The plaintiff co-owners are claiming 343,14$ from the Syndicate in reimbursement of the costs which they paid for the replacement of two thermo-panes of the windows of their condominium, claiming that these panes were no longer air or watertight.
The Court denied the co-owners claim for the following reasons:
• According to the plaintiffs, at the time of their replacement, the panes in question were constantly fogged and droplets of water regularly covered them.
• The Syndicate refuses to pay the claim, arguing that it never authorized this replacement and that it was never sent a demand letter to do so.
• According to the declaration of co-ownership, the doors and external windows incorporated in the structural walls constitute common portions, even if by their nature, they are intended for the exclusive use of the co-owners of the private portion to which they are contiguous.
• Consequently, considering it concerns a common portion, the repair or the replacement of this common portion must be carried out, or at the very least authorized by the Syndicate.
• According to the report presented by the Syndicate's President, which the plaintiffs were aware of prior to the replacement, if there are repairs to be made to the windows and the patio doors of the building, because these elements belong to the common portions, they must be done by the Syndicate.
• The plaintiffs testified having sent the tender of a specialized contractor for the replacement of the two thermos concerned to the syndicate in August 2007. But having received no response, they admit having taken the initiative to carry the work out themselves, without specific authorization from the syndicate.
• The overwhelming proof revealed that several co-owners wished to have their thermos or windows replaced and that until now, the Syndicate did not authorize this expenditure on an individual basis, since it planned to replace all the windows at the same time once the reserve fund was sufficient to do so.
• Consequently, considering the terms of the declaration of co-ownership and the President's report, without authorization and without first sending a demand letter the plaintiffs cannot obtain the reimbursement of 343,14$ paid for the replacement of the common portion thermo-panes. As persons entitled to require the syndicate to act, the plaintiffs had the obligation to place the syndicate on notice to act by sending a demand letter before carrying out the replacement themselves, and this in accordance with article 1590 of the Civil code of Quebec, and the the Court's decision in the case of Charon vs. Centre Routier Inc., [1990] R.J.Q. 75 (A.C.).