Syndicate of the co-owners of l’Estuaire Condo, Phase III v. Claude Gentex and Denis Letendre, CQ (div. Small Claims) 2005
Complaint of the syndicate - Damage to the common portions – Water damage - Responsibility of the co-owner – Claim from the insurer of the syndicate - Claim of the franchise - Consequence of the renunciation of subrogation by the insurer
Water damage coming from the privative portion of the defendants has caused damage to the common portions of the building for an amount of 5 604,77$. The syndicate makes an insurance claim with the insurer of the syndicate, who compensates for the amount of the damage, less the insurance franchise of an amount of a 1000$. The syndicate repairs the damage and pays the cost of the works as well as the amount of the indemnity and makes up for the difference of a 1000$ from the funds of the syndicate and claims from the defendants the refunding of this amount.
The defendants admit the existence of the water damage, as well as their responsibility on this subject, but dispute the claim for the reason that a clause declaration of co-ownership prohibits any subrogation in opposition, inter alia, of a co-owner of a privative portion.
According to the Court this clause cannot receive application in the case for the following reasons:
* According to article 2474, the insurer is subrogated in the rights of the ensured against the author of the damage, to the amount of the allowances which he has paid;
* The clause of the declaration called upon by the defendants makes failure to this subrogation with regard to a co-owner of a privative portion;
* However, this clause limits itself to prohibit subrogation by the insurer of the syndicate to the amount of the allowances which he paid;
* This present recourse is instituted by the syndicate itself for the amount of the damage undergone directly by the syndicate and not compensated by the insurer, and not by the insurer of this one for the amount of the allowance paid;
* Consequently, this clause of renunciation of subrogation binds only the insurer of the syndicate, and not the syndicate itself
* Moreover, the declaration of co-ownership contains a clause in which each co-owner must subscribe to an insurance of responsibility covering all the damages not covered by the insurance policy subscribed to by the administrators on behalf of the syndicate, in addition to a clause establishing the responsibility of each co-owner for the damage caused to the common portions of the building;
* This clause shows the general principle of the civil liability enacted in article 1457 of the C.c.Q. and following, stipulating the responsibility for the damage caused to others or by the fact of a good placed under the guard of a person;
* The syndicate did not give up its right to prosecute for its direct damage not compensated by its insurer against a co-owner;
The Court condemns the defendants to pay to the syndicate damages of 999,99$, with interest at the statutory rate plus the additional allowance envisaged in article 1619 of the C.c.Q., and the expenses of the request.