In Syndicat de la copropriété Kubik phase 2 v. Orleans, 2026 QCCQ 4153, the Court of Québec considered the liability of a co-owner who caused water damage. The decision reiterates the conditions under which a syndicate of co-owners may recover costs arising from a loss from a co-owner, as well as the evidentiary requirements applicable to the proof of damages.

While installing a shelf in his bathroom, a co-owner punctured a water pipe, thereby causing damage to several private portions and to the common portions of the immovable. As the costs were below the insurance deductible of $25,000, the Syndicate sought recovery from the co-owner and his insurer.

Articles 1074.1 and 1074.2 of the Civil Code of Québec codify the principle of risk-sharing in divided co-ownership. The financial consequences of a loss are generally to be borne collectively, subject to proof of a fault on the part of the co-owner that caused the damage. The declaration of co-ownership remains relevant in determining the obligations incumbent upon a co-owner and in assessing whether that co-owner acted as a reasonably prudent and diligent person.

In the case at hand, the Court found that the co-owner had failed to act prudently and diligently by drilling into a wall without locating the plumbing, consulting the building plans or the Syndicate, or following the manufacturer’s instructions. Given the foreseeable presence of plumbing within the wall, prior verification or the assistance of a qualified professional was required.

With respect to damages, the Syndicate claimed $23,960.06 for emergency interventions and repair work. The Court instead awarded $20,833.67. It accepted the emergency response and plumbing expenses but reduced the amount claimed for renovation work because the invoice filed in evidence was a lump-sum invoice, insufficiently detailed, and unsupported by explanatory testimony from a representative of the contractor.

The judgment therefore serves as a reminder that a paid invoice does not necessarily suffice to establish the quantum of a claim. A syndicate must be able to demonstrate the nature of the work performed, its necessity, its connection to the loss, and the reasonableness of the amounts paid. To that end, detailed invoices and proof of payment should be maintained and produced in evidence.

The Court also upheld the validity of the penal clause contained in the declaration of co-ownership, which entitled the Syndicate to recover reasonable, necessary, and proportionate extrajudicial fees incurred as a result of a co-owner’s default. In this case, the extrajudicial fees claimed amounted to $28,102.76, whereas the material damages claimed totalled $23,960.06. The Court found the amount disproportionate and reduced it to $17,500. The Court also dismissed the management fees associated with the demand letter, holding that they duplicated legal services already billed by counsel.

Lastly, the declaration of co-ownership provided for an interest rate of 2% per month, stated to be equivalent to 26.82% per annum. The Court declined to apply this rate. In particular, it noted that monthly compounding was not expressly stipulated and that such a high rate, when combined with the clause allowing recovery of extrajudicial fees, resulted in an unreasonable penalty. Accordingly, only interest at the legal rate and the additional indemnity provided by law were awarded.

The Court condemned the co-owner and his insurer. The allocation of liability was set at 0% for the co-owner and 100% for the insurer, as the insurance policy covered the co-owner’s civil liability and no deductible was applicable.

Key Takeaways

This decision confirms that a co-owner is not automatically liable for a loss occurring within his or her private portion. In order to recover amounts expended following a loss, the syndicate must establish a causal fault on the part of the co-owner. While the declaration of co-ownership may assist in determining the co-owner’s obligations, it cannot create a no-fault liability regime contrary to article 1074.2 C.C.Q.

The judgment also underscores the importance for syndicates to maintain thorough documentation of expenses incurred following a loss. Invoices must be sufficiently detailed to establish the nature, necessity, and cost of the work performed.

Finally, a clause in a declaration of co-ownership permitting the syndicate to recover extrajudicial fees does not grant carte blanche. The syndicate remains responsible for controlling legal costs and ensuring that they remain reasonable and proportionate to the issues at stake. Similarly, clauses imposing elevated interest rates should be reviewed periodically to assess their validity and enforceability under Québec law.