Vauclair, Cotnam, Moore
Appeal from a judgment of the Superior Court granting an application for declaratory judgment. Allowed.
At trial, the respondent divided co-owner asked the judge to declare that the immovable’s air-conditioning system is a private portion essentially because it is an accessory to the air conditioners located in the housing units. The difficulty arose from the existence of two air‑conditioning systems in the immovable, allowing the units of certain co-owners and the common portions to be air conditioned by an air cooling system or a water cooling system. The water cooling system had to be changed because the City of Montreal adopted a new by-law prohibiting the use of air-conditioning apparatus using drinking water without a recirculation loop as of January 1, 2018.
The judge found that the air conditioners in the immovable were the sole responsibility of each of the co-owners and that the cost of work to replace the mechanical and ducting system in the common portions was the sole responsibility of co-owners of units with such apparatuses.
In this case, the judge failed to take into account article 11 of the declaration of co-ownership, which describes the common portions. That article provides that the list is not exhaustive and at paragraph 6 specifies that [translation] “the following systems: heating, electrical, natural gas, piping, plumbing, ventilation, ducting, communication, telecommunication, including that which run through private portions, all movable property destined for common use” are common portions.
The judge also failed to take into account article 1044 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.), which sets out the presumption that an air-conditioning system is a common portion. It is a general presumption that applies when the declaration of co-ownership is silent.
However, apart from equipment that may be located in the private portions and is listed in the declaration of co-ownership, the declaration is completely silent on the infrastructure of the air‑conditioning system, which is, de facto, located in the common portions. While this may be considered an omission, article 1044 C.C.Q. supplies the omission. The fact that the air conditioning is provided by two different systems does not affect the presumption under this provision.
In the absence of clear indication to the contrary in the declaration of co-ownership, the judge was therefore wrong to accept the respondent's argument that each system, each of which serving a portion of the co-owners, was an accessory to the air conditioning in each private unit.
Text of the decision: Http://citoyens.soquij.qc.ca