Cannabis – A co-owner sentenced to reimburse the sum of $103,695 as extrajudicial fees engaged by the syndicate

In a recent decision of the Superior Court (1), under the presidency of the Honorable Martin Sheehan, J.S.C., the Court reiterates the validity of a co-ownership by-law providing for a ban on smoking in private units.

Indeed, in the context of a request for an injunction order under article 1080 of the Quebec Civil Code, the Court expresses itself as follows in paragraph 29 of the judgment;

« (29) These Regulations do not suffer from any ambiguity. They prohibit smoking cannabis both in the common areas and in the private areas of the building:

Ban on consuming cannabis in private areas

It is prohibited to smoke cannabis in the private areas of the Building. This regulation applies both to any part of the cannabis plant (dried flowers, leaves, etc.) and to all products derived from cannabis (hashish, cannabis oil, etc.) which, when smoked, emit smoke and/or odors. […] »

In this case, the evidence demonstrated that the co-owner had repeatedly contravened the Syndicate’s regulations, despite the issuance of several statements of offense and fines against him, in addition to having failed to respect an injunction order which had been issued against him in December 2021. This latter situation also earned him a conviction for contempt of court.

Extrajudicial fees

After concluding that the co-owner had, without any hesitation, contravened the Regulations, the Court ruled favorably on the Syndicate’s request and ordered the defendant to reimburse it the sum of $103,695 plus interest, as extrajudicial fees that syndicate had to incur in this case. See the relevant extract from the decision:

« Can the Syndicate claim its extrajudicial fees?

[118] The right of the Syndicate to claim its extrajudicial fees is provided for in clause 16.2.5 of the Declaration of Co-ownership:

16.2.5 Extrajudicial fees

a) The co-owner of a housing unit who fails to comply with the destination of the building, with one of the conventions or with one of the regulations of the Declaration of Co-ownership will be liable to the syndicate for all judicial or extrajudicial costs that it twill incur up to a maximum amount equivalent to fifteen percent (15%) of the value of his unit for municipal taxation purposes. These amounts due will be deemed to be common expenses of the co-ownership.
b) The co-owner must also reimburse the syndicate for all legal and extrajudicial costs reasonably incurred to obtain an injunction or for any other procedure up to a sum of five thousand dollars ($5,000). This amount will be adjusted if there is an increase in the rate of the consumer price index for the Montreal region, on the first of each year.

[119] When the conditions are met and the fees are reasonable, the courts have not hesitated to apply this type of clause^[42]. »

By way of conclusion, we note that the courts do not hesitate to condemn certain co-owners who do not respect and who act in contempt of the law and the rules of co-ownership:

« [19] The obligation to respect the Declaration of Co-ownership and the regulations of the building arises both from the Declaration of Co-ownership^[15] itself and from the law^[16]. For this reason, it has already been argued that a Declaration of Co-ownership has an obligatory nature which is both contractual and statutory^[17]. »

143] As for Mr. Mokaddem, notwithstanding the accumulation of compromising evidence in this regard, he has always denied being in violation of the Cannabis Regulations. He persisted in his illegal conduct notwithstanding the numerous complaints, notices of infringement and judgments of this court.

Me Sylvain Dufresne, Lawyer
Director of Legal Affairs

(1) To find out more, consult this judgment (in french) rendered by the Superior Court: Syndicat des copropriétaires du condominium Club Marin II c. Mokaddem, 2023 QCCS 4126