Can it be held civilly liable?

Just like any other natural or legal person, a syndicate of co-ownership may be held civilly liable towards third parties, including co-owners.

This liability may have an effect upon   the financial contribution of co-owners, since in the event of a judgment ordering the syndicate to pay an amount of money, this condemnation will be enforceable against it and the registered co-owners at the time the cause of action arose. They could be condemned to pay a portion of the condemnation in proportion to the relative value of their fraction.

Article 1077 of the Civil Code provides that the syndicate  is answerable  for damages caused to co-owners or  third parties in the occurrence  (amongst  others) of problems related to faulty design or construction defects of the immovable, or due to a lack of maintenance of the common portions  of the  co-ownership. In the latter case, the syndicate is subject to a no-fault liability regime, for it must ensure the preservation of the immovable and maintenance of common areas.

The syndicate may, however,  be exonerated  from such liability ,if it  can prove that the damage resulted from a fault of the victim, a case of superior force or the act of   a third party.  We remind you that in Law, Superior force is an unforeseeable and irresistible event whose effects cannot be prevented, even if all appropriate measures have been implemented.

The syndicate may thus have its civil liability invoked for damage caused by:

  • The failure to maintain a structure or equipment;
  • The loss of enjoyment caused by the malfunction of common equipment (such as lack of sound proofing or thermal insulation, noisy common equipment and inadequate corridors pressurization);
  • Water infiltration into a unit originating from common portions (for example, the roof, windows and piping);
  • The failure of the Board of Directors to enforce the declaration of co-ownership;
  • The failure of the Board to constitute a sufficient contingency fund.

In the case of a construction defect in the common portions of the immovable, it is the duty of the syndicate to find and to hold responsible   the parties liable for   these disorders. A developer may be responsible, as well as the enterprises that have participated in the work and, in some instances, the professionals (such as, an engineer or architect).

The syndicate may also be held civilly liable for any misconduct by its employees, such as   the manager, security personnel and janitors of the building. In this regard, article 1463 of the Civil Code of Québec states: "The principal is bound to make reparation   for injury caused by the fault of his agents and servants in the performance of their duties; nevertheless, he retains his remedies against them”.  This would be the case, among others, in the event a janitor damages the vehicle of a co-owner.

The operative act and the causal link

In the event of a loss caused by the immovable - contrary the case of the civil liability of the co-ownership - one must prove a specific fault in such matters, a prejudice and a causal link   between the fault and the damage, in order to obtain damages against the syndicate.

 WHAT YOU SHOULD KNOW ! Generally, when the liability of the syndicate is invoked, the latter generally benefits from the support of its insurer under the civil liability insurance policy that it must subscribe under the law.

 WHAT TO KEEP IN MIND : When the   liability of the  syndicate is invoked , the usual rules of liability come into play  , which means  that one   must demonstrate the fault of the syndicate , a  prejudice  and a  causal link between the fault and the resulting  damage .

 WARNING! Failing   taking the necessary measures to enforce the declaration of co-ownership, the syndicate can be held liable. However, it is an obligation of means, not of results. Therefore, if the syndicate has used all reasonable means to prevent a contravention, but with no deterrent effect, it will not theoretically be held liable.

 

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