The Minutes of a General Meeting / Board of Directors – Condo Law
|Écrit par Me Sébastien Fiset , LL.B., B.A.A.|
|Mercredi, 16 Février 2011 15:58|
THE MINUTES OF A SYNDICATE OF CO-OWNERSHIP
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A syndicate of co-ownership is composed of (2) decisional making bodies: the board of directors and the assembly of co-owners.
These two (2) decision making bodies must bring together their members, at least once a year, for the purpose of collectively taking the necessary resolutions in order to ensure the preservation of the interests of the community of co-owners and to safeguard their holdings.
The proceedings of the meetings of the board of directors, as well as the general and special meetings of the co-owners, must be reported in writing in the minutes. In effect, under the terms of article 1070 of the Civil Code of Québec, it is the obligation of the syndicate of co-ownership to maintain these minutes in their register, for consultation at a later date :
« The syndicate keeps a register at the disposal of the co-owners containing the name and address of each co-owner and each lessee, the minutes of the meetings of the co-owners and of the board of directors and the financial statements. (…) »
Generally, it is the responsibility of the secretary of each decision making body to prepare the minutes and to file them in the register of co-ownership. However, it could also be agreed that another person be responsible. Article 343 of the Civil Code of Québec states in fact that :
« The board of directors may designate a person to keep the books and registers of the legal person.
The designated person may issue copies of the documents deposited with him; until proof to the contrary, the copies are proof of their contents without any requirement to prove the signature affixed to them or the authority of the author. »
The minutes will be signed by the secretary of the appropriate decision making body. It is not obligatory, but it is recommended, to have the minutes also signed by the other directors or officers (the President, normally), for purposes of verification and accuracy.
CONTENTS OF THE MINUTES
The standard format for minutes would include the following elements :
– the name of the syndicate of co-ownership;
– the date, time and location where the meeting is held.
The minutes will be written in keeping with the Agenda.
The minutes should be concise, written in clear language and be as accurate as possible.
Various comments raised or interruptions made during the meeting should not be recorded in the minutes, unless it is expressly requested by the board of directors or the assembly that these items be recorded.
Article 337 of the Civil Code of Québec states an exception to this rule for the board of directors:
« Every director is, with the other directors, liable for the decisions taken by the board of directors unless he requested that his dissent be recorded in the minutes of proceedings or the equivalent.
However, a director who was absent from a meeting of the board is presumed not to have approved the decisions taken at that meeting. »
Meeting of the board of directors :
The major discussions during a meeting of the board of directors which have a direct impact on the body of co-owners must be reported in the minutes. For example, the decisions reported in the minutes may indicate the actions and decisions adopted along with, if applicable, the accounts which will be affected (reserve fund, cash flow funds, operating expenses, etc.).
However the board is not obliged to report all general decisions, such as those related to the daily management of the syndicate or purely administrative.
Under the terms of article 322 C.c.Q., the directors who act with « honesty and loyalty » in the interest of the body of co-owners will show transparency and also « prudence and diligence » by entering the minutes as promptly as possible in the register of co-ownership.
Posting the minutes of a meeting of the board of directors on a notice board is a good way to show transparency. It allows co-owners to be informed during the entire year.
The minutes of the meeting may be read at the next meeting of the board of directors unless the members have waived this process. Reading the minutes will allow the directors to suggest clarifications before proposing to adopt the minutes.
The names of the directors, both present and absent, should also be documented.
Meeting of the co-owners :
Minutes of a meeting of co-owners will record the decisions made as outlined in articles 1096, 1097, 1098 and 1102 of the Civil Code of Québec:
« 1096. Decisions of the syndicate, including a decision to correct a clerical error in the declaration of co-ownership, are taken by a majority of the co-owners present or represented at the meeting. »
« 1097. 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. »
« 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»
In addition to the initial information mentioned above, the minutes of a meeting of co-owners should also indicate:
– the number of co-owners in attendance
– the number of votes present or represented;
– each resolution taken and recorded as accurately as possible ;
– the results in number of co-owners and terms of voting rights of each fraction (including the number of votes against or abstained);
– The reasons for the adoption or the rejection, where applicable;
– The name of the persons who submitted proposals.
DELAY IN THE TRANSMITTAL OF THE MINUTES
Unless there is a provision to the contrary which is stipulated in your declaration of co-ownership, there is no exact delay to file the minutes to the register of co-ownership. It is not required to product on site the minutes in a final form but it must be possible to send without delay the « extracts of the resolutions » or a « draft of the minutes », until the « official» version is completed. Furthermore, one must take into account article 1103 of the Civil Code of Québec which states:
«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.
The action is forfeited unless instituted within 60 days after the meeting.
If the action is futile or vexatious, the court may condemn the plaintiff to pay damages. »
It is common practice to send a copy of the minutes of a meeting to each co-owner; even though this is what we strongly recommend, it is not obligatory.
In actual fact, because resolutions which have been adopted generally take effect immediately following the meeting of co-owners, it is even more important that all the co-owners (especially those who were absent !) are made aware of these without delay.
The minutes are essential documents in the decision making process. They serve as the reference source when it comes to the direction determined by the board of directors and the assembly which should be followed and they allow each and every member of the community of co-owners to be informed.
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.
If a motion to the Court declared null and void an assembly of co-owners, the court may order that the minutes be examined (1103 C.c.Q.).
 The time at which the meeting started and ended, and mention if it was suspended or adjourned.
 Essential during subsequent accounting audits where disbursements will be more easily reconcilable if it is possible to justify them by a decision of the board of directors (art. 336 C.c.Q.)
 Attach the attendance sheet.
 Articles 1096 and 1098 C.c.Q. – calculating the majorities.
 In the case where a majority was required, this should be indicated.
 The names of the seconders for proposals put forward do not necessarily have to be recorded.
Mise à jour le Samedi, 16 Août 2014 16:54