How to recover the deductibles from a co-owner responsible for damage to the property?
The primary objective of the Act mainly to improve the regulation of the financial sector, the protection of deposits of money and the operation of financial institutions, is to provide, from now on, that when a loss is caused by a private portion of the immovable, a fault of the co-owner must be established before the syndicate can recover the amount of either the deductible or the cost of repairs caused to the property:
“ 1074.2. The sums incurred by the syndicate to pay the deductibles and make reparation for the injury caused to property in which the syndicate has an insurable interest may not be recovered from the co-owners otherwise than by their contribution for common expenses, subject to damages it can obtain from the co-owner bound to make reparation for the injury caused by the co-owner’s fault.
Any stipulation which is inconsistent with the provisions of the first paragraph is deemed unwritten.”
The coming into force of this article invalidates the standard clauses of declarations of co-ownership which impose a no-fault liability for all damage caused by the property a co-owner is legally liable for. These clauses allowed the syndicate to recover the amount of the deductibles from the liability insurer of a co-owner whose unit was the origin of a claim without mention or debate of any negligence of the syndicate1. The co-owner was responsible for the payment of the deductible by virtue of the declaration of co-ownership, a contract that is opposable to said co-owner.
This new article may therefore have an adverse effect on the Syndicate’s recovery of the deductible in the event of water damage caused, for example, by the breakage of a washing machine hose.
Under what circumstances is a co-owner at fault?
In a context of extra-contractual liability, a fault is a behavior that departs from that of a normally prudent and diligent person. In order to help and protect the victims of damages resulting from extra-contractual misconduct, the general regime of extra-contractual civil liability provides for a presumption of fault by the guardian of a good whose autonomous act causes harm:
“ 1465. The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.”
However, the relationship between the co-owner and the syndicate is contractual. In a contractual relationship, the fault consists of a total or partial non-performance, or a late or bad performance of an obligation under the contract. The Civil Code of Quebec provides that contracting parties cannot “avoid the rules governing contractual liability by opting for rules that would be more favourable to them.”2
Does the presumption of fault in Article 1465 of the Civil Code of Quebec apply to a co-owner?
A thread of case law has applied the presumption of fault of contractual liability as described above, but the Quebec Court of Appeal dismissed this trend through a decision in the context of a dispute before the Rental Board:
«  Les obligations des parties sont d’abord régies par le bail qui les lie et, de façon supplétive, par les dispositions du Code civil relatives au contrat de louage. Le bail P-2 conclu par les parties est silencieux quant aux obligations incombant à l’une et à l’autre en ce qui concerne la sécheuse à linge d’où origine l’incendie. Cet appareil électroménager a été fourni par le locateur, M. Marcoux, à l’usage exclusif du salon de coiffure de la locataire, Mme Giroux. Le bail précise, il est vrai, que la locataire devra « défrayer les coûts d’entretien ou de réparation des appareils de climatisation qui lui sont prêtés pendant la durée du bail », mais rien en ce qui concerne la sécheuse.
 Or, l’article 1862 C.c.Q. 2e al. oblige le locataire, lorsque le bien loué est un immeuble, à indemniser le locateur des dommages subis « que s’il est prouvé que celui-ci est dû à sa faute ». Telle est la disposition applicable ici. Ajoutons qu’un cocontractant ne peut se soustraire à l’application des règles du régime contractuel de responsabilité pour opter en faveur de règles qui lui seraient plus profitables (art. 1458, 2e al. C.c.Q. La présomption de l’article 1465 C.c.Q. ne peut donc trouver application en présence d’une relation locataire-locateur. »3
It can not therefore be concluded that the presumption of fault is applied in the context of co-ownership. By analgoy, while the fault of the commercial tenant is assessed according to the obligations provided for in the lease, that of the co-owner is assessed according to the obligations provided for in the declaration of co-ownership.
It is therefore now vital for syndicates of co-ownership to adopt regulations that compel co-owners to adopt increased standards of diligence in their behavior. Although the enforcement of such a regulation may face potential challenges when significant damage inevitably occurs, the contractual fault of a co-owner who does not comply with a regulation would be indisputable.
In addition to a regulation that defines the fault of the co-owners, the implementation of tough prevention measures becomes increasingly profitable. The payment of deductible amounts by syndicates for water damage is now an incentive, for example, to install water leak detectors, or to schedule regular verification of the ducts and drains of all co-owners by a professional plumber hired by the syndicate.
It is now even more critical to implement loss prevention measures that foster prudent practices, but also to clearly define the scope of the fault of a co-owner in the event damage is caused for the recovery of the deductible from their insurer.
For more information on the recommended regulations for preventing serious damage and paying expensive deductibles by condominium syndicates, email us at email@example.com