| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Lundi, 31 Mai 2010 13:14 |
THE REGISTER OF THE SYNDICATE OF CO-OWNERSHIP
Contact the author : s.fiset@fisetlegal.com
Since 1994, one of the main obligations of the syndicate of co-ownership, according to the terms of the Civil Code of Québec, is to maintain a register and to ensure accessibility to the co-owners.
Article 342 of the Civil Code of Québec reads as follows:
“The board of directors keeps the list of members and the books and registers necessary for the proper functioning of the legal person.
The documents referred to in the first paragraph are the property of the legal person and the members have access to them. ”
[Bold added]
The Board of Directors, at their discretion, decide who will maintain the Register. This Register may be maintained by the Manager of the property (i.e. the Management company of the co-ownership), for example. According to article 343 of the Civil Code of Québec, it is stipulated:
“The board of directors may designate a person to keep the books and registers of the legal person. (…) ”
The Register of co-ownership will be kept at the office of the syndicate, in the condominium of a board member or at the business place of the person responsible for the Register (manager, accountant, third party).
A quick glance at the Register of co-ownership can reveal the quality of the property management. An orderly and meticulous filing system is therefore necessary and will also ensure easy access.
CONTENTS OF THE REGISTER OF CO-OWNERSHIP
Article 1070 of the Civil Code of Québec states the following:
“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.
It also keeps at their disposal the declaration of co-ownership, the copies of the contracts to which it is a party, a copy of the cadastral plan, the plans and specifications of the immovable built and all other documents relating to the immovable and the syndicate. ”
[Bold added]
Let us look at the details which should be included in your Register:
“The syndicate keeps a register at the disposal of the co-owners …”
The person mandated by the syndicate to maintain and keep the Register will receive all inquiries.
“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.”
-Article 343 of the Civil Code of Québec.
[Bold and underline added]
The co-owners may make a request to consult the Register. This would have to be done while respecting the By-law which protects personal information.
Furthermore, consulting the Register must be regulated, and defined in a procedure of the by-laws of the immovable, in order to manage the requests, by establishing administration fees, a consultation fee, rules for obtaining documents and charges for delivering these copies.
“(…) a register at the disposal of the co-owners containing the name and address of each co-owner and each lessee …”
Attention should be paid to the spelling of names when transcribing the list, to the number of co-owners of the unit and also to the accurateness of the percentage of joint ownership of each co-owner of a unit (relative value/share of each).
Also included could be parking space numbers, the cadastral numbers and the co-owner’s share. Some declarations of co-ownership may even stipulate that information on the mortgage holder is required.
“(…) the minutes of the meetings of the co-owners and of the board of directors …”
This portion includes minutes of every meeting, including all documents distributed to co-owners advising a meeting, and attendance records. The minutes in electronic format, or transcribed in a word processing format (Word, Excel, etc.), should be available quickly (copies of notes by the meeting’s secretary should be available immediately at the end of the meeting) so that co-owners can be informed of the decisions which were taken and to be able to respect the sixty (60) day delay for a co-owner to legally appeal a decision.[1].
The minutes of the Board of Directors should also be kept in the Register of co-ownership.
“(…) and the financial statements …”
The financial statements and information relating to the reserve fund (contingency fund) should be dutifully filed in the Register of co-ownership.
According to article 1087 of the Civil Code of Québec, the financial statements are:
“ (…) in addition to the balance sheet, the income statement for the preceding financial period, the statement of debts and claims, the budget forecast, (…) ”, which are the same documents handed out to co-owners at the annual meeting.
Exception: the “accounting books”:
Just as a shareholder of a company does not have access to such information of the company of which he is a shareholder, the accounting books should not be considered as « public » documents. These are work documents or “management tools for the board of directors”. [2]
“(…) it also keeps at their disposal the declaration of co-ownership …”
The Register should have a copy of the Declaration of Co-ownership, and any amendments which were made subsequently.
The Declaration of Co-ownership in the Register should include the new by-laws in force (which have been deposited to the Register, to be in accordance with the law) as well as the modifications to the constituting act of co-ownership and the description of all fractions (mandatory publication in the Land Registry Office of Quebec)[3].
“(…) copies of contracts entered into …”
This includes insurance contracts, service contracts and work contracts.
“(…) a copy of the cadastral plan…”
A copy of the cadastral plan (legal plan of the property) along with a certificate of location of the common portions of the property (an actualised « picture » including the servitudes, infringements and actual existing modifications to the cadastral plan) should be part of the Register of the Immovable. It is not the responsibility of the syndicate to supply a certificate of location for private portions. It is the owners who must procure and produce a copy of the certificate of location themselves when reselling their condo.
“(…) the plans and specifications of the immovable built… ”
The Register should compile and collect all works and improvements (showing the contractor’s name, date and costs involved) for both the common portions and the private portions (specifically for insurance purposes[4]).
It is possible that an older co-ownership does not have at its disposition the plans and specifications of the immovable. Therefore, in the event of a major loss due to fire, for example, it will be difficult to establish a claim from the insurer. If this information is not available, it would be advisable for the syndicate, with the support of photographs and sketches, to put together an album detailing the characteristics and the condition of the building. This could be produced on a CD or other medium and should be kept in a place other than the building in question.
«(…) all other documents relating to the immovable and the syndicate.»
We should also find in the Register of Co-ownership the following documents:
- Maintenance book of the building (which serves to plan work which needs to be done and cost estimates of maintenance, minor repairs and the cost of replacing common portions)[5].
- Technical expertise.
- “All proposed contracts and all works planned” (art. 1087 C.c.Q.)
- Proof of maintenance (history of maintenance) of the alarm system, fire, elevator, etc.
- Certificate of evaluation (replacement value of the immovable) as stipulated according to article 1073 of the Civil Code of Québec :
“The syndicate has an insurable interest in the whole immovable, including the private portions. It shall take out insurance against ordinary risks, such as fire and theft, on the whole of the immovable, except improvements made by a co-owner to his part. The amount insured is equal to the replacement cost of the immovable. (…) ”
[Underlines added]
- Proceedings involving the Syndicate and written notices to co-owners (art. 812.1 de C.p.c.)
- Management by-laws of the Board of Directors (adopted but not identified in the Declaration of Co-ownership or the By-laws of the Immovable)[6]
- Written notes on all essential terms of all proposed contracts and planned work (art. 1087 C.c.Q.)
- Budgets prepared for the carrying out of the works
WHAT MUST REMAIN CONFIDENTIAL:
The syndicate must exercise caution when determining which information it makes accessible to the co-owners.
In fact, according to article 37 of the Civil Code of Québec:
“Every person who establishes a file on another person shall have a serious and legitimate reason for doing so. He may gather only information which is relevant to the stated objective of the file, and may not, without the consent of the person concerned or authorization by law, communicate such information to third persons or use it for purposes that are inconsistent with the purposes for which the file was established. In addition, he may not, when establishing or using the file, otherwise invade the privacy or damage the reputation of the person concerned. ”
[Underlines added]
Thus, certain information must remain confidential such as information which could cause harm to a co-owner or to the syndicate itself because of a disagreement, dispute or other [lawyer (exchanges, documents, invoices, etc.), internal documents of the Board of Directors regarding certain problems or behaviours of a co-owner or personal information on co-owners which is protected for example by the Charter of Human Rights and Freedoms of the person (race, colour, sexual orientation, civil status, age, religion, political conviction, ethnic origin, social status, handicap, etc.)]
One must therefore be selective in defining information as accessible to the co-owners, both when divulging information as when preparing any document.
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] Art. 1103 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.
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. ”
[2] See: Fortier v. Syndicat des copropriétaires condominium Les Châtelets, 2008 QCCS 2507 (CanLII)
[3] Art. 1060 C.c.Q.: “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. ”
[4] Art. 1073 C.c.Q.: “The syndicate has an insurable interest in the whole immovable, including the private portions. It shall take out insurance against ordinary risks, such as fire and theft, on the whole of the immovable, except improvements made by a co-owner to his part. The amount insured is equal to the replacement cost of the immovable.
The syndicate shall also take out third person liability insurance. ”
[5] Art. 1071 C.c.Q.: “The syndicate establishes, according to the estimated cost of major repairs and the cost of replacement of common portions, a contingency fund to provide cash funds on a short-term basis allocated exclusively to such repairs and replacement. The syndicate is the owner of the fund. ”
[6] Art. 335 line 2 C.c.Q.: “The board of directors adopts and implements management by-laws, subject to approval by the members at the next general meeting.”
Mise à jour le Samedi, 16 Août 2014 17:31
