Irregular work affecting the common portions of the building or a malfunctioning toilet are quite frequent and damaging types of loss in divided co-ownerships. These events can sometimes cause very significant material damage to both private and common portions. When damages do not directly result from a breach of the declaration of co-ownership, the co-owner’s liability falls under the extracontractual regime set out in Articles 1457 and 1465 of the Civil Code of Québec, which rests primarily on personal fault or on the act of a thing under the co-owner’s custody.
The extra-contractual nature of a co-owner’s liability
A co-owner’s liability following a loss may fall under the extra-contractual regime provided for in article 1457 of the Civil Code of Québec. It does not arise from a contract — such as the declaration of co-ownership — but rather from the fact of causing damage to another person, whether to the syndicate or to another co-owner.
Article 1457 C.c.Q. — Every person has a duty to abide by the rules of conduct incumbent on him, according to the circumstances, usage or law, so as not to cause injury to another. Where he is endowed with reason and fails in this duty, he is liable for any injury he causes to another by such fault and is bound to make reparation for the injury, whether it be bodily, moral or material in nature. He is also bound, in certain cases, to make reparation for injury caused to another by the act, omission or fault of another person or by the act of things in his custody.
This provision enshrines the general duty of prudence and diligence, which requires everyone to behave in a reasonable and foreseeable manner so as to avoid causing harm to others. In the context of co-ownership, a co-owner may thus be held liable when a loss results either from their own fault or from the act of a thing under their custody — for instance, components of their private portion such as the water heater, plumbing, or sanitary appliances.
The case law illustrates this duty of prudence well. In Syndicat des copropriétaires Place Sorbier/Mont-Bleu “A” c. Camara, a co-owner had allowed several feet of snow to accumulate on her balcony, thereby breaching her maintenance obligation. This negligence caused water infiltration in the unit below. The court recalled that the expected behaviour of a co-owner is that of a reasonable person placed in the same circumstances, according to the standard established by the Court of Appeal in Reindler c. Dumas. Despite the defendant’s personal circumstances, her inaction was deemed wrongful.
Thus, a co-owner’s fault does not require an intention to cause harm: mere negligence or a failure to fulfill their maintenance duty may be sufficient to engage their liability. This liability is assessed according to the general principles of civil fault, independently of the obligations arising from the declaration of co-ownership.
Legislative evolution: The 2020 reform
Before 2020, the syndicate had to establish a co-owner’s fault in order to obtain reimbursement of the insurance deductible or repair costs. The first version of article 1074.2 of the Civil code of Quebec required such proof, which made legal recourse difficult.
The coming into force of Bill 41 on March 17, 2020, remedied this situation. Since that reform, Article 1074.2 C.C.Q. allows the syndicate to claim amounts incurred following a loss caused by the act or fault of another person, or by a thing under a co-owner’s custody. In the latter case — when the loss originates from property generally located within a private portion — the syndicate no longer needs to prove fault; it need only demonstrate that the damage originated from a thing under the co-owner’s control.
This reform reinstated the application of article 1465 of the Civil Code of Québec in the context of divided co-ownership, thereby simplifying the syndicate’s recourses when liability arises from property under a co-owner’s custody. This development naturally leads to an examination of the presumption of fault applicable to the custodian of a thing.
Presumption of fault of the custodian of a thing
When a loss originates from property belonging to a co-owner — for example, a water heater — the applicable liability regime is based on the custody of the property. The legislator considers that the person who exercises control, use, and direction over a thing must assume the risks associated with it. It is from this perspective that the Civil Code of Québec establishes a presumption of fault.
Article 1465 of the Civil Code of Quebec provides that:
“The custodian of a thing is bound to make reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.”
This rule makes the co-owner who has custody of the property liable for the damage caused by the thing under their control. Thus, if a water heater causes water damage, the co-owner is presumed to be at fault without the need to prove negligence. The case law illustrates this principle: when a loss results from a defective household appliance (e.g., a dishwasher), the co-owner remains presumed liable unless they demonstrate that they acted with prudence and diligence. This presumption does not create automatic liability but rather shifts the burden of proof: the syndicate must establish the origin of the loss, and the co-owner must prove that they committed no fault.
Rebutting the presumption of fault
The co-owner concerned may rebut the presumption of fault by demonstrating that he acted with prudence and diligence. For example, he may establish that:
These pieces of evidence allow the co-owner to overturn the presumption and exclude their liability. In short, the legal regime combines a principle of prudence with a rebuttable presumption of fault, in order to ensure a fair distribution of risks within co-ownership while protecting the syndicate and other co-owners from damage originating in private portions. The co-owner may also invoke exonerating causes, such as force majeure, construction defects, or the act of a third party. Finally, when an insurance deductible is claimed, the co-owner may argue that it should not be charged to them if its amount is unreasonable.
Recourses of the syndicate
When a loss occurs, the syndicate may:
In addition, under article 2501 of the Civil code of Quebec, the syndicate may bring a direct action against the insurer of the at-fault co-owner, since a third party who suffers damage may sue the insured or his insurer.
WHAT YOU SHOULD KNOW! In practice, prevention remains the best defense: maintaining one’s installations, periodically inspecting potential sources of risk (water heater, plumbing, sealing joints), and complying with the obligations set out in the declaration of co-ownership help avoid many inconveniences.
WHAT TO KEEP IN MIND: The syndicate may claim from the at-fault co-owner the insurance deductible or uncovered damages. However, the co-owner may defend himself by demonstrating that he acted with prudence and diligence or that the loss originates from an external cause.
WARNING! A negligent co-owner who fails to maintain his installations (water heater, faucets, seals, etc.) risks having to reimburse the syndicate for the cost of the loss. Rigorous preventive maintenance remains the best protection against civil liability.
