The Court of Québec, Small Claims Division, rendered on December 11, 2025, a particularly instructive decision in matters of divided co-ownership, dealing with the application of articles 1074.1 and 1074.2 of the Civil Code of Quebec. Writing for the Court, the Honourable Luc Huppé, J.Q.C., dismissed the claim of a syndicate of co-owners that sought to have a co-owner bear the cost of water damage below the insurance deductible. The judgment reiterates that the mere fact that the loss originates in a private portion is not, in itself, sufficient to engage the liability of the co-owner concerned. This decision forms part of a now well-established body of case law and once again underscores the strict limits of the remedies available to syndicates.
The facts in brief
A water damage incident occurred in January 2021 in the private portion of a co-owner, following a problem related to the installation of the drain pipe of a water heater. The damage affected two units. The syndicate assumed the repair work, for a total amount exceeding $21,000, which was below the deductible provided for in its insurance policy. Rather than allocating this expense as common charges, the syndicate personally claimed $15,000 from the co-owner concerned, alleging fault or, at the very least, liability as custodian of the property.
The applicable legal framework
The Court recalls that article 1074.1 of the Civil Code of Quebec imposes on the syndicate the obligation to diligently repair damage affecting insured property when a loss occurs, even where the deductible prevents indemnification by the insurer. As for article 1074.2 C.C.Q., it strictly limits the syndicate’s means of recovery: amounts incurred for the repair of damage may not be claimed from co-owners other than through their contribution to common charges, except where there is proven fault on the part of the co-owner or established civil liability under the general rules of the Civil Code.
The Court also recalls that no provision of the declaration of co-ownership may derogate from this legal regime, such a clause being deemed unwritten.
Absence of fault on the part of the co-owner
In this case, the syndicate failed to demonstrate that the co-owner committed a fault. Although the water heater was property under his custody, the evidence revealed that the defect that caused the loss was not apparent and could not be detected without moving the appliance. The Court found it excessive to require a prudent and diligent co-owner to carry out such verifications in the absence of warning signs or prior incidents.
The syndicate also argued that the co-owner had not joined a collective water heater replacement program recommended by the board of directors. However, this program was not mandatory in nature: neither the declaration of co-ownership, nor a syndicate by-law, nor the insurance policy imposed replacement at a fixed interval. The Court reiterates that a co-owner cannot be held liable for failing to follow a mere recommendation, even one inspired by good governance practices.
Lessons for syndicates of co-owners
This decision confirms a reality that syndicates must now fully integrate into their day-to-day management. In the absence of clearly established fault, costs related to a loss below the deductible must be assumed collectively, through common charges. Remedies automatically targeting a co-owner, based solely on the place where the loss originated, are doomed to fail.
It also recalls the importance for syndicates to formalize the obligations they wish to impose on co-owners in the appropriate legal instruments. Equipment replacement programs for at-risk installations, however relevant they may be, must be incorporated into the declaration of co-ownership (building by-laws), adopted in accordance with the required majorities. Failing this, they remain simple recommendations with no binding effect.
Finally, before contemplating legal proceedings, the syndicate must be able to rigorously document the existence of a fault, a specific breach or manifest negligence on the part of the co-owner, supported by solid technical and factual evidence. Directors must be aware that their power of recovery is strictly governed by law and that poorly founded actions expose the syndicate to unnecessary costs, a loss of credibility and adverse judicial decisions.
Conclusion
Through this decision, the Court of Québec clearly reaffirms that co-ownership rests on a balance between individual responsibility and collective solidarity. Articles 1074.1 and 1074.2 C.C.Q. leave little room for improvisation. Failure to comply with this framework once again exposes the syndicate to having its claim dismissed.
For full consultation of the judgment, please refer to the following link: Syndicat de la copropriété Place Jeanne d'Arc-Phase Charlemagne c. Yang 2025 QCCQ 7881.
