| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Mercredi, 16 Février 2011 15:35 |
THE DESTINATION OF THE IMMOVABLE OF A CO-OWNERSHIP
Contact the author : s.fiset@fisetlegal.com
PART I
The destination of the immovable held in divided co-ownership is defined, in part, in the declaration of co-ownership. It is one of the most important of the elements which will influence the rights and obligations of the co-owners of this immovable. It will actually affect the lives of the co-owners. It will also have a major impact on the collective group of co-owners when it comes to taking decisions.
Before purchasing a condo, a prospective buyer would best be advised to consult the declaration of co-ownership in order to verify if the destination of the immovable which is of interest to him will suitably reflect the « profile » that he is seeking.
DESTINATION = PURPOSE
Under the terms of article 1053 of the Civil Code of Québec :
“ 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 added]
The various purposes for which an immovable may be designated are :
– residential;
– commercial;
– vacation resort;
– seniors with appropriate services;
– mixed purpose (residential and commercial, for example).
This categorization may seem a little discriminatory. It is however stipulated in article 1063 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. »
[Bold and underlined added]
The declaration of co-ownership will determine the conditions of usage and the limits of the individual rights of the co-owners by defining them. Article 1056 C.c.Q. mentions :
« 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 added]
Article 13 of the Charter of Human Rights and Freedoms forbids all discriminatory stipulations :
“ No one may in a juridical act stipulate a clause involving discrimination. »
Therefore one must demonstrate caution when drawing up the definition of the destination of the immovable because it must not be discriminatory; to the contrary it must be precise in its explanation in order to avoid, as much as possible, the risks of conflicts of interpretation.
Apart from the fine print of the declaration of co-ownership, several other factors contribute to defining the “destination of the immovable”, its own purpose, of which these three (3) elements are essential:
- the objective element (the location of the immovable, the distribution of the dwellings, the level of comfort and luxury, the harmony of the housing development);
- the subjective element [the reasons as to why the purchasers bought their fractions (history of the building, social status of its occupants, etc.)];
- the collective element (safeguarding the general interest of the co-owners).
Other elements, such as the physical characteristics of the immovable, may also define the destination of the immovable.
When reading the declaration of co-ownership, in the chapter on « The destination of the immovable », we can find a summary description. Meanwhile, the reading should not stop there. It would be the same as viewing an unfinished painting. The destination will be more fully described throughout the declaration of co-ownership. All parts of the immovable are included when determining its destination. A section will therefore be reserved for « Private portions » outlining the purposes for which these are destined[1] in the event that they do not all have the same destination. It could also be necessary to sometimes provide details in regards to the « Common portions »[2], as these may have a very specific allocation.
No building by-law, or clause in the declaration of co-ownership, may be imposed on the co-owners unless it is justified by the destination of the immovable. The building by-laws are intimately linked to the destination of the immovable and must also be modified according to article 1056 C.c.Q.
At some point, if it is necessary to modify the destination of the immovable, this will be possible however it must respect articles 1098 and 1102 of the Civil Code of Québec with regards to the majority required [3]:
« 1098 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. »
« 1102. 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, a change of destination of his private portion or a change in the use he may make of it is without effect. »
The destination of an immovable as defined both within a declaration of co-ownership, and outside of this, can be compared to an instruction manual which we receive when we buy a tool. The instruction manual (the declaration of co-ownership) describes how the tool (immovable) functions, instructs as to how it should be used and warns of the prohibited uses.
The interpretation of the destination of an immovable, in a private or common portion, has resulted in the spilling of much ink in jurisprudence. Rulings have been issued when actions taken have been in contravention to the necessary majorities (article 1098 C.c.Q.) or when rules were adopted which were not justified by the destination.
We will deal with a few of these in the Part 2 of this text, namely: the destination of the immovable and the presence of animals[4], activities of co-owners in the private portions, renting of fractions, floor coverings in private portions and the private furnishings.
Keep in mind that it is said : the destination of the immovable is fundamental in the law of divided co-ownership. It is the intrinsic foundation of the purpose and rights of usage of the immovable.
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] Private portions which are defined as exclusively for “residential occupancy” will make it impossible to have a private practice.
[2] (Common room, sheds, garages, swimming pool, green spaces and the foyer/entrance, etc.)
[3] See our text « Voting at general meetings of co-owners – majorities required »
[4] See also our text « Condos (Co-ownership) and Animals »
Mise à jour le Samedi, 16 Août 2014 16:57