2016 QCCQ 707, 2016 QCCQ 707

Culala c. Syndicate des Coproprietorship of the Woodlands 2016 QCCQ 707 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-132452-121 DATE: January 15, 2016 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ JOSEPHINE CULALA […] Dollard-des-Ormeaux (Québec) […] Plaintiff v.

SYNDICATE DES COPROPRIETORSHIP OF THE WOODLANDS 1721, Sunnybrooke Blvd Dollard-des-Ormeaux H9B 1R4 And CLARITY MANAGEMENT INC. 1721, Sunnybrooke Blvd Dollard-des-Ormeaux H9B 1R4 Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Josephine Culala, is the owner of a residential unit in the condominium known as The Woodlands, [...] in Dollard- des-Ormeaux. [ 2 ] She sues the Syndicate of Co-Owners and Clarity management, the management company engaged by the Syndicate for day-to- day management of the buildings, alleging that they failed to solve a problem of water infiltration into her dwelling in the basement.

The alleged leak occurred from a foundation wall on the exterior of the building. Her unit is the last of a row of townhouse units, so that the exterior wall is exposed to the surrounding soil. [ 3 ] She sues in damages, for $ 7,000, the maximum available in the Small Claims Division at the time her demand was instituted, in January 2012. [ 4 ] As a preliminary matter, it should be understood that the management company, is the mandatory of the Syndicate, the latter being responsible for the maintenance of the common portions of the condominium.

The Syndicate, not the management company is the true defendant, as it is in the Syndicate's interest that the building is managed, and the management company acts on its behalf. [ 5 ] The construction dates from 1972, when Belcourt Construction Company developed the project as builder-developer. The

declaration of co-ownership, registered in Montreal under number 2342647 on April 25 1972 clearly defines the foundation wall, from the exterior to the inside surface of the concrete wall, as part of the common portions. (page 7) [ 6 ] Mrs Culala is not the initial purchaser of the unit. When she acquired the residence the basement was finished. She had been using it as a living space, in particular for her son's bedroom. [ 7 ] In the early spring of 2012, Mrs Culala began to experience problems of water infiltration in the basement.

Examinations carried out showed that the source of the moisture is the exterior foundation wall, on the side of the building. [ 8 ] The Syndicate, acting through Clarity, investigated the problem and hired Akton Injection who billed the Syndicate $ 282.19 for an injection along four feet of the joint between the footing and the foundation wall. [ 9 ] According to Mrs Culala's testimony, this did not entirely solve the problem of water infiltration, and she asserts that the Condominium Syndicate should perform more extensive works.

She obtained an estimate from Akton on December 5, 2011 for the installation of a French drain along the exterior foundation wall, at the level of the footings. [ 10 ] She admits however that, as of before the Court hearings, which began in September 2014, there have been no other events of water infiltration. [ 11 ] She has ceased any work to repair or replace finishing materials in the basement for fear that additional damage will occur because the work carried out to date is not effective to solve the potential for water infiltration. [ 12 ] Mr.

Magdi Sorial, who operates Clarity, explained to the Court that the party he represents, the Syndicate, does take care of cracks in the foundation walls, carrying out those works that are necessary, because these are common areas. His position is that, if there is further water infiltration, he will carry out excavations on the exterior of the wall and install membranes. [ 13 ] The Syndicate did pay for remedial work, albeit for an extremely modest amount, for the work done by Akton Injection.

The Court surmised that the Syndicate admits that it has the role and responsibility of maintaining the foundation walls to prevent water infiltration, as it would do in the case of a roof, for example, but that it would not agree to pay for the installation of a French drain. [ 14 ] The parties were therefore unable to settle the case.

The conflict is not about the appropriate cost, but relates rather to the way in which such costs should be shared. [ 15 ] The Court heard testimony from expert witnesses, both of whom were structural engineers, Mr Simon Breault Gosselin, for the Woodlands, and Szilard Hedrei for Mrs Culala. [ 16 ] Both experts agree that, because of the age of the building, it may be that no French drain was installed along the base of the wall: it was not yet a well-established practice to do so in the early '70s, and even if there were one, the drain would perhaps have become ineffective over time, because the drains used at that time were terra cotta with tarpaper wrapped around the joints, as opposed to the polyvinylchloride perforated conduits used today. [ 17 ] Waterproof membranes were not common at that time either, and, like the French drain with its accessory pit and sump pump, or conduit to drain the water by gravity away from the property, depending on the technical solution adopted, they would be a necessary part of the solution. [ 18 ] This seems obvious because, while there may be properties that remain dry despite their absence, this property does not perform reliably well without them. [ 19 ] If the solution were implemented, the Plaintiff would have the assurance that the problem of water infiltration would not reoccur for the foreseeable future, over a fairly long cycle.

Then she, or a subsequent owner, would be able to upgrade the basement finishes, and use the basement as a living space as opposed to just storage space. [ 20 ] When she purchased the property, it was already well into the lifespan of a French drain system, if in fact there had been one, so that the current replacement of the system would constitute an added value, making the property worth more on the resale market than when she acquired it.

The addition of a membrane would be an upgrade, bringing the building up to current standards. [ 21 ] What stands in the way of a solution is that the owner of the exterior wall, the Syndicate, will not agree to carry out these repairs and upgrades unless Mrs Culala pays for the part of the costs represented by the French drain and then, only if an additional water infiltration incident occurred.

In that case, the Syndicate would agree to pay for the excavation and the membrane, a cost it estimates at $ 1,500 to $ 2,000 and would manage the project as the owner, offering to Mrs Culala the option of paying for the addition of a French drain. [ 22 ] This has created a sort of stalemate, with the work being deferred indefinitely, both the remedial work, and any work that Mrs Culala, or her successor in title, should she decide to sell in the foreseeable future. [ 23 ] In the Court's analysis, Mrs Culala, as owner of the privative portion comprising the basement, can only have the full enjoyment of her property if she can be sure that an effective long-term solution has been carried out to the common portion, including the membrane and French drain systems that are up to current standards.

But if that were done, the value of her property would not only be restored, it would be enhanced. [ 24 ] The Court finds that the estimate of the cost of portion of the work that would involve the implementation of a membrane, that it would agree to pay, is underestimated by the Syndicate. Of the overall cost, approximately $ 15,000 according to Mr Breault, it is probably closer to half of the value.

The membrane solution would only be part of the total solution, but the Court accepts the notion that Mrs Culala should bear a share of the costs, because the total package of work would give her an added value with respect to the

house she purchased, even assuming it had performed adequately. [ 25 ] The parties should agree to a protocol whereby the works are carried out and Mrs Culala assumes a portion of the costs, say $ 7,500 in recognition of the added value to her unit. Since the parties cannot agree to a settlement, the Court will impose the monetary equivalent of the portion of the costs that the Syndicate should have agreed to pay, $ 7,500, which is reduced to the limit in the Small Claims Division of $ 7,000.

It is to be hoped that in order to avoid the condemnation to that amount, the Syndicate will reach an agreement to implement the project. If not, Mrs Culala's interest will be met with a cash payment estimated to be the net result to her if the work were carried out. [ 26 ] A proportionate portion of Mrs Culala's expert costs will be included in the award of costs: $ 1,250.00. For these reasons, the Court: CONDEMNS the Defendant Syndicate des Coproprietorship of the Woodlands to pay the Plaintiff the sum of $ 7,000, together with interest at the legal rate and the additional indemnity provided for in

section 1619 of the Civil Code of Québec , calculated from the date of institution of proceedings; CONDEMNS the Defendant Syndicate des Coproprietorship of the Woodlands to pay the Plaintiff’s costs for the judicial stamp in the amount of $ 163 and expert costs of $ 1,250. __________________________________ DAVID L. CAMERON, J.C.Q. Dates of hearing: September 24, 2014, April 13, 2015 and September 15, 2015