2021 QCCA 1872, 2021 QCCA 1872

Pavlakidis c. Pavlakidis 2021 QCCA 1872 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-029294-212 ( 500-14-049059-165 ) MINUTES OF HEARING DATE: December 8, 2021 CORAM: THE HONOURABLE FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. BENOÎT MOORE, J.A. APPELLANT COUNSEL panagiotis pavlakidis M tre LAZAR SARNA By videoconference Mtre jonathan l. franklin By videoconference RESPONDENT COUNSEL georgia paVlakidis Mtre steven mark kmec ( Me S.

Mark Kmec, avocat ) By videoconference IMPLEADED PARTY COUNSEL registrar for the registration division of montreal ABSENT AND UNREPRESENTED On appeal from a judgment rendered on December 17, 202 0 by the Honourable Janick Perreault of the Superior Court, District of Montreal . NATURE OF THE APPEAL: Property – Undivided co-ownership – Immovable – Building – Legacy by particular – Intention of the testator –

Interpretation of the Will – Termination of undivided ownership.

Clerk at the hearing : Lesly Ramos Courtroom: Antonio-Lamer HEARING 9:31 Commencement of the hearing. Continuation of the hearing held on December 6, 2021. The parties were excused from appearing in Court. BY THE COURT: Judgment – see page 4. Conclusion of the hearing. Lesly Ramos, Clerk at the hearing JUDGMENT [ 1 ] The appellant, Panagiotis Pavlakidis, appeals a decision of the Superior Court, District of Montreal (the Honourable Madam Justice Janick Perreault, J.S.C.), rendered on December 17, 2020.

In her decision, Justice Perreault allowed the action of the respondent, Georgia Pavlakidis, dismissed the appellant’s cross-application, declared the termination of the undivided co-ownership of an immovable inherited by the parties from their late mother and ordered its sale by agreement under judicial authority. [1] * * * [ 2 ] The appellant and the respondent are siblings. In November 2002, their mother, Edvoxia Stavrou, passed away. [ 3 ] Pursuant to Edvoxia Stavrou’s notarial will (the “Will”), the appellant and the respondent are the sole universal legatees, in equal shares, of the residue of Ms.

Stavrou’s property. [ 4 ] The Will also sets out legacies by particular title as follows:

Section IV Should my husband predecease me, I bequeath as a particular legacy: To my son Panagiotis (Peter) PAVLAKIDIS my building located at [Addresses’ 1], Montreal Quebec. To my daughter Georgia PAVLAKIDIS my building located at [Addresses’ 2], Montreal Quebec.

To my son Panagiotis (Peter) PAVLAKIDIS my car; To my daughter Georgia PAVLAKIDIS my other car; I bequeath the residue of all my property, movable and immovable, including the proceeds of insurance policies for which no beneficiary has been designated to my children Panagiotis (Peter) PAVLAKIDIS and Georgia PAVLAKIDIS hereby constituting them my sole universal residuary legatees, by equal shares, with representation in favour of their children and failing children his or her share shall accrue in favour of his or her co-legatee. [ 5 ] The Rachel building, the Coloniale building, a shared back yard and a shared garage accessible only from Rachel Street are designated together and form lot number [1] of the cadastre of Quebec (the “Immovable”).

The Rachel building, the Coloniale building and the garage are all attached. The fire escapes of both buildings exit into the shared back yard.

[ 6 ] Upon inheriting, the appellant took responsibility for the Rachel building and the respondent took responsibility for the Coloniale building. Neither party lives in the buildings.

The units are rented out to residential tenants (both buildings) and commercial tenants (the Rachel building). [ 7 ] In the years following their mother’s passing, the relationship between the appellant and the respondent grew increasingly acrimonious. [ 8 ] On March 30, 2016, the respondent instituted proceedings against the appellant, seeking an order for the partition and sale under judicial authority of the Immovable. [ 9 ] On October 4, 2016, the appellant filed a cross-application against the respondent, seeking an order declaring him to be the exclusive owner of the Rachel building and ordering the subdivision of lot [1] on which both buildings are located. * * * [ 10 ] In first instance, the judge determined that there is an ambiguity in

Section IV of the Will as to the scope of the legacies by particular title. She explained that the ambiguity arises from the fact that although the legacies by particular title refer to the Rachel building and the Coloniale building separately, these buildings are located on the same cadastral lot. [2] [ 11 ] The judge proceeded to interpret the Will in order to resolve the ambiguity. After summarizing the rules of testamentary

interpretation, she concluded that the legacies by particular title confer upon each party a right of exclusive use of their respective buildings. [ 12 ] After determining the scope of the rights conferred by the legacies by particular title, the judge turned to the issue of how the Immovable should be divided.

She reviewed the applicable legal principles and concluded that partition in kind is not convenient given the Immovable’s characteristics and the borough’s by-laws regulating subdivisions. [3] She therefore ordered the sale of the Immovable by agreement under judicial authority. [4] * * * [ 13 ] Appellant raises two issues: (1) whether the trial judge misapplied the rules for interpreting wills; and (2) whether the undivided co-ownership should be terminated by way of sale by agreement under judicial authority rather than by partition in kind. [ 14 ] Although the judge's

interpretation of the Will may be questioned, it appears, in the end, that the two parties agree on the essence of what their mother wanted, namely, to leave each of them a building. They also agree on their willingness to put an end to the undivided co-ownership. The point of contention is only the means of partition, in kind for the appellant, by sale for the respondent.

Therefore, the only decisive question is the second one, namely, whether partition in kind is possible. [ 15 ] As a general rule, partition in kind is preferred over alienation. [5] However, if the property cannot be conveniently divided, it should be sold. [6] [ 16 ] Partition of undivided property is subject to both the formalities described in the Civil Code [7] and, where applicable, the formalities set out by public bodies such as municipalities and the Tribunal administratif du logement.

As Professor Lucie Laflamme notes: [8] La conversion d’un immeuble indivis en copropriété divise nécessite également, dans certains cas, l’obtention d’autorisations administratives. Ces autorisations, lorsqu’elles sont requises, émanent de la municipalité (

i) et/ou de la Régie du logement (ii). Dans les deux cas, elles rendent plus complexe le processus de partage. [ 17 ] In this case, based on the evidence, the judge concluded that the Immovable cannot be divided conveniently.

There is, regarding this conclusion, no reviewable error. [ 18 ] As the judge noted, the cadastral lot on which the Immovable is located can only be subdivided in accordance with the Plateau- Mont-Royal’s by-laws. [9] Specifically, a subdivision permit is required and as indicated in the borough’s bylaws, subdivision permits are not issued if the subdivision would have the effect of rendering an existing building non-compliant with applicable laws or bylaws. [10] [ 19 ] In their testimony, the court-appointed expert chartered appraiser Bertrand Tremblay, the appellant’s expert land surveyor Éric Deschamps and Sylvie Mercier, a borough employee, all identified problems with the physical characteristics of the two buildings and the Immovable that create serious hurdles to effecting a partition. [ 20 ] Based on these testimonies, the judge concluded that the physical characteristics of the buildings, namely that they are both connected to a structure of wood, brick and mortar, that the fire escapes lead into the shared backyard and that the garage is attached to both buildings, make it highly unlikely that the buildings could be divided in a manner that respects applicable laws and by-laws.

For this reason, she concluded that partition in kind is not convenient. This conclusion of fact is based on the judge’s assessment of the testimony of various witnesses at trial. Given that the appellant has failed to identify a palpable and overriding error in the judge’s assessment of the evidence, this Court should not intervene. [11] [ 21 ] Alternatively, the appellant suggests that the judge could have incited the parties to collaborate in order to find a solution. This proposal is both surprising and unrealistic.

The judge describes the relationship between the parties as “acrimonious”, a characterization the appellant does not contest. It is clear from the testimony of both parties that they are incapable of collaborating or working together. [ 22 ] In conclusion, under all these circumstances, the judge’s solution appears to be the right one, if only because there are no viable alternatives.

FOR THESE REASONS, THE COURT: [ 23 ] DISMISSes the appeal, with legal costs. FRANÇOIS PELLETIER, J.A. MARK SCHRAGER, J.A. BENOÎT MOORE, J.A.