result, their unit as well as the common areas of the building were damaged.

It is important to note that at the time of the damage, the Defendants were renting their unit to a third party.

In support of his claim, the Plaintiff sets forth a series of photos in which it is possible to see that the cupboard under the kitchen sink is badly damaged.

However, the Court ruled that this evidence is insufficient to conclude that the Defendants are liable. In addition, 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 understand the differences by comparing the two versions listed below:

Old version:

1074.2 1074.2. The sums incurred by the syndicate to pay the deductibles and make reparation for the injury caused to property in which the syndicate has an insurable interest may not be recovered from the co-owners otherwise than by their contribution for common expenses, subject to damages it can obtain from the co-owner bound to make reparation for the injury caused by the co-owner’s fault.

Any stipulation which is inconsistent with the provisions of the first paragraph is deemed unwritten.

New version:

1074.2 1074.2. The sums incurred by the syndicate to pay the deductibles and make reparation for the injury caused to property in which the syndicate has an insurable interest may not be recovered from the co-owners otherwise than by their contribution for common expenses, subject to damages it can obtain from the co-owner bound to make reparation for the injury caused by the co-owner’s fault and, in the cases provided for in this Code, for the injury caused by the act, omission or fault of another person or by the act of things in the co-owner’s custody.

Any stipulation which is inconsistent with the provisions of the first paragraph is deemed unwritten.

In order to prove the liability of the Defendants, the Plaintiff needed to demonstrate that the Defendants, themselves, had been negligent. More specifically, it was necessary to illustrate that the defendants had been advised by their tenants of the dilapidated condition of the premises but neglected to inform the Syndicate.

Consequently, and according to the Court, there is no presumption of liability of the co-owners for the damages caused by the act or fault of another person or the property under his (or her) care. As a result, the plaintiff must prove the direct fault of the co-owner for any legal recourse instituted for an event that occurred before March 17, 2020.

By Gascon