The recent court decision in Robitaille v. Syndicat de la Copropriété les Condos du Marché Jean-Talon et al., 2018 QCCQ 7531 provides a useful illustration of the analysis of the problem and the determination of responsibility amongst the different actors.
Robitaille ("R") claims from the condo Syndicate $29,484.03 representing damages that she claims to have incurred as a result of noise and abnormal vibrations from the building's ventilation and air conditioning system ("HVAC"). The Syndicate in turn claims from Pham, the owner of one of the commercial condos in the building where she operates a restaurant, to be held harmless from R's claim in so far that the Court determines that the cause of the problem is the lack of maintenance of the HVAC of which Pham has the exclusive use.
The facts can be summarized as follows:
2014-05-14: R purchases the condo which was built in 2005. The building includes 7 residential condos including that of R, which is situated on the highest level just below the roof.
The HVAC is installed on the roof. It comprises an evacuation ventilator connected to the stove of Pham's restaurant and 4 compressors.
2014-06: R hears a loud noise appearing to come from the ventilation system. She hears the noise and feels the vibrations in her bedroom.
2014-07: R complains the Syndicate board.
2014-07-16: Syndicate installs pads under the HVAC to temper the noise and vibrations.
2014-08-14: The noise and vibrations persist. R sends a default notice to the Syndicate calling upon it to retain the services of an expert to analyse the problem and propose corrective measures.
2014-07 to 2015-12, the Syndicate hired different experts and followed several of their recommendations. Notably in 2015-11, it installed soundproofing on the HVAC and at R's bedroom at a cost of about $25,000.
2016-03-29: R sends Syndicate a new default notice calling upon it to correct the problem relating to impact type noise emanating from the HVAC.
2016-05-05: With the Syndicate's authorisation, R installs a rheostat on the HVAC at a cost of $4,484.03 at her own expense. As a result, the noise and vibration problem is acknowledged by R to be resolved to her satisfaction.
2016-06-09: R claims from Syndicate, $18,984.03 comprising the cost of the rheostat, trouble and inconvenience and her legal fees.
2016-07: R settles with her vendor for $11,500 representing compensation for damages relating to the HVAC defects that she complained of and releases him from all such claims.
R argued that the Syndicate was negligent in omitting to install a rheostat as recommended by the experts and by its tardiness in implementing other recommendations of the experts. The Syndicate argued that it acted prudently at all times and incurred $40,000 in costs to rectify the problem. According to the Syndicate, the problem was rectified in 2015-11 and no further corrective work was required thereafter.
According to Article 1077 of the Quebec Civil Code, the condo Syndicate is liable for damage caused to co-owners or third parties by faulty design, construction defects or lack of maintenance of common portions. The liability of the Syndicate includes common portions of which one or more co-owners have the exclusive use, use such as the HVAC in this case. If the damage is the result of lack of maintenance or repair, then the Syndicate could in turn claim against the co-owner(s) having such exclusive use, to be indemnified against condemnations in favour of other co-owners or third parties.
To establish the liability of the Syndicate for lack of maintenance or repair, the latter must have committed a fault i.e. to have acted imprudently in relation to its obligation to maintain and repair. The Syndicate is not held to a standard of perfection but rather that of acting prudently. R has the burden to prove the existence of a fault on the balance of probabilities.
The Court concluded that, based on the evidence, R did not succeed to prove the existence of any fault attributable to the Syndicate regarding maintenance or repair. It hired several experts to try to resolve the problem. It was diligent and cooperated with R to find a solution.
The liability of the Syndicate for faulty design or a construction defect is established even in the absence of any fault. One must prove the existence of the faulty design or construction defect in a common portion and that it caused damage.
According to the Court, the existence of a construction vice or faulty design of the HVAC existed between 2014-06 to 2015-11. The various expert reports established that the noise and vibrations generated by the HVAC constituted a defect. The evidence also established that the expert Lefebvre in 2015-12 and Duée in 2016-05 both recommended that a rheostat be installed on the HVAC, which the Syndicate refused to do.
Since a defect existed in the common area which the Syndicate had the legal obligation to correct with the installation of a rheostat as recommended by the experts, the Syndicate is liable pursuant to Article 1077 CCQ.
The Syndicate also argued that it benefited from the release that R granted to her vendor in so far as the compensation that she received was for the costs of the rheostat and moral damages, the same claims that R asserted against the Syndicate. Should R be compensated twice for the same damages by "double dipping"?
Normally, when two debtors are jointly and severally held together to pay the same debt, the payment of the entire debt releases both debtors. However, the vendor and the Syndicate cannot be joint and several debtors because the source of their obligations are different: the vendor pursuant to the sales agreement and the Syndicate pursuant to a statutory duty (i.e. Article 1077 CCQ). In such cases which occur frequently, the theory of in solidumdebtors applies with similar consequences for the creditor. When one in solidumdebtor pays the entire debt, it releases the other in solidumdebtor.
In the present case, the Court concluded that R's claims against the vendor and the Syndicate were substantially the same so that the release of the vendor was a bar to asserting the same claim against the Syndicate. Although the Syndicate was legally responsible for the damages caused by the defect in the common portion, R's claim against it must fail because she had already received her just due from the vendor.
But what of the warranty claim of the Syndicate against Pham? It had two purposes: to indemnify the Syndicate for any condemnation that it received at the hands of R which in the circumstances, is without object.
The second purpose was to obtain reimbursement for the costs of expert reports and for the corrective work undertaken by the Syndicate to the HVAC. The Court considered that this claim was well-founded in virtue of Articles 1064 and 1077 CCQ and Article 22 of the Declaration of Co-ownership.
Article 22 provides that the expenses relating to the use of restricted use common areas are to be borne by the beneficiary(ies) of such use. Furthermore, such restricted users could be obliged to pay a special assessment to the contingency fund to cover major repairs and replacement of such restricted use common portions.
The Court's decision to maintain the warranty claim appears to be wrong. The liability of a co-owner such as Pham is limited to costs resulting from lack of maintenance or repair to a common portion of restricted use, not corrective work resulting from faulty design or a construction defect, which is what the Court concluded to be the source of the excessive noise and vibration.
The Syndicate may, when establishing the contribution to the contingency fund, take into account the rights of one or more co-owners having exclusive use of common portions and assess such co-owner a larger amount than the relative value of his fraction and the contributions of the other co-owners would be reduced accordingly (Article 1072 CCQ). However, in my view, this should be done as part of the Syndicate budgeting process and would not otherwise give the Syndicate the automatic right to assert such a claim as it did in the present case.
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