| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Mardi, 21 Juin 2011 16:01 |
THE QUEBEC COURT, SMALL CLAIMS DIVISION AND THE RIGHTS OF THE CO-OWNER
contact the author: s.fiset@fisetlegal.com
You live in a condo and your private portion has been subjected to damages and you are wondering how to obtain repairs ? Or, are you a syndicate of co-ownership which has a co-owner who is late in paying his common expenses ? Perhaps you are experiencing problems with the neighbours in the next unit? You have rights and, with a resource available to you, under certain conditions, you may obtain justice with a minimum of cost: the Quebec Court, Small Claims Division.
The broad guidelines of the Quebec Court, Small Claims Division :
– a claim of 7 000$ and less, not including interest[1];
– the syndicate of co-ownership, if it is the plaintiff, must have during the preceding 12 months less than 5 employees (persons associated through a work contract )[2];
– the Request is presented before the tribunal in the locality of the domicile or of the last known residence of the defendant or before the tribunal where the cause of the action began, or before the tribunal where the contract was drawn up[3].
Examples of petitions presented at « small claims » :
– damages resulting from lack of maintenance of the common portions or a construction defect or faulty design;
– refusal of a co-owner to pay his common expenses;
– defect or hidden defect;
– failure to comply to a contract;
– bodily or material damage;
– increase in fees and/or insurance premiums because of negligence of a co-owner;
– damages resulting from prejudice, stress, problems, inconveniences and loss of enjoyment.
APPLICATIONS FOR CO-OWNERSHIPS
The co-owner
To pursue a syndicate of co-ownership, a co-owner must have suffered damages, a decrease in the value of his private portion or a grave disturbance of enjoyment in his usage due to works carried out by the syndicate (Art. 1067 C.C.Q.), or any bodily, moral or material injury as a result of a contractual obligation of the syndicate (Art. 1458 C.C.Q.).
For example, necessary repairs to a skylight (common portion) cause damage (infiltration of water) to the ceiling of a unit (private portion). The syndicate of co-ownership neglects to carry out the necessary repairs and to advise their insurers (Art. 1073 and 1077 C.C.Q.) and this, ignoring a formal legal notice to do so. The claim would therefore be for damages and to obtain compensation for the prejudice caused.
As in all appeals, proof must be shown according to the «balance of probabilities». It must be demonstrated (1) that the syndicate is at fault, (2) that the damage was incurred by the co-owner and (3) a causality link exists between the fault and the damage.
The syndicate
A syndicate may appeal before the Quebec Court, Small Claims Division, all admissible claims under $7,000.
For example, a syndicate who is suing a co-owner for unpaid common expenses, in order to support his claim, should include a series of documents such as:
– a copy of the declaration of co-ownership outlining the procedures for contributions and collection of common expenses;
– the rules concerning the administration fees, interest and penalties. Under the terms of Article 1054 of the Civil Code of Québec :
« The by-laws of an immovable contain the rules on the enjoyment, use and upkeep of the private and common portions, and those on the operation and administration of the co-ownership.
The by-laws also deal with the procedure of assessment and collection of contributions to the common expenses. »
– a copy of the last annual declaration filed in the Register of enterprises[4];
– a copy of the budget as transmitted to all the co-owners with the notice of monthly expenses (condo fees) for the annual general meeting (Art. 1087 C.C.Q.) :
« The notice calling the annual general meeting of the co-owners shall be accompanied with, in addition to the balance sheet, the income statement for the preceding financial period, the statement of debts and claims, the budget forecast, any draft amendment to the declaration of co-ownership and a note on the general terms and conditions of any proposed contract or planned work. »
– a copy of the minutes of the annual general meeting of co-owners or the budget which was provided to the co-owners for consultation (Art. 1072 C.C.Q.);
– a copy of the minutes of the board of directors which determined the budget (Art. 1072 C.C.Q.)[5];
– a copy of the notice of payment sent to the co-owner who is in default;
– a copy of the formal legal notice and the statement of account which have been previously sent to the co-owner in default[6];
– a resolution of the board of directors mandating an administrator to represent the syndicate before the Quebec Court, Small Claims Division[7].
If necessary, the Court’s clerk can assist you in the process of preparing your claim, however he is unable to offer legal advice.
Beware : the fact that « small claims » represents a low cost recourse, this should not encourage initiating legal procedures lightly, thinking one has nothing to lose. If your claim is not deemed « justified », you may be held responsible to reimburse to the defender the fees and expenses he has incurred for his defence.
Consulting a lawyer before undertaking serious actions will help you avoid this route. With his knowledge of the Civil Code of Québec and applicable jurisprudence, he will outline the best steps to take according to your situation.
Undertaking a court case, regardless of the jurisdiction, must be given much thought.
BEFORE TAKING LEGAL ACTION, INFORM !
Before taking legal action, it is mandatory to give the person in default the time to correct the situation which is causing you prejudice.
To do this, a legal formal notice should be sent to the person. You outline the facts to him, the offence/fault he has committed, the prejudice (damage) that you have been subjected to and detail his responsibility (causality link between the fault and the damage). You will accord him a reasonable delay to carry out and repair the prejudice. It goes without saying that this correspondence should be sent with proof of receipt (bailiff, registered mail, hand delivered with receipt, etc.) to show proof at a later date before the Court.
For physical damages, issuing formal complaints, to the police for example, will add to your testimony if you choose to pursue legally.
Having taken this first step, you will know that you have used the recourses at your disposal to try to reach a settlement out of Court and you will have additional proof of the lack of action on the defender’s part; this will serve to demonstrate his behaviour before the Court when the time comes.
PREPARE YOUR PROOF
Proof, in civil matters, is determined according to the « balance of probabilities » and, without exception, the burden to show proof rests on the plaintiff.
The judge must equally adhere to the legitimacy of your testimony and your proof more than the one presented by the defence. You will demonstrate this by providing documents and testimonies.
As an example, for damages, it may be necessary for the judge to have :
Legal Acts :
The act which defines the intent or the consent of the parties : contract (purchase agreement, declaration of co-ownership, proposal as accepted, invoice, etc.).
Documented evidence :
As described above in the case of a syndicate who is pursuing a co-owner in default, the importance of including all the required documents will have a large influence on obtaining the judgement sought. You should note in great detail the events, the complaints (date, time, place, number of the complaint), the precise reasons for your complaints, etc.
Experts’ Evidence :
Written report by a recognized specialist attesting to the evaluation of the damage.
Beware : the expert must also be present during a hearing for the purpose of testifying on his report.
Jurisprudence and doctrine :
Applicable legal judgments and doctrine rendered in similar cases. It is possible to consult a lawyer or a notary as to the doctrine and jurisprudence which could be applied to your case.
Testimonial Proof :
Your testimony must be made orally. As one cannot repeat the words of someone else without having been present, you should prepare your list of witnesses in advance (neighbours, experts). Once the hearing date is determined, you should subsequently ensure that your witnesses will be available and to testify in court.
THE JUDGMENT
The judgment rendered by the Quebec Court, Small Claims Division, is in principle without appeal. [8]
Furthermore, under the terms of Article 986 of the Code of Civil Procedure:
“ The judgment may be executed on the expiry of 30 days from the day it is rendered, unless the judge has ordered otherwise. A judgment by default may be executed on the expiry of 10 days from the day it is rendered. However, if the creditor establishes, in a writing under oath, a fact permitting a seizure before judgment, the creditor may be authorized by the judge to execute the judgment before the expiry of the prescribed time.
If the judgment orders payment of the debt by instalments or confirms a settlement between the creditor and the debtor and the latter fails to pay an instalment when due, the creditor may demand payment of the amount due in writing. If the debtor fails to pay the instalment within 10 days of the demand, the entire amount of the debt becomes due and execution is proceeded with. »
The execution
Having obtained a judgment, under the terms of the Code of Civil Procedure:
« 992. The creditor may request a bailiff or an advocate to execute the judgment; alternatively, a creditor who is a natural person may request the clerk of the court, or the person designated by the Minister, to execute the judgment.
993. The costs of the clerk or the person designated by the Minister or the fees of the bailiff or advocate paid by the creditor for the execution of the judgment may be claimed from the debtor, within the limits set out in the tariffs prescribed for that purpose; the debt is payable immediately. »
* * * * *
As you can see, solutions at reasonable cost through the Quebec Court, Small Claims Division, exist and may be used when needed.
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
[1] Article 953 (a) and subsequent articles of the Civil Code of Procedure
[2] Article 961 of the Civil Code of Procedure
[3] Article 958 of the Civil Code of Procedure
[4] Articles 335 and 1084 C.C.Q.
[5] See also Articles 336, 337 and 1070 C.C.Q.
[6] Article 1054 C.C.Q.
[7] Note that a manager (manager of co-ownership) could represent the syndicate provided he is in the service of this syndicate and has an employment contract (Art. 959 al. 2 C.P.C.). Thus, a management company may not offer this type of service to the syndicates for which they are providing services.
[8] Article 984 of the Code of Civil Procedure
Mise à jour le Vendredi, 15 Août 2014 16:11