| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Mardi, 21 Juin 2011 15:55 |
DESTINATION OF THE IMMOVABLE
Contact the author : s.fiset@fisetlegal.com
PART II
As we examined in Part I of this text, the declaration of co-ownership determines the conditions of enjoyment and the limits of the individual rights of the co-owners. These restrictions or limitations meanwhile must be justified by the destination of the immovable, its purpose, which is determined by a number of factors which may have objective, subjective and collective elements.
Furthermore, Article 1056 C.c.Q. mentions :
« No declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable. »
[Bold added]
Moreover, the conditions of enjoyment detailed in the terms of the declaration of co-ownership must not be discriminatory. Articles 10 and 13 of the Charter of Human Rights and Freedoms state in fact that :
“ 10. Every person has a right to full and equal recognition and exercise of his human rights and freedoms, without distinction, exclusion or preference based on race, colour, sex, pregnancy, sexual orientation, civil status, age except as provided by law, religion, political convictions, language, ethnic or national origin, social condition, a handicap or the use of any means to palliate a handicap.
Discrimination exists where such a distinction, exclusion or preference has the effect of nullifying or impairing such right. »
“ 13. No one may in a juridical act stipulate a clause involving discrimination. »
[Bold added]
Respect of the destination of the immovable is fundamental. Convictions and rulings (injunction, compensation, cancellation of the general meeting, damages, etc.) have been issued when:
a) actions of the syndicate, or of certain co-owners, were carried out in breach of the destination of the immovable;
b) or modifications to the declaration of co-ownership were adopted which were not justified by the destination of the immovable.
THE DESTINATION OF THE IMMOVABLE AND THE PRESENCE OF ANIMALS[1]
Contrary to a lease where we sometimes find a clause prohibiting domestic animals, such a clause in the By-laws of the Immovable would generally prove to be illegal.
Article 1063 of the Civil Code of Québec states that each co-owner may use and have the freedom to enjoy his private portion and the common portions as long as he respects the By-laws of the Immovable and does not infringe on the rights of other co-owners or of the destination of the immovable.
If the original declaration of co-ownership (when it was published) does not contain any such prohibition with regard to animals and is justified by its destination, its characteristics or its location, imposing such a measure has strong chances of being invalidated by the court.
In a ruling by the Superior Court[2], Judge Marcelin concluded according to the facts presented that there exists no rational connection between prohibiting domestic animals and the residential destination of an immovable, even if it is luxurious or high end and that, initially, in a co-ownership where animals were permitted during a certain number of years, it is not possible to support the validity of such a sudden prohibition because of the destination of the immovable.
In another case where the syndicate wanted to prevent co-owners from allowing their dogs to be in the back yard, the hallways, front or back stairways while not on a leash, and solely for the purpose of accessing the building, the Court ruled these restrictions valid.[3]
The Court is certainly not absolutely constant but, in general, it will not prohibit the presence of animals in the private portions. When it comes to common portions, the presence of animals in these portions will be well defined and the restrictions of the syndicate more accepted.
ACTIVITIES OF CO-OWNERS IN THE PRIVATE PORTIONS
Despite the fact that municipal by-laws may allow the carrying out of a business in one’s home, one cannot be surprised that a building destined for strictly residential use forbids such usage.[4] Running a sewing workshop or a daycare in a private portion, because of the resulting noise, customer traffic and damages or an increase in repairs or maintenance of the common portions of the building, is generally illegal and in breach of the obligations of the syndicate and the co-owners in their right to a tranquil environment.[5]
RENTING FRACTIONS
It is permitted to rent out one’s private portion of a co-ownership. However, if the destination of the immovable is reserved for « residential » use, restricting short term rentals (by the month or the week) would most probably be valid ; allowing short term leases could lead to an increased risk of interfering with the tranquility, stability and security, factors which co-owners are generally seeking.[6]
Meanwhile, the right to lease is protected.[7] The right to lease one’s private portion is important enough to be retained, however it must be exercised within a certain framework.
Do not forget that the administrators also have a certain authority over the lessees :
Article 1057 C.c.Q. mentions :
« The by-laws of the immovable may be set up against the lessee or occupant of a private portion upon his being given a copy of the by-laws or the amendments to them by the co-owner or, if not by him, by the syndicate. »
And Article 1079 C.c.Q. adds :
« The syndicate may demand the resiliation of the lease of a private portion, after notifying the lessor and the lessee, where the non-performance of an obligation by the lessee causes serious prejudice to a co-owner or to another occupant of the immovable.»
FLOOR COVERINGS[8] IN PRIVATE PORTIONS
Among the elements of the destination of the immovable and its characteristics are the quality of the construction and the intrinsic materials which may be used to ensure freedom of enjoyment of each co-owner of the immovable.
Certain declarations of co-ownership (original version or through an amendment published in the Land Registry Office) permit hard coverings for floors while imposing technical regulations, and control and expertise, at the expense of the co-owner, in order to meet the criteria which have been set out.
A Syndicate cannot arbitrarily impose a standard index for soundproofing (ICC or FIIC)[9] in the case of a co-owner replacing his floor, even though the declaration of co-ownership is silent on this point. However, we feel one must strongly insist that the co-owner maintain the original quality of soundproofing.
In our opinion, the replacement of the floor covering, if it is permitted, should be of the same type and quality as the original one so that the resale value of the other units is not affected.
PRIVATE INSTALLATIONS IN COMMON PORTIONS OF THE IMMOVABLE
The refusal to allow installation of an element such as a parabolic antenna was validated in a case at the Court of Appeal[10], even though this had been recognized as justified by the destination of the immovable in question.
The only case involving the rights of co-ownership to reach the Superior Court[11] is one in which the right of freedom of religion superseded the right of a divided co-ownership or the civil right. For religious purposes, it was permitted to erect a structure on a balcony, for a temporary period, despite that it affected the overall harmony of the building.
In another case, the use of a parking space to store wood, for example, was considered in violation of the destination of the immovable.[12]
We can determine that the uniformity, the overall harmony and the general aspect of the immovable are all critical elements of a co-ownership.
After reading the foregoing, it may seem that the declaration of co-ownership is a means, for the promoter (affiant) or the syndicate, to govern the movements and actions of the co-owners of the immovable on many levels. However, only the restrictions justified by the destination, the characteristics and the location of the immovable will be valid. If such restrictions are well conceived, they will meet their goal: to manage justly and to standardize living in a co-ownership for the common good.
Disrespecting the declaration of co-ownership could prove to be expensive. A syndicate must demonstrate that disrespect of the declaration of co-ownership will not be tolerated in order to preserve the rights of all co-owners.
As a potential buyer, before actually purchasing the condo, ask for a copy of the declaration of co-ownership and read it from start to finish. You will be in a better position to determine if the lifestyle described is the one you are seeking.
The notion of « destination of the immovable » is one of the most intangible items regarding the rights of co-ownership in Quebec law. To avoid going down the wrong road in interpreting the law, prudence is recommended. Often, it must be treated case by case. The assistance of a legal adviser with a specialized practice in co-ownership law is certainly not to be overlooked.
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
[1] See also our text « Condos (Co-ownership) and Animals ».
[2] Wilson vs. Syndicate of co-owners Le Champlain condominium, [1996] R.D.I. 261 (C.S.), EYB 1996-30626 (C.S.).
[3] Miller vs. Syndicate of co-owners « Les résidences Sébastopole centre », EYB 1996- 30336 (C.S.).
[4] Krebs vs. Paquin, [1986] R.J.Q. 1139, 1144 (C.S.).
[5] Fournier vs. Lesiège, [1986] R.D.I. 789 (C.S.); Bergeron vs. Martin, REJB 1997-03026 (C.S.).
[6]Kilzi c. Syndicate of co-owners 10400 boul. l’Acadie, [2001] R.J.Q. 2401, J.E. 2001-1784, REJB 2001-26512 (C.A.); Kilzi c. Syndicate of co-owners 10400 Boulevard L’Acadie, [1998] R.J.Q. 2393, 2407 (C.S.).
[7] Tessier c. Syndicate of co-owners condominiums Mont St-Sauveur units 700-800-900 Bloc 1, [2005] R.D.I. 739 (C.S.), J.E. 2005-1548, AZ-50324325.
[8] See also our text « Floor Coverings in Condos ».
[9] Saba vs. Fitzgibbon, EYB 1994-73845 (C.S.).
[10] Syndicate of co-owners of l’Aristocrate vs. Morgan, REJB 2002-35387 (C.A.).
[11] Amselem vs. Syndicat Northcrest, [2004] 2 R.C.S. 55.
[12] Brouillard vs. Bernier, [1990] R.D.I. 653 (C.S.).
Mise à jour le Vendredi, 15 Août 2014 16:12