In the case of divided co-ownership, several people may find themselves involved in the work. At it's not always clear what is and isn't permitted for the syndicate or a co-owner, as well as the conditions under which such work may be carried out work. The aim of this text is to explain the different types of work as well as the rights and and obligations of the syndicate and the co-owner in such cases. Our study of the subject will be approached from the perspective and context of vertical condominiums. First, we will be focusing on rights and obligation of the syndicate then those of the co-owner.
1- The rights and obligations of the syndicate
The obligations of the syndicate of co-ownership derive mainly from the terms of article 1039 C.c.Q., which defines the syndicate and its object as follows:
Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest. The legal person must, in particular, see to it that the work necessary for the preservation and maintenance of the immovable is carried out.
The legal person is called a syndicate.
The Common Area
A common area is a portion of the building and its grounds which belongs to all the co-owners on an undivided basis who have joint use of it. The Civil Code of Québec presumes certain common portions: The following are presumed to be common portions: [...] the ground, yards, verandas or balconies, parks and gardens, access ways, stairways and elevators, passageways and halls, common service areas, parking and storage areas, basements, foundations and main walls of buildings, and common equipment and apparatus, such as the central heating and air-conditioning systems and the piping and wiring, including that which runs through private portions. Although these parts are presumed to be common, the declaration of co-ownership may stipulate otherwise, so it's important to consult it, as well as the cadastral plans, to get a clear idea of the common parts and their boundaries.
The conservation and maintenance (hereinafter "conservation") of common areas is the responsibility of the syndicate. This includes major repairs and replacement of common areas. However, if the work involves conversion, enlargement, or improvement (hereinafter referred to as "conversion"), it may not be undertaken without the approval of a three-quarters majority of the co-owners present or represented at the general meeting. It is therefore important to distinguish between conservation work and alteration work.
In Dépanneur Paquin et Fils Inc. v. Syndicat de l'E-"di- file Emmanuel, [1995s R.D.l. S7 (C.S.), by adding "enlargement or improvement" to "transformation", the legislator's intention was that, for all work affecting the physical form of the immovable beyond maintenance, permission must be sought from the general meeting of co-owners3 . Legendre v. Arpoulet, 2016 QCCS 1516, indicates that, if construction standards or municipal obligations are contravened or must be complied with, the work to bring the building up to standard will be conservation work, not transformation. The same applies when the replacement of one component by other results in an improvement due to technical progress4. In this case, the fire escape did not comply with the City's standards, and the Board of Directors also had the authority to authorize the upgrading work. As for the cost, each co-owner contributes to the common expenses according to the relative value of their respective fraction.
Common areas with restricted use
Restricted-use common portions are those common portions that may be used only by certain co-owners or by a single co-owner.6 Unless the declaration of co-ownership stipulates otherwise, responsibility for maintenance and conservation, as with the common portions, is also the responsibility of the syndicate. For example, the responsibility for changing all the windows in the building (when they are restricted-use common areas) falls under the heading of conservation. So, unless otherwise stipulated in the declaration of co-ownership, it will be the syndicate's responsibility to do so.
Moreover, articles 1064 and 1072 C.c.Q. state that the declaration of co-ownership may provide that the costs of conserving the common portions for restricted use will be at the exclusive expense of the co-owners who have the use of them. Otherwise, it will be up to the syndicate to disburse the costs of major repairs to restricted-use common portions through the "contingency fund"8 , and the co-owners who have the use of these portions to assume the costs of maintenance and ongoing repairs.
Private portions
The Civil Code of Québec defines a private portion as those portions of the buildings and land that are owned by a specific co-owner and are for his exclusive use are called the private portions. Each private portion has a distinct lot number in the cadastral of the Land Register of Québec, which is also different from that of the common portions.10 In order to properly identify the boundaries of the private portion, it is advisable to consult both the declaration of co-ownership and the cadastral plans of the building.
As a general rule, a syndicate should not interfere with work carried out in the private portions of the building. The Civil Code of Québec does, however, provide for an exception when work is necessary for the conservation of the immovable, or when urgent work must be carried out. In Syndicat de la copropriété des 4037 à 404 I, ave-nue de Lorimier c. Togney, 2010 QCCS 4383, the syndicate wished to pass through the co-owner's private portion on the first floor to install retaining piles. The co-owner suggested that the syndicate go through the exterior of the building instead, but this method would have entailed significant additional expense. The court ordered the co-owner to give access to her dwelling so that the work could be carried out.
Moreover, it's not uncommon to see clauses in declarations of co-ownership stipulating that if a co-owner fails to comply, the syndicate will be authorized to do so for him, at his expense, and often accompanied by a penalty clause. This could be the case, for example, when the co-ownership declaration requires the replacement of the water heater every 10 years. In the event of a co-owner's failure or resistance to grant access to his private portion for required work, the syndicate could apply to the court for authorization to do so.
Compensation for disturbance and loss of use
If the syndicate carries out work, a co-owner may be compensated in the event of prejudice such as a reduction in the value of his fraction, a deterioration, or a serious disturbance of enjoyment, even temporary.
Similarly, in the case of a maintenance defect in the common areas, or a design or construction defect that causes harm to a co-owner or a third party, the syndicate will be held responsible.
Finally, in cases not specifically provided for in the law of divided co-ownership, the co-owner retains also its general recourse against the syndicate or another co-owner in the event of contractual fault.
2. Work: the rights and obligations of co-owners :
The obligations of the co-owner can be derived from several sources. One of the first obligations of the co-owner is a corollary of the syndicate's responsibility to see to the execution of conservation work on the immovable. In other words, a co-owner must pay the cost through the building's common charges.
The declaration of co-ownership will generally set out the obligations that co-owners must respect, failing which they will incur liability. Articles 1062 and 1063 CCQ stipulate that a co-owner must respect the declaration of co-ownership. He must not interfere with the rights of the other co-owners, including their right to the free enjoyment of the premises, or with the destination of the immovable. Otherwise, he could be held responsible.
The Common Area
Co-owners are generally not allowed to carry out work on common areas19. The right of a co-owner to carry out, for example, work affecting the common portions of the building is non-existent in the absence of authorization from the Syndicate.
Common areas with restricted use
On the one hand, the syndicate is contractually and legally responsible for carrying out the conservation work required by the common parts of the building. However, in exceptional cases, the terms of the declaration of co-ownership may transfer this responsibility to the co-owner, who is then required to fulfill this obligation in kind, in whole or in part. Furthermore, if the co-owner fails to do so, the syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any recursory action. Notwithstanding, the syndicate will retain the right 's any recourse action against the co-owner for the prejudice he has thus caused.
On the other hand, the Board of Directors does not have the authority to authorize a co-owner to carry out conversion work. In this case, the work will have to be authorized by the general meeting of co-owners limiting almost absolutely what work individual co-owners can carry out on common areas.
Let's illustrate the situation with, for example, a balcony that is a common area for the restricted use of a co-owner. The declaration of co-ownership could prohibit the co-owner from installing removable outdoor carpets, barbecues, furniture and chairs, outdoor shelters, etc. on balconies, in order to preserve the architectural harmony of the building.
If a condominium owner wishes to carry out transformation work, such as installing a heat pump on the balcony, gluing permanent carpeting or attaching an antenna to the exterior wall, he or she must obtain authorization from the condominium meeting.
Private portions
To know exactly what the co-owner can and cannot do in his or her private area, it is essential to consult not only the municipal by-laws, but also the declaration of co-ownership, which contains restrictions on the rights of co-owners, as well as the terms and procedures for applying for permits. A permit from the city is not enough.
It should be noted that just because a co-owner obtains a permit from the city, in cases where the declaration of coownership mentions the need to obtain authorization from the syndicate, this authorization will no longer be required. These are two separate entities, and the co-owner will still need to obtain the syndicate's authorization.
What's more, the co-owner must distinguish between what belongs to his private portion, and what happens to be the common portions of the building.
In his private portion, he can make changes to the decoration, such as repainting, changing the cupboards, appliances, etc., but if there is a risk that this work, itself or its results, will affect the enjoyment of another co-owner or the common portions, then it's best to consult a legal advisor.
However, if there is a risk that this work, or its results, could affect the enjoyment of another co-owner or the common areas, then it's best to consult a legal advisor. Similarly, if the decorative work is not purely cosmetic and involves making holes in the walls or floors and running new electrical conduits or pipes, such as adding wall lights, you'll need to notify the Board of Directors for visibility and permission, and in case of doubt, consult a legal advisor. You'll need to examine your co-property, the boundaries of the private portions, and whether or not the work will affect your neighbors. If the work exceeds the boundaries of the private portions, you will be encroaching on the coownership of all the co-owners and will be subject, if applicable, to articles 1097 al. 1 C.c.Q. (alienation/acquisition of immovables), 1097 al. 2 C.c.Q. (transformation of the common portions) and 1097 al. 4 C.c.Q. (modification of the descriptive statement of fractions).
If you'd rather change the floor covering, it's a good idea to look at the provisions of the declaration of co-ownership, and more specifically the act of incorporation (1053 C.c.Q.), to see if any conditions or restrictions apply. Given the large number of disputes in this area, it is important to always consult a legal advisor before changing a floor covering. Unfortunately, it's not uncommon for a downstairs co-owner to- Follow his upstairs neighbor because of new disturbances that did not exist before the floor covering was modified, or to order adjustments or even its removal.
Consequently, we find several examples in jurisprudence of co-owners who had to remove the chosen floor covering in order to replace it with one permitted by the declaration of co-ownership. Notably, in Syndicat des Copropriétaires Condominium Le Commandeur. c. Gosselin, 2007 QCCS 4404, the co-owner replaced the carpet flooring in his unit with floating wood flooring, without the prior permission of the syndicate, even though this was required by the declaration of co-ownership. The syndicate won the case, the Court finding that the co-ownership attached great importance "to the quietude of the building. It therefore ordered the co-owner to remove the siding and install an authorized one.
According to Saba v. Fitzgibbon, AZ-94021584, reiterating earlier case law, when the current floor covering is carpet, it is even possible for the declaration of co-ownership to prohibit all other types of floor covering. Such a clause is valid if justified by the building's purpose. It is also possible for a declaration of co-ownership to stipulate certain standards to be respected, as was the case in this decision. When a declaration of co-ownership authorizes the replacement of carpet with wood covering, provided a specific standard is met, the standard must be reasonably attainable.
In addition to the aforementioned restrictions, it's common to see restrictions on the window coverings used, the signs/advertising we can display from our unit, the use of electricity/plumbing, heating and much more.
It is therefore important to always consult the declaration of co-ownership and its amendments before undertaking any projects in your private area.
