2017 QCCQ 7548, 2017 QCCQ 7548

Ramacieri c. Patel 2017 QCCQ 7548 COURT OF QUEBEC “ Small Claims Division “ CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL “ Civil Division “ No: 500-32-150613-166 DATE: July 5, 2017 ______________________________________________________________________ BY THE HONOURABLE VINCENZO PIAZZA, J.C.Q. ______________________________________________________________________ matilda ramacieri Plaintiff v. rashmitabenk patel -and- kirankumar patel Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Ms.

Ramacieri is claiming from Mr. and Mrs. Patel, her neighbours, a reimbursement in the amount of $ 448.40, representing 50 % of the fees she incurred to repair a crack in the foundation wall of Mr. and Mrs. Patel’s property, which caused a water infiltration in her basement. [ 2 ] She is also claiming damages in the amount of $ 229.95, representing the costs to fix her fence, which she says was broken by Mr. Patel. [ 3 ] Mr. and Mrs. Patel plead that they clearly advised Ms.

Ramacieri not to proceed with the repairs of the foundation wall and that she nevertheless went ahead without their authorization. [ 4 ] As regards the fence, Mr. Patel denies having broken it. He explains that he only picked up an already loose

section of the fence, to push it back on Ms. Ramacieri’s property, as it had been pulled out of the ground and left on his side by the workers who had carried out the repairs to the foundation wall. ANALYSIS [ 5 ] The following articles of the Civil Code of Québec regulate common works and the maintenance thereof: 1003. A fence on the dividing line is presumed to be common. Similarly, a wall supporting buildings on either side is presumed to be common up to the point of disjunction. (… ) 1006.

The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right. (…) [ 6 ] In Nadeau-Dion c. Lavoie [1] , the Honourable Raoul-P.

Barbe, after a review of the jurisprudence and doctrine pertaining to these articles and their predecessors in the Civil Code of Lower Canada , concludes as follows : [20] Dans l'espèce, la requérante aurait d'abord dû faire constater par le Tribunal la nécessité de la réparation, obtenir l'autorisation de procéder à la réfection de la fondation mitoyenne et demander au Tribunal de contraindre l'intimé à contribuer aux frais en proportion de leur intérêt respectif.

La requérante, ayant agi unilatéralement sans avoir respecté les formalités préalables et essentielles, perd son droit de recouvrer la moitié du coût des travaux de stabilisation faits à la fondation mitoyenne. [ 7 ] This principle is applicable here. Ms. Ramacieri carried out the repairs to the foundation wall without judicial authorization and absent Mr. and Mrs. Patel’s prior consent. She is therefore precluded from claiming their contribution to the costs of these repairs. [ 8 ] As regards the fence, it is impossible, without third-party corroboration, to prefer one party’s version of the facts to the other.

[ 9 ] Ms. Ramacieri had the burden to establish that her version was predominant and more probable than that presented by Mr. Patel [2] . She has not discharged this burden. FOR THESE REASONS, THE COURT: DISMISSES the action; WITH COSTS in the amount of $ 100.00. __________________________________ VINCENZO PIAZZA, J.C.Q. Date of hearing: March 20, 2017