Divided co-ownership living has its advantages, such as communal services and a certain collectivization of the risks. However, each co-owner has a duty to fulfil their obligations under the declaration of co-ownership, which is the cornerstone of co-ownership living. Attorneys Jessica Gauthier and Émilie Nadeau discuss the recent Superior Court decision in Syndicat des copropriétaires du 1200 Ouest c. Sarhan, 2025 QCCS 434.

Summary of the facts and the main question in issue

The applicant, Syndicat des copropriétaires du 1200 Ouest (the “Syndicate”) brought suit against a co-owner in the amount of $100,000 seeking reimbursement of the insurance deductible paid further to a claim for repairs to the building caused by water damage. The damage occurred due to the malfunction of a defective bidet seat in the unit of the co-owner in question. Eight of the building’s units and some common areas suffered water damage.

The main question in issue therefore involves the application of the 2018 version of Article 1074.2 C.C.Q., amended in 2020 to add the regimes of liability for the act of a thing and liability for the act, omission or fault of another to the exceptions to the limitation of the syndicate’s recourse against a co-owner:

2018 Version

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.

2020 Version

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.

The parties’ arguments:

The Syndicate contends that the defendant failed to satisfy three obligations set out in the declaration of co-ownership (“DOC”), namely:

1. To remit the keys for the unit to the Syndicate, which would have enabled quicker action in the event of an occurrence;
2. To take out an insurance policy for damage and civil liability; and
3. To properly maintain the bidet seat in his unit.

Meanwhile, the co-owner maintains that he was not at fault and that instead it is the Syndicate that is responsible for the damage because it did not properly follow up on obtaining the keys to his unit and the required insurance policy.

Decision and reasons

The Court concluded that the defendant co-owner’s conduct was wrongful, but that the Syndicate also committed a contributory fault. Accordingly, the defendant must reimburse the Syndicate $50,000, representing 50% of the cost of the deductible.

In point of fact, the Court found that the defendant had failed to respect three of his contractual obligations, which led directly to the loss:

[TRANSLATION]

“If the Defendant had complied with his obligation to maintain, as would a prudent and diligent co-owner and in accordance with the DOC, it is a safe bet that the malfunction of the bidet seat could have been avoided.  If the Defendant had remitted his keys to the Syndicate, it is probable that quicker action on the day of the Occurrence would have minimized the resulting damage.  Finally, if the Defendant had taken out an insurance policy for damage and civil liability, he might not have avoided the damage caused by the defective bidet seat, but he would very likely have avoided this trial.”

As regards the bidet seat, the Court retained that it is not outrageous to impose a preventive obligation on the co-owners requiring that they check and make sure of the good condition of the improvements made to their private unit, such as a bidet seat, in order to ensure they are functioning properly.

The standard remains that of a prudent and diligent co-owner who, periodically, takes the necessary measures to ensure the proper functioning of the improvements made to their private unit.

The frequency of such a preventive maintenance obligation remains a matter of appreciation and depends on the nature of the equipment in question, on a case by case basis. There is no question here of imposing a daily obligation on every co-owner to check the proper functioning of their facilities.

In the instant case, the question of the required frequency could not be determined precisely by the Court, the defendant having admitted that he had never done any preventive maintenance whatsoever on the improvements made to his private unit, including the bidet seat, despite having owned it for 11 years.

Nevertheless, the Syndicate’s failure to do the basic follow-up and issue reminders concerning the keys and the insurance policy constitutes reprehensible conduct that also led to the loss and the damage caused to the other seven units, which leads to a sharing of liability under Article 1478 C.C.Q., fixed at 50% by the Court.

Conclusion

As the Court reminds us, co-ownership living imposes certain obligations, not only on the syndicate but also on each of the co-owners. On this point, we take the liberty of repeating the words of the Hon. Luc Morin, J.C.S., at paragraphs 65 to 67 of the aforesaid judgment, regarding risk sharing and the limits on it:

[TRANSLATION]

“[65] Co-ownership entails the sharing of obligations and a certain collectivization of risks. That said, with respect, such collectivization cannot extend to avoidable risks, related to equipment under the control of a co-owner and located in their private unit. 

[66] It is appropriate to make a distinction between collectivization and trivialization. The collectivization of risks cannot serve to trivialize the obligations incumbent on each co-owner under a declaration of co-ownership.  A co-owners’ syndicate cannot be held liable for a loss originating from the wrongful conduct of a co-owner. This is precisely what the legislator states in Article 1074.2 C.C.Q.

[67] In this regard, the obvious lack of knowledge of the DOC which emerged from the Defendant’s testimony is an attitude to be discouraged in a co-owner.  Although it is understandable that a DOC may not be bedside reading, it remains nevertheless that every co-owner has an obligation to look into it, read it, and take note of the obligations incumbent on them. This is the contract that is the cornerstone of co-ownership living.”

For any questions, kindly contact the authors of this note.