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Frequently Asked Questions

+ Buying, selling and renting

Responsibility for paying the special contribution for work approved by a vote held prior to the sal

Question :

According to the directors of my condominium, I have to pay a special contribution to cover the costs to repair the roof, even though the co-owners voted in favour of this work during a general meeting that took place before I bought my unit. Who is responsible for paying for repairs that were approved during a general meeting that took place before the date of sale, the buyer or the seller?

Reply :

It depends on when the special contribution becomes due—whoever holds the title of ownership on the date on which the payment becomes due is responsible for the contribution, which in your situation appears to be the buyer. To avoid these types of nasty surprises, prospective buyers should read the general meeting minutes before finalizing the purchase offer.

Responsibility for an unpaid special contribution (buyer or seller)

Question :

According to the directors of my condominium, I have to pay a special contribution to cover the costs to repair the roof, even though the co-owners voted in favour of this work during a general meeting that took place before I bought my unit. Who is responsible for paying for repairs that were approved during a general meeting that took place before the date of sale, the buyer or the seller?

Reply :

It depends on when the special contribution becomes due—whoever holds the title of ownership on the date on which the payment becomes due is responsible for the contribution, which in your situation appears to be the buyer. To avoid these types of nasty surprises, prospective buyers should read the general meeting minutes before finalizing the purchase offer.

Condo fees in arrears at the time of sale

Question :

I've recently purchased a condo unit, and now the syndicate of co-owners says I have to pay the former co-owner's outstanding condo fees. Is that true?

Reply :

If you have failed to take the necessary precautions, the syndicate of your co-ownership is indeed entitled to demand the payment of all outstanding charges tied to your recently purchased unit and owed at the moment of acquisition. Pursuant to article 1069 of the Civil Code of Québec (C.C.Q.), the person who acquires a fraction (condo unit) is responsible for paying all common expenses that are owed by the seller to the condominium's syndicate. Prospective buyers have the right to request from the syndicate a statement of common expenses due or in default. If it is found that the seller is in arrears, the prospective buyer is then in a position to require the seller to acquit all outstanding sums upon the sale of the unit. However, if the syndicate fails to provide the potential buyer with the statement of common expenses within 15 days of the request, the prospective buyer is exonerated from all responsibility in this matter. Note that the courts have found that if the officiating notary fails to make these enquiries, it could incur his or her professional liability, compelling the notary to pay the arrears instead of the seller to avoid facing legal recourse.

"For sale" sign

Question :

The board of directors has demanded that I remove my "For sale" sign from the building's facade. What are my rights?

Reply :

Many declarations of co-ownership include clauses that prohibit anyone from installing any type of signage on any of the common portions. Generally speaking, these types of restrictions are in place in an effort to preserve the building's architectural style, as prescribed by the building's destination. Under these circumstances, you will have no choice other than to remove your signs from the building's common areas.

Notary

Question :

I'm in the process of purchasing a unit. Why do I have to go with the notary chosen by the developer if I'm the one paying for the service?

Reply :

Pursuant to article 26 of the Notorial Act, the choice of notary belongs to the buyer when the latter pays the purchase price in full (either outright or with the help of a mortgage) or to the seller when the price of sale is not paid in full (leaving an outstanding balance on the price of sale). That said, these rules are not set in stone, and the parties involved (buyer and seller) can come to a different agreement, as is often the case with new constructions. Developers usually designate a notary in the preliminary contract, and prospective buyers generally agree to this provision without a second thought because they don't know they had the right to choose their own notary. Although this may entail certain disadvantages for the buyer, including the fact that the officiating notary may lack a certain amount of professional independence vis-à-vis the developer, there are in fact some benefits. For instance, the notary chosen by the developer will be very familiar with the project, which can result in a better control over the settlement of hypothecs against the construction. The notary will also be in a better position to advise the buyers on the rules of law governing their new property.

In short, if you paid the purchase price in full, you are entitled to choose the notary, unless you reached an agreement to the contrary with the seller.

If, in your case, the purchase offer or preliminary contract has already been signed and the agreement stipulates that the choice of notary belongs to the developer, it is too late to revisit the issue... although you can always choose to consult an independent legal counsellor for sound legal advice.

Important considerations

Question :

I would like to buy a condo unit in a 10-year-old building. I've done a lot of my homework, but before I finalize this transaction, is there anything in particular I should look into to help me figure out if this purchase will meet my needs?

Reply :

Absolutely. First off, it is absolutely crucial that you review the declaration of co-ownership and the syndicate's financial statements before making a purchase offer. At the very least, include a clause making your offer conditional to both a review of these documents and a written declaration that you are satisfied.

Moreover, although declarations of co-ownership are somewhat standard, some may be more restrictive than others, and it is important to make sure you can live with these restrictions. For example, some declarations place restrictions on pets (e.g. the number of pets you may own, if any; what constitutes a "nuisance"), or prescribe very stringent requirements with respect to flooring (e.g. prohibiting the installation of hardwood floors).

Other key considerations that should factor into your decision include, among many others, the condition of the building, the quality of soundproofing, and the maintenance of common portions. If the building is an older construction, additional questions should be asked: Is there a structured maintenance program in place? Is any major work planned for the building's major components in the short term (e.g. replacing the roof, the windows, the heating and/or cooling systems, the elevator)? Does the syndicate's contingency fund have the means to cover such major expenses?

Finally, you should consider the board of directors' competence. Is the chief concern of the board and its members to keep common expenses (condo fees) as low as possible, even to the detriment of the common areas? Are the syndicate's registers kept up to date and in good order? Does the building have a maintenance log? If the answer to any of these questions is no, or if you are unable to get a clear answer, period, there may be a number of serious problems lurking beneath the surface, making this venture a risky one indeed. Read the minutes from the general meetings of co-owners to validate the answers provided or fill in the missing details to get a clearer picture of the situation.

Of course, these are but a few examples, and are by no means meant to be comprehensive. The officiating notary should be able to inform you of any other factors that may warrant further investigation with regard to the building or syndicate.

The syndicate's register

Question :

Can we require that new co-owners hand over a copy of their deed of acquisition to keep the syndicate's register up to date?

Reply :

Pursuant to article 1070 of the Civil Code of Québec (C.C.Q.), the syndicate must keep a register at the disposal of the co-owners containing the name and address of each co-owner and each lessee, the minutes of the meetings of the co-owners and of the board of directors, and the financial statements.

In sum, the board of directors is responsible for keeping a register. Whenever there is a new transaction, the board of directors must add the name of the new co-owner(s) to the register. The declaration of co-ownership may also stipulate that new co-owners provide a copy of their deed of acquisition executed before a notary, which indicates the name of the new co-owner(s). If there are no such provisions in the declaration of co-ownership, or if the syndicate needs to obtain this information from a source other than the co-owners, the syndicate can turn to the online Québec land register (Registre foncier du Québec en ligne) to consult the deeds of acquisition, though it may require some basic knowledge of the system to navigate the register and connect the lot numbers with the acts of sale published at the register office.

The co-ownership's register is used to determine who holds the right of ownership, which is in turn used to determine the co-owners' rights to vote or hold a proxy during the general meeting of the co-owners. As such, it is crucial that the register be kept up to date at all times.

It is also important to enter the name of the co-owner (or the names of the joint co-owners, if there is more than one name associated to a given fraction) in the register as it appears on the deed of acquisition. If a person exercises voting rights he or she does not have, this constitutes an error in the vote count, which could be a deciding factor should a decision made during a general meeting be contested before the court.

Succession

Question :

Having inherited an apartment in a condominium, am I required to pay the common charges unpaid by the deceased?

Reply :

The liquidation of an estate consists, amongst other things, to pay for the debts of the deceased. The property of the estate must therefore be used to pay the creditors of the latter. Thus, you can be held accountable to the unpaid common expenses of the deceased if you have accepted their legacy.

Sale - Latent defect

Question :

We've just taken possession of our apartment and we've noticed a lot of water infiltration. What should we do?

Reply :

You must inform the board of directors at once. The syndicate is responsible for taking all the necessary measures to ensure the preservation of the building. Moreover, the syndicate has the authority to institute legal action on the grounds of latent defects, faulty design or construction defects of the immovable or defects in the ground, and therefore has recourse against the builder, the architect, the engineer, the contractors, or any other person associated with the principal contractor.

Hidden defects - Resort

Question :

During the last meeting of the co-owners, I have learned that major renovations will have to be undertaken on the building's masonry because of a bad initial design. Do I have a recourse against my seller?

Reply :

The seller is obliged to guarantee to the buyer that the property sold, in this case your private portion and the common portions of the building, is free from latent defects that make it unfit for the intended use, or which diminish its usefulness so much that the buyer would not have bought it or would not have given such a high price if he had known it.

If the major renovations you are referring to have not been reported to you and the defect could not have be detected by a prudent and diligent buyer, then you are entitled to claim compensation for the share that you will be required to pay in the context of a future special contribution for the repair of the common portions. In addition, if your seller knew the hidden defect or could not ignore it, they may be held, in addition to the refund or decrease of the selling price, to all the damages that you could have undergone. Finally, it should be noted that you are required to report to your seller, in writing and within a reasonable time, the existence of the defect and the nature of your claims. Failure to comply may extinguish this  right unless the seller knew or could not be unaware of the existence of this situation.


+ Conflict resolution

Hardwood Flooring - Resort

Question :

Our declaration of co-ownership prohibits the installation of hardwood flooring. Since the arrival of the new co-owners in the unit located above mine, I hear footsteps, slamming and other unsustainable noises. The fact that I did not complain when the former co-owners have changed without alteration the coating of their floor (they removed the carpet to install wood) can it constitute an end of not receiving my claims by the new co-owners of this unit?

Reply :

No. First of all, it is important to know that in co-ownerships, the passage of time does not generate rights: it does not transform a violation of the declaration of co-ownership into an acquired right. Only an amendment to the declaration of co-ownership can produce this effect. Therefore, whether there is a change of co-owner or not, the violation of the declaration of co-ownership remains and should not be tolerated.

A new co-owner who buys a non-conforming unit, where there is a floor installed in contravention to the declaration of co-ownership and who tolerates this becomes responsible for this contravention and exposes themself to various recourses. Finally, the presence of complaints or not by any co-owners is not a necessary prerequisite to allow the Syndicate to intervene and demand a compliance with the declaration of co-ownership.

Private Portions - Unfinished Renovations

Question :

What are the available resorts for a syndicate of co-owners against a developer who refuses to complete the construction of the building?

Reply :

Article 1081 of the Civil Code of Québec (C.c.Q.) provides that: "The Syndicate may take any action based on a hidden defect, a defect in the design or construction of the building or a defect in the ground. (...) "This section implicitly provides for any resort based on the non-fulfillment of the developer's obligations with respect to the termination of work on the common portions of the building.

In this specific context, it would be in the Syndicate's interest to deliver to the developer a formal notice. This notice should be in writing, as it is highly likely that the promoter will deny the scope of the verbal notice given to him by the board of directors of the Syndicate. In addition, your building may be covered by a Guarantee Plan. It is imperative, in such circumstances, to comply with the conditions set out in these Guarantee Plans because, failing to do so, provides the aforementioned bodies with the possibility to refuse to compensate the Syndicate.

Private portions - Construction defects

Question :

As the board of directors, we suspect the presence of construction defects. What steps should we take?

Reply :

The Syndicate has the capacity to request compensation for disorders affecting the common portions. The board of directors must act in this matter with caution, in order to safeguard the rights of the co-owners. Thus, the board of directors will be well advised to retain the services of an engineer, architect or building technologist to identify and evaluate the disorders observed. Once this step has been completed, the selected professional will submit a corrective estimate identifying the scope of the work to be undertaken.

Once such an assessment has been completed, the Syndicate must be expedient and send a formal notice to the promoter, and to all other stakeholders who may have a responsibility in this regard. By failing to do so, there may be forfeiture of the rights of action on behalf of the Syndicate of co-owners. If those responsible for the construction defects fail to act, the Syndicate may take legal action. It should be noted finally that the promoter being generally the one who built the building, is presumed to know the vices that affect it.

Animals - Pest

Question :

Does the board have the power to declare that my dog is pest and require that I must separate from it?

Reply :

When the declaration of co-ownership provides for such a case, the board of directors may actually come to this conclusion. You may, however, be able to explain to the board of directors that certain external factors may have caused unusual behavior from your animal or at the very least suggest measures to correct this situation. The decision of the Board of Directors is subject to judicial review in case of error, abuse or for any other reason deemed valid by the Tribunal.

Default of payment

Question :

How can we oblige a co-owner to pay his contributions to common expenses (condo fees), when they are several months late?

Reply :

As a first step, we believe it is useful to specify that in the framework of a sound financial management of any co-ownership, it is advisable to avoid long delays before acting when a co-owner fails to pay their contribution to the common expenses. Failure to act rapidly often forces Syndicates to engage in lengthy and costly court processes.

The first step is sending a formal notice, requiring the payment of due common expenses and any interests on them. This formal notice can be delivered by registered mail or even by bailiff. If after sending a letter of formal notice, the co-owner does not rectify his default, the Syndicate of co-owners may, in order to recover their claim and depending on the circumstances, pursue legal action against the co-owner in default of payment.

It should be noted that the Syndicate, through its manager or a director, may bring this action to the Small Claims Court, the jurisdiction of which is now $ 7,000.00, if the number of Syndicate employees does not exceed five.

For cases of chronically delinquent co-owners, the publication of a legal mortgage against their unit can be an effective measure. In such circumstances, the Syndicate of co-owners may have a legal hypothec published on the private portion of any co-owner who, for more than thirty (30) days, fails to pay his contribution to the common expenses or the contingency fund. The Syndicate of co-owners could even, if not remedied the defaulting payment, publish a notice of exercise of a mortgage right and, at the expiry of said notice, institute an appeal for the sale under control of justice of the unit of the defaulting co-owner.

Finally, it should be noted that any co-owner who has not paid their share of common expenses for more than three months, is deprived of their right to vote in a meeting of co-owners.

Notice: This presentation is not intended to be limiting and we recommend that a lawyer be consulted by the board members in order to available options pertaining to the protection of the rights of the Syndicate.

Legal mortgage of the construction

Question :

The developer of our condominium went bankrupt, leaving some contractors involved in the construction of the building unpaid. They have registered legal mortgages on the co-ownership to guarantee the payment of their bills. How are their bills divided among the co-owners and what is the risk if we do not pay?

Reply :

Article 1051 of the Civil Code of Québec (CcQ) de facto prescribes that the legal hypothec of construction registered with respect to renovations performed on the whole of the building be divided between the fractions, according to the relative value of each of them or any other proportion provided for.

In these circumstances, each of the co-owners of the immovable concerned may be held responsible, in proportion to the relative value of their fractions, for their share in the payment of this legal hypothec. Each of them can thus have the legal mortgage registered on its fraction written off after having paid its share of the charge to the holder of the legal hypothec. Thus, in the event of the refusal or contesting of the co-owners concerned, the holder of the legal hypothec may exercise their recourse against each of the co-owners of the immovable, up to the amount of the share allocated to their fractions.

If a favorable judgment is rendered in favor of the holder of the legal hypothec, the latter could either request the legal sale of the unit or even take payment of the said unit, thereby depriving the owner of his right of ownership over his unit (private portion). However, legal mortgages and their publications are subject to strict rules.

A co-owner should always, in such a situation, consult a lawyer.

Private Portions - Mortgagee

Question :

When the Syndicate, through its attorney, sends a notice to a co-owner, is it required to send a copy to the co-owner's mortgagee, in order to make him aware of the situation?

Reply :

No, except if the declaration of co-ownership accounts for it specifically. Although this is infrequent, certain declarations of co-ownership contain a clause to the effect that in the case of a default of payment by a co-owner or if there is a failure to respect the declaration of co-ownership, the Syndicate is bound to denounce the situation to the concerned mortgagee. This is the only case where the Syndicate should take such action.

In the absence of such an obligation in the declaration of co-ownership and in the event of the Syndicate sending such a notice, the mortgagee may threaten the co-owner with legal recourse or, in the worst case, even go to court to call back the mortgage. Faced with such a situation, the co-owner could make allegations that the Syndicate acted improperly, and tainted their reputation with their lender. This could expose the Syndicate to legal actions for damages caused to the co-owner.

Finally, it should be noted that any co-owner who has not paid their share of common expenses for more than three months, is deprived of their right to vote in a general meeting of co-owners.

Disclaimer : This answer is not intended to be limiting and it we recommended that a lawyer be consulted by the board members regarding the options available for protecting the rights of the Syndicate.

Private portions - Definition

Question :

What is a private portion and what are my rights to it?

Reply :

Private portions are the sections of the building on which the co-owners have an exclusive right of ownership and which are physically identifiable. It is usually a part of the building, such as an apartment, a parking space or a piece of land as is often the case for semi-detached houses. Each of the units has its own cadastral designation.

Resort - Delinquent co-owner

Question :

What can be done when a co-owner does not observe the building regulations (and necessarily the declaration of co-ownership of the building) and maliciously challenges the authority of the directors?

Reply :

We are assuming here that the board of directors of your Syndicate is able to demonstrate that they have acted in good faith and with prudence and diligence, and that they have done all that is reasonable to ensure a return to order.

The board of directors will also have taken care to communicate in writing with the co-owner in question, in order to ask them to respect their obligations.

A file describing the allegedly documented events has been prepared. If, despite all efforts and written notices, the offending co-owner persists in not wanting to fulfill their obligations and comply with one or more provisions of the declaration of co-ownership, then the Syndicate's board of directors must consult an experienced lawyer in the field of co-ownership. The latter will send a letter of formal notice to the co-owner asking that they and all other occupants of the unit adopt in all circumstances a courteous and respectful attitude towards the board of directors and the other co-owners and enjoin them to respect and enforce the provisions of the declaration of co-ownership and the Civil Code of Québec (CcQ).

Every co-owner must remember that life in co-ownership has its advantages and disadvantages, and that if they are dissatisfied with the actions of the members of the board of directors of their Syndicate, a co-owner will have the opportunity to exercise their voting rights during the election of the members of the Board of Directors at their next General meeting of the co-owners. This voting right will be exercised in the normal framework of any democratic process, but the fact remains that any co-owner must respect and comply at all times with the declaration of co-ownership. Finally, article 1080 C.c.Q. stipulates that when the refusal of the co-owner to comply with the declaration of co-ownership causes serious and irreparable prejudice to the Syndicate or to one of the co-owners, one or the other may ask the court to order them to comply.

If the co-owner transgresses the injunction or refuses to obey, the court may, in addition to other penalties it may impose, order the sale of the fraction in accordance with the provisions of the Code of Civil Procedure relating to the sale of property. It goes without saying that this injunction remedy is only used in extreme cases where there are no other means available to the Syndicate to enforce the declaration of co-ownership.

A contravention of the declaration, whatever it may be, must be repressed, because otherwise there could be a multitude of minor contraventions and the result would be unbearable.

Neighborhood troubles - Barbecue

Question :

Barbecue cooking is allowed on the balconies of our apartments. On the other hand, the smell and smoke from my neighbor's barbecue is so strong that they prevent me from using my balcony and make me close my patio door and windows. Do I have rights to argue?

Reply :

The rights and obligations of the co-owners are not strictly limited to what is found in the declaration of co-ownership. Relations between neighbors in a condominium are also subject to compliance with the usual rules of good neighborliness, including that of not to exceed the "normal inconveniences" that should be expected when living in a condominium where it is allowed to cook on balconies.

In addition, article 1063 of the Civil Code of Québec (C.c.Q.) stipulates that each co-owner shall use and enjoy freely their private portion and the common portions, provided that the rights of the co-owners are not infringed. Thus, excessive inconveniences, such as the one preventing you from using your balcony and forcing you to close your doors and windows, should not be tolerated, since they are abnormal. Indeed, such a situation may constitute a breach of your neighbor's duty to exercise his rights in good faith and expose him to an action for damages, both from you and other co-owners who suffer the same damage.


+ General Meeting

Provisional administration

Question :

When does the developer have to transfer the administration of the co-ownership?

Reply :

Within ninety (90) days after the loss of control of the promoter over the general meeting, the board of directors must convene a special meeting and proceed to the election of a new board of directors. This loss of control is expressed by the fact that the developer has sold enough units and no longer holds a majority of votes in the co-ownership. If the board of directors fails to convene such an assembly, any co-owner may do so. In addition, at this meeting, the outgoing Board of Directors must report on its administration. They must submit the financial statements and documents relating to their administration, thus enabling the new board of directors to continue the management in the common interest of the co-owners.

Budget - Consultation of co-owners

Question :

Article 1072 of the Civil Code of Québec (C.c.Q.) states that the board of directors must submit the budget to the meeting of co-owners for "consultation". Does this mean that the assembly does not have to vote on it?

Reply :

Since the reform of the Civil Code of Québec in 1994, it is the responsibility of the board of directors to "fix", after "consultation" of the meeting of co-owners, their contribution to the common expenses of the co-ownership (article 1072 C.c.Q.).

This provision does not grant the power to the meeting of co-owners to approve the projected budget of the co-ownership. The power of the General meeting of co-owners is strictly political in the process of adoption of the budget. But this power to influence board members in decision-making must clearly exist. Through consultation, the co-owners can provide a new light before the contribution of each is fixed definitively by the board of directors.

The obligation to consult has the effect of compelling directors to act with prudence and diligence. However, it is necessary to question the imperative nature or not of this article of the Civil Code of Quebec. In this regard, prior to the adoption of the new Civil Code of Québec in January 1994, most declarations of co-ownership included the obligation on the part of the council to submit to the General meeting of co-owners the budget for "approval". The question arises as to whether the "consultation" process provided for in new article 1072 C.c.Q. applies in a global way, thus allowing no deviation, or rather in a minimal way by making it possible to provide in a declaration the obligation to adopt the budget by the General meeting of co-owners.

Pending a response from the courts on this issue, we consider that the elementary prudence in such circumstances is to submit the whole for approval by the meeting of co-owners, when the declaration of co-ownership prescribes that such power is the responsibility of the General meeting of co-owners.

Renovations in private portions

Question :

I want to cut down part of a private wall (between the kitchen and the living room), but it is a wall. The architect we have called recommends that we make a request to the board of directors. They will then submit the renovation plans to the assembly of co-owners. Can the board of directors not process our request without going through the meeting?

Reply :

As a first step, it should be noted that the decision-making power to authorize such renovations belongs to the syndicate of your co-ownership, with regards to the requirements of article 1039 of the Civil Code of Québec (CCQ), stating that the actions relating to the conservation of the building fall within its sole competence. As to whether this power is the responsibility of the board of directors or the meeting of co-owners, it is necessary to rely on your declaration of co-ownership which, in the constituting act, determines the respective powers of these two decision-making bodies.

Contribution to common expenses

Question :

Can the General meeting of co-owners decide that the contributions to common expenses be done other than by the quotas?

Reply :

No, because the General meeting of co-owners does not have the power to do so. Indeed, article 1064 of the Civil Code of Québec (C.c.Q.) requires that each of the co-owners contribute, in proportion to the relative value of their fraction, to the expenses resulting from the co-ownership and  exploitation of the building, as well as to the contingency fund set up in accordance to article 1071 C.c.Q..

However, co-owners who use the restricted common portions alone contribute to their resulting expenses. This article has been repeatedly considered by the courts as being of public order, so that the General meeting of  co-owners or the board of directors cannot in any way derogate from it, even in a consensual manner or by a unanimous vote of all co-owners.

Tax credit for home-support

Question :

I am eligible for the tax credit for home support. Are my common expenses considered eligible expenses?

Reply :

Yes, in part. In 2000, the Quebec government created a tax credit program that allows people aged 70 and over to benefit from certain home-support services at a lower cost. They can benefit from the tax credit for home-support services for seniors. This credit is equal to 23% of the eligible expenses incurred for certain home support services. The amount of expenses eligible for the tax credit is limited to $ 12,000 per year. A person with eligible expenses can therefore benefit from a maximum tax credit of $ 2,760, or 23% of $ 12,000. In order to be eligible for the tax credit for a given taxation year, a person with eligible expenses must meet all the following conditions, namely: reside in Québec, have 70 years, respect the annual limit of $ 12,000 for eligible expenses, use Desjardins payroll services to pay these expenses and file a tax return. The services covered by this plan include, but are not limited to, day-to-day services, meal-related services, supervisory and supervisory services, civic support services and routine domestic chores.

If the person lives in a co-ownership of which he or his spouse is the owner, the maintenance of certain common portions of the building (interior and exterior of the building) and certain expenses related to their private portions (inside the co-owner's unit) ) will also qualify for the tax credit.

When two or more persons who are entitled to the tax credit share the same private unit, each of them may claim the tax credit for up to a maximum of $ 2,760 for their respective expenses.

For all the conditions of application of this program and the list of eligible services, please consult the Ministère du Revenu website at the following address: www.revenu.gouv.qc.ca

Date of the General meeting of co-owners

Question :

Our declaration of co-ownership provides that our annual meeting of co-owners must be held on a specific date. This date does not suit the majority of co-owners. How can we change it?

Reply :

Article 1054 of the Civil Code of Québec (C.c.Q.) provides that the rules relating to the operation and administration of the co-ownership form part of the building regulations. Therefore, the meeting of co-owners could modify this date by a majority vote, provided that the proposed amendment to the building bylaw is attached with the notice of meeting and a vote on this draft change be made.

Deadline for convocation

Question :

How much time must be respected to convene the General meeting of co-owners?

Reply :

In case of silence or imprecision of this on the declaration of co-ownership, we must refer to the provisions of the Civil Code of Quebec, which states that the co-owners must be convened at least ten (10) days before the holding of the General meeting of co-owners, but not more than forty-five (45) days before the date of this meeting. As a general rule, the declaration of co-ownership of each building specifies the deadlines for the calling of ordinary or special meetings. This delay can only be shortened in case of an emergency. Thus, after a major incident such as a fire, the board of directors could be entitled to convene the General meeting of co-owners without respecting the deadline indicated in the declaration of co-ownership. Failure to do so would have the consequence to cause serious and irreparable harm to the community.

Difficulties obtaining quorum

Question :

In our co-ownership, there is a clear disinterest on behalf of the co-owners to participate in the General meetings of co-owners. For instance, it has been several years since we haven't had difficulty reaching quorum. What can we do to counter this disinterest?

Reply :

Your concern regarding the lack of interest of co-owners regarding the General meeting is shared by many co-ownerships. This situation is disturbing because it indicates the lack of concern that certain co-owners have with regards to the conservation of the common heritage. However, it is necessary to distinguish the problem of absenteeism and the problem of reaching quorum.

When taking into account that each of the co-owners can be represented through a power of attorney (proxy), it should normally be quite easy to obtain the quorum at the beginning of your General meeting. Indeed, it is the combination of co-owners present or represented that makes up the quorum. It is important to make it clear to the co-owners that the Syndicate, as the manager of the collective heritage of the co-owners, has a legal obligation to ensure the conservation of the building. The achievement of this objective ensures the maintenance of the market value of their private units. It is therefore in everyone's best interest to make sure they are present or being represented.

As a response to the lack of interest from co-owners, we have witnessed an excellent initiative taken by several board of directors, or co-owners, through the form of newsletter programs. This program is addressed to the co-owners and residents and acts as a means to raise awareness in the co-ownership. The actions taken by the board of directors provide information regarding the stewardship of the building and the methods undertaken in the establishment of their maintenance plan. Through this informal tool, co-owners can be made aware and therefore become better informed of the issues and management methods of their co-ownership. In fact, it is imperative that co-owners be made aware that managing an asset of this size, maintaining it as well as its value and attractiveness requires people with specific skills and a great deal of time, often volunteer time, and experience with this type of management. Co-ownerships are a special form of democracy, which can only be exercised if everyone knows the rules of the game, the civil forms of dialogue and the fair price of the services rendered.

Ending the co-ownership

Question :

Can we put an end to the co-ownership?

Reply :

Yes, the co-ownership can be terminated as long as a Meeting of co-owners is convened for this purpose. Given the importance of such a decision, the required majority is twofold: three quarters of the co-owners representing ninety percent (90%) of the votes of all co-owners. This decision of the Meeting of co-owners must also be accompanied by the written consent of all creditors holding mortgages on all or part of the building.

Amendment to the declaration of co-ownership

Question :

A co-owner wishes that he be granted an exclusive right of enjoyment on the terrace located on the roof, as being a common part for restricted use. What permissions must he obtain?

Reply :

It is therefore a request to declare the terrace as a common portion for restricted use. Such a request requires a modification of the constitutive act. The meeting of co-owners should  be consulted on this specific point. Only a vote taken by a majority of co-owners, representing three quarters of the votes of all co-owners, may allow such a modification. This majority of votes must also be obtained if some landscaping works are carried out on the terrace. It should be noted that any amendment to the constituting act must be notarized.

Majorities

Question :

How can you determine the required majority during a vote?

Reply :

The "definition" of each type of majority is outlined in the Civil Code of Québec (C.c.Q), under sections 1096, 1097, 1098 and 1108.

Article 1096 C.c.Q. states that the decisions made by the General meeting of the co-owners are taken in accordance to the majority of votes of co-owners present or represented during the meeting, unless it is otherwise outlined by the law.

However, considering that certain decisions of the General meeting of co-owners can have important consequences on the community of co-owners, the legislator has provided according to the articles 1097, 1098 and 1108 C.c.Q. certain strengthened majorities. For example, decisions pertaining to the act of acquisitions by the Syndicate of co-ownership (such as the purchase of a dwelling unit for the janitor) must be taken by the majority of co-owners , representing three quarters of the votes of all co-owners. In the latter case, this is what we call a double majority.

Indeed, this form of majority is calculated from the initial majority (taking into account all the voices of the Syndicate's co-owners) so that you obtain a simple majority. Moreover, this simple majority must represent three quarters of the votes of all co-owners.

This provision, introduced in Article 1097 C.c.Q. was considered desirable by the legislator, since some decisions require a sufficiently representative majority. Article 1098 C.c.Q. provides for another type of majority.

In this case, it is a much more demanding majority. The voices of co-owners present or represented must make up a majority of three-quarters and this number must represent 90 percent of the building's co-owners. This article aims essentially at the changes of destination regarding the building and the modification of the declaration of co-ownership to allow for the holding of a fraction by several persons having a right of periodic and successive enjoyment (i.e. "time sharing").

The same majority is also required to proceed with the disposition (sale) of the common portions whose conservation is necessary to maintain the destination of the building (article 1098 CC.Q.) or to terminate the co-ownership (article 1108 CC.Q.). The above statement is not exhaustive in nature.

We invite you to read carefully the prescriptions of the C.c.Q described above and in case of doubt, to consult a notary or a lawyer familiar with these complex legal notions. Finally, we must draw your attention to the prescriptions of article 1102 C.c.Q, and to the articles of the Act respecting the applications of the reform of the Civil Code of Québec which led, in the latter case, to certain reservations regarding declarations of co-ownership that are made prior to January 1, 1994, the date of which the reform of the Civil Code of Québec came into effect.

General meeting - Convening Notice

Question :

Who must convene the meeting of co-owners and what are the deadlines surrounding this notice?

Reply :

The General meeting of co-owners is convened at least once a year by the board of directors of the Syndicate. The notice period is, generally speaking, fifteen (15) days unless the building regulations mention otherwise. Co-owners may require the board of directors or the secretary to convey an annual or special meeting if they represent 10 percent (10%) of the total of all the votes of their co-ownership. If the board of directors or the secretary fails to act within twenty-one (21) days upon receiving this notice, any co-owner signing the notice may call the meeting.

Director vs president of assembly

Question :

 
 What is the difference between a director and a president of assembly (officer)?

Reply :

The difference between these two charges is essentially based on the very nature of the decisions and actions that they can respectively take and perform.

The declarations of co-ownership specify, as a general rule, that the officers of assembly have limited powers to questions relating to the conduct of the meeting. These officers are elected by the meeting of co-owners, by a majority of the votes of the co-owners present or represented and constitute the board of assembly. The board of assembly is generally composed of the president, the vice-president and the secretary. The president of the assembly has the mission to direct the debates and to see to the respect of the procedure. The vice-president acts in the place of the president if it is impossible for the latter to assume temporarily or permanently his role. The secretary, meanwhile, must write the minutes and issue semi-authentic copies of the minutes. Finally, there are sometimes elections of tellers to ensure a more efficient voting procedure.

The board of directors of the co-ownership is composed of the directors elected at the general meeting of the co-owners and has for first mission to manage the affairs of the syndicate and exercise all the necessary powers to respect the declaration of co-ownership. Thus, it must provide for the conservation and the maintenance of the common portions and the safeguarding of the rights relating to the building or the co-ownership.

Assembly disruptor

Question :

What should be done with a co-owner who disturbs the General meetings with their endless questions and insults addressed to the members of the board of directors?

Reply :

Inadvertent interventions during a General meeting or insults addressed to the assembly officers, members of the board of directors co-owners or syndicate representatives are unwelcome. It is the chairman of the meeting's responsibility to call to order any co-owner or representative who "goes overboard" and to ensure the smooth running of the meeting.


Although the president of the General meeting may decide to limit a "disruptor of assembly's" right to speak, it is recommended that prior to a meeting the co-owners adopt a rigorous regulation on the rules governing a General assembly. This avoids any ambiguity regarding the assembly's procedures.


When a stormy meeting is on the horizon, the choice of the assembly's president is important. It is highly recommended to retain the services of a person whose knowledge grants them authority. The presence of the syndicate's lawyer can also be constructive because of the moderating effect they will have during the course of the meeting. This allows all present or represented co-owners to ask questions and obtain reliable information. Finally, if these measures do not work, then you will need to take the necessary steps to respect the collective rights. At this stage, asking a lawyer to send a formal notice to the offending co-owner is highly advised.

Minutes

Question :

Should we make minutes for each General meeting of co-owners, and when should they be made available to co-owners?

Reply :

Yes. Article 1070 of the Civil Code of Québec (C.c.Q.) provides that the syndicate must keep at the disposal of all co-owners, amongst other things, a register containing the minutes of the General meetings . Thus, minutes for each meeting must be drawn up.

The minutes must reflect the text of each resolution and the precise result of each vote.

Each question must be voted separately. The original minutes of each General meeting must be kept together, in a register dedicated to this purpose. Ideally, the minutes of each General meeting should be signed by the president and the secretary at the end of the meeting, in order to make them readily available. Since any co-owner may ask the court to set aside a decision of the meeting within sixty days of the ajourning date, it is inferred that the minutes must be available as soon as reasonably possible. 

A co-owner who wishes to make an appeal before the court could make a request access to the minutes in the days following the meeting.

Minutes - Content

Question :

Should the minutes of the General meeting of co-owners contain all the discussions that took place?

Reply :

No, the very purpose of the minutes is to prove which deliberations occurred during the meeting, the result of the votes, and the compiling of votes regarding resolutions validly presented at the General meeting of co-owners.


The minutes are not a faithful transcription of everything that was said at the meeting.


The important thing is to accurately transcribe, exactly, the resolutions and the reasons that support their adoption or rejection, as the case may be, and to indicate the outcomes of the votes.

Proxy - Time limit

Question :

Our declaration of co-ownership requires that proxies be delivered to the directors forty-eight hours prior to the meeting. Is it legal and as administrator, can we refuse those who arrive outside after this time?

Reply :

The declaration of co-ownership cannot impose any restrictions on the rights of co-owners, except those which are justified by the destination of the building, its characters or its situation. In order to answer your question, it is necessary to consider whether such a restriction on the co-owners' voting rights is unreasonable in the particular circumstances of your co-ownership. The answer to your question cannot be absolute. However, we believe that it would be wise to include in your notice of meeting the reproduction of the excerpt of your building bylaws dealing with the forty-eight hour period in order to remind everyone of this restriction. In addition, an effective control mechanism should be put in place by the Board of Directors prior to the scheduled expiry time period for the receipt of proxies. Mismanagement of this provision of your declaration of co-ownership could make a difference in court, if a co-owner disputes the validity of a General meeting of co-owners.

Proxy

Question :

Can we limit the number of proxies that a director may hold during a General meeting?

Reply :

No. Article 1089 of the Civil Code of Québec (C.c.Q.) implicitly recognizes that any co-owner may be represented at a meeting of co-ownership.

Indeed, article 1089 C.c.Q. uses the following expressions: "members present or represented". Moreover, Article 350 C.c.Q. stipulates the following: "A member may be represented at a meeting if he gives a written mandate to that effect. The power of attorney is a written mandate freely given by a person to another person of their choice who becomes their representative.

A co-owner can therefore grant a power of attorney to a director, a co-owner, friend or any other person external to the co-ownership. In Quebec, the Civil Code of Québec does not prohibit a representative from receiving more than one power of attorney and does not limit the number of proxies a person may have.

Indeed, with regards to divided co-ownerships, the right to vote is one of the essential prerogatives attached to the right of ownership.

To seek to limit the number of proxies that may be held by the same representative would, in our opinion, constitute a restriction on the right of a co-owner to entrust his power of attorney to the person of their choice. Article 1056 C.c.Q. provides that "the declaration of co-ownership cannot impose any restriction on the rights of the co-owners, except those which are justified by the destination of the building, its characters or its situation".

It thus appears that the adoption by the meeting of co-owners of such a restriction would be irregular, illegal and void.

Quittance to administrators

Question :

During the last General meeting of co-owners, the administrators asked us to approve their management and to release them from all responsibility for the actions they have taken during the last year. What does this vote mean and what is it worth?

Reply :

This type of quittance is intended to be a ratification, by the assembly of co-owners, of the acts performed by the directors during their mandate and thereby releasing them of their responsibility towards the syndicate.

Frequently presented by the administrators as a gesture of recognition for the services rendered, this way of operating goes against the interests of the co-ownership.

Indeed, in the event of a fault by one of the directors, the liability insurer who covers their fault could invoke as a defense this discharge which was adopted during a meeting.

However, this quittance does not cover the undisclosed actions taken by the members of the board.

In addition, this quittance has no effect on any personal injuries that would occur to a co-owner due to some fault of a director and / or the board of directors.

Quorum

Question :

What is the need to obtain a quorum at a General meeting of co-owners?

Reply :

In order for the General meeting of co-owners to take a valid decision, it is necessary to obtain quorum.

The quorum is constituted of a minimum of co-owners present or represented, who hold more than the majority of the votes of all the co-ownership and who can express themselves.

Below this minimum, the assembly cannot make any decisions.

If, during the meeting, there is no quorum, any co-owner may demand the adjournment of the meeting. When the meeting of co-owners is adjourned by default of quorum, then three-quarters of the co-owners present or represented at the next meeting will constitute the quorum.

Rules of convocation

Question :

Can the board of directors call by telephone the annual General meeting of co-owners?

Reply :

No, except if all the co-owners expressly renounced the formalism surrounding the convening of a General meeting of co-owners. This renunciation by the co-owners to this formalism can be very useful in small co-ownerships. It makes it possible to avoid, when it is possible, the heaviness of the usual formalities regarding the General meetings. In these cases, co-owners often communicate with each other without much formalism and often decide to meet on the spot.


It will be sufficient for a person to write the resolution that expresses the will of the assembly and to obtain the signature of all persons qualified to vote in order to grant the resolution the same value as if it had been adopted at a General meeting where the members had been formally convened. On the other hand, in larger condominiums, the use of this simplified procedure would become cumbersome and totally inefficient.


This statement is all the more true when it comes to convening the co-owners for the annual general meeting and thus follow the procedure set out in article 1087 of the Civil Code of Québec (C.c.Q.).


This section prescribes, with respect to the convocation of the General annual meeting, that the notice of meeting must be accompanied with the balance sheet, the statement of the results of the past fiscal year, the status of debts and receivables, the estimated budget, any proposed modification to the declaration of co-ownership and a note on the essential terms of any proposed contract and any proposed renovations. Finally, it should be noted that the nullity of the decisions taken at an irregular meeting could be requested, on the grounds that the convocation procedure was not respected.

Transformation of common areas

Question :

I want to expand my lobby, which would slightly encroach on a section of the corridor serving my unit. The board of directors is divided, some directors justifying their refusal on the grounds that this renovation will affect the common parts of the building.

What should I do?

Reply :

The board of directors does not have the authority to authorize such renovations and a commitment on their behalf would be worthless. Indeed, such renovations will affect the right of ownership of all the co-owners and will constitute, at the very least, a transformation of the common portions of the building.

Moreover, the declaration of co-ownership will have to be amended, in order to regularize this encroachment of your privative portion onto the common portions of the building. Only the assembly of the co-owners has the competence to exercise a decision in this matter.

The majority required to authorize this renovation will be a so-called double majority, set out in article 1097 of the Civil Code of Québec (C.c.Q.). Finally, it will be necessary to establish whether such renovations have an effect on the building's destination. If so, the requirements of article 1098 C.c.Q. will be applied.

Relative value - Modification

Question :

Can we change the relative value assigned to each dwelling unit of the condominium and if so, how?

Reply :

It is possible to modify the relative value assigned to each dwelling unit by respecting certain strict rules of the Civil Code of Québec (C.c.Q.).

Each co-owner having an undivided ownership interest in the common portions is equivalent to the relative value of their fraction, any modification to this value therefore requires the authorization of the latter.

Indeed, article 1102 C.c.Q. prescribes that: "Any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on the co-owner a modification to the relative value of their fraction (...) shall be of no effect." In these circumstances, to modify the relative value of all or part of the fractions of the co-ownership, it is necessary to obtain a consensus or the approval of the co-owners who will be affected by this modification.

In addition to this, any change in the relative value implicitly requires an amendment to the declaration of co-ownership. The meeting of co-owners will have to be convened to approve such an amendment.

In this regard, article 1087 CC.Q. provides that the notice of meeting must be accompanied by any proposed amendment to the declaration of co-ownership. Another possibility, the judicial one, is available to any co-owner who desires such an end.

According to article 1068 CCQ, it is possible if there exists between the relative value granted to a fraction or the share of the common charges related thereto and the relative value or the part that should have been established, according to the criteria provided in the declaration of co-ownership, a difference of more than one tenth in favor of another co-owner, or to the detriment of the co-owner who makes the request.

Such an appeal must be filed within five (5) years from the date of registration of the declaration of co-ownership.

Secret vote

Question :

Can we have a secret vote?

Reply :

Voting takes place, as a rule, by a show of hands.

It is sometimes required by the chairman of the meeting or the co-owners that the vote be taken by secret ballot, when there is a doubt on the majority expressed by a show of hands or to try and ensure the discretion of the opinions of the co-owners. The electoral process relating to co-ownerships does not allow to have a secret ballot in the absolute sense of the word.

In fact, under the terms of article 1090 of the Civil Code of Québec (CCQ), which stipulates that each co-owner has at the meeting a number of votes proportional to the relative value of his fraction, each ballot  must necessarily indicate the number of votes attached to the fraction of the co-owners.

It is therefore up to the chairperson of the meeting to ensure the discretion of the scrutinisers and to ensure the establishment of a mechanism to ensure that the documents (ballots and attendance records) are kept under seal at least until the prescribed sixty (60) day period applicable in the event of a legal challenge to the decision made during the meeting. Contrary to the established culture of ballot management and confidentiality in municipal, provincial or federal elections, whose practices allow only one vote per eligible citizen, in the event of a challenged vote in court, the syndicate must be able to demonstrate that the person who has voted is the co-owner by right or has been duly appointed representative, for the number of votes proportional to the relative value of their designated fraction.

Notice of meeting

Question :

What documents must be included with the Notice of meeting?

Reply :

Article 1087 of the Civil Code of Québec (CCQ) requires that the Notice of meeting be accompanied, in addition to the balance sheet, the statement of results of the past financial year, the state of debts and receivables, the estimated budget, any proposed modification to the declaration of co-ownership and a note on the essential terms of any proposed contract and any proposed works. The declaration of co-ownership may provide for other documents to be sent to the co-owners with the Notice of meeting, it is therefore necessary to consult the declaration in order to ensure that the notice of meeting will not suffer any informalities.


+ Insurance

Balcony - awning

Question :

A co-owner installed an awning near his balcony, without having obtained any authorization whatsoever. What should the board members do?

Reply :

The installation of an awning is, in your case, renovations affecting the common portions of the building. It is likely that your declaration prohibits such a practice. Beyond this consideration, the installation of an awning can have consequences on the architectural unit of the building and thus be non-compliant with its destination.

Moreover, such renovations require the authorization of the general meeting of co-owners since they constitute, at the very least, transformation renovations that affect the common portions and could even be qualified as renovations that are in inconformity with the destination of the building. In these circumstances, it is the duty of the Board of Directors of the Syndicate to require that the co-owner dismantle their awning. This can be accomplished by sending a formal notice to the co-owner who has undertaken such renovations.

If the latter fails to correct this situation, the Syndicate should appoint a lawyer experienced in this matter to request from the court an order to dismantle the awning.

Water damage

Question :

Can the syndicate of co-owners claim from a co-owner the amount of the insurance deductible, when the latter is responsible for a water damage?

Reply :

Yes. A co-owner who is responsible for damage to the common and exclusive portions of the building must bear the consequences. The consequences of this liability are limited by the insurance coverage taken out by the syndicate and the co-owner.

However, the amounts not covered, such as the franchise, constitute a loss which the co-owner is liable to the syndicate. In this respect, the latter is entitled to sue the co-owner who is at fault.

This principle has been applied in the case of the Syndicat des condominiums des Terrasses Lulli c. Fort.


+ Laws and regulations

Addition to the agenda

Question :

During the meeting of the co-owners, can one decide to add other points than those planned on the agenda?

Reply :

No, the assembly deliberates only on the questions which have been validly inscribed on the agenda, unless all the co-owners who were to be convened are present and consent. Indeed, the vote on a question not validly inscribed on the agenda is null. The only mechanism for adding questions of a decisional nature to the agenda is that provided for in article 1088 of the Civil Code of Québec (C.c.Q.). This article provides that any co-owner may require the board of directors to register any other question within five (5) days of receiving the notice of meeting.


The questions thus entered in the deliberation of the meeting of the co-owners must be precise to allow a vote. The purpose of this measure is to allow the board of directors to notify all co-owners in writing of any new issues that may arise prior to the meeting. In such circumstances, the board of directors must transmit with diligence a complete copy of the questions submitted to the co-owners.


Indeed, any co-owner has the right to be informed clearly, before the assembly and not the day of the meeting, of the questions that will be addressed. They can then decide whether or not to be present at the meeting or the scope of the mandate they could give to a third party through the use of a proxy. However, the Civil Code of Québec allows all questions of interest to be exchanged for points of view and even for discussion. Usually, this type of question is submitted at the beginning of the meeting and dealt with at the end of the meeting. These questions are grouped on the agenda under the heading "varia". This mention on the agenda only allows the study of questions or obtaining details, and not the formal decision taken by the assembly of co-owners.

Budget

Question :

Can the meeting of co-owners vote against an increase in common expenses (condo fees)?

Reply :

In order to answer such a question, one must first determine whether the power to fix the co-owners' contributions to the common expenses falls within the jurisdiction of the General meeting of co-owners or the board of directors.


In addition, it is required to distinguish the case of condominiums established prior to the reform of the Civil Code of Quebec (CQ.Q.) on January 1st, 1994 from those established after this date. For condominiums incorporated after the reform of the Civil Code of Québec, Article 1072 CC.Q. provides that the board of directors has the duty to "fix", after "consultation" of the general meeting of co-owners, the contributions of co-owners to the common expenses of their co-ownership. This provision is unavoidable, since the power to determine the operating budget of the condominium belongs to the board of directors and not to the General meeting of co-owners. Consequently, the latter could not object to an increase in common expenses enacted by the Board of Directors.


As for the condominiums established prior to January 1st, 1994, most declarations of co-ownership provide that the adoption of the budget is the responsibility of the General meeting of co-owners. The question therefore arises as to whether the mandatory nature of the "consultation" obligation provided for in the new Article 1072 CC.Q. applies to these declarations. If this is not the case, the general meeting could technically, until decided otherwise, vote against an increase in common expenses. Pending a firm response from the courts concerning this issue, we consider that the elementary prudence in these circumstances (for condominiums previously constituted prior to 1994 and whose declaration of co-ownership provides that the adoption of the budget is the responsibility of the General meeting of co-owners) is to vote the budget by the General meeting.

Counting votes

Question :

Can the assembly of co-owners decide that each co-owner can only have one vote per dwelling unit?

Reply :

No because according to article 1090 of the Civil Code of Québec (C.c.Q.), each co-owner has at the general meeting a number of votes proportional to the relative value of their fraction.

This provision of the Civil Code of Quebec is imperative in nature and in this sense any vote of the general meeting that would attempt to contradict this prescription is void. In addition, unless otherwise stipulated by the declaration of co-ownership, the undivided co-owners exercise their rights in the proportion of their undivided shares.

Thus, for co-owners who are jointly owners of the same unit, it is required that they each provide, in case of absence, a power of attorney to the person of their choice if they wish that all their voting rights be exercised at this meeting. The prescriptions of article 1090 C.c.Q. are imperative and thus take precedence over the provisions of the declarations of co-ownership established prior to January 1st, 1994, which would be state otherwise.

Since the share of the co-owners in the common portions is equal to the relative value of their fraction and their voting right during the meeting, the use of  unitary votes as indicated in the old declarations is no longer legal and would result in an error in the calculation of votes. Such an error could open the door to a legal request to set aside the decisions made during the assembly.

Content of the agenda

Question :

What are the items that the board of directors must put on the agenda of our annual general meeting?

Reply :

The content of the agenda usually includes the following points:

  • Quorum and calling the General Meeting into order
  • Reading of the agenda
  • Board's report
  • Presentation of the financial statements
  • Presentation of the provisional budget
  • Approval of the renovations affecting the common portions in case of improvements, conversions or expansions (if required)
  • Approval of any modification of made to the declaration of co-ownership (if required)
  • Approval of any act of acquisition or alienation of real estate made by the Syndicate (if required)
  • Election of the members of the board of directors
  • Election of assembly officers
  • Varia
  • Closing of the meeting

Challenging decisions

Question :

Is there a time limit to challenge to challenge a decision made during a general meeting?

Reply :

Yes, and this period is one of forfeiture, not subject to extension by the Tribunal. Indeed, article 1103 of the Civil Code of Quebec (C.c.Q.) prescribes that: "The action must, under pain of forfeiture, be brought upon within sixty days following the day of the meeting. "A simple formal notice is not enough, since challenging a decision voted upon can only be achieved through legal proceedings within a sixty (60) day period following the date of the meeting. After this time period, a clearly irregular decision becomes a somewhat regular decision and is applicable to all co-owners. However, this rule does have some exceptions.

For example, a decision of the meeting of co-owners to amend the declaration of co-ownership so that the number of votes required to make a decision is different from the provisions established by the Civil Code of Québec, in the chapter dealing with divided co-ownership, is deemed unwritten. The same applies to any decision of the meeting of co-owners that must be made by a specific majority. Thus, when such a majority has not been reached, no decision will be validly taken. Other cases may be  subject to an action for annulment.

This is how, for instance, an action of annulment could be instituted against decisions taken at a meeting which was irregularly convened or held in an irregular manner.

In such a case, the brief lapse period of 60 days would then be inapplicable because there was no general meeting in the proper sense of the word.


+ Maintenance

Elevator

Question :

Who must pay for damages caused to the elevator of the condominium during the move of one of the co-owners?

Reply :

The co-owners use and freely enjoy the common parts, under the condition of not abusively exercising this right and not to damage them. Thus, in the event that a co-owner, by himself or his agents, causes damage to the elevator, he will be responsible for it. It will be up to the union to initiate corrective work at the expense of the latter. However, it is possible that in certain circumstances, the damage caused is significant, therefore the syndicate will have to submit the whole to their insurer.

Under the Quebec Civil Code, the syndicate must be insured against the usual risks covering the entire building, excluding improvements made by a co-owner to their private portions. Thus, in the event of indemnification by the insurer of the syndicate, the latter may claim compensation from the author of the damages, such as, for example, the mover. It should be noted, however, that insurance policies may exclude the possibility for the insurer to be subrogated in the rights of the syndicate when the perpetrator is a co-owner.

Relative value - Definition

Question :

What is relative value?

Reply :

The relative value of a unit is a measure that indicates its value relative to the value of the entire building. It is expressed in the declaration of co-ownership by means of a percentage or a fraction. This fraction is then used to measure the interest of each co-owner in the co-ownership. Thus, the share of each co-owner in the common portions, their contribution to common expenses and the number of voting rights at the general meeting of co-owners are necessarily proportional to the relative value of their fraction.

Exterior stairs

Question :

What permissions must be obtained in order to allow the installation of a guardrail on the exterior stairs?

Reply :

In the case of a legal requirement arising from a municipal or provincial by-law, the board of directors may have no other option but to proceed with the execution of such renovations, which are an objective necessity.

The estimate of the renovations to be incurred must be included in a budget draft that will be submitted to the meeting of co-owners for consultation.

After this, the renovations should begin without further ado. If that is not the case, it will become questionable whether the use of such a guardrail constitutes a transformation of the common portions. In case of doubt, prudence dictates that you should require the authorization of the general meeting of co-owners by vote of a resolution which illustrates the approval of the majority of the co-owners representing three quarters of the votes of all co-owners.

Deductible - liability of the co-owner

Question :

Can the syndicate of co-owners claim from a co-owner the amount of the insurance deductible, when the latter is responsible for a water damage?

Reply :

Yes. A co-owner who is responsible for damage to the common and exclusive portions of the building must bear the consequences. The consequences of this liability are limited by the insurance coverage taken out by the syndicate and the co-owner.

However, the amounts not covered, such as the franchise, constitute a loss which the co-owner is liable to the syndicate. In this respect, the latter is entitled to sue the co-owner who is at fault.

This principle has been applied in the case of the Syndicat des condominiums des Terrasses Lulli c. Fort.

Deductible - Break and enter

Question :

My front door must be replaced because of a break-in. Am I responsible for paying the deductible that the syndicate's insurer refuses to pay?

Reply :

If the door giving access to your dwelling unit is a common portion of the building and it has been damaged during the break-in, we are of the opinion that it belongs to the Syndicate. Thus, they must assume the deductible not covered by the Syndicate's insurance for the replacement of said door. However, if it is shown that the incident is the result of negligence on the co-owners' or occupants' part, then the Syndicate could claim the deductible or amount not covered by the condominium's insurance from the co-owner.

Sprinklers

Question :

The administrators of our building propose to undertake very expensive renovations for the installation of sprinklers in all the corridors of the building. Can they do so and if so, what authorization(s) are required?

Reply :

In the case of a statutory requirement arising from a municipal or provincial by-law, the board of directors may have no choice but to estimate the cost of the renovations to be included in a draft budget that will be submitted to the co-owners for consultation at a general annual meeting or special general meeting. Afterwards, the renovations can begin without further ado. Otherwise, it is likely renovations that affect the building beyond its maintenance.


The board of directors must then convene a general meeting of the co-owners and require a vote on this question. For the vote to be favorable to this project, a double majority provided for in article 1097 of the Civil Code of Québec (C.c.Q.) will have to be obtained since the renovations transform and improve the common portions.

Proof of insurance

Question :

As a member of the board of directors of our co-ownership, can we require that co-owners provide an annual proof of insurance?

Reply :

Since the adoption of the Civil Code of Québec (C.c.Q) on January 1, 1994, the Syndicate of co-owners must insure both the private and common portions of the building, except for the improvements that could have been made by a co-owner to their private portions.

Each co-owner must thus ensure the risks relating to his actions that could incur third party civil liabilities or for damages not covered by the insurance policies taken out by the Syndicate.

Consequently, if the declaration of co-ownership requires co-owners to take out liability insurance, the board of directors is entitled to require that they provide documentary evidence demonstrating the existence of such coverage.

Insurance premium

Question :

Are the fire insurance premiums, both for my apartment and the building in general, part of the common expenses to be paid by all the co-owners?

Reply :

Yes, because it is up to the Syndicate to take out such insurance and to pay for it. The Syndicate must also take out insurance covering its liability to third parties. It goes without saying that these costs will be subsequently distributed among the co-owners, in proportion to the relative value of their fraction as common expenses.

Article 1073 of the Civil Code of Québec (C.c.Q.) states that the union has an insurable interest in the entire building, including the private portions. The Syndicate must therefore be insured against the usual risks, such as theft and fire, covering the entire building, excluding improvements made by a co-owner to their private portions.

The amount of insurance coverage corresponds to the cost of replacement of the building. The prescriptions of article 1073 C.c.Q. being of a mandatory nature, it is therefore the responsibility of the Syndicate to ensure that, with the help of professionals, it establishes the fair value of the building in order to benefit from adequate insurance coverage in the event of a claim.

Insurance claim

Question :

How should the board of directors manage an insurance claim following water damage caused by the breakage of a water heater belonging to a co-owner?

Reply :

The first thing to do is to quickly report the claim to the insurance broker and / or the insurer of the condominium.

Secondly, it will be necessary to obtain the name and the precise coordinates of the co-owner responsible for the water damage, as well as the references of the insurance policy of the co-owner concerned. The Syndicate will then have to make urgent repairs in order to limit any other damages and request estimates for the restoration of the site.

Once the estimates are obtained, the syndicate will communicate the content to its insurer, since it is the insurer who insures both the common and the private portions. However, the improvements made by the co-owners to their private portion, such as the installation of driftwood instead of the original carpet, are not covered by the insurance of the co-ownership.

For damages not insured by the co-ownership's insurance coverage, such as the amount of the deductible and the cost of replacing the improvements to the units, the co-owner responsible for the loss must bear the consequences. In addition, the board of directors may request the reimbursement of expenses incurred and not covered by the insurance coverage of the co-ownership to the co-owner responsible for the damage. If the latter fails to fulfill this obligation, the Syndicate can take legal action, as was the case in the case of Syndicate des condominiums des Terrasses Lulli c. Fortin, where the court recognized the Syndicate's right to demand such compensation.

Balconies - Satellite dish (saucer)

Question :

A co-owner has placed on their balcony a satellite dish (saucer) while our declaration of co-ownership prohibits. What should the board do?

Reply :

It is the duty of the Syndicate's board of directors to enforce the declaration of co-ownership and thereby the building regulations.


With regard to the remedies to be applied to such a problematic, it goes without saying that before taking any legal action a formal notice must be sent to the co-owner.


If the latter fails to correct the situation, the Syndicate should appoint a lawyer experienced in this matter to request from the court an order to comply with the declaration of co-ownership. Board members should not let this incident slip.


A contravention of the declaration of co-ownership, whatever it may be, must be repressed, because otherwise there could be a multitude of minor contraventions and the results would be an unbearable.

Financial statement

Question :

Should the financial statements of the Syndicate be audited by a chartered accountant?

Reply :

If the declaration of co-ownership governing your building does not require audited financial statements, then the Board of Directors of the Syndicate may produce the financial statements themselves or entrust the work to another resource that has sufficient knowledge of the subject matter. This person could also be a willing co-owner. The law states that the Syndicate must produce financial statements. It provides some details on the nature of these financial statements: balance sheet, income statement for the past financial year, statement of debts and receivables. However, it does not mention any requirements as to the format of the financial statements and by whom they must be prepared.

Contingency fund

Question :

How can one determine whether or not an expense is part of the operating budget or the contingency fund?

Reply :

Article 1071 of the Civil Code of Québec (C.c.Q.) states that the contingency fund must be dedicated to major renovations or repairs that the building may require. The sums accumulated in the contingency fund must only be used for major repairs and the cost of replacing the common portions. Major repairs eligible for the contingency fund are provided for in the Civil Code of Québec. These include planned and predictable events (hence the designation "contingency fund", which derives from the word "anticipate"), and not accidental events. It is not the cost on the invoice that determines the eligibility of the renovations to the contingency fund, it is the nature of the repairs or replacement, the fact that it is predictable based on the estimated costs known in advance, and the fact that it covers a significant part of the building and requires an exceptional expense. Therefore, it is not the amount of the repair that is an exceptional expense, but the repair itself. By way of example only, the costs generated by major repairs to a concrete slab of an indoor parking lot that has deteriorated due to de-icing salts or the replacement of a roof whose service life has been reached, could be paid by the contingency fund. Although it is not always possible to distinguish between certain expenses, routine maintenance such as snow removal, lawn care, and minor painting should be charged to the current operations fund. This type of expense is therefore not eligible for the contingency fund.

Contingency fund - Definition

Question :

Is the Syndicate obliged to set up a contingency fund?

Reply :

Yes.

Under the terms of article 1071 of the Civil Code of Québec (CcQ), the Syndicate must constitute, based on the estimated cost of the repairs and the cost of replacing the common parts, a contingency fund who's assets are liquid and available on a short term basis. On the accounting level, this fund must be treated separately from the regular operational funds of the co-ownership.

Contingency fund - Nature of investments

Question :

How can one invest the money kept in reserve for the contingency fund ?

Reply :

The law specifies that the contingency fund must remain liquid and available in the short term. The members of the board of directors must therefore restrict their investment choices to investments that are presumed sound. In fact, contrary to popular belief, the very nature of a contingency fund does not provide an investment product offering exceptional returns, since this type of investment is generally associated with the acceptance of a financial risk. The purpose of the contingency fund is only to provide a guarantee that the money will be available at the scheduled time. A risk-free investment product redeemable on a thirty (30) days notice or less is considered liquid and available in the short term. Thus a term deposit fully guaranteed by the Régie de l 'assurance dépôt du Québec in a banking institution meets the requirements of the law for this type of investment.

Contingency fund - Sale

Question :

Upon selling my unit, can I claim back from the Syndicate the amounts I have paid to the contingency fund that have not yet been used?

Reply :

No, since the contingency fund is the syndicate's property. Thus, the sums held in the contingency fund cannot, under any circumstances, be claimed by the co-owners wishing to sell their unit. During the sale of a fraction, if the syndicate's contingency fund is well garnished, in accordance with the requirements of the law (that is to say according to the estimates of the needs for the replacement and major repairs of the common portions), it will be to the benefit of the seller to use this argument to demonstrate to future buyers the quality of planning and the excellent financial health of the co-ownership. It is an asset that favors the market value of a fraction of co-ownership.

Contingency fund - Contribution

Question :

Is there a cap on the amounts to be paid into the condominium's contingency fund?

Reply :

No. In this respect, article 1072 of the Civil Code of Québec (C.c.Q.), second paragraph, specifically states that the co-owners' contribution to the contingency fund is at least 5% of their contribution to the common expenses. Thus, the board of directors is not allowed to require from co-owners a contribution that is less than 5% of their contribution to common expenses. In contrast, there is no maximum contribution provided by the law and the declaration of co-ownership cannot legally state a financial cap. In fact, the contribution to the contingency fund must be made according to the needs of the building and the estimated costs of major repairs and replacement of the common portions. The exercise to determine the contribution to the contingency fund is therefore done in two stages: the estimate of repairs or replacement costs, without a maximum limit (article 1071 CC.Q.); and when preparing the budget, if the amount of the estimation exercise carried out in Step 1 is less than 5% of the total contributions of common expenses, the minimum of 5% is required (article 1072 CcQ).

Building Management - Building management contract

Question :

Who can grant a management contract?

Reply :

The board of directors may create executive positions and delegate to the incumbents of these positions the exercise of certain powers. Thus, they can entrust the current administration of the syndicate to a manager. Depending on the size of the mandate and the size of the costs on the condominium's budget, it would be prudent for the board of directors to consult with the general meeting of co-owners before proceeding. It is also possible that the declaration of co-ownership expressly provides for it thus, a formal vote of the meeting of co-owners is required.

Property management - Obligation to maintain a board of directors

Question :

Does a Syndicate who hires a building manager still require a board of directors?

Reply :

Yes. It is a legal requirement. In the case of a divided co-ownership, a syndicate must be made up of two decision-making bodies: the board of directors and the general meeting of co-owners. This provision applies even to smaller condominiums with only two fractions.

Property management - payment of expenses

Question :

Who is responsible for the costs of maintaining, repairing and replacing common areas for restricted uses?

Reply :

Expenses resulting from the use of common portions for restricted use are the responsibility of the co-owners who have the benefit of these common portions. Thus, a co-owner can be held responsible for the expenses incurred by the Syndicate for the maintenance of the windows, if these constitute a common portion with restricted use. However, if it is, for instance, the total repairs for waterproofing a roof terrace resulting from a construction defect or a gradual degradation thereof, the expenses thus incurred shall be borne by the co-owners' and divided amongst them, in proportion to the relative value of their fraction. In the latter case, these expenses could even be paid out with the contingency fund provided for in article 1071 of the Civil Code of Québec (C.c.Q.).

Destination of the immovable

Question :

What importance should be given to the notion of a building destination inscribed in our declaration of co-ownership?

Reply :

This notion is important in many respects, since it is decisive in the choice of a buyer to purchase an apartment in one building rather than another. Thus, a buyer wishing to obtain a high level of quietude will choose a building whose destination will be strictly residential thus prohibiting any other use. Although the declaration of co-ownership, in terms of the constituting act, defines the destination of the immovable, it is necessary to refer to the whole in order to establish a complete appreciation.

Other elements outside the declaration of co-ownership must be taken into account, such as the character of the building and its location. Thus, the situation, the quality of the materials, the distribution of the apartments and luxury are elements which establish the standing of the building and which must be introduced in this notion of destination. Several articles of the Civil Code of Québec refer to this notion. Article 1056 of the Civil Code of Québec (C.c.Q.) states that the declaration of co-ownership cannot impose any restrictions on the rights of the co-owners, except those that are justified by the destination of the building, its characteristics or its location.

Article 1098 C.c.Q. provides that the meeting of co-owners may authorize the alienation of the common elements whose preservation is necessary to maintain the destination of the immovable. Article 1102 CC.Q. proclaims the right of the co-owners to not be imposed, both by the board of directors and by the meeting of co-owners, any modification to the destination of their unit or the use they may make of it. These articles of the Civil Code of Quebec only partially illustrate the importance of this notion.

Indeed, the concept of a destination of the immovable has a constant impact on all decisions of the Syndicate, whether these decisions are to prohibit certain activities, to undertake renovations that may affect the harmony of the architectural complex and even to abolish certain services, such as the presence of the security guard or gatekeepers.

Private portions - common expenses

Question :

Is the condominium developer required to pay condo fees (common expenses) on unsold units?

Reply :

The promoter, like any other co-owner, must pay the common expenses and contributions to the contingency fund in accordance with the fractions he has held since the creation of the co-ownership, namely the date of publication of the Declaration of co-ownership at the registry's office. The failure to do so exposes them to legal action from the syndicate. The syndicate's accounting records of expenses resulting from the management of the co-ownership and the exploitation of the building must start as from the date of publication of the declaration of co-ownership.

Garage floors

Question :

We must proceed with the repairs of the garage floor, a common portion of our building. One of the co-owners refuses to contribute to the charges. Is he obliged to?

Reply :

Yes, since it is likely to be the repairs of a common portion of the building. However, according to article 1039 of the Civil Code of Québec (CCQ), it is the obligation of the Syndicate of the co-ownership and, consequently, of the community of co-owners, to see to the maintenance and to the conservation of the common portions. It is the responsibility of the board of directors, after consulting the meeting of co-owners, to pay collect for the sums required by the co-owners for this purpose. In this specific context, each co-owner will have to contribute in proportion to the relative value of their fraction to the expenses resulting from the restoration work of this floor.

Financial Report

Question :

Is the financial report to be given to the co-owners by the board of directors to be verified by an accountant?

Reply :

To the extent that the declaration of co-ownership governing your property does not require audited financial statements, the Syndicate's board of directors may produce itself the financial statements or entrust the task to another resource that has sufficient knowledge of the property. This person could be a willing co-owner. The law states that the Syndicate must produce financial statements. It gives some details on the nature of these financial statements: balance sheet, income statement for the past financial year, statement of debts and receivables. However, it does not mention any requirements as to the format of the financial statements and by whom they must be prepared by.

Remuneration

Question :

Can we hire a co-owner who proposes to do housekeeping for the common portions of the building and, if so, how should they be paid?

Reply :

Although this is not the ideal solution, the Syndicate can hire a co-owner to do the housekeeping of the common portions of the building. In this case, it would be preferable to draw up a specific business contract, providing for a global sum for the household work to be executed.

Renovations in the common portions

Question :

Who should undertake the repairs made to the common portions?

Reply :

Despite the fact that the Syndicate does not own the common portions, it is by law the one that grants the contracts for the restoration of the common portions, and is thus the prime contractor.

Indeed, the Syndicate, by its primary responsibility to provide for the conservation and maintenance of the building, assumes significant responsibilities, including that of being liable for damages made to co-owners or third parties by a construction defect or by the lack of maintenance of the common portions.

It is therefore up to the Syndicate to take all the necessary measures to assume its responsibilities, since it is bound to an obligation of result.

Urgent renovations

Question :

The directors of the condominium require that I grant access to my apartment, claiming the execution of emergency renovations after a water damage that occurred in the apartment above mine. Am I obliged to give them access?

Reply :

In case of an emergency, the duty of the board of directors is to intervene. The Civil Code of Québec (C.c.Q.) imposes on the Syndicate, and thus on the board of directors, the obligation to carry out repairs and conservation work on the building. The board of directors has no authorization to obtain from any co-owner whatsoever, you are therefore required to grant free access to your private unit for the execution of the recommended renovations, even if they could not be decided upon by the assembly of co-owners, due to a lack of time.

Major renovations

Question :

We plan to do complete redecoration of our entrance hall; the bill could exceed $ 150,000.00. Can these renovations be considered major repairs and thus allow us to use the contingency fund?

Reply :

The notion of "major repairs" is found in article 1071 of the Civil Code of Québec (CCQ), which stipulates the following: "The Syndicate constitutes, based on the estimated cost of major repairs and the cost of replacing the common portions, a contingency fund, which is liquid and available in the short term. These funds are allocated solely to the major repairs and the replacement of common portions. These funds are the property of the Syndicate. The Minister of Justice comments on Article 1071 CC.Q. as follows: "This article is new. It fills a gap in the previous law by requiring the syndicate to set up a contingency fund to deal with the major repairs that the building may require. It is therefore intended to ensure the conservation of the building. (...) "The general purpose of the contingency fund imposed by the Civil Code of Québec is to provide for major repairs and the cost of replacing the common portions. These must be seen essentially as major repairs or the replacement of common portions such as the roof, which has a lifetime of more or less 20 years, the elevators, whose major components must be replaced after a certain number of years, etc.

These are just examples, but they demonstrate that which is covered by the contingency fund. These examples force the syndicate to build, in a planned and gradual manner, a reserve of funds to deal with the costs of repairing or replacing common portions that have a limited lifetime. One cannot therefore include in the concept of "major renovations" or "replacement of common portions" a simple decoration project, regardless of its size. In principle, such a project should be financed from the annual operating budget or, if necessary, by means of a special assessment approved by the meeting of co-owners. The Syndicate's use of a portion of the funds accumulated in the contingency fund to cover the costs of a decoration project would likely be an error.

Neighborhood Disorders - Hardwood Flooring

Question :

The co-owners of the apartment above mine have changed their flooring without permission (they removed the carpet to install some wood). Since then, I hear a lot of noise. What are my rights?

Reply :

Noise is the most frequently reported nuisance in co-ownership. The installation of a hard floor can only accentuate the perception of noise if appropriate measures have not been taken. When there is a significant reduction in the acoustic performance of the flooring, you have the right to require that the offending co-owner put a stop to this situation. If the latter fails to correct the situation, you may then request the court, on the one hand, an injunction order for the dismantling of the floor and the restoration of the premises and, on the other hand, an application for damages to compensate for any loss you may have suffered as a result of the violation of the declaration of co-ownership. Finally, it should be noted that if the declaration formally forbids the installation of any hard floor covering or prescribes performance standards for soundproofing and these have not been respected, then it is the Syndicate's duty to take action including appropriate legal action, if necessary.

Hardwood Flooring - Installation

Question :

I want to replace the carpet of my apartment with hardwood flooring. What should I check?

Reply :

 
Many declarations of co-ownership contain clauses that formally prohibit the installation of hard flooring and therefore of hardwood flooring. Others, although they do not prohibit it, require co-owners to submit to the board of directors a description of any renovations to be done in a unit, in order to verify the scope and consequences. The failure to comply with the requirements of the declaration of co-ownership exposes the co-owner to a legal action from either a co-owner who would suffer the damages, or the Syndicate of the co-ownership.
 
The consequences of such an action may be a damage condemnation and a court order requiring the dismantlement of the floor and the restoration of the premises to their existing prior state. The proposed renovations must not prejudice the rights of the other co-owners of the building, such as the right to have a certain level of tranquility. Thus, it is important to take into consideration the very quality of the materials installed. In fact, the new flooring materials should have an acoustic insulation capacity at least equal to that of the original materials, so as not to expose you to any reprimand or recourse by a co-owner.

Animals - Building Regulations

Question :

At the last meeting of the board of directors, we decided to present to the next meeting of co-owners a resolution to limit some of the inconveniences we have with dogs. What is the majority required to adopt such a resolution?

Reply :

The majority required to adopt such a resolution depends on the very nature of the amendment that will be made to the declaration of co-ownership. However, the case law has already recognized that a regulation restricting the movement of animals in the common areas and the barking of the latter could be adopted by a simple majority of the votes of the co-owners present or represented at the meeting of the co-owners, since it was an amendment to the building regulations.


+ Management and administration

Opposability of decisions

Question :

I was absent at the last meeting of the co-owners, am I still obliged to submit to the decisions that were taken there ?

Reply :

Yes. The decisions taken by the meeting of co-owners bind all co-owners, present or not at the meeting. It is therefore important to attend the meetings or to be represented by giving a power of attorney to a person of your choice, if you cannot attend yourself.