In divided co-ownership, a water damage incident almost inevitably raises the issue of the civil liability of the co-owner, the syndicate or, depending on the circumstances, a third party such as an occupant or a tenant. These frequent losses, particularly those resulting from the failure of a water heater or a plumbing fixture, have significant financial repercussions for syndicates, due to the marked increase in insurance deductibles and premiums observed in recent years. However, the mere fact that the loss originates from a private portion does not automatically establish the liability of the co-owner.
The collectivization of risk
Since the coming into force of section 1074.2 of the Civil Code of Quebec, the logic governing cost recovery has been profoundly transformed: the collectivization of risk now constitutes the rule, while the individual liability of the co-owner remains the exception, which must be established in accordance with the general mechanisms of civil liability provided for in the Code.
General principle of liability
A co-owner may incur civil liability toward the syndicate or other co-owners if it is demonstrated that they committed a fault (section 1457 of the Civil Code of Quebec) or that they are required to repair the injury caused by the act of property under their custody, in accordance with section 1465 of the Civil Code of Quebec.
However, as the courts have repeatedly emphasized, a co-owner’s liability cannot be presumed solely because the loss originates from their private portion. It must be assessed in light of the specific regime established by section 1074.2 C.C.Q., which calls for a nuanced and contextual analysis, mindful of preserving the balance between the individual and collective interests of the co-owners.
Liability for the act of property and presumption of fault (section 1465 C.C.Q.)
Section 1465 C.C.Q. establishes a presumption of fault against the custodian of property when damage results from the autonomous act of that property. In divided co-ownership, this presumption frequently applies when the loss originates from private equipment (water heater, valve, dishwasher, washing machine, sanitary fixture).
To invoke it, the syndicate must demonstrate:
The existence of a specific item of property;
The autonomous nature of the act giving rise to the damage;
That the property was under the custody of the co-owner.
A sufficient causal link between the property and the damage must also be established for the presumption to apply.
This presumption has the effect of easing the syndicate’s burden of proof, but it remains rebuttable. The co-owner may exonerate themselves by demonstrating that they took reasonable measures to prevent the loss, according to the standard of a prudent and diligent person placed in the same circumstances.
Two recent decisions, a common analytical framework
The decisions Syndicat de la copropriété Place Jeanne d'Arc-Phase Charlemagne v. Yang, 2025 QCCQ 7881 and Syndicat des copropriétaires 575, Lucien-L'Allier v. Grondin, 2025 QCCQ 4738, both rendered by the Honourable Luc Huppé, J.Q.C., eloquently illustrate the true scope of this presumption and the manner in which it must be applied in co-ownership.
1. When the presumption is rebutted – Yang
In Yang, the court concluded that the co-owner had rebutted the presumption of fault. The damage originated from an incomplete and non-visible pipe located behind a water heater, the defect of which could not be detected without moving the appliance. The court held that it would be excessive to require such verification from a prudent co-owner in the absence of any apparent sign or known prior incident.
This decision confirms that a co-owner cannot be held liable for a hidden, inaccessible and unforeseeable defect, even when the property is under their custody.
2. When the presumption remains – Grondin
Conversely, in Grondin, the court held the co-owner liable, even though they had acted in good faith. The loss originated from a defective shut-off valve located under the kitchen sink, an accessible location falling within the normal vigilance expected of a co-owner.
The court emphasized that, in a context of divided co-ownership, the co-owner’s duty of prudence is heightened due to the proximity of the fractions and the collective’s reliance on individual vigilance. The absence of minimal verification, particularly following the installation of a new appliance, constituted a sufficient omission to maintain the presumption of fault.
Liability assessed in light of the collective context
The Grondin judgment reiterates that section 1074.2 C.C.Q. must not be interpreted in a manner that absolves co-owners of responsibility. The collectivization of risks cannot justify the collective bearing the consequences of a loss that could have been avoided through reasonable diligence on the part of the concerned co-owner.
As stated by the court, the enjoyment of private portions must not impose an undue burden on the collective, which has no control over the maintenance of property located within a private unit. Where the co-owner is in a position to act, liability should logically be assumed by their civil liability insurance, as provided for in section 1064.1 of the Civil Code of Quebec.
Contractual liability and the declaration of co-ownership
The contractual liability of a co-owner arises from the obligations set out in the declaration of co-ownership (section 1458 C.C.Q.). A co-owner may incur liability if they breach a specific obligation, for example by failing to maintain equipment or by carrying out unauthorized work.
However, as the court recalled in Yang, a declaration of co-ownership cannot establish a more stringent liability regime than that provided by the Civil Code of Quebec, particularly by circumventing the mandatory rules of section 1074.2 C.C.Q. Since the reform, sums incurred by the syndicate to repair a loss may only be recovered through common charges, unless a fault on the part of the co-owner is clearly demonstrated.
WHAT YOU SHOULD KNOW! The presumption of fault under section 1465 C.C.Q. can be rebutted relatively easily, but it requires the co-owner to provide concrete evidence of diligence.
WHAT TO KEEP IN MIND: Although this presumption may appear to facilitate the syndicate’s burden of proof, recent case law shows that it is often relatively easy to rebut when the co-owner establishes prudent and diligent conduct. The syndicate should therefore never rely exclusively on the existence of the presumption, but must rigorously document the circumstances of the loss, the condition of the equipment, its accessibility and its maintenance history.
WARNING! Since the coming into force of section 1074.2 C.C.Q., any attempt to recover costs directly from a co-owner without a clear demonstration of fault is likely to be dismissed by the courts. A well-founded formal demand and properly documented evidence are essential.
