The silences of the Declaration of co-ownership

In a unanimous judgment rendered on April 29, 2021, the Quebec Court of Appeal highlighted that the silences of the declaration of co-ownership cannot be interpreted by the courts without taking into account the legal presumptions imposed by the Civil Code of Quebec.

Hearing a dispute between an owner and his condo association (Syndicate) administering a building of 11 floors and 121 units, the Superior Court had estimated that the cost of replacement work of all the outdoor air conditioning of the building serving the private units (close to two million dollars) were rather to be assumed individually by each of the co-owners, and not by the Syndicate as a common charge.

The Syndicate appealed against this decision and won.

The Court of Appeal, after reviewing the text of the declaration of co-ownership and its article describing the common areas, found that air conditioners remained part of the common areas in the absence of precise definition otherwise. Also, the three judges of the Court of Appeal felt that the Superior court failed to consider Article 1044 of the Quebec Civil Code, which raise a presumption that the air conditioning system in this affair remained a common part of the building. This is a simple presumption applicable in case of silence of the declaration of co-ownership. As the Court of Appeal wrote:

“However, apart from the equipment which may be in the private areas and which are mentioned in the declaration of co-ownership, it is completely silent on the infrastructure of the air conditioning system which is, de facto, in the common areas. If we can see a gap, article 1044 C.C.Q. completely fills this omission. The fact that the air conditioning is offered under two different systems does not change the presumption under that provision. " (our translation)

Article 1044 of the Civil Code of Quebec provides that certain parts and equipment in a building held in divided co-ownership are presumed to be common parts:

1044. The following are presumed to be common portions: the ground, yards, verandas or balconies, parks and gardens, access ways, stairways and elevators, passageways and halls, common service areas, parking and storage areas, basements, foundations and main walls of buildings, and common equipment and apparatus, such as the central heating and air-conditioning systems and the piping and wiring, including that which runs through private portions.

This judgment of the Court of Appeal therefore emphasizes that in the event of silence of the declaration of co-ownership, it is appropriate to apply the presumption of article 1044 CCQ, qualifying as common part such equipment, even accessory to, or crossing your private unit, serving it only or installed directly on the exterior walls of your unit.

Since its construction, your building has certainly been renovated and accessories may have been added or changed. This is the case with air conditioners and this could be the case with equipment installed as an extension of private units (in the back gardens, your terrace, etc.) and those of home automation devices that can serve the private units of your co-owners. In such cases, and if the declaration of co-ownership is silent on these additions, it is important that it be updated and accurate considering how and mostly, who of the Syndicate or each co-owner, should bear the costs of their repair and replacement.

At Judilex, we can fully review your condominium declaration of co-ownership and guide you through the update and its ratification by the vote of all your co-owners.

Judilex - your rights, our expertise.