2021 QCCQ 11041, 2021 QCCQ 11041

Syndicat des copropriétaires le 4855 Condominium c. Constanza Amoros 2021 QCCQ 11041 COURT OF QUEBEC "Small Claims Division" CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-157329-170 DATE: October 4 th , 2021 ______________________________________________________________________ PRESIDED BY THE HONOURABLE SYLVIE LACHAPELLE, J.C.Q. ______________________________________________________________________ SYNDICAT DES COPROPRIÉTAIRES LE 4855 CONDOMINIUM Plaintiff c.

MILAGROS CONSTANZA AMOROS Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff Syndicat des copropriétaires le 4855 Condominium " Syndicat " is a legal person duly authorized to manage the immovable located at 4855, de Maisonneuve Boulevard in the City of Westmount. [ 2 ] The Defendant Mrs. Milagros Constanza Amoros " Mrs. Amoros " is the owner of three units of the co-ownership that she rents to tenants. [ 3 ] According to the Syndicat, Mrs.

Amoros refuses to comply with the Declaration of co-ownership [1] " the Declaration " as she would have: − replaced the door hardware with silver hardware rather than replace it with brass hardware; − Defendant’s tenant had a vehicle stored in her parking space illegally because not registered under her name; − Mrs. Amoros which was not a resident of the building anymore unlawfully stored her two (2) cars in the parking space during seven (7) months, from November 2018 to May 2019 [2] . [ 4 ] Consequently the Syndicat requested Mrs.

Amoros to pay for the penalties imposed in the Declaration and the legal fees incurred amounting to $16,734.35, but reduced the claim to $15,000.00 in order to duly respect the jurisdiction of the Small Claims Court Division. [ 5 ] According to the Amended Demand, the Syndicat claims the amount of $10,429.96 in reimbursement of the legal fees incurred which leaves $5,000.00 for the penalties. [ 6 ] Mrs.

Amoros contests those claims on the ground that there is nothing in the condo Rules and Regulations defining a requirement : 1) as to the colour of the hardware; 2) that a parking spot assigned to an owner or a tenant shall be used only by vehicles owned by same; 3) that the Syndicat has failed to provide clear implementable standards; 4) the Syndicat has no legal grounds to impose penalties and payment of legal fees to Mrs. Amoros. Issues in dispute 1. Is Mrs. Amoros in default to comply with her obligations as co-owner of a unit in the building? 2.

Does the Syndicat have legal grounds to impose penalties regarding : 1) the hardware of the unit entry door; 2) the specific garage space allowed to the unit; 3) the legal fees to Mrs. Amoros? 3. In the affirmative, is the amount of $15,000.00 claimed by the Syndicat well-founded?

The facts

A) Colour of the hardware [ 7 ] The Syndicat alleges that despite numerous correspondence sent by the Syndicat to Mrs. Amoros requesting to correct the situation set forth, the latter refused to comply. [ 8 ] According to the e-mails exchanged, the problem pertaining to the colour of the hardware is debated between the parties at least since 2015. [ 9 ] In June 2015, the door of Unit 501, property of Mrs.

Amoros was smashed and replaced by a new one and she installed silver hardware instead of brass hardware, which was the preexisting finish when the building was built and delivered. [ 10 ] She argues in her written contestation that the original door handle colour was no longer available on the market, a silver door handle with the same shape was used as a replacement. [ 11 ] Mrs.

Amoros was therefore asked by the Syndicat to replace the silver hardware by brass hardware as it is provided by the Declaration of co-ownership [3] which reads as follows: " No exterior of any exclusive portion shall be decorated or altered by any owner in any manner without the prior consent of the Administrators, save and except as otherwise provided in this Declaration . " [ 12 ] On December 8, 2015, les Services de gestion Phoenix sent a notice to all owners of the 4855 Condominium that reminds them that as stated in

Article 6.5 of the Declaration, the hardware on the doors in the corridors of the building must be uniform. [ 13 ] Provision 6.5 reads as follows: The entry doors to the exclusive portions, the windows, the balconies, the terraces, the outside painted surfaces and, in general, all the outside elements which contribute to the harmony of the aggregate, may not be altered , even though they may constitute limited common portions without the authorization of the Administrators. [ My underline ] [ 14 ] The December 15, 2018, notice stipulates that brass is the designated look chosen as standard for the building, and that in order to preserve the uniformity of the doors, when being replaced, all hardware should be made out of brass. [ 15 ] Said notice also mentions that note that "if your hardware is not compliant to the standard of the building, please replace it as soon as possible". [ 16 ] Mrs.

Amoros installed the new silver handle in September 2015, thus prior to that notice. [ 17 ] However, the old abloy lock was left in place. It is not clear what was colo rit was. According to Mrs. Amoros, it was silver, whereas Mr. Douglas Mossey " Mr. Mossey ", president of the Syndicat, mentioned it was rather bronze colour. [ 18 ] Mr. Mossey testified that Mrs. Amoros did not want to change the hardware, although those few owners who did not have brass hardware made the requested changes. [ 19 ] According to Mr. Mossey, Mrs.

Amoros put silver hardware and then requested from the administration to show her that she has no right to do so. [ 20 ] As a matter of fact, Mrs. Amoros’s correspondence addressed to Phoenix reveals that she insists that a formal standard has never been defined, or specified by the administration, and asks that it be defined. [ 21 ] Mrs. Amoros suggests in her testimony that in the building there is an extensive variety of colours and shapes of objects adorning the condo doors.

She files several pictures [4] taken in 2015 and pictures taken August 29, 2020 sent after the trial regarding condos 501 and 504. [ 22 ] She also testifies that some are shiny brass, mat brass, bronze, antique bronze, some are combinations of the above and some like on the elevator are silver. This is not contested. [ 23 ] Thus, Mrs. Amoros argues that since there is no formal standard or even a general standard implementated, the Syndicat has no legal basis to apply penalties. [ 24 ] Mrs.

Amoros testifies that the lack of clarity brings confusion and renders the notice for the standard not implementable. [ 25 ] As Mrs. Amoros refused to comply to change the silver hardware with a bronze hardware, the Syndicat imposes a penalty of $100.00 according to the terms of

Article 18.2.1.1 of the Declaration plus a penalty of $50.00 per day for each day of infraction as it is a continous infraction until the hardware has been changed in the appropriate manner in addition to claim all the legal fees. [ 26 ] Actually, the co-ownership declaration was amended to add, amongs other provisions the penal clause that reads as follows :

18.2.1 Penal Clauses 18.2.1.1 Failure to comply by a co-owner of the obligations found in the Declaration of Co-ownership “Failure to comply with any obligation found in the Declaration, the building regulations or other regulations, standards or orders applicable, a co-owner, tenant, occupant and any other person who would be their guest, agent or representative, employee or agent, contractor or subcontractor, shall incur a payment due to the SYNDICATE, solidarily for the co-owner with the people he is responsible for, on a first written notice of the SYNDICATE, the liquidated damages set at one hundred dollars ($100,00). (

a) For continuing infringement: (illegal work, illegal posting, non-compliance with the destination of the property, lack of maintenance or repair of the fraction of co-ownership, prohibited animais, rental of one's unit for a period of less than one (1) year, rental of parking space to a non-resident etc.). Daily offenses subsequent to the first notice give rise to a penalty of fifty dollars ($50.00) per day until the co-owner demonstrates, proves and notifies in writing the SYNDICATE that he complied with the provisions that he violated in the Declaration of Co-ownership. For continuing infringements, a new notice of violation after the third notice is issued is not necessary. (

b) For discontinuing infringement: A second offense notice during the referenced period results in a penalty of one hundred and fifty dollars ($150.00). A third offense notice during the referenced period, regardless of whether it is for the same offense or for another offense, gives rise to a penalty of two hundred ($200.00).

Notice of any additional offense during the period results in a penalty gradually increasing from fifty dollars ($50.00) for each new notice [fourthly, two hundred and fifty dollars ($250.00), fifthly, three hundred dollars ($300.00), etc.] The referenced period is the fiscal year of the SYNDICATE. Before issuing a formal notice of the first violation, the Board of directors of the SYNDICATE must provide a written notice to the co- owner concerned allowing him to remedy his violation without incurring any penalties.

Failure by the co-owner to demonstrate, prove and notify the SYNDICATE within five (5) days of receipt of the informal notice that it has complied with the Déclaration of Co-ownership, the co-owner will be in default of its obligations. In the given case, the SYNDICATE is allowed to transmit a first notice of offense. Penalties accumulated by a co-owner during a month shall be payable by him on the first day of the following month. [ 27 ] At trial, Mrs.

Amoros argues that when she was asked to change the silver hardware she could not do so as she needed some clarification. [ 28 ] Sometimes the Syndicat was asking to replace it with brass hardware, while other times it requested bronze hardware without defining whether it was with polish or antique style. When Mrs. Amoros asked directly Mr. Mossey for more details, she found that his answer - " to do her best " - was not precise enough. [ 29 ] Mrs. Amoros argues that she did not want to change the hardware for something that would not comply with the Syndicat’s vague requirement. [ 30 ] Therefore, Mrs.

Amoros requested the exact specification, and also asked to have this issue discussed in a co-owners meeting and that a vote for a clear written definition of the standard that the Condo Association would so define. She wanted to avoid any future disagreement on that subject. [ 31 ] Mrs. Amoros’s request to vote for an exact specification was not accepted. [ 32 ] At trial, Mr. Mossey and Mrs. Marcoux, who works for Les Services de gestion Phoenix, clarified their reproach to Mrs. Amoros, stating that she did not ask the permission first to install a silver handle. [ 33 ] Mr.

Mossey testifies that the colours are all the same everywhere and " we really don’t mind if it is polish brass or antique bronze, as long as it is not black or silver. " [ 34 ] He added that the Rules that co-owners must follow are: " replace by the same and if you comtemplate to change it, thus you have to ask the permission. " [ 35 ] Mrs. Amoros feels bullied and harrassed. According to her, the Syndicat has made false claims against her tenants and herself because " t hey want to inflict costs to force me to sell my condo. " [ 36 ] Mrs.

Amoros testified that she looked for brass but says it is difficult to find. [ 37 ] Mrs. Marcoux testified that actually Mrs. Amoros asked several times for the specified standard and each time they answered that brass is the standard. Mrs. Marcoux added that there was no need to submit that question to the Condo Association and she disagrees with Mrs. Amoros that it was difficult to find. [ 38 ] Mrs. Marcoux claims that everyone else in the building complied and it would have cost Mrs.

Amoros $400.00 for a bolt and a handle the right colour which would have solved the problem. [ 39 ] She adds that "the Syndicat has a locksmith connected with the building where Mrs. Amoros could have bought it". [ 40 ] Regarding the numbers on the doors, Mrs. Marcoux stated that the only one that is not in brass is Mrs. Amoros’s as it was washed to become silver. [ 41 ] Actually this is a new allegation in the amended demand.

[ 42 ] Mrs. Amoros testified that she did not scrappe the numbers but cleaned them.

b) Vehicle illegally stored in parking space number 28 [ 43 ] According to the Syndicat, the vehicle parked in space number 28 does not belong to Mrs. Amoros’s tenant which occupation of the premises is in contravention of

Article 7.3 of the Declaration and

Article 4 of the building Rules that read as follows: 7.3 Garage spaces The maintenance of the garage spaces designated and allocated to each exclusive portion will be done by the Administrators… … A co-owner must not permit his guests, tenants or members of his family to use the garage other than as permitted or as may be determined by the Administrators from time to time. Only automobiles which are operable shall be permitted in the garage. No repair work can be performed on the automobiles while in the parking space . 4.

Garage parking security entry system 4.01 Parking privileges in the garage are restricted to building residents only… … … 4.04 Leasing space in the garage No space is to be leased or assigned to anyone who is not a resident of the building. [ 44 ] The proof reveals that Mrs. Laura Schaffer " Mrs. Schaffer " rented the apartment 402 and parked a Porsche with an Ontario plate from March 2016 to 2018. [ 45 ] Mr. Mossey testifies that the automobile parked in the mentioned space has leaked oil that has left stains and is not currently being used.

He adds that the parking space in the garage is not to be used for car storage and cannot be used by third parties that are not either an owner, a tenant, a resident or a guest in the building. [ 46 ] Mr. Mossey adds that the Syndicat had to put a rubber tray underneath the car that wasn’t working and that the Syndicat also asked for an inspection report and that was not submitted either. [ 47 ] Mrs. Amoros argues that the space is not being leased or assigned to anyone else. Her tenant is the sole user of the car which can’t be driven until the summer. [ 48 ] Mrs.

Amoros argues that in any case, nothing states that you have to own the car.

c) Vehicle illegally stored by Mrs. Amoros who was not resident [ 49 ] In the amended demand dated July 16, 2020, the Syndicat alleges that on July 19, 2019, Mrs. Amoros which was not a resident of the building anymore, received a letter from the building manager as she was in breach to comply to

Article 4.04 of the Rules and Regulations by unlawfully storing her two (2) cars in the parking space during seven (7) months, from November 2018 to May 2019, while no space can be leased or assigned to anyone who is not a resident of the building. [ 50 ] That letter dated July 9, 2019 [5] reads as follows: 4855 Garage Parking Violation – Warning As you moved out of your Unit 501 at 4855 de Maisonneuve, Westmount QC in July of 2018, you automatically lost your privilege to park your cars in the garage. Both of your cars, bearing license nos.

P56 PBP (Saab) & W15 AZV (Audi TT) were parked in spaces Nos. 4 & 24 for a period of SEVERAL months (from approx. Nov. 2018 to May 2019). This is NOT permitted as per

Article 4.04 of our Rules and Regulations : 4.04 No space is to be leased or assigned to anyone who is not a resident of the building. [ 51 ] This warning was sent to Mrs. Amoros after she removed her cars from the garage. Judgment

a) Colour of the hardware [ 52 ] The proof reveals that these issues triggered an incredible amount of correspondence and acrimoneous exchanges between the

parties. [ 53 ] Althought the Court is of the view that Mrs.

Amoros seems to play on words in the course of the discussion with respect to the colour of the hardware, in asking for example the difference between brass and bronze, the proof reveals that brass is the standard as it was the preexisting finish when the building was delivered and should be maintained as set forth in the initial Declaration of co- ownership. [ 54 ] The colour is not specified any further in the Declaration and the Rules, but what is specified however is that, if a co-owner wants to decorate or altere the exterior of any exclusive portion in any manner, he has to obtain the prior consent of the Administration. [ 55 ] Mrs.

Amoros changed the existing hardware for a new silver one without obtaining any consent, and after she refused to change it when she was asked to do so. [ 56 ] As already mentioned, Mrs.

Amoros filed several pictures in an attempt to corroborate her testimony that in the building there is extensive variety of colours and shape. [ 57 ] First, the proof does not reveal whether some changes were done since the date those pictures were taken. [ 58 ] Second, the Court cannot appreciate with certainty the colour of the hardware on these pictures because of the angle the picture was taken or the way the flash shown on the handle. [ 59 ] The same handle looks silver on one picture and polish brass on an other picture (condo 301). [ 60 ] Thus, the Court concludes that the production of these pictures does not have probative force. [ 61 ] With respect to Mrs.

Amoros’s argument that the panel of the elevator is silver, the proof reveals that the inside of the elevator is stainless steel and was not previously brass and changed. This is the original panel. Therefore, this argument is not relevant. [ 62 ] Consequently, the Court concludes that Mrs.

Amoros controvened to the Rule of the Declaration and, based on provision 18.2.1.1, the Syndicat could therefore impose a penalty of $100.00 for that infringement. [ 63 ] With respect to the additional penalty of $50.00 per day for each day of infraction, the Court makes the following comments. [ 64 ] According to the jurisprudence, the judge has the discretion to decide whether a penal clause in a contract is excessive in the circumstances taking into consideration each situation. [ 65 ] The Court of Appeal [6] reminds us of that possibility as follows: In Robitaille c. Gestion L.

Jalbert inc. , la Cour a tranché qu’une clause pénale pouvait revêtir un caractère abusif intrinsèque, « lorsqu’il y a disproportion entre la pénalité prévue et la contrepartie ou l’importance de l’obligation qu’elle sanctionne » [ Mon soulignement ] [ 66 ] In the present case, the Court is of the opinion that, considering that the issue at stake is the colour of the hardware where the specification of the colour is accepted with variation, the strict application of such a penal clause could be excessive. [ 67 ] When in such a case a party is exposed to a penalty on a daily basis, the fault should therefore be proportionate in importance. [ 68 ] Actually, the account filed under P-8 reveals that the Syndicat has exercised caution and included the penality once per month rather than once per day. [ 69 ] Nevertheless, the Court is of the opinion that there is a disproportion between the penality and the importance of the obligation referred to. [ 70 ] The proof doesn’t reveal everything and questions remain unanswered such as why Mrs.

Amoros did not accept the offer that the Syndicat change her hardware if, as she testified she found difficult to find a brass hardware since this would have probably solve the problem. [ 71 ] However, Mrs. Amoros didn’t convince the Court that she even attempted to cooperate or to comply. [ 72 ] Thus the Court estimates the penality for recurring breach to the amount of $750.00 which is reasonable in the context of that matter.

b) The use of the parking space by the tenant [ 73 ] With respect to the parking space issue, the Rule 7.3 does not specify that the resident has to own the car parked in that reserved space. [ 74 ] The Court understands that the Syndicat’s main complaint is in fact that Mrs.

Amoros’s tenant would have parked a car that was leaking oil that caused damages to the garage floor. [ 75 ] According to 2803 C.c.Q. a person seeking to assert a right shall prove the facts on which his claim is based and this part of the claim is not supported by the evidence as no invoices to prove the damages to the garage floor were filed. [ 76 ] Consequently, the Court concludes that Mrs. Amoros’s tenant, a resident of the building could park the car she used in the

garage as nothing state that you have to own the car.

c) Mrs. Amoros’ vehicle illegally stored [ 77 ] Finally, in the modified demand, it is added that Mrs. Amoros has not been a resident since 2018 and that because she parks her cars nonetheless, she controvenes to provision 4.01. eventhough she is still the owner of the units to which the parking spaces are allocated. [ 78 ] The formal notice dated July 2019 stating that Mrs. Amoros moved out of her unit in July of 2018 but that her cars were parked from November 2018 to May 2019 was sent after Mrs. Amoros moved her cars out of the building. [ 79 ] Since it has not been proven that Mrs.

Amoros was sent a written notice asking her to remedy when she was still a resident, the Court concludes that the Syndicat cannot claim retroactively $50.00 per day for that infringement, and raises the question of how the Syndicat or the co-ownership could deprive the owner of the use of its parking spaces in such a manner.

d) The legal fees [ 80 ] The Declaration provides at

article 18.2.1.2: 18.2.1.2 Extrajudicial fees and disbursements " Due to the failure of a co-owner to comply with the provisions of the Declaration of Courtage-ownership, including common charges, special assessments and penalty fees due to the SYNDICATE by the co-owner according to the Declaration of Co-ownership, extrajudicial fees and disbursements incurred when a lawyer’s services are rendered by the SYNDICATE will be a the sole expense of that co-owner except if : - Following legal proceedings, a final judgment rejects the SYNDICATE’S request; - Following legal proceedings to which the SYNDICATE is part of, a final judgment mitigates extrajudicial fees and expenses to be paid by the co-owner in default; These amounts are payable to the SYNDICATE, on demand by the co-owner concerned.

Such amounts owed by such co-owner shall bear interest for the benefit of the SYNDICATE as provided under this Declaration of Co-ownership or the regulations that are adopted subsequent to its publication.

" [ 81 ] First, the Court points out that several descriptions of work performed by the lawyers are largely redacted in the invoices filed by the Syndicat and the Court cannot establish the relevance of these issues. [ 82 ] Second, the Court rejects most of the Syndicat requests in that judgment. [ 83 ] Third and most importantly, the parties who have chosen to proceed before the Small Claims Division may retain the services of a lawyer to assist them in the preparation of their case, but these costs cannot be claimed to the other party, the purpose of the Small Claims Division being to avoid extrajudicial fees. [ 84 ] Thus the Court does not grant the reimbursement of legal fees as asked by the Syndicat.

FOR THESE REASONS, THE COURT : GRANTS partially the Syndicat’s demand; CONDEMNS Mrs. Amoros to pay to the Syndicat the amount of $850 with interest at the legal rate plus the additional indemnity provided by the provision 1619 of the Civil code of Québec since the originating demand dated November 22, 2017. WITH COSTS limited to $158.00. __________________________________ SYLVIE LACHAPELLE, J.C.Q. Date of hearing: September 1 st , 2020