Co-ownership Law · Quebec
Do you live in a co-ownership and a disagreement has arisen with your syndicate or a neighbour? Before heading to the courthouse, know that there is a powerful but little-known mechanism available to you: arbitration. Governed by the Civil Code of Quebec and your building's declaration of co-ownership, it is a private dispute resolution process that allows a neutral arbitrator to decide a dispute without the endless delays of the courts.
Unlike mediation, where the parties themselves control the direction of the process, in arbitration the parties voluntarily submit the resolution of their dispute to a third party — the arbitrator — who hears both parties and examines the evidence submitted before rendering a decision called an arbitral award, which is then binding on all parties (art. 642 para. 1 C.C.P.).
Arbitration most often arises from an arbitration agreement entered into by the parties before a dispute even arises (art. 2638 C.C.Q.), but may also occur after the fact if the parties voluntarily consent to submit to it (art. 1-2 C.C.P.). In most contractual disputes, arbitration and mediation are the most widely used dispute resolution methods.
WHAT IS ARBITRATION IN CO-OWNERSHIP?
In divided co-ownership, arbitration is frequently used for disputes relating to common charges, work, building by-laws, or co-owners' rights. Generally, the use of arbitration in a condo context is governed by the declaration of co-ownership, which often contains a dispute resolution clause.
This clause requires the parties in conflict to pursue a private resolution process rather than resorting to the courts. Today, many standard mediation and arbitration clauses are found in declarations of co-ownership. They submit to mediation and then to arbitration any dispute relating to the declaration and all rights and obligations arising from it. They provide for written notice, the appointment of an arbitrator within a strict deadline, the requirement that the arbitrator be a notary or a co-ownership lawyer, the obligation for the parties to provide requested information, and the obligation of a written decision that is binding on the parties, final, and without appeal.
Important: where an arbitration clause exists in the declaration of co-ownership, recourse to the courts is barred, even if the courts would otherwise have jurisdiction over the subject matter of the dispute (art. 622 para. 1 C.C.P.). In other words, if the parties have agreed to be bound by the declaration of co-ownership, they are obligatorily subject to its provisions, including the resolution of any related dispute through arbitration.
One of the main advantages of arbitration is that the parties choose the arbitrator by mutual agreement (art. 624 C.C.P.). Organizations such as the IMAQ offer a wide range of accredited arbitrators in various fields. In the condo context, a real estate or co-ownership lawyer can bring the essential expertise needed to resolve the dispute fairly and in accordance with the law. If the parties cannot agree on the choice of arbitrator, the court may, at the request of one party, take any necessary measure to appoint one (art. 625 C.C.P.).
THE SCOPE OF AN ARBITRAL AWARD
Once the arbitration hearing is concluded, the arbitrator must render an arbitral award. This award puts an end to the dispute and is binding on the parties. In order to be enforceable against the parties, like a court judgment, or against third parties (e.g., bailiffs), it may be homologated by the court in order to obtain the executory force that derives from a judgment rendered by the Court.
« An arbitral award is enforceable. This is not a simple mediation — the arbitrator decides, and the parties must comply. »
HOW DOES IT WORK? THE 5 KEY STEPS
- Review the declaration of co-ownership. It specifies whether arbitration is mandatory or optional, and under what rules.
- Send written notice. The contesting party formally communicates their intention to resort to arbitration.
- Choose the arbitrator. By mutual agreement, or according to the appointment procedure set out in the declaration. If no agreement is reached, an application must be made to the court for it to appoint an arbitrator.
- Present arguments. Each party submits their evidence and submissions, in writing or at a hearing before the arbitrator.
- Receive the arbitral award. Rendered in writing, it is final and may be homologated by the court for enforcement.
ADVANTAGES OF THE ARBITRATION PROCESS
Speed.
The dispute is resolved in a much shorter time than a full court process. We are talking about a few months rather than year(s).
Confidentiality.
The entire process takes place in private, unlike a court hearing.
Arbitrator's expertise.
A specialized arbitrator in real estate and co-ownership law brings targeted expertise that ordinary courts do not always offer.
Reduced costs.
The parties share the costs of the arbitrator and the process, which are generally well below the costs of court proceedings.
No publication of awards.
Unlike court judgments, arbitral awards are not public.
In short, arbitration is a fast, effective, and cost-efficient method for resolving disputes between co-owners or with the syndicate. Before taking action, review your declaration of co-ownership — it may already contain the answer to your question. And if the process seems complex, a lawyer specializing in real estate law can guide you from the very first step.
Where to start?
You don't have to navigate this process alone. Fiset Legal is a firm with a practice in co-ownership law. Our accredited arbitration specialists will guide you toward the fastest and most cost-effective solution for your situation. Consult your lawyer or contact us for an initial consultation.
Condo arbitration: a powerful, discreet, and effective mechanism to protect your rights.
