Schrager, Healy, Bachand

Appeal from a Superior Court judgment dismissing an application for a permanent injunction and damages. Allowed.

The appellant is the syndicate of co-owners of immovables containing divided co-ownership units with commercial and industrial purposes. The respondent owns one such unit, which is occupied by the company Micro irrigation. For several years now, this company has stored various goods on a parcel of land located at the back of this unit. According to the terms of the declaration of co-ownership, this space is a common area.

The appellant brought this proceeding against the respondent to put an end to the storage of Micro’s goods. The trial judge dismissed its application for an injunction on the ground that the appellant’s tolerance and inaction over the years resulted in a tacit amendment to the declaration of co-ownership. This finding led him to dismiss the appellant’s claim for damages and conclude that the claim was abusive.

The first paragraph of article 1059 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) clearly excludes any possibility of tacitly amending two of the three components of a declaration of co-ownership, that is, the act constituting the co-ownership and the description of the fractions, because any amendments to these components must be notarized. Moreover, the Legislator amended article 1060 C.C.Q. to add that any amendment to the by-laws of the immovable must be made expressly. The Legislator also indicated, under article 1096 C.C.Q., that any such amendment must be taken by a majority vote of the co-owners. These amendments, which came into force on January 10, 2020, are declaratory. Thus, since January 1, 1994, the law excludes any possibility of tacitly amending any component whatsoever of a declaration of co-ownership. In addition, the fact that the declaration of co-ownership in this case was signed before the Civil Code of Québec came into force does not make these provisions inapplicable because, under the terms of the first paragraph of section 53 of the Act respecting the implementation of the reform of the Civil Code (S.Q. 1992, c. 57), “[d]ivided co-ownership of an immovable established before 1 January 1994 is governed by the new legislation”. The judge therefore committed a reviewable error by finding that the declaration of co-ownership had been tacitly amended to allow Micro to store goods on the parcel of land at issue.

Furthermore, the doctrine of laches is of no help to the respondent because it is one of the equity theories that, because they limit the availability of specific performance, have no place in the Quebec law of obligations, at least, not since specific performance was enshrined as the general mode of implementing the right to the performance of private law obligations.

Because specific performance is allowed, within the meaning intended by article 1601 C.C.Q., the appellant’s application for an injunction should be granted in part. It did not, by its silence or inaction over the years, renounce the benefit of the relevant provisions of the declaration of co-ownership.

Finally, because the judge’s finding on the abusive nature of the claim for damages is intimately related to his conclusion that the declaration of co-ownership had been tacitly amended, the conclusion of the judgment a quo that this claim is abusive is quashed.

Text of the decision: http://citoyens.soquij.qc.ca