| Written by Me Sébastien Fiset , LL.B., B.A.A. |
| Lundi, 05 Avril 2010 10:44 |
WHAT IS A « COMMON EXPENSE » ?
Contact the author : s.fiset@fisetlegal.com
According to the terms of article 1064 of the Civil Code of Quebec, each co-owner contributes, in proportion to the relative value of his fraction, to the expenses arising from the co-ownership and from the operation of the immovable and the contingency fund. These expenses are normally referred to as « common expenses » or « condo fees ».
According to the terms of article 1072 of the Civil Code of Quebec, the legal process for determining whether an expense can be considered a « common expense » to which each and every co-owner must contribute, is as follows:
“ Each year, the board of directors, after consultation with the general meeting of the co-owners, fixes their contribution for common expenses, after determining the sums required to meet the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund.
The contribution of the co-owners to the contingency fund is at least 5% of their contribution for common expenses. In fixing the contribution, the rights of any co-owner in the common portions for restricted use may be taken into account.
The syndicate, without delay, notifies each co-owner of the amount of his contribution and the date when it is payable. »
Therefore, in order to establish a « common expense » in the legal sense, four (4) steps are required:
- The board of directors must determine the amounts required to meet the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund.
- The board of directors must, subsequently, convene a meeting of the co-owners to « consult » them on the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund;
- Following “ consultation » at the meeting of the co-proprietors, the board of directors must « fix » the contribution of the co-proprietors to cover the general expenses;
- The syndicate (board of directors) then advises, without delay, each co-proprietor of the amount of his contribution and the date when the amount is due.
Important : The « consultation » at the meeting of the co-proprietors on the budget does not mean « decision ». Certain authors state that a formal vote is not required. Without adhering to this statement, we are of the opinion that a vote at the meeting is recommended but does not constitute an (obligatory) sine qua non condition according to the terms of article 1072 of the Civil Code of Quebec.
In fact, regardless of the outcome of the vote, the elected board of directors must fix, after obligatory consultation of the assembly, the budget that they determine the most appropriate to cover the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund*.
In fact, the board of directors must be totally and freely able to fill their mandate which is the conservation of the immovable, the maintenance and management of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest (article 1039 of the Civil Code of Quebec).
It is its obligation and, identified and identifiable persons, the personal responsibility of each of its members (directors).
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* Note that if the accumulated and available amounts in the contingency fund are sufficient to cover the major repairs as required and the replacement of the common portions, the minimum amount to be contributed is then 5%.
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.
Mise à jour le Samedi, 16 Août 2014 17:39
