2017 QCCQ 17159, 2017 QCCQ 17159

Garvey c. Château Mackay 2017 QCCQ 17159 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL « Civil Division » N°: 500-22-233948-168 DATE: LE 20 OCTOBRE 2017 ______________________________________________________________________ PRESIDED BY THE HONOURABLE JULIE VEILLEUX, J.C.Q. ______________________________________________________________________ PAUL GARVEY Plaintiff v. CHÂTEAU MACKAY Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Mr.

Garvey claims an amount of $41,000.00 from the Syndicate of co-owners of Château Mackay (Château Mackay) for damages suffered following the dismantlement of his rooftop terrace in 2009. [ 2 ] Château Mackay contests Mr. Garvey’s claim under the following grounds : - The recourse is prescribed; - The rooftop terrace is not one of the “terraces” mentioned in the limited common portions of the Declaration of co-ownership; - The damages claimed are exaggerated. CONTEXT [ 3 ] In May of 1988, Mr. Garvey offered to purchase Unit 301 of the building located at […] in Montréal (the immovable).

His offer to purchase refers to his exclusive use of the roof, the installation of a metal staircase to the roof together with the construction of a 400 square foot wood terrace and was accepted. The rooftop terrace was built shortly after and Mr. Garvey describes it as being a number of modules of press wood which were installed on the roof. [ 4 ] A Declaration of co-ownership was signed later in June of 1988 by the vendors.

Section 2.3 regarding the limited common portions of the Declaration of co-ownership refers to the following definition : Terraces: The co-owner of an exclusion portion having a door leading onto a terrace shall have the exclusive use of the terrace which joins his exclusive portion . (Emphasis added) [ 5 ] Mr. Garvey enjoyed his rooftop terrace mostly to relax and to entertain friends up until the summer of 2006, at which point it was disassembled because of water infiltration.

The roof was repaired and the terrace was reassembled in the fall of 2006. [ 6 ] In December of 2008 and during the following weeks, there was another water infiltration and the terrace was dismantled once again. Mr. Garvey, who was out of the country at the time, agreed “to have Mr. Ryan to remove any modules of the roof decking that need to be removed and then have him to put them back in place after the inspection and repair has been completed” [1] . From Mr.

Garvey’s standpoint, Château Mackay had to reconstruct the terrace after the roof repairs. [ 7 ] The wooden modules were not stored like they were in 2006 but rather cut into pieces and taken down in the garden. They became an issue for the co-owners as after consulting with the Borough of Ville-Marie, they were informed that it became a fire hazard and attracted animals.

On October 14 2009, at their bi-annual meeting, the co-owners discussed the cost of removing the wood pieces and the possibility to reuse some of them. [ 8 ] In addition, the Minutes of said meeting referred to the discussion relating to the reconstruction of the terrace and read as follows : Both Lennox and Eleanor [the two other co-owners] informed the meeting that they will not pay for the replacement of the deck on the

ground that it represents a danger to the building and the roof. [2] [ 9 ] Later that month, one of the co-owners was informed that the reconstruction of the terrace required a permit and that the plans to obtain the permit had to be drawn by an architect. Mr. Garvey and the other co-owner were provided with this information. [ 10 ] In December of 2009, Mr. Garvey sent a demand letter to Château Mackay requesting either the reconstruction of the terrace or the payment of an amount of $10,440.94 for the “remise en état”. [ 11 ] The roof was repaired in the summer of 2010 and no further action was taken by Mr.

Garvey until the end of August 2014. At that point, he began the reconstruction of the terrace himself without obtaining either a permit or the co-owners’ authorisation. The City of Montreal stopped the work considering that no permit was delivered and that there were a number of issues raised. [ 12 ] An extraordinary co-owners’ meeting took place on October 8, 2014 where several issues were discussed, namely : - The Declaration of co-ownership contains no mention of the roof deck on Mr.

Garvey’s property; - Les Couvertures Blanchard & Fils informed the co-owners the day before that the roof warranty had been voided due to the faulty construction of the new terrace; - Mr. Garvey did not retain the services of an engineer to advise him on the construction of the terrace; - Are the workers employed by Mr. Garvey carded? [ 13 ] At that same meeting, Mr. Garvey requested the co-owners’ authorisation to seek a building permit. Mrs. Eleanor Phelan informed him that she would not sign said authorisation considering the issues discussed. [ 14 ] The terrace constructed in part by Mr.

Garvey still remains on the roof. Mr. Garvey filed his proceedings against Château Mackay in August of 2015. QUESTIONS IN DISPUTE - Is Mr. Garvey’s recourse against Château Mackay prescribed? - Is Château Mackay liable for the damages claimed by Mr. Garvey? - What is the extent of the damages? ANALYSIS - Is Mr. Garvey’s recourse against Château Mackay prescribed? [ 15 ] According to Mr. Garvey, his use of the rooftop terrace is an immoveable right and the ten-year prescription period of

Section 2923 C.C.Q. applies. Should his recourse rather be considered to enforce a personal right, Mr. Garvey contends that he acted within the three-year period of

Section 2925 C.C.Q. [ 16 ] On the other hand, Château Mackay argues that Mr. Garvey’s recourse was taken more than six years after he was made aware of Château Mackay’s position with respect to the reconstruction of the rooftop terrace and that his recourse is prescribed as

Section 2925 C.C.Q. applies. [ 17 ] Sections 2923 and 2925 C.C.Q. read as follows: 2923. Actions to enforce immovable real rights are prescribed by 10 years. However, an action to retain or obtain possession of an immovable may be brought only within one year of the disturbance or dispossession. 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise determined. [ 18 ] Mr. Garvey’s recourse is founded on

Section 1067 C.C.Q. : 1067. A co-owner who, as a result of work carried out, suffers injury in the form of a permanent diminution in the value of his fraction, a grave disturbance to enjoyment, even if temporary, or through deterioration, is entitled to obtain an indemnity from the syndicate if the syndicate ordered the work or, if it did not, from the co-owners who did the work. [ 19 ] Mr. Garvey’s right is personal as he seeks compensation for the damages suffered following the dismantlement of his rooftop terrace [3] .

Said damages are related to the prejudice suffered for deprivation of enjoyment of the terrace together with the cost of replacement of said terrace and permanent loss of the value of his unit. The Court finds that the three-year period prescription of

Section 2925 C.C.Q. applies to Mr. Garvey’s recourse. [ 20 ] The next issue to be decided regards the moment Mr. Garvey was aware that the rooftop terrace would not be reconstructed in order to calculate the three-year prescription period. [ 21 ] Château Mackay argues that when Mr. Garvey was informed by the co-owners of their intention not to pay for the replacement of the rooftop terrace because it was a danger to the building and the roof, he then knew or should have known that he would not be able

to enjoy his rooftop terrace anymore and that the value of his unit would diminished. [ 22 ] The Minutes of the October 14, 2009 co-owners’ meeting are clear: as of that day, Mr. Garvey was aware of the consequences of the co-owners’ decision. He even mandated his attorney a few weeks later to send a demand letter to Château Mackay but neglected to act before August of 2015 [4] . In view of the foregoing, the Court finds that Mr. Garvey’s recourse against Château Mackay is prescribed. [ 23 ] Should the Court rather find that it is only after the roof was repaired in the summer of 2010 that Mr.

Garvey had a potential right of action against Château Mackay, his recourse is nevertheless prescribed. [ 24 ] Considering the above, the other questions in dispute become moot. FOR THESE REASONS, THE COURT: DISMISSES Paul Garvey’s Motion to institute proceedings against Château Mackay. THE WHOLE , with costs. ____________________________ JULIE VEILLEUX, J.C.Q . Me Bruno Bourdelin Fiset Légal Inc. Plaintiffs’ attorney Me Maxime Laflamme-Lebond Papineau Avocats Defendants’ attorney Hearing date: September 20, 2017