In divided co-ownership, water damage, fire, or other material losses inevitably raise the question of the responsibility of the co-owner involved. Whether it concerns a fault related to the maintenance of a property, a defective installation, or a breach of the declaration of co-ownership, the syndicate must often take steps to obtain compensation, particularly in connection with the insurance deductible. However, whether the co-owner’s liability is contractual or extra-contractual, it is never presumed — it must be proven. This proof must rigorously demonstrate the origin, cause, and nature of the alleged breach.
Contractual liability
Contractual liability arises from the obligation link between the co-owner and the syndicate. According to article 1458 of the Civil Code of Quebec, anyone who fails to perform their obligation or performs it faultily must repair the resulting damage.
In co-ownership, this link results from the declaration of co-ownership. Thus, a co-owner who fails to replace their water heater according to the prescribed terms, or who carries out work without authorization, may incur contractual liability.
Extra-contractual liability
Extra-contractual liability applies when no contract binds the parties, but a co-owner, through fault, negligence, or imprudence, causes damage to another. Based on article 1457 of the Civil Code of Quebec, it requires everyone not to cause harm to others. This applies, for example, to a co-owner who forgets an open faucet or neglects to repair a known leak.
Presumption of fault of the custodian of the property
Article 1465 of the Civil Code of Quebec establishes a presumption of fault against the custodian of a property. In co-ownership, it applies when private equipment (water heater, dishwasher, air conditioner, etc.) causes damage to the common portions or to another unit.
This presumption remains rebuttable: the co-owner may prove that they maintained their property diligently. Thus, the mere occurrence of a loss is not always sufficient; the syndicate must demonstrate a fault or negligence.
The burden of proof: A determining factor
When the syndicate of co-owners takes action against a negligent co-owner, it is in its best interest to build solid evidence as soon as the loss occurs.
This burden generally includes three essential components:
The origin of the loss: identifying the precise location and starting point of the damage (e.g., the riser, a dishwasher joint, a plumbing valve);
The cause of the loss: determining the reason for the failure (e.g., maintenance negligence, wear, human error, manufacturing defect);
Attribution: linking the cause to the concerned co-owner, thereby demonstrating that the damage originated within their sphere of responsibility.
Without such demonstration, no finding of fault can be made. The Court of Appeal implicitly reminded this in Syndicat des copropriétaires du condominium Verrières VI c. Maddalon, 2019 QCCA 1737, emphasizing that the syndicate had proceeded with the repairs without the co-owner’s fault being established or documented by independent evidence.
The role of the claims adjuster
When a loss occurs, the syndicate has every interest in appointing an independent claims adjuster. This expert’s role is to document the scene and establish the facts. They gather technical data, take photographs, interview witnesses, and, if necessary, obtain reports from specialists (plumber, engineer, electrician).
Their intervention is essential to establish the link between the damage and its cause, while recording the evidence that can demonstrate a fault or negligence.
Material and documentary evidence
In the event of a loss in divided co-ownership, rigor in managing and preserving evidence is crucial. The syndicate must act quickly, but methodically, to clearly establish causes, responsibilities, and entitlements to compensation.
Preserve the damaged premises: Before any repairs, avoid altering the scene to allow experts to identify the exact cause of the loss and the responsible parties.
Document every intervention: Photograph, date, and record all observations and interventions to demonstrate the syndicate’s diligence and create a complete file.
Use qualified experts: A claims adjuster must be quickly appointed to determine the origin, extent, and cause of the loss.
Formalize communications: Exchanges with the concerned co-owner should be in writing to clarify each party’s obligations and ensure traceability of the file.
Send a clear and documented formal notice to the co-owner involved, except in proven emergencies, to allow the negligent co-owner to witness the damage.
Report the loss to the insurer: The syndicate must promptly declare the loss to its insurer to preserve its rights and enable an independent evaluation.
WHAT YOU SHOULD KNOW! The burden of proof lies with the party alleging the fault. The syndicate must therefore establish that the loss resulted from a co-owner’s breach of obligations or duty of diligence. The rigor of technical and documentary evidence is often decisive before the courts.
WHAT TO KEEP IN MIND: In divided co-ownership, a co-owner’s liability following a loss is not always presumed: it must generally be demonstrated by rigorous evidence establishing the origin, cause, and attribution of the damage.
WARNING! The syndicate, when taking legal action, must preserve the scene of the loss, document the facts, appoint qualified experts, and above all, serve a formal notice to the co-owner involved before undertaking repairs, except in cases of real and proven emergency. This principle was clearly established by the Court of Appeal in Syndicat des copropriétaires du condominium Verrières VI c. Maddalon, 2019 QCCA 1737.
