Many Declarations of Co-ownership, the vast majority of which were published prior to the January 1, 1994 coming into force of the Civil Code of Québec ("CCQ"), contain clauses that are no longer valid in law.
Here are just a few examples.
Firstly, for co-ownerships established prior to January 1, 1994, the decisions regarding the number of co-owners and percentage of votes have, for many, been modified, except for the exception of unanimity in the case of a change to the destination of the immovable1 and for decisions taken by a majority of the votes of the co-owners present or represented at the meeting, which have remained the same. For others, under the terms of article 1101 CCQ :
Any stipulation in the declaration of co-ownership that changes the number of votes required to make a decision under this chapter is deemed unwritten.
In addition, some declarations of co-ownership prior to the CCQ require co-owners to approve, as- sembly, the budgets of the administration of the co-ownership. However, since 1994, when the CCQ came into force, article 1072 CCQ, which is of public order, stipulates that it is up to the decision-making body of the board of directors to set the budgets, henceforth allowing only a consultation of the general assembly of co-owners:
Each year, the board of directors, after consultation with the general meeting of the co-owners, fixes their contribution for common expenses, after determining the sums required to meet the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund and the self-insurance fund.
The contribution of the co-owners to the contingency fund is at least 5% of their contribution for common expenses. In fixing the contribution, the rights of any co-owner in the common portions for restricted use may be taken into account.
The syndicate, without delay, notifies each co-owner of the amount of his contribution and the date when it is payable.
Some declarations of co-ownership also provide that co-owners, if they represent ¼ (25%) of the votes, may, for example, request their syndicate to convene an annual or special meeting, specifying the matters to be dealt with. On the other hand, according to the Act respecting the application of the reform of the Civil Code, divided co-ownership established before the coming into force of the Civil Code of Québec is now governed by it. On the one hand, under article 352 CCQ, co-owners representing 10% of the votes may request that a meeting be held. On the other hand, according to 334 (2) CCQ, it is permissible by building by-law to depart from the rules established for the operation of legal persons, provided that the rights of members are preserved. Requiring a percentage greater than 10% of the votes cast to require the directors or the secretary to vote in favour of a resolution is a violation of these rules. convening a meeting does not preserve members' rights, but on the contrary has the effect of making them more cumbersome. Thus, any percentage of a declaration of co-ownership requiring the signature of co-owners in excess of 10% of the relative values of the fractions has been inoperative since 19943.
More recently, since January 10, 2020, certain decisions submitted to the general meeting of co-owners have also been made more flexible. Article 1097 CCQ now reads as follows:
Decisions concerning the following matters are made by co-owners representing three-quarters of the votes of the co-owners present or represented:
- acts of acquisition or alienation of immovables by the syndicate;
- work for the alteration, enlargement or improvement of the common portions, the apportionment of the cost of the work and the granting of a movable hypothec to finance it;
- the construction of buildings to create new fractions;
- the amendment of the act constituting the co-ownership or of the description of the fractions;
- the amendment of the description of the private portions referred to in section 1070.
Previously, and since January 1, 1994, this article 1097 CCQ has required the consent of a majority (50% + 1 vote) of all co-owners, representing 75% of the votes of all co-owners.
Clarifications of a declaratory nature (which do not change the state of the law) have also been made to clarify the number of votes required to amend the by-laws of the immovable (1096 CCQ):
Decisions of the syndicate, including a decision to amend the by-laws of the immovable or to correct a clerical error in the declaration of co-ownership, are taken by a majority vote of the co-owners present or represented at the meeting.
The legislator has also specified that amendments to building by-laws cannot be made tacitly, and that they must now be made in writing [1060 (1) CCQ] :
1060. The declaration and any amendments to the act constituting the co-ownership or the description of the fractions are filed exclusively in French at the Land Registry Office. The declaration is registered in the land register under the registration numbers of the common portions and the private portions. The amendments are registered under the registration number of the common portions only, unless they directly affect a private portion. However, amendments to the by-laws of the immovable must be made expressly, in minutes or in a resolution in writing of the co-owners, and it is sufficient for such amendments to be filed in the register held by the syndicate in accordance with article 1070. The amendments must be made exclusively in French.
Similarly, article 1102 CCQ has been withdrawn (use that a co-owner may make of his private portion), to read in future as follows:
Any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on a co-owner a change in the relative value of his fraction or a change of destination of his private portion is without effect.
Finally, another notable example is the penal clauses contained within a declaration of co-ownership. Before Bill 16 came into force on January 10, 2020, penalty clauses were frequently incorporated into the by-laws of the immovable by a decision of the absolute majority of the members (50% + 1) of the votes of the co-owners present or represented at the general meeting of co-owners, these clauses must in future be incorporated into the constituting act of co-ownership, which can only be amended by a decision taken by co-owners representing three-quarters (75%) of the votes of the co-owners present or represented. As a transitional measure, the legislator has indicated that penal clauses existing prior to the coming into force of Bill 16 are deemed to be an integral part of the constituting act4.
These are just a few examples taken from the day-to-day practice of condominium law.
Clauses in Declarations of Co-ownership require careful study to determine whether they remain valid, have become inoperative, have been replaced or have become ineffective. Older Declarations of Co-ownership, particularly those dating from before 1994, regularly contain clauses that have become inoperative, misleading the community of co-owners. An overhaul of the Declaration of Co-ownership will allow these obsolete clauses to be removed, and more up-to-date and modern clauses to be added, such as those permitting the installation of electric vehicles, ensuring loss prevention, making co-owners more responsible through penalty clauses, governing the decriminalization of cannabis, or providing for the indication of a fixed and precise annual interest rate in the event of amounts owed by a co-owner.
This operation, although financially not insignificant, often proves beneficial in the long term, as it enables a better understanding of everyone's duties and obligations, updates the provisions of the aforementioned declaration of co-ownership in line with the state of the law, and ensures greater comfort in the face of certain new needs, while at the same time making negligent and delinquent co-owners more accountable in the future, at the expense of the community. Just as it is important to ensure that the work necessary for the conservation and maintenance of the building is carried out, it is also important for the community of co-owners to treat its declaration of co-ownership with the same care.
