- : Contractual civil liability
Definition : - Contractual civil liability
Legal obligation for a natural or legal person to indemnify for the injury he (it) has caused to a third party as a result of its failure to comply with the commitments he (it) has undertaken contractually.
A co-owner accidentally broke down the garage door with his vehicle. This needs to be changed completely. His insurer offers to compensate us only partially. This one offers us to pay 90% of the bill because of the depreciation. Question: Are we required to accept this proposal?
Answer: Technically yes. The basis of a claim for compensation as a result of damage caused by a co-owner to the common or private parts is civil liability, which may be "contractual", in the event of a breach of an obligation contained in a contract (for example: the declaration of co-ownership), or "extra-contractual" if the fault alleged is the breach of an obligation provided for by law generally governing relations between individuals.
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The juridical personality of the syndicate is distinct from the one of the co-owners and directors. His acts are binding only on himself, besides for the exceptions provided by law. The faults committed by the syndicate have consequences only on its own civil liability and not on the directors. Under these conditions, they are held harmless by the syndicate and assume no responsibility for any costs, expenses, charges or losses they have incurred for the administration of the building and the syndicate. This is the basic principle, but it is important to bring several nuances to it. Indeed, a director must never lose sight of the interest of the community of co-owners.
The declaration of co-ownership is a contract that orchestrates and regulates the lives of co-owners, lessees and other occupants of the immovable. It represents the guideline for everyone who lives in the immovable.The declaration of co-ownership provides, systematically, that it is up to the board of directors to have its content abided to. However, it happens that people break the rules, in particular by a non-compliant use of a private portion with regard to the destination of the immovable, a noise nuisance and work carried out in violation of the by the laws of the immovable. Other examples illustrate the problems that can occur in the co-ownership, such as an encroachment on a common portion or the improper installation of a floor covering. Anyone who does not abide to the declaration of co-ownership is liable, inter alia, to a legal recourse based on article 1080 of the Civil Code of Quebec . This action may be brought by a co-owner or the syndicate.
The tasks of the condo manager are numerous. The latter may be mandated to manage the immovable, and thus ensure its preservation and maintenance; implement the decisions of the board of directors; settle major losses, take out the insurance required for your syndicate, but also to enforce the by-laws of the immovable. Therefore, his civil liability may be invoked. If he is at fault, he is exposed to recourses or claims for compensation, whether by the syndicate or the co-owners themselves. It is therefore imperative that civil liability insurance be underwritten for the duration of his contract for service or his contract of employment.
A bathtub or a washing machine that overflows into the apartment below, a hot water tank that conks out and spills down six floors: losses involving the civil liability of a co-owner are many co-ownerships. And they are expensive! This is why the amount of insurance premiums and deductibles have increased significantly in recent years.
Worse still, some insurers no longer want to insure co-ownerships, because of a loss ratio that has become out of control. This situation is directly related to the insurer of the syndicate, which is almost always called upon to cover a loss, when damage has been caused to the common and private portions. Thus the question of who is responsible arises. It is also necessary to know the applicable law to the owner at fault. Other considerations affect both the insurer of the syndicate and those of the co-owners concerned, to determine who will pay what?
In co-ownerships, most water heaters (electric or gas) are installed within the apartments. In such a case, this device is an integral part of the private portions of the building. Each co-owners therefore has the responsibility to ensure the proper functioning, by checking (notably) any signs of dilapidation, and, if necessary, by replacing it at its own expense. Failing to do so, in the event of a breach, a co-owner could be held liable for any damages to the common areas of the building, as well as to the private portions owned by other co-owners, up to the amount of the deductible provided for the syndicate's insurance coverage.
The condo manager’s tasks are numerous. Therefore, his civil liability could be engaged. As a mandatary of the Syndicate of co-owners, the condo manager is required to fulfill the terms of his mandate. He is thus liable for damages that may result from the non-performance or improper execution of his mandate. This means that he incurs liability in two ways, in contractual civil liability towards the one who mandated him, namely the Syndicate of co-owners and in extracontractual civil liability towards a co-owner or a third party who would suffer damage as a result of a fault. It is therefore imperative that he takes out civil liability insurance for the duration of his service contract.
Question: I am a co-owner. Can the syndicate of co-owners claim the amount of the deductible for the insurance if I am responsible for the water damage?
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In the same way as any other natural or legal person, a syndicate of co-owners is likely to incur civil liability towards third parties, including co-owners. Responsibility is the counterpart of power: where authority is, there is responsibility. This responsibility can be translated into the financial contribution of the co-owners, since in the event of a judgment condemning the syndicate to pay a sum of money, this judgement will be enforceable against him and each of the persons who were co-owners at the time the cause of action arose, in proportion to the relative value of their fraction.Therefore the law obliges any syndicate of co-owners to take out insurance covering its civil liability towards third parties.