THE APPLICATION OF THE SAFETY CODE OF THE BUILDING ACT TO PROPERTY HELD IN CO-OWNERSHIP : THE FAÇADES OF THE BUILDING
The reliability of the façades of the building is essential to the safety of the public. Indeed, it would be unacceptable that anyone within the public thoroughfare be subject to the consequences of a partial or complete collapse of a building. For that reason, the Building Act makes provision for numerous obligations relating to the safety of buildings that must be followed by the owners of certain edifices[1].
Which property held in co-ownership is subject to the application of the Safety Code?
Some regulatory and legislative provisions make certain properties held in co-ownership subject to the Safety Code, itself provided for in article 29 of the Building Act. The second paragraph of this article expressly states that totally residential buildings of more than two (2) floors or comprising more than eight (8) housing units are subject to the obligations provided for in the Safety code[2]. These same requirements remain unchanged in the Regulation to improve building safety[3].
It should also be noted that the Regulation brings a few precisions on the applicability of the law with respect to mixed co-ownerships. Certain non-residential buildings do not need to comply with the Safety Code. Therefore, article 341 of the Regulation provides for exemptions when the building held in co-ownership simultaneously combines purposes within the four (4) following[4]:
– Residential buildings of less than three (3) floors or comprising less than nine (9) housing units;
– Places of business of at least two (2) floors;
– Commercial establishments with more than 300 square meters of floor space;
– Daycare centers that do not accept more than nine (9) persons.
Not all the above mentioned buildings are subject to the obligations within the Safety Code with regards to the maintenance and inspection of the façades. Indeed, article 371 of the Regulation stipulates that compliance to the chapter of the Safety Code specific to the building’s façades only targets the buildings of five (5) floors or more[5].
Is the syndicate of co-ownership responsible for the enforcement of the law?
Neither the Building Act nor the Regulation to improve building safety expressly mention the syndicates of co-ownership. Rather, their dispositions refer to the owner or the operator of the buildings. However, despite the law’s silence regarding the syndicates of co-ownership, it is our opinion that they are responsible for the compliance of the building with the diverse legal and regulatory provisions.
One the one hand, it appears clear that co-ownerships must comply with the Safety Code. Indeed, we believe that the inclusion of the terms ‘‘totally residential buildings’’ ends any debate on the matter, even though the first article of the Building Act refers to ‘‘buildings intended for use by the public’’[6].
On the other hand, it is our opinion that, by making co-ownerships subject to the provisions of the Safety Code, the responsibility of the syndicate of co-ownership cannot be denied. Let us remind that article 1039 of the Civil code of Quebec (C.c.Q.) stipulates that ‘’the co-owners as a body constitute a legal person, the object of which are the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest’’[7]. To put it more simply, we cannot consider that a co-ownership be subject to legal regulations without anyone responsible for its compliance. For these motives, it is our opinion that the syndicates of the co-ownership have to ensure the compliance of the building which they administer to the Building Act and to the Regulation to improve building safety.
What are the main obligations relating to the façades of buildings?
The directors of the syndicate of co-ownership must ensure the maintenance and inspection of the façades in order to prevent the creation of dangerous conditions[8]. The Regulation provides that a building is in a dangerous condition when ‘’at any time, an element of the façade may detach itself from the building or collapse and cause personal injury’’[9].
To this end, the expertise of either an engineer or an architect must be retained to produce a verification report[10]. This report must indicate that the building’s façades show no sign of a dangerous condition as well as the recommendations to follow in order to prevent any safety deficiency, as the case may be. Let’s also mention that a new report must be produced every five (5) years and that a copy of the reports must be added to the building’s register[11].
Finally, let’s point out that the directors of the syndicate should take good note that the Building Act imposes significant fines for an offence[12]. If any doubt subsists with regards to the compliance of the building with the Safety Code, it is recommended to consult a construction professional or a lawyer who specializes in real estate law.
[1] Building Act, L.R.Q., c. B-1.1.
[2] Id., art. 29 par. 2.
[3] Regulation to improve building safety, RLRQ, c. B-1.1, r.3.
[4] Id., art. 341.
[5] Regulation to improve building safety, RLRQ, c. B-1.1, r.3., art. 371.
[6] See articles 1 and 29 of the Building Act
[7] See art. 1039 C.c.Q.
[8] Regulation to improve building safety, RLRQ, c. B-1.1, r.3., art. 372.
[9] Id., art. 375.
[10] Id. art. 374.
[11] Id., art. 373-374. See also : article 1070 C.c.Q.
[12] Building Act, L.R.Q., c. B-1.1., art. 194.
