| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Mardi, 07 Septembre 2010 11:43 |
FLOOR COVERINGS IN CO-OWNERSHIP
Contacter l’auteur : s.fiset@fisetlegal.com
The Declaration of Co-ownership generally allows the co-owner of a fraction, under certain conditions, to modify and make improvements to his private portion.
The Declaration of Co-ownership may, however, restrict the modifications and improvements which could affect the destination of the immovable and its characteristics.
Therefore, included in the elements of the destination of the immovable and its characteristics are the quality of the construction and the intrinsic materials to be used in order to ensure free use and enjoyment of the property by each co-owner.
According to the terms of article 1056 of the Civil code of Quebec (C.c.Q.), it is stated:
« 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. »
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We also read in the terms of article 1063 C.c.Q. that:
« 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. »
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Failing to respect the Declaration of Co-ownership results in consequences for the co-owner: legal proceedings, condemnation, compensation, damages.
Article 1080 C.c.Q. makes provision for:
« 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.
If the co-owner violates the injunction or refuses to obey it, the court may, in addition to the other penalties it may impose, order the sale of the co-owner’s fraction, in accordance with the provisions of the Code of Civil Procedure (chapter C-25) regarding the sale of the property of others. »
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Even in the absence of a formal complaint by a co-owner, the sole act of not respecting the Declaration of Co-ownership is, in general, sufficient reason for the syndicate to force the co-owner through legal means to conform and to return the unit to its original state. If the refusal causes serious and irreparable prejudice to the syndicate and an injunction is not respected, an order for the sale of the co-owner’s fraction may be issued by the Court.
It is stated in article 1039 C.c.Q.:
« Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.
The legal person is called a syndicate. »
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The syndicate, in the event of negligence, refusal or neglect to take action, could be sued for damages in the case where a co-owner carries out illegal work in his private portion, such as replacing the floor covering and resulting in the reduction or alteration of the quality of soundproofing (impact noise, surrounding noise) causing a loss of enjoyment by another co-owner.
It is self evident that nothing equals a carpet with a good under padding as far as soundproofing between two (2) units. Therefore, if (1) it is stated in the terms of your Declaration of Co-ownership that only carpets are permitted, or (2) if the new floor covering results in a damage to a co-owners or (3) any other loss of enjoyment exceeding the « limit of tolerance they owe each other, according to the nature or location of their land or local custom »[1], you must comply with this.
Having said this, certain Declarations of Co-ownership (either in the original version or through an amendment published in the Land Registry Office of Québec) will allow the covering of floors with hard material while imposing technical rules, controls and assessments/evaluations, at the expense of the co-owner, in order to meet the criteria
If it is possible to modify or to establish new stipulations to the bylaws and the constituting act of your declaration of the co-ownership, care must be taken not to affect the common portions or the destination of the immovable.
Article 1097 C.c.Q. makes provision for:
« 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 immovable 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.
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In addition, should the proposed changes affect the destination of the immovable (the acoustic quality of the material of the common portions, for example):
Article 1098 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° (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. »
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IMPORTANT: For Declarations of Co-ownership prior to 1994, unanimous agreement is sometimes required to modify the destination of the immovable.[2]
Jurisprudence is filled with cases related to problems associated with replacement of floor coverings carried out in private portions.
Therefore be extremely cautious before authorizing a new floor in a unit.
The Declaration of Co-ownership outlines in general the rights of co-owners with regards to, among other things, the interior modifications which they may or may not make because these changes would have a direct and important impact on the quality of life of the occupants of the building. As a co-owner, you are obliged to conform.
On their part, the administrators should report the non-conformity in writing to the co-owner at fault in a diplomatic manner and allow a reasonable delay to correct the situation. If no action is taken, there is no other choice: procedures should be initiated by the syndicate in the interest of the community of co-owners. It is their obligation.
If the co-owner who is at fault does not remedy the situation, and the syndicate does not take any action against him, the co-owner who suffers prejudice may initiate an injunction including damages against them.
Transgressing the Declaration of Co-ownership is costly to the offending co-owners and to the syndicate who does not fulfill its obligations to ensure the enjoyment of the co-owners whose rights have been exploited. It is essential that justice and equality prevail within a co-ownership. It is therefore fundamental for a Syndicate of Co-ownership to demonstrate that any actions disregarding the Declaration of Co-ownership will not be tolerated.
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] Article 976 C.c.Q.
[2] Article 53 LRNCCQ. :
« A divided co-ownership building, established before the new law came into effect, is ruled by this law.
The stipulation of the Declaration of Co-ownership which outlines the rule of unanimous agreement for decisions pertaining to changes to the destination of the immovable is upheld, despite article 1101 of the new code.
Also upheld, despite article 1064 of the new code, is the stipulation in the Declaration of Co-ownership which sets the contribution of resulting expenses of the co-ownership and the operation of the building according to the dimensions of the private portions of each fraction. »
Mise à jour le Samedi, 16 Août 2014 17:26