View cases - Stewart McKelvey

- 65 -the appellants, immediately and in the future, from erecting succahs on the commonportions of the co-owned property that are reserved for exclusive use and, if need be, tohave any such structures demolished or dismantled.II. Judicial HistoryA. Superior Court, [1998] R.J.Q. 18922004 SCC 47 (CanLII)116 Rochon J. considered that the declaration of co-ownership clearly prohibitedthe erection of succahs on balconies, porches or patios. After reviewing the declarationof co-ownership, he reached the following conclusion (at p. 1899):[TRANSLATION] On reading together all the clauses containing restrictions,the Court quickly concluded that the erection of succahs is prohibited.Whether or not the succah is considered a construction is of littleconsequence. Enclosing, blocking off or decorating a balcony or patio inany way whatsoever is prohibited. In short, apart from the usual outdoorfurniture, owners may not make any alterations to the exterior. They maynot place anything whatsoever outside. When considered as a whole, theserestrictions demonstrate a clear intent to maintain the original condition anduniform appearance of the building’s exterior.117 Rochon J. then examined art. 1056 of the Civil Code of Québec, S.Q. 1991,c. 64 (“C.C.Q.”), which provides for restrictions on the rights of co-owners insofar asthey are justified (1) by the destination of the immovable, (2) by its characteristics, or(3) by its location. Next, he noted that the constituting act of co-ownership (1) providedthat the destination of the immovable is strictly residential, (2) described the immovableas a luxurious, upscale development and (3) placed special importance in the building’saesthetic value and exterior harmony. Rochon J. found the restrictions imposed on theco-owners by the declaration of co-ownership as regards the use of the common portions