514-277-1175

Declaration of co-ownership – modifications and additions

Print Friendly, PDF & Email

Declaration of co-ownership – modifications and additions

Écrit par Me Sébastien Fiset , LL.B., B.A.A.
Mardi, 21 Juin 2011 15:40

MODIFICATIONS AND ADDITIONS TO YOUR DECLARATION OF CO-OWNERSHIP

Contact the author : s.fiset@fisetlegal.com

The declaration of co-ownership dictates the rules for everyone (co-owners, renters and occupants) to follow and respect. However, the declaration is not static. A declaration of co-ownership is evolutionary: it may, according to the needs of the co-ownership, be the object of additions, clarifications or updates.

In fact, the general assembly of co-owners, under certain protocol and conditions, has the power to adopt new by-laws of the immovable, to modify these or amend the Constitutional Act of the declaration of co-ownership, with the intent of better defining the rights and obligations of the syndicate and the co-owners.

Under certain conditions, the description of the fractions may also be changed (Articles 1097 and 1102 of the Civil Code of Québec).

* * *

I. THE FOLLOWING MAY BE USED TO GOVERN

The declaration of co-ownership comprises three (3) parts:

1) Constituting Act of Co-ownership;

2) By-laws of the Immovable;

3) Description of the Fractions.

1) Constituting Act

Under the terms of Article 1053 C.c.Q., it is stated that:

« A constituting act of co-ownership defines the destination of the immovable, of the exclusive parts and of the common parts.

The act also specifies the relative value of each fraction, indicating how that value was determined, the share of the expenses and the number of votes attached to each fraction and provides any other agreement regarding the immovable or its private or common portions. In addition, it specifies the powers and duties of the board of directors of the syndicate and of the general meeting of the co-owners. »

[Bold and underline added]

2) By-laws of the Immovable

Under the terms of Article 1054 C.c.Q., it is mentioned that:

« The by-laws of an immovable contain the rules on the enjoyment, use and upkeep of the private and common portions, and those on the operation and administration of the co-ownership.

The by-laws also deal with the procedure of assessment and collection of contributions to the common expenses. »

[Bold and underline added]

3) Description of fractions

Under the terms of Article 1055 of the Civil Code of Québec:

« A description of the fractions contains the cadastral description of the private portions and common portions of the immovable.

Such a description also contains a description of the real rights affecting or existing in favour of the immovable other than hypothecs, and additional security accessory thereto. »

* * *

II. LIMITS AND MODIFICATIONS TO THE DECLARATION OF CO-OWNERSHIP

When establishing the by-laws, a balance must exist between the rights of the individual and the rights of the collective group. In fact, under the terms of Article 1056 of the Civil Code of Québec:

« 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 and underline added]

In addition, under the terms of Article 1060 of the Civil Code of Québec :

« The declaration and any amendments made to the constituting act of co-ownership or the description of the fractions are deposited in the registry office. The declaration is entered in the land register under the registration numbers of the common portions and the private portions. The amendments are entered under the registration number of the common portions only, unless they directly affect a private portion. However, it is sufficient for amendments made to the by-laws of the immovable to be filed with the syndicate.

Where applicable, the emphyteutic lessee or superficiary shall give notice of the registration to the owner of an immovable under emphyteusis or on which superficies has been established. »

[Bold and underline added]

In browsing numerous declarations of co-ownership, we have determined that the most popular modification to the by-laws are related to:

  • restrictions with regard to domestic animals; [1]
  • the color of exterior accessories; [2]
  • awnings, barbecues, antennas, signs, clothes lines, permissible or not;
  • the type of floor covering allowed in private portions; [3]
  • procedures for renting halls for holding meetings or general assemblies;
  • rules and operating hours of the pool;
  • usage of the parking [4] and storage lockers;
  • renting of a unit, and its restrictions; [5]
  • carrying out self employment, permissible or not;
  • payment of common expenses, methods of payment; [6]
  • procedures for collection; [7]
  • noise. [8]

Thus, as we see, modifications to a constituting act of a co-ownership or by-laws of the immovable are generally to ensure a healthy quality of life within the co-ownership and to regulate the usages which are permitted or prohibited.

1) Penal Clauses and sanctions

Under the terms of Article 1622 C.c.Q. :

« A penal clause is one by which the parties assess the anticipated damages by stipulating that the debtor will suffer a penalty if he fails to perform his obligation.

A creditor has the right to avail himself of a penal clause instead of enforcing, in cases which admit of it, the specific performance of the obligation; but in no case may he exact both the performance and the penalty, unless the penalty has been stipulated for mere delay in the performance of the obligation. »

However, some declarations of co-ownership are silent regarding sanctions (fines or others) for not respecting the declaration. Yet, such sanctions are more than useful to prevent recourse to expensive procedures, such as an injunction. Thus, in the absence of penal clauses, the reader will understand easily why a syndicate would hesitate or would even tolerate a situation and would not respect its responsibility to enforce the declaration of co-ownership (as it is not a choice but an obligation of the syndicate to enforce adherence to the declaration).

To facilitate the syndicate in its obligation to monitor the respect of the declaration of co-ownership, it is therefore wise and useful to anticipate additional stipulations and coercive palliative measures before getting to this point.[9]

Meanwhile, a sequence of actions is required.

For example, when a co-owner does not adhere to the provisions of the declaration of co-ownership, a protocol such as the following could be undertaken:

– Initial personal intervention, verbal warning to the offending co-owner in an attempt to put an end to the disturbance, infringement or prejudice in the immovable;

– Written advice officially detailing the offence where the co-owner refuses to conform ;

– Issue a fine subsequent to the failure of the co-owner to act on the written notice; [10]

– Call a meeting of the board of directors to obtain the necessary resolutions and mandates to proceed legally against the delinquent co-owner ;

– Board of Directors send a mandate to a legal adviser to issue a formal mise en demeure and, if required, to begin legal proceedings against the delinquent co-owner.

Penal clauses, outlining these sanctions, should be anticipated in order to discourage violations of the provisions in the declaration of co-ownership.

In the absence of sanctions in your declaration of co-ownership or if you want to add provisions for certain infringements in some instances, consult your legal counsel in order to prepare and create the necessary resolutions in the Constituting Act and/or By-laws of the Immovable, and the publication of these as required.

However, be certain that you are not abusive in the penal clauses which you impose:

« A creditor who avails himself of a penal clause is entitled to the amount of the stipulated penalty without having to prove the injury he has suffered.

However, the amount of the stipulated penalty may be reduced if the creditor has benefited from partial performance of the obligation or if the clause is abusive. »

– Art. 1623 C.c.Q.

« 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. »

– Art. 1056 C.c.Q.

« Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes. »

– Art. 1103 C.c.Q.

A penal clause should therefore be in proportion to the damage caused and should be revised promptly to adapt it, for example, for inflation.

Also be certain that you are not too permissive and that you respect the required majorities when making decision or amending to the declaration of co-ownership:

« Decisions respecting the following matters require a majority vote of the co-owners representing 3/4 of the voting rights of all the co-owners:

1° acts of acquisition or alienation of immovables by the syndicate;

2° work for the alteration, enlargement or improvement of the common portions, and the apportionment of its cost;

3° the construction of buildings for the creation of new fractions;

4° the amendment of the constituting act of co-ownership or of the description of the fractions. »

– Art. 1097 C.c.Q.

« Decisions on the following matters require a majority vote of 3/4 of the co-owners representing 90% of the voting rights of all the co-owners:

1° to change the destination of the immovable;

2° to authorize the alienation of common portions the retention of which is necessary to the destination of the immovable;

3° to amend the declaration of co-ownership in order to permit the holding of a fraction by several persons having a right of periodical and successive enjoyment. »

– Art. 1098 C.c.Q.

« Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes. »

– Art. 1103 C.c.Q.

« Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom. »

– Art. 976 C.c.Q.

« Each co-owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he observes the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable. »

– Art. 1063 C.c.Q.

« Where the refusal of a 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, either of them may apply to the court for an injunction ordering the co-owner to comply with the declaration. »

– Art. 1080 C.c.Q

2) Interest charges

Increasing the interest rate set out in the declaration of co-ownership, on payments of overdue common expenses, often has a dissuasive effect on the undisciplined who do not pay their common expenses on time. Neglecting to pay the common expenses will constitute a « loan » which will prove costly to the offenders. Get advice to determine the best rate applicable in relation to the debts of your syndicate.

3) Adoption of new clauses and stipulations

It may be very complex to make the distinction between what should be provided for in the Constituting Act and what should be found in the By-laws of the Immovable. It is even more for declarations of co-ownership published prior to 1994 have an advantage made under the rule of the Civil Code of Lower-Canada. This is why it is recommended to consult a professional when in doubt.[11]

4) How to govern

Generally, the Constituting Act of the declaration of co-ownership will establish the principle which will govern living in a co-ownership and which has a more permanent nature.

The By-laws of the Immovable, which deal more with provisions of a practical and more common nature, will specify and define the everyday life of the co-owners. It will make provisions for the enjoyment, usage and maintenance of the common and private portions, for the functioning and the administration of the co-ownership and will set out the procedures of setting and collecting the contributions for the common expenses.

As outlined in Article 1060 C.c.Q. (mentioned above), a By-law of the Immovable is modified following a vote at the general meeting of co-owners and requires a simple majority of the voting rights (Art. 1096 C.c.Q.). It must also be recorded in writing and deposited in the register of the syndicate.

It is also very important to advise the tenants and occupants without delay of the implementation of any new regulation. A copy of the regulation and modifications made must be distributed to them in order for them to be enforceable (Article 1057.C.c.Q.).

In addition, under the terms of Articles 1059 and 1060 C.c.Q. (mentioned above), all modifications to the Constituting Act must be approved by the general meeting of co-owners and require a majority of co-owners representing ¾ of the votes of all the co-owners (Art. 1097 C.c.Q.), and must be notarized and published at the Land Registry Office.

In fact, one may read in Articles 1059 and 1060 C.c.Q.:

« A declaration of co-ownership, and any amendments made to the constituting act of co-ownership or the description of the fractions, shall be in the form of a notarial act en minute.

The declaration shall be signed by all the owners of the immovable, by the emphyteutic lessee or the superficiary, if any, and by all the creditors holding hypothecs on the immovable; amendments are signed by the syndicate. »

« The declaration and any amendments made to the constituting act of co-ownership or the description of the fractions are deposited in the registry office. The declaration is entered in the land register under the registration numbers of the common portions and the private portions. The amendments are entered under the registration number of the common portions only, unless they directly affect a private portion. However, it is sufficient for amendments made to the by-laws of the immovable to be filed with the syndicate.

Where applicable, the emphyteutic lessee or superficiary shall give notice of the registration to the owner of an immovable under emphyteusis or on which superficies has been established.

[Underline added]

Furthermore, under the terms of Article 1097 C.c.Q. it says:

« Decisions respecting the following matters require a majority vote of the co-owners representing 3/4 of the voting rights of all the co-owners:

1° acts of acquisition or alienation of immovables by the syndicate;

2° work for the alteration, enlargement or improvement of the common portions, and the apportionment of its cost;

3° the construction of buildings for the creation of new fractions;

the amendment of the constituting act of co-ownership or of the description of the fractions. »

[Bold added]

* * * *

Even though it is important to protect one’s self or to modify clauses in your declaration of co-ownership, one must be prepared to enforce its application in a constant and uniform manner. Therein lays the art of management, of administration and responsibility which will be the object of numerous future texts on this subject.

Good luck with the modifications to your declaration of co-ownership!

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] For both common and private portions, outline the criteria which would determine when an animal would be considered a « nuisance ». See our text on « Condos (Co-ownership) and Animals ».

[2] To ensure uniformity regarding the appearance of the exterior of the building.

[3] If the re-covering of hard floors is permitted, it may be stipulated, however, that the materials used would be of a certain kind and would meet a certain level (specified) of sound proofing (e.g. Minimum 55 FIIC or +). Using the expertise of an acoustician could also be required during the work, as well as his certification (Art. 1096 C.c.Q.). See our text: «Floor Coverings (carpet, hardwood floor, etc.) in Condo – Law, Rights and Obligations ».

[4] E.g.: the reservation of certain parking spots to be used exclusively for visitors, a limit of parking spaces per dwelling unit.

[5] Provision may be made in the Constituting Act of Co-ownership to limit the number of private portions which may be used as rentals (Art. 1097 line 4 C.c.Q.). Short term leases may also be prohibited.

[6] It may be stipulated that payments are to be made monthly, each trimester, or through a series of twelve (12) post-dated cheques dated the 1st of each month, for example.

[7] Determine administration costs, with interest, for late payments.

[8] Maintain the same acoustic quality when modifying one’s private portion, and neighbourly relations.

[9] It is also to anticipate certain possible infringements.

[10] The Declaration of Co-ownership should contain a clause to this effect, describing the possible fines according to the gravity and frequency of the offence. If this does not exist, a modification to the declaration of co-ownership would be necessary.

[11] We invite you to read our text « Declaration of co-ownership prior to 1994 – Is It Still Valid or Obsolete? »

Mise à jour le Vendredi, 15 Août 2014 16:16

Was this article usefull?
0
0