Water damage in co-ownership: when the custodian of the property must pay

The Court of Quebec recently rendered a judgment concerning the Syndicate of co-owners of 575, Lucien-L’Allier, which claimed $11,899.80 from a co-owner following water damage originating from his private portion. Two weeks after the installation of a dishwasher, a defective shut-off valve located under the kitchen sink caused a leak that required cleaning, decontamination, and repair work. As these costs were lower than the deductible of the syndicate’s insurance, the syndicate had to assume the payment before turning to the co-owner to obtain reimbursement.

For its part, the co-owner’s insurer intervened to argue that its insured had not committed any fault likely to engage his civil liability.

Issues in dispute

To what extent can the syndicate recover its disbursements when the damage originates from property under the custody of a co-owner, and the cost is lower than the deductible of the syndicate’s insurance?

Legal framework

Judge Luc Huppé began by recalling the legal framework governing divided co-ownership in Quebec. First, article 1073 of the Civil Code of Quebec requires the syndicate of co-owners to subscribe to insurance covering not only the common portions but also the private portions, with deductibles qualified as reasonable. This coverage is complemented by article 1071.1 of the Civil Code of Quebec, which provides for the creation of a self-insurance fund intended, among other things, to cover the payment of these deductibles.

Furthermore, co-owners insure the improvements made to their private portion. Under article 1064.1 of the Civil Code of Quebec, they must also subscribe to insurance covering their personal liability. This insurance becomes crucial when a loss occurring in the building is likely to engage their personal liability.

Judge Huppé recalled that since the 2020 reform, article 1074.2 of the Civil Code of Quebec introduces an important nuance: the syndicate retains the right to claim damages from a co-owner when the prejudice arises from property under his custody. This article directly echoes article 1465 of the Civil Code of Quebec, which establishes a presumption of fault against the custodian of a property when it causes damage on its own. To rebut this presumption, it is then up to the co-owner to prove that he acted without fault, by demonstrating that he took reasonable preventive measures.

The judge also situated his reasoning in the broader context of articles 1039 and 1063 of the Civil Code of Quebec, which enshrine both the primacy of collective interest and the obligation of each co-owner not to infringe upon the rights of others. Finally, he recalled that the declaration of co-ownership itself imposes precise obligations of maintenance and regular verification of plumbing and accessories located in the private portions.

Analysis and scope

The court held that the most probable cause of the loss was the intrinsic defect of the valve (autonomous fact of the property), and not mishandling by the plumber. Consequently, article 1465 C.c.Q. applies: presumption of fault against the co-owner custodian of the property.

To rebut this presumption, the co-owner had to demonstrate that he had taken reasonable and active measures to prevent the damage (increased vigilance in co-ownership, periodic verification, especially after equipment replacement). However, the co-owner failed to prove such measures; objects under the sink even prevented the detection of the leak.

The court articulated the solution at the collective level: there is no reason to collectivize the risk and cost of damage originating from property under the custody of a co-owner, given the absence of control by the syndicate. The expense must be borne by the co-owner’s liability insurance (art. 1064.1 C.c.Q.), not by the syndicate’s insurance or its self-insurance fund.

Doctrine cited

This judgment also relied on doctrine to explain the scope of article 1074.2 of the Civil Code of Quebec. The court first cited Me Yves Joli-Cœur, who highlighted the abuses caused by the 2018 version of the law, which shifted the financial burden of losses onto syndicates. It also recalled that the 2020 reform aimed to correct this situation. Judge Huppé then referred to Me Maxime Laflamme-Leblond, who demonstrated that since this reform, the burden of proof has weighed more heavily on the co-owner, as custodian of the property at issue. Finally, he referenced Me Clément Lucas, who underscored the inconsistencies in jurisprudence and warned against creating a quasi-immunity if the basic obligations of co-owners are minimized.

These doctrinal references support the judge’s conclusion: it is necessary to hold the co-owner custodian of his property accountable, thereby protecting the collective interest of the co-ownership.

Court decision

The court therefore concluded that the co-owner had to reimburse the syndicate the sum of $11,899.80. To this amount were added legal interest, as well as an additional indemnity calculated from May 17, 2024, the date on which the formal notice was sent to him.

To consult the full judgment, visit the following link: Syndicate of co-owners 575, Lucien-L'Allier v. Grondin, 2025 QCCQ 4738.

WHAT YOU SHOULD KNOW! The presumption of fault of the custodian of a property (art. 1465 C.c.Q.) does not exempt the syndicate from adequately documenting the causal link. A claim not supported by serious technical expertise is very likely to be challenged by the co-owner or his insurer.

WHAT TO KEEP IN MIND: A syndicate of co-owners can never be satisfied with merely asserting that the origin of a loss lies in a private portion to claim reimbursement from the co-owner concerned. To ensure the admissibility of its claim, it must necessarily mandate the required expertise to precisely identify the cause of the loss.

WARNING! To prove that he has not committed any fault, the custodian of a property must demonstrate that he took reasonable measures to prevent the event that caused the damage. He may exonerate himself by general proof of the absence of fault. The assessment is made in light of the standard of conduct of a prudent and diligent person placed in the same circumstances.