The syndicate, as part of its missions, must authorize, if necessary, any work undertaken by co-owners, whether in the private portions or the common portions for restricted use. Co-owners must not forget that in co-ownership, certain rules apply. In this regard, some declarations require the co-owners to submit to the board of directors a description of the work to be undertaken in a private portion, in order to verify the scope and consequences at the noise level, so that the board of directors gives the co-owner its authorization. Failure for a co-owner to comply with the requirements of the declaration of co-ownership exposes him to legal recourse that can lead to a conviction for damages and a court order obliging him to dismantle the floor.
The syndicate's authorization in the face of fundamental rights and freedoms
When the declaration of co-ownership prohibits the co-owner from carrying out development work on the balconies, and the syndicate confirms this impossibility by a refusal on the part of the board of directors, the co-owner has few options. However, if fundamental rights recognized by the Charter of Human Rights and Freedoms are at stake, the situation could well be reversed to the advantage of the co-owner.
A significant case was decided by the Supreme Court of Canada on June 30, 2004, in Syndicat Northcrest v. Amselem. By a very divided decision (5 votes to 4), the Court authorized the installation of succahs on the balconies or terraces of a condominium that the declaration prohibited.
Facts
In one of the phases of the "Mount Royal Sanctuary" building complex, located in Montreal, four co-owners of Orthodox Jewish religion, decided in 1997 to install cabins called "succah" on their balconies (common portions for restricted use). These huts serve as their temporary residence during the celebration of Succot, an annual holiday commemorating the exodus of the Jewish people into the desert and taking place between September and October (for about 10 days).
However, the declaration of co-ownership prohibits any installation on balconies and terraces, except for the usual outdoor furniture (garden chairs, etc.). Faced with the refusal of the syndicate concerning the succahs, the conflict broke out: the co-owners challenged a strict application of the building's regulations, which would infringe on their freedom of religion. The succahs were installed on their balconies in October 1997.
Procedure
The syndicate obtains an injunction against these co-owners before the Superior Court. Dissatisfied and supported in their demands by the "League for Human Rights of B’Nai Brith Canada", they appealed.
Before the Court of Appeal, the claims of the co-owners are again rejected. The co-owners then take the case to the Supreme Court of Canada.
The debate, unprecedented in terms of divided co-ownership in Canada, took place during a hearing on January 19, 2004, in the presence of many organizations that came to support the co-owners: the "Christian Legal Fellowship of Canada", the "Seventh Day Adventist Church of Canada", the "Evangelical Fellowship of Canada", the «World Sikh Organization of Canada" and the "Ontario Human Rights Commission".
Decision
The Supreme Court of Canada clearly decides that a restriction on installing or constructing anything on balconies is justified and has a purpose rationally related to the administration of the building. First, these restrictions are intended to preserve the market value of condominium units. They also protect the right of the co-owners to the enjoyment of the common portions for private use by ensuring the preservation of the character of the building and its exterior aesthetics as a luxurious building, and by allowing the use of balconies for the evacuation of the building in case of danger. The restrictions are justified by the destination of the immovable, its character and its location, in accordance with article 1056 of the Civil Code of Quebec. In addition, preventing obstruction of passageways between balconies serving as emergency exits protects the right to life and personnal security of each co-owner.
However, under religious practice, the Supreme Court upheld the right of co-owners to install a sukkah on their balcony for the duration of the Succot, but under certain conditions:
While this decision upholds the validity of restrictions prohibiting the installation of constructions on balconies as justified and in connection with the administration of the building, it nevertheless indicates that a right or freedom protected by the Canadian or Quebec Charters may prevail over these restrictions, provided that the inconvenience to the community is considered minimal.
