Executive Summary: Key Legal and Evidentiary Issues

• Liability for water damage in a divided co-ownership turns on whether the custodian of the water heater rebutted the presumption of fault under article 1465 of the Civil Code of Québec.
   
• Evidence of condensation in a drip pan raised the question of whether the defendants had reasonable notice of a developing problem with their water heater.
   
• Causation between the leak in the defendants' unit and damage found in nine units below was contested for lack of direct expert evidence linking the two.
   
• Quantification of damages required the court to trace specific invoices and cheques to the units actually affected by the leak, since some contractor invoices covered unrelated units.
   
• Recoverability of legal fees depended on the enforceability and reasonableness of a contractual clause in the declaration of co-ownership permitting reimbursement of extrajudicial costs.
   
• Whether that fee clause was abusive under article 1437 C.C.Q. was raised as a defence, requiring the court to weigh the clause's built-in monetary cap and prior judicial treatment.
   

Facts of the case

The Syndicat des copropriétaires du Condominium Club Marin II sued two co-owners, Carlos Henrique Andrade and Alexia Helena Lins Damasceno, for damages arising from a water leak discovered on March 29, 2022. The defendants had purchased their sixteenth-floor unit in July 2019; a small storage room in the unit contained a water heater installed in August 2012. The defendants did not have the unit professionally inspected before purchase, and Mr. Andrade's own inspection found no issues with the water heater.

In 2021, the Syndicat undertook a building-wide project to replace air-conditioning connections, which required opening the ceiling above the defendants' water heater. Workers left materials against the walls near the unit, and the ceiling in the defendants' unit was never closed up, even by the time of trial. The defendants never reported any concerns about this work.

On March 29, 2022, a board member investigating water damage on a lower floor traced the source to the defendants' water heater, finding water pooling near it and mould on a nearby wall. A plumber confirmed the leak originated from the water heater itself, which showed rust and dampness in its insulation. Mr. Andrade acknowledged he had previously noticed water in the unit's drip pan but attributed it to condensation and did not investigate further. Mr. Andrade contacted a new supplier the same day, and the replacement water heater was installed a few days later; the old unit was not preserved, precluding any expert examination of its condition.

An external firm retained by the Syndicat identified damage in nine units below the defendants' unit and in common areas, and the Syndicat carried out and paid for repairs itself, since the loss fell below its insurance deductible. After the defendants' insurer denied responsibility, the Syndicat sued for its repair costs and legal fees, ultimately claiming $75,489.61.

Policy and legislative provisions at issue

Several provisions of the Civil Code of Québec framed the dispute. Article 1074.2 C.C.Q. governs how a syndicate may recover the cost of repairs and deductibles not covered by insurance: such sums generally must be spread among all co-owners through common expenses, unless the syndicate can establish that a specific co-owner is liable, including through the fault of another person or through the act of property under that co-owner's care. Article 1465 C.C.Q. supplies this latter route, creating a presumption of fault against the custodian of a thing that causes injury through its own autonomous act, unless the custodian proves they were not at fault.

The declaration of co-ownership governing the building added specific obligations: each unit owner is responsible for maintaining, repairing, and replacing hot water equipment in their own unit, and must ensure the water heater remains in good condition given its stated ten-year service life. Separately, clause 16.2.5 of the constituting act entitled the Syndicat to recover judicial and extrajudicial costs from a co-owner who fails to comply with the building's rules, capped at 15% of the unit's municipal assessment for tax purposes. The defendants argued this fee clause was abusive under article 1437 C.C.Q., which voids or reduces clauses in contracts of adhesion that unreasonably disadvantage the adhering party.

Reasoning and analysis

The court held that the defendants failed to rebut the presumption of fault under article 1465 C.C.Q. Although the ten-year replacement window for the water heater had not yet expired, the declaration of co-ownership separately required the defendants to ensure the unit remained in good condition. The court found that Mr. Andrade's own awareness of water in the drip pan, combined with the water heater's age, should have prompted further investigation or professional inspection — steps the defendants did not take. A post-incident video Mr. Andrade recorded himself showed that checking the area behind the water heater was relatively straightforward, undermining any claim that the leak was undetectable through reasonable care.

The court rejected the defendants' argument that workers from the air-conditioning project may have punctured the drip pan with debris, finding the evidence too thin to support that theory and, in any event, insufficient to displace the water heater's own deterioration as the true source of the damage. On causation to the lower units, the court accepted a chain of circumstantial evidence — matching repair locations across floor plans and diminishing damage severity moving downward — as sufficient to presume a link between the leak and the damage found below.

On quantification, the court scrutinized each invoice and cheque the Syndicat relied on, excluding amounts tied to units unaffected by this specific leak and isolating the portion of shared invoices attributable to the incident. This yielded a reduced repair figure of $48,556.13. On legal fees, the court upheld clause 16.2.5 as enforceable and not abusive, noting the fee clause included its own reasonableness safeguard through the 15% cap, that the defendants had not sought a formal declaration of nullity, and that the clause had previously been applied without challenge in earlier litigation involving the same building.

Ruling and overall outcome

The court found in favour of the Syndicat des copropriétaires du Condominium Club Marin II, ruling that the defendants were liable for the water damage under article 1465 C.C.Q. and for the associated legal costs under the declaration of co-ownership. The court ordered Carlos Henrique Andrade and Alexia Helena Lins Damasceno to pay the Syndicat $76,231.11 — comprising $48,556.13 in substantiated repair costs and $27,674.98 in legal fees — with interest at the legal rate and the additional indemnity running from the date the proceeding was served, plus legal costs.