2018 QCCQ 442, 2018 QCCQ 442

Chen c. Kapdon inc. 2018 QCCQ 442 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-153347-168 DATE: February 1, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ YUEH-SHIANG CHEN Plaintiff v. KAPDON INC.

Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Yueh-Shiang Chen claims $6,000 in damages from Kapdon Inc. (Kapdon). Mr. Chen argues that Kapdon, which owns a property immediately adjacent to his, demolished a shared front porch and stone walkway between the properties without his prior consent. [ 2 ] Kapdon denies all liability. It argues that it consulted with Mr. Chen prior to carrying out any work and adds that it never destroyed any of Mr.

Chen’s property because it never touched that portion of the porch on the Chen property and moreover, the walkway was entirely located on its own property. Questions in Dispute

a) Was the porch or walkway wholly on the Kapdon Property, wholly on the Chen Property or were they a “common work” within the meaning of the Civil Code of Québec (C.C.Q.)?

b) What are the damages that Mr. Chen is entitled to, if any? Context [ 3 ] Mr. Chen and Kapdon own neighbouring properties. [ 4 ] Mr. Chen owns a property bearing civic address 4164 and 4166 Van Horne Avenue in Montréal (“Chen Property“). He has owned the property for over 25 years. [1] He rents the two apartments in this building to tenants, including his son Clayton, who occupies the ground floor apartment. [ 5 ] Since June 1, 2015, Kapdon has owned the property bearing civic address 4160 and 4162 Van Horne Avenue (“Kapdon Property“). [2] [ 6 ] The Kapdon Property and the Chen Property are row houses.

They share a common wall as well as a front lawn. Moreover, the front door of each property opens onto a shared front stone and mortar porch (“Porch”). [ 7 ] From this common porch, two steps lead down to a 8.7 metre long walkway which leads up to the sidewalk along Van Horne Avenue (“Walkway”). Work carried out by Kapdon on the Porch and the Walkway has led to the present litigation. [ 8 ] In June 2015, Kapdon acquired the Kapdon Property. Shortly after acquiring the property, Kapdon discovered water infiltration in the basement of the building. It decided to redo the French drain surrounding the property.

As it was carrying out this construction work, it also decided to tear down and rebuild the front Porch and the Walkway. [ 9 ] Kapdon demolished that portion of the Porch situate on its property, but left the other portion located on the Chen Property as is. As for the Walkway, it was completely demolished and rebuilt. However, the new walkway was rebuilt solely on the Kapdon Property, leaving the Chen Property with no walkway leading form the front door to Van Horne Avenue.

[ 10 ] Kapdon did not contact, communicate or inform Mr. Chen before carrying out his work. [ 11 ] On or about August 24, 2015, Mr. Chen attended his property and discovered that a portion of the Porch had been demolished and that the Walkway had been completely removed and excavated. [ 12 ] Mr.

Chen argues that the Porch and the Walkway constitute “common works” within the meaning of the Civil Code of Québec as they straddled the dividing line between the Kapdon and Chen properties. [ 13 ] He further argues that when Kapdon demolished a portion of the Porch and the entire Walkway, it committed a fault which left him with a damaged front porch and no path to the sidewalk, which obliged him to rebuild same at a cost of $6,000, which he claims from Kapdon. [ 14 ] Kapdon argues that it has no liability because neither the Porch nor the Walkway constitutes a “common work”. Analysis and Decision

a) Was the porch or walkway wholly on the Kapdon Property, wholly on the Chen Property or were they a “common work” within the meaning of the Civil Code of Québec (C.C.Q.)? [ 15 ] Mr. Chen argues that the Walkway was located on the dividing line between the neighbouring properties and thus constitutes a “common work” within the meaning of the Civil Code . [ 16 ] Articles 1002 to 1006 of the Civil Code address the issue of the maintenance, repair and rebuilding of common fences and works and read as follows: DIVISION VIII COMMON FENCES AND WORKS 1002.

Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence. He may also require his neighbour to make, in equal portions or at common expense, on the dividing line between their lands, a fence suited to the situation and use made of the place. 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. 1004.

An owner may acquire common ownership of a private wall directly adjacent to the dividing line by reimbursing the owner of the wall for one half of the cost of the

section rendered common and, where applicable, one half of the value of the ground used. The cost of the wall is assessed on the date on which it was rendered common, and account is taken of its condition. 1005. Each owner may build against a common wall and set beams and joists against it. He shall obtain the concurrence of the other owner on how to proceed. In case of disagreement, the owner may apply to the court to determine the means necessary to ensure that the new works infringe the rights of the other owner as little as possible. 1006.

The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right. An owner who does not use the common wall may renounce his right and thereby be relieved of his obligation to share the expenses by producing a notice to that effect at the registry office and transmitting a copy of the notice to the other owners without delay.

The notice entails renunciation of the right to make use of the wall. [ 17 ] Although the Code refers to common fences and walls, the courts have decided that a path or walkway between two adjoining properties may qualify as a common work for the purposes of the Civil Code . [3] [ 18 ] Each owner of a common walkway has the right to use the pathway.

Moreover, neighbors have the obligation to share in the expenses required for the repair and maintenance of a common walkway. [ 19 ] However, one of the neighbours cannot act alone without the consent of the other neighbour, and demolish or carry out repairs to a common work such as a common walkway, much less demolish it and rebuild it only on his land. [4] [ 20 ] Where a neighbour demolishes a common work without the consent of his neighbour and deprives this person of the use of a common work, the neighbour commits a fault within the meaning of

article 1457 C.C.Q., and is liable to repair the damages caused by this fault. [ 21 ] The question raised by Mr. Chen’s claim is whether the Porch and Walkway constitute a common work for the purposes of articles 1002 to 1006 of the Civil Code . [ 22 ] Indeed, if the Porch or Wakway is wholly situate on the Kapdon Property as Kapdon claims, than Kapdon can do as it seems fit with these works, subject to the limits imposed by

article 976 C.C.Q., given that the Chen Property does not benefit from a right of passage (servitude) on the Kapdon Property. [ 23 ] Conversely, if the evidence reveals that the Porch or Walkway are a a common work within the meaning of the Civil Code , then any work carried out on them is subject to the rules set forth at articles 1002 to 1006 C.C.Q.

[ 24 ] No land surveyor testified at the trial to explain the exact location of the Walkway. The Court had to rely on the testimony of Mr. Chen and the representatives of Kapdon, as well as the benefit of reviewing numerous photographs of the state of the properties and the Walkway, both prior to, during and after the demolition and rebuilding of the Walkway. [ 25 ] Moreover, the Court also reviewed a certificate of location and plan of the Kapdon Property dated August 20, 2013 prepared by Stéphane Roy, land surveyor. [5] [ 26 ] Finally, Mr.

Chen submitted a plan excerpted from a certificate of location for the Chen Property prepared by Dancose & Smith, dated January 5, 1987. [6] [ 27 ] Both the Roy Certificate of Location and Plan and the Dancose & Smith Plan indicate that the Porch is common to both properties. Moreover, the photographic evidence supports this conclusion. [ 28 ] The Roy Certificate of Location does not make specific mention of the Walkway and therefore is inconclusive as to whether the Walkway is a common work. [ 29 ] That said, Google Street View photos entered into evidence by Mr.

Chen and dated June 2015 (before Kapdon demolished the Walkway) indicate that the walkway straddles the dividing line between the Kapdon and the Chen properties. [7] [ 30 ] Moreover, photos taken by Mr. Chen on September 29, 2015, after the Walkway was demolished but before the reconstruction, support Mr.

Chen’s claim that the Walkway was located on both the Kapdon and the Chen property. [8] [ 31 ] Similarly, photos introduced into evidence by Kapdon also support the conclusion that the Walkway straddled the dividing lines of the two neighbouring properties. [9] [ 32 ] Finally, Kapdon’s letter dated September 21, 2015 addressed to Mr. Chen also supports the conclusion that Kapdon certainly itself considered the Porch to be a common work, but also the Walkway: Following your note left on our property at 4160 av. Van Horne, to contact you to discuss the outside stairs in front of our building.

We would like to advise you that our work that we did on our side, is following a water infiltration we had in the basement, and we had to do a French drain to properly evacuate water. We had to dig underneath our side of the stairs [Porch] . These works were urgent and were done on our side of the property only. We were indeed planning to redo the stairs after our French drain work, but we did not start yet. As we discussed this on the phone dated 21 September 2015, we are offering you to cooperate and decide if you would like to do new common stairs [Porch] that will be nice for both of us.

We left you a voicemail (10:22am, 21 of September 2015) regarding this, but at the moment of writing this letter we did not hear from you. We will be doing the stairs on our side only if we don't hear from you in the next 5 days , it's possible we will be making a separation between both properties, on the limit of each other. Please contact us as soon as possible, if you would like to make common stairs [Porch] . [ 33 ] The stairs or porch Kapdon refers to was approximately 2.5 meters wide and was a common porch onto which the front doors of each of the Kapdon and Chen buildings opened onto.

The Walkway was located immediately in front of the stairs and porch, but was approximately 1.5 meters wide and 8.7 meters in length. [ 34 ] While Kapdon writes in its letter that the Porch is common, it stands to reason that the Walkway was also common given the layout of the Walkway and the Porch as revealed by the photographic evidence. [ 35 ] In conclusion, the Court concludes that the preponderance of the evidence establishes that the Porch and the Walkway thus constituted common works. [ 36 ] Therefore, when Kapdon demolished a portion of the Porch and the Walkway without Mr.

Chen’s consent or authorization, leaving him without a path to the sidewalk, it committed a fault (article 1457 C.C.Q.) and is liable for the damages suffered by Mr. Chen.

b) What are the damages that Mr. Chen is entitled to, if any? [ 37 ] In his claim, Mr. Chen seeks damages of $6,000 for the rebuilding of his portion of the Porch and Walkway. He bases this amount on an estimate obtain from a general contractor. [10] [ 38 ] However, Mr. Chen rebuilt his portion of the Porch and the new walkway on his property himself, with the help of his son. He testified that the cost to rebuild his portion of the stone Porch and Walkway was $2,000, using his own materials and the labour of his son and himself.

He filed no invoice of the purchase of materials to support his claim. [ 39 ] It is clear from the photographic evidence that Mr. Chen suffered damages as a result of the unlawful destruction by Kapdon of the portion of the stone porch and common Walkway. Mr. Chen’s tenants were left without a path to access their apartments from the sidewalk. [ 40 ] Based on the photographic evidence, Mr. Chen rebuilt a front porch and walkway leading from his front door to the sidewalk along Van Horne Avenue. [11] [ 41 ] However, the evidence to substantiate the monetary evaluation of the damages suffered by Mr.

Chen is solely based on his testimony and is unsupported by invoices. The Court will use its discretion and award Mr. Chen $1,800 towards the cost of rebuilding a walkway and a front porch. [ 42 ] FOR THESE REASONS, THE COURT:

[ 43 ] GRANTS in part Yueh-Shiang Chen’s claim; [ 44 ] CONDEMNS Kapdon Inc. to pay to Yueh-Shiang Chen $1,800 with interest and the additional indemnity provided by

article 1619 of the Civil Code of Québec from July 9, 2016; [ 45 ] WITH COSTS of $125. __________________________________ ENRICO FORLINI, J.C.Q. Date of hearing: September 19, 2017. The parties submitted documents to the Court on September 27 and October 2, 2017. The matter was taken under advisement on October 10, 2017.