January 8, 2023 - The transactions in co-ownership are not simple. They require unfailing rigour, because the devil is in the details. A notary who executed the sale of a condo learned this at his own expense in the Court of Québec - Small Claims Division, because of a professional misconduct he committed by not referring to the declaration of co-ownership.
The story boils down to that of a co-owner-seller who has not fulfilled his "obligation to deliver" under the Civil Code of Quebec. The deed of sale promised that the buyer would have the "right to the exclusive use of two parking lots", when only one was reserved for this purpose. A second one could be used in the visitor parking space.
A notary implicated in the case
The buyer (the Plaintiff) claimed a $7,000 decrease in the selling price, arguing that he could not "enjoy the right to the exclusive use of a second parking lot." For her part, the seller (the Defendant) asked for "forced intervention" by her notary, "in order to exercise a request for a guarantee, so that the latter would be condemned to compensate her for any sentence that might be pronounced against her", the judgment states.
Judge Stéphane D. Tremblay therefore examined the notary's liability in this case. The latter stated, among other things, that he "did not consult the declaration of co-ownership" in order to ensure that the provisions contained in the deed of sale were in conformity. He justified this negligence by saying that he relied on the deed of sale signed in April 2012, executed by another notary for the same building.
He stated, "candidly", that he simply reproduced the clause pertaining to parking lots from that deed, and then produced this deed of sale as evidence. However, relying on the previous work of a fellow notary was insufficient. He had to check the "conformity of the deed of sale with the declaration of co-ownership in force.’’
This notary "simply abdicated his obligation to examine the property titles. In so doing, he committed professional misconduct," the judgment added. The defendant was therefore ordered to pay the plaintiff some $3,000, with interest at the legal rate, as well as the additional indemnity provided for in article 1619 of the Civil Code of Québec since the summons, on April 17, 2018. The court found this amount to be fair and reasonable in the circumstances.
As for the notary, he was ordered to compensate the defendant for the total amount of the sentence in capital, interest and legal costs.
To read the full judgment, click on this hyperlink.
Montreal, January 8, 2023