- Defect : Faulty design
Definition : Defect - Faulty design
Serious defect, affecting the quality of construction, which causes a degradation of the building which renders it unfit for the use for which it was intended, thereby potentially putting at risk, in totality or in part, its integrity (such as its soundness, stability or water tightness) This type of defect may engage the legal liability of the architect or the engineer who has committed a fault in the expert opinions or the plans he may have supplied. It may also cause the application of contractual guarantees, including those of a guarantee plan.
The law regulates the liability of contractors and building professionals for any problem related to the quality of construction work. In this regard, the legislator has provided for a specific protection regime for divided co-ownership. Section 1081 of the Civil Code of Québec recognizes the legal interest of any syndicate of co-owners to assert the rights of all co-owners to correct defects that appear, in the short or long term. This could occur during the initial construction of the building, or during work carried out several years after its erection. In short, when problems affect the common portions, the syndicate benefits from several legal warranties. Among them is the one against latent defects, design or construction defects. These warranties are worth their weight in gold, because very often, the cost of the work to be carried out in a co-ownership can be substantial.
The Guarantee Plan for New Residential Buildings differs from the private guarantee plans offered on the market by the nature of the guarantees offered and the mechanisms for asserting its rights. In this regard, the terms and conditions are set out in the the Regulation respecting the guarantee plan for new residential buildings, which is the responsibility of the Régie du Bâtiment du Québec (RBQ). Finally, unlike private guarantee plans, any purchaser of a building covered by this plan automatically benefits from it. As this is a system aimed at the minimum protection of consumers'rights, consumers cannot waive this mandatory guarantee, even if they sign a document to that effect.
The law provides specific provisions, to protect syndicates of co-owners against defective work (article 1081 of the Civil Code of Quebec). The legislator aims to alleviate apparent deficiencies at the end of a project. Regarding work in common portions, the syndicate has several legal warranties. Among these are the warranties for poor workmanship, for hidden defects and for the loss of the work. These rights are worth their weight in gold, since more often than not the cost of work in co-ownerships is very high.
In addition to the legal warranties, which apply in any case, in accordance with the conditions that govern them, the contractual liability of the contractor may also be invoked, under the legal contractual regime. The contractor may also offer additional guarantees.
I am the co-owner of a new condo. Other owners and I have recently discovered cracks in the foundation of the building, as well as water infiltration in the garage. The promoter is mute, and we have not yet transferred the administration.
Question: Should we refuse to elect our first Board of Directors, until the issues identified have been corrected? And should I sell immediately before other major problems arise?
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Just like any other natural or legal person, a syndicate of co-ownership may be held civilly liable towards third parties, including co-owners.
The duties and obligations of a syndicate are determined by law and the declaration of co-ownership. However, it is essential to fully understand those duties and obligations as their non-compliance towards a co-owner or another person could engage the civil responsibility of a syndicate.
Those duties and obligations are mainly aimed to ensure the preservation of the immovable, the administration of the common portions and the protection of the rights affecting the immovable or co-ownership, as well as all operations in the common interest.