The Official and Common Language of Quebec Act, French [Bill 96] and its impact on divided co-ownership

1) Bill 96

On May 24, 2022, the National Assembly adopted Bill 96, entitled the Act respecting the official and common language of Québec, French, hereinafter the "Act", which received Royal Assent on June 1"' 2022. Some of the amendments came into force with Royal Assent on June 1, 2022, while we are awaiting dates for certain other provisions.

The National Assembly has invoked the notwithstanding clause to justify certain clauses of the Act. To the extent of the present article, sections 124 to 126 of the Act apply notwithstanding sections 1 to 38 of the Quebec Charter of Human Rights and Freedoms and sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms.

The following citations are our interpretations of the application of the Act and have no official sanction.

2) Changes introduced by the Act:

Addition of section 55.1 to the Charter of the French Language

Section 45 of the Act adds section 55.1 to the Charter of the French Language. This section concerns the drafting of certain contracts:

55.1. The following documents must be drawn up in French:

(1) a contract for the sale or exchange of part or all of a chiefly residential immovable comprising fewer than five dwellings or of a fraction of a chiefly residential immovable that is the subject of an agreement or declaration referred to in articles 1009 to 1109 of the Civil Code;

(2) a promise to enter into the contract referred to in sub-paragraph 1; 

(3) the preliminary contract provided for in article 1785 of that Code; and 

(4) the memorandum provided for in article 1787 of that Code.

The contracts and other documents referred to in the first paragraph may be drawn up exclusively in a language other than French at the express wish of the parties.

This section does not apply to the contracts and other documents referred to in section 55.

Therefore, since June 2022, unless otherwise expressly agreed1 by the parties, the contract must be drawn up exclusively in French:

1. A contract for the sale or exchange of part or all of a the whole of a primarily residential immovable with fewer than five dwellings or a fraction of a primarily residential immovable that is the subject of an indivision agreement or a declaration of co-ownership;
2. A promise to enter into such a contract;
3. The preliminary contract and the information memorandum.

The preliminary contract is the contract that precedes the sale of a residential building, whether built or to be built, by the builder of the building or by a developer to an individual who is acquiring the building for his or her own occupation2. If the sale involves a fraction of a divided co-ownership or an undivided share of a residential immovable or a residence forming part of a complex of residences with common facilities, the seller must provide the buyer with an information notice when the preliminary contract is signed

The information memorandum completes the preliminary contract. It contains in particular:

1. Names of architects, engineers, builders and developers;

• A plan of the entire real estate project and, if applicable, the general development plan for the project, as well as a summary of the specifications;

• The projected budget established on an annual basis starting from the date of registration of the declaration of co-ownership;

• Common facilities;

• Building management information;

• Any emphyteutic rights or superficies to which the property is subject;

• If the immovable is covered by a guarantee plan, the terms and conditions allowing the promisor-purchaser to take cognizance of it;

• A copy or summary of the declaration of co-ownership or the undivided co-ownership agreement and the by-laws of the immovable, even if these documents are in draft form;

• If the sale is for divided co-ownership, a statement of the leases granted by the developer or builder on the private or common portions of the immovable, indicating the maximum number of fractions intended by them for rental purposes.

Amendment to article 1060 of the Civil Code of Québec

Section 124 of the Act amends Article 1060 of the Civil Code of Québec, hereinafter "C.C.Q.", as follows:

1060. he 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 and 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.

The emphyteuta or superficiary, if any, shall give notice of the registration to the owner of the immovable under emphyteusis or on which superficies has been established.

From now on, all amendments to a declaration of co-ownership (constituting act, by-laws of the immovable and description of fractions) must be drafted exclusively in French. In this case, the legislator has not provided for an exception when the express wish of the parties is to draft the amendments in a language other than French, so we deduce that only French is permitted.

In addition, amendments to the by-laws of the immovable must also be set out in minutes or in a written resolution of the co-owners, in French only.

The addition of article 1070.1.1. C.C.Q.

Section 124.1 of the Act adds article

1070.1.1 CCCQ, which reads as follows: The register and documents kept at the disposal of the co-owners, as well as any document drawn up by the syndicate for a co-owner, must be drawn up in French.

The Office québécois de la langue française sees to the application of the first paragraph as if it were a provision of the Charter of the French language (chapter C-11).

The condominium register contains in particular:

1. The name and postal address of each co-owner;
2. Minutes of meetings of co-owners and of the Board of Directors;
3. Written resolutions;
4. Building by-laws and amendments;
5. Financial statements.
6. Declaration of co-ownership;
7. Copies of contracts to which the syndicate is a party;
8. Cadastral plans;
9. Plans and specifications of the building and certificates of location of the building, if available;
10. Maintenance booklet.
11. Pension fund study.
12. A description of the private areas sufficiently precise to identify the improvements made by the co-owners.
13. Modifications to building regulations.
14. All other documents and information relating to the building and the syndicate or provided for by government regulation.

All the documents listed below must be in French in the Register of Co-ownership. However, in the absence of the word "exclusively" and since the legislator does not speak in vain, we are of the opinion that a copy prepared in English may also be attached to the Register of Co-ownership without having any official value.

By the reference to "any other document drawn up by the syndicate for a co-owner", we understand that the notice of co-owner's meeting and the attached documents must also be in French.

Amendments to articles 2984 and 3006 CCQ

Articles 125 and 126 of the Act amend articles 2984 and 3006 CCQ concerning applications for registration in the land register and the register of personal and movable real rights, as follows:

2984 Applications for registration are signed, certified and presented in the manner prescribed by law, this Title or the regulations. Applications for registration are drawn up exclusively in French.

3006 Where the law prescribes that the application shall, upon presentation, be accompanied by other documents, any such documents drawn up in a language other than French shall themselves be accompanied by a translation authenticated in Québec.

Applications for entry in the various registers must therefore be drafted exclusively in French. If the originals of the documents accompanying the application for registration are not in French, a certified copy in French must be attached to the application.

These sections will come into force on the date that is three months after the Act receives Royal Assent, so we expect them to come into force on September 1 , 2022.

However, under section 196 of the Act, notwithstanding sections 1060, 2984 and 3006 C.C.Q., amended respectively by sections 124 to 126 of the Act, a deed may be presented in English at the registry office if it amends or corrects another deed presented in English before June 1, 2022.

We believe this applies to declarations of co-ownership. Consequently, according to our interpretation, amendments to a declaration of co-ownership published in English before June 1, 2022 may also be drafted, prepared and registered in English, subject to the amendments to sections 205 to 208 of the Charter of the French Language, which we discuss below. The same analogy applies to the documents accompanying the request for registration in the land register.

Amendments to sections 205 to 208 of the Charter of the French Language

Section 114 of the Act, which came into force on June 1, 2022, amends "Chapter I Civil Sanctions" of the Charter of the French Language as follows:

204.24. Sections 204.18, 204.19, 204.22 and 204.23 do not affect the acquired rights of workers and their associations or groups referred to in Chapter VI of Title I.

204.25. For the application of article 1436 of the French Civil Code, a clause drafted in a language other than French is deemed incomprehensible, unless the contract has been drafted in this other language at the member's express application.

In the interpretation of contracts, when the contract is a contract of adhesion5 (i.e., a person adheres to the contract without having the possibility of negotiating its terms and conditions), unless the contract is drafted in a language other than French at the express request of the adherent, the adherent (the person who submits to it) will be presumed not to have taken cognizance of any external clause drafted in a language other than French. This presumption can be rebutted by evidence to the contrary.

Furthermore, any clause drafted in a language other than French is deemed incomprehensible. This second presumption is irrebuttable, and cannot be contradicted by evidence to the contrary.

The Declaration of Co-ownership and its amendments constitute a contract unilaterally imposed by the promoter on the co-owner when he purchases a unit. The co-owner is in effect party to a contract that he has not negotiated, that he has not drafted and that he cannot refuse. The declaration of co-ownership is a contract of adhesion between the co-owners and the syndicate of co-ownership6 and is therefore subject to the interpretation of articles 1435 and 1436 C.c.Q.

In order for the external clause to be null, article 1435 C.c.Q. stipulates the following conditions:

1. Consumer or adhesion contract;
2. The clause was not expressly brought to the attention of the consumer or adherent at the time the contract was formed;
3. The member or consumer was not otherwise aware of it.

The new interpretation of article 1435 C.C.Q. provides, in our view, that the adherent is presumed not to have been otherwise aware of the external clause. Thus, when the contract is a contract of adhesion or a consumer contract, if the external clause was not expressly brought to the attention of the consumer or adherent at the time the contract was formed, even if the other party proves that the latter was otherwise aware of it, if the external clause was not drafted in English at his express request, it will be null and void.

As for article 1436 C.c.Q., according to our interpretation of the application of the Act, this means that for a French-speaking co-owner whose Declaration of Co-ownership was drafted before June 1, 2022 in English, and then after that date corrected or amended in English by an act of amendment, the Declaration of Co-ownership is deemed incomprehensible. Thus, an amendment or correction to a Declaration of Co-ownership drafted, registered and published in English after June 1, 2022 will be deemed incomprehensible, even though the Act provides that it is possible to do so if the Declaration of Co-ownership was drafted, registered and published in English before June 1, 2022.

In order for a clause to be null, article 1436 C.c.Q. sets out the following conditions:

1. Consumer or adhesion contract;
2. The clause is illegible or incomprehensible to a reasonable person;
3. A prejudice suffered by the member.

As previously explained, the Declaration of Co-ownership is a contract of adhesion, and amendments or corrections in English, although permitted if the Declaration of Co-ownership was published in English before June 1, 2022, are incomprehensible. Thus, in the event of a conflict in the interpretation of the Declaration of Co-ownership, the co-owner (adherent) need only prove that he has suffered prejudice in order to invoke the nullity of the clauses of the Declaration of Co-ownership.

Given the importance of the declaration of co-ownership, we can easily see the practical constraints it entails in matters of divided co-ownership. We'll be keeping a close eye on the courts' interpretation of articles 1435 and 1436 CCQ.

3) Conclusions

In view of the above, declarations of co-ownership will henceforth have to be drafted in French. In addition, preliminary contracts and information memoranda will also have to be drafted exclusively in French, unless the parties agree otherwise.

When a real estate developer sells a unit, he or she must attach an information memorandum to the preliminary contract. As previously explained, the declaration of co-ownership must be attached to the information memorandum, making the declaration of co-ownership an external clause to the preliminary contract. The declaration of co-ownership must therefore be attached in French. If it is to be attached in English, it will have to be done with the consent and at the express request of all co-owners who will be purchasing from the developer. Considering the proportion of French-speakers in Quebec, this is an unrealistic expectation for a real estate developer.

Furthermore, if the Declaration of Co-ownership is drafted in a language other than French, it will be deemed incomprehensible to the subscriber, i.e. the co-owner who has not given his express consent to the Declaration of Co-ownership being drafted in a language other than French.

Considering the interpretations of articles 1435 and 1436 C.C.Q., and given article 1793 C.C.Q., which provides that when the sale of a residential immovable is not preceded by a preliminary contract or an information notice, the buyer may, if he suffers serious prejudice as a result, demand the nullity of the sale and damages, we will be closely monitoring the courts' interpretation.

Although the Act provides for an exception to the effect that the contract of adhesion must be drafted in French when the subscriber gives his express consent, we have raised an enormous application challenge in matters of divided co-ownership. A real estate developer who wishes to draft his declaration of co-ownership in English must ensure that he has obtained the express consent of all future co-owners who will be buying off-plan. From a practical point of view, this represents a major challenge, if not an impossible one.

As for existing declarations of co-ownership, the deeds published at the registry office will also have to be exclusively in French, unless the deed amends or corrects another deed exclusively in a language other than French and which was submitted to the registry office before June 1, 2022.

This being said, we are of the opinion that although resolutions amending the declaration of co-ownership to be filed with the Register of Co-ownership must henceforth be exclusively in French, it is not forbidden to also file an English version, which has no official value.

Finally, notice of a co-owners' meeting must be in French, but may be bilingual. The Act does not prohibit co-owners' meetings from being bilingual.