In the administration of any syndicate of co-ownership, and of course in the life of any co-owner, the day will come when the syndicate needs to enter the co-owner's private portion. However, it is important to understand the rights and obligations of the syndicate, as well as the co-owner.
Article 1042 of the Civil Code of Quebec establishes the rule that the portions of the buildings and the grounds that are designated as “private” are the property of a specific co-owner who has exclusive use of it. In most cases this will mean the co-owner's residence, or may be in certain cases occupied by a tenant. Moreover, the inviolability a person's residence is protected by article 7 of the Charter of the Rights and Freedoms, which is a Quebec law. However, it should be understood that the Civil Code of Quebec governs, in harmony with the Charter of the Rights and Freedoms the general principles of the rights of persons, the relationship between persons, as well as their property. Therefore, it is important to understand that the right to the inviolability of their residence may be subject to certain limitations in the context of a dwelling in divided co-ownership governed by the Civil code of Quebec and the building's declaration of co-ownership. Without certain limits imposed by the law, the right to the inviolability of the residence of a person could cause important problems of management in the context of a divided co-ownership.
In order to allow the syndicate of co-ownership to fulfill its purpose and objectives, i.e. the conservation of the building, the maintenance and the administration of the common portions, the safeguarding of the rights related to the building or to the co-ownership, as well as all the operations of common interest, co-owners cannot oppose or intefere with work required for the conservation of the building. This prohibition is recognized by article 1066 of the Civil code of Quebec, which reads as follows:
“No co-owner may interfere with the carrying out, even inside his private portion, of work required for the conservation of the immovable decided upon by the syndicate or of urgent work.
Where a private portion is leased, the syndicate gives the lessee, where applicable, the notices prescribed in articles 1922 and 1931 regarding improvements and work.”
Whenever the syndicate must complete planned or urgent work which forms part of its duty to preserve the building (which extends ultimately to the private portions), the co-owner must allow the syndicate access to his private portion in order to reach the common portions te be worked on (for example: a concrete floor slab defined as common portion by the declaration of co-ownership). In other situations, such as a case of damage affecting one or more common portions, a co-owner cannot oppose the repairing of the premises by the syndicate when the fact of leaving this private portion in such a state would represent a risk of deterioration of the common portions, and of other private portions, and thus harm to the other co-owners and the syndicate.
We we need to remmeber that article 1077 of the Civil code of Quebec renders the syndicate liable for the damage caused to the co-owners or to third parties by a design or construction defect, or the lack of maintenance of the common portions, without prejudice to any cross claim. In order to be able diminish the prospect of liability, the syndicate must have access to the private portions in order to repair damage, and to be able in the same way to reach the common portions when required in order to prevent harm to the co-owner.
In urgent cases requiring quick action in order to stop the cause of the damage ( for example: a burst pipe, a washing-machine that overflows, etc…), it is in the collective interest of all the co-owners, and consequently that of the syndicate, which will take precedence over the rights of the co-owner of the private portion. Moreover, in the majority of cases the building's declaration of co-ownership will include a clause to the effect that the members of the Board of Directors and their employees and agents have a right of access at any time to the private portions when the situation is urgent and involves a risk for the building and the safety of the occupants. Certain declarations of co-ownership include a clause obliging the co-owners to provide the Board of Directors with a copy of the key to their private portion in order to access to it in the event of an emergency without having to resort to the services of a locksmith, or to have to break down the door.
In the case of non-resident co-owners who have rented their unit to a tenant, under the terms of article 1066 of the Civil code of Quebec, it is up to the syndicate to deliver the notices required by articles 1922 and 1931 relating to the improvements and the work, which must normally be given by a landlord to the tenant of a dwelling.
When the syndicate carries out work, the co-owner who suffers harm as a consequence of the completion of the work due to a permanent decrease in the value of his fraction, of a serious, even temporary disturbance of enjoyment, or deterioration, has the right to obtain compensation from the syndicate if the work was done at its request. On the other hand, and especially in the cases of damage in which the syndicate's insurance coverage would apply, the lodging expenses of the co-owner who must relocate during the the work are increasingly covered by the co-owner's insurer under their homeowner's insurance policy.
For the syndicate of co-ownership and the members of the Board of Directors, it is important not to take the principle of inviolability a residence lightly, because the right to enter a co-owner's private portion must be exercised with caution. Except in clearly urgent cases (water leakage, fire, etc…) the members of the board of directors and their employees should refrain from viewing every situation as an “emergency” justifying the use of the right to entry. The Board of Directors or its employees who enter a co-owner's private portion on an urgent basis without valid reason, could see themselves being held civilly liable for having violated the co-owner,s rights without a valid reason. Conversely, the co-owner who obstructs the completion of work required for the conservation of the building by refusing to allow access to his private portion could also be held civilly liable when doing so causes harm to the syndicate.
In all cases, do not hesitate to contact our team of lawyers who can counsel you on what steps to take in your particular circumstances.
Article 1042 of the Civil Code of Quebec establishes the rule that the portions of the buildings and the grounds that are designated as “private” are the property of a specific co-owner who has exclusive use of it. In most cases this will mean the co-owner's residence, or may be in certain cases occupied by a tenant. Moreover, the inviolability a person's residence is protected by article 7 of the Charter of the Rights and Freedoms, which is a Quebec law. However, it should be understood that the Civil Code of Quebec governs, in harmony with the Charter of the Rights and Freedoms the general principles of the rights of persons, the relationship between persons, as well as their property. Therefore, it is important to understand that the right to the inviolability of their residence may be subject to certain limitations in the context of a dwelling in divided co-ownership governed by the Civil code of Quebec and the building's declaration of co-ownership. Without certain limits imposed by the law, the right to the inviolability of the residence of a person could cause important problems of management in the context of a divided co-ownership.
In order to allow the syndicate of co-ownership to fulfill its purpose and objectives, i.e. the conservation of the building, the maintenance and the administration of the common portions, the safeguarding of the rights related to the building or to the co-ownership, as well as all the operations of common interest, co-owners cannot oppose or intefere with work required for the conservation of the building. This prohibition is recognized by article 1066 of the Civil code of Quebec, which reads as follows:
“No co-owner may interfere with the carrying out, even inside his private portion, of work required for the conservation of the immovable decided upon by the syndicate or of urgent work.
Where a private portion is leased, the syndicate gives the lessee, where applicable, the notices prescribed in articles 1922 and 1931 regarding improvements and work.”
Whenever the syndicate must complete planned or urgent work which forms part of its duty to preserve the building (which extends ultimately to the private portions), the co-owner must allow the syndicate access to his private portion in order to reach the common portions te be worked on (for example: a concrete floor slab defined as common portion by the declaration of co-ownership). In other situations, such as a case of damage affecting one or more common portions, a co-owner cannot oppose the repairing of the premises by the syndicate when the fact of leaving this private portion in such a state would represent a risk of deterioration of the common portions, and of other private portions, and thus harm to the other co-owners and the syndicate.
We we need to remmeber that article 1077 of the Civil code of Quebec renders the syndicate liable for the damage caused to the co-owners or to third parties by a design or construction defect, or the lack of maintenance of the common portions, without prejudice to any cross claim. In order to be able diminish the prospect of liability, the syndicate must have access to the private portions in order to repair damage, and to be able in the same way to reach the common portions when required in order to prevent harm to the co-owner.
In urgent cases requiring quick action in order to stop the cause of the damage ( for example: a burst pipe, a washing-machine that overflows, etc…), it is in the collective interest of all the co-owners, and consequently that of the syndicate, which will take precedence over the rights of the co-owner of the private portion. Moreover, in the majority of cases the building's declaration of co-ownership will include a clause to the effect that the members of the Board of Directors and their employees and agents have a right of access at any time to the private portions when the situation is urgent and involves a risk for the building and the safety of the occupants. Certain declarations of co-ownership include a clause obliging the co-owners to provide the Board of Directors with a copy of the key to their private portion in order to access to it in the event of an emergency without having to resort to the services of a locksmith, or to have to break down the door.
In the case of non-resident co-owners who have rented their unit to a tenant, under the terms of article 1066 of the Civil code of Quebec, it is up to the syndicate to deliver the notices required by articles 1922 and 1931 relating to the improvements and the work, which must normally be given by a landlord to the tenant of a dwelling.
When the syndicate carries out work, the co-owner who suffers harm as a consequence of the completion of the work due to a permanent decrease in the value of his fraction, of a serious, even temporary disturbance of enjoyment, or deterioration, has the right to obtain compensation from the syndicate if the work was done at its request. On the other hand, and especially in the cases of damage in which the syndicate's insurance coverage would apply, the lodging expenses of the co-owner who must relocate during the the work are increasingly covered by the co-owner's insurer under their homeowner's insurance policy.
For the syndicate of co-ownership and the members of the Board of Directors, it is important not to take the principle of inviolability a residence lightly, because the right to enter a co-owner's private portion must be exercised with caution. Except in clearly urgent cases (water leakage, fire, etc…) the members of the board of directors and their employees should refrain from viewing every situation as an “emergency” justifying the use of the right to entry. The Board of Directors or its employees who enter a co-owner's private portion on an urgent basis without valid reason, could see themselves being held civilly liable for having violated the co-owner,s rights without a valid reason. Conversely, the co-owner who obstructs the completion of work required for the conservation of the building by refusing to allow access to his private portion could also be held civilly liable when doing so causes harm to the syndicate.
In all cases, do not hesitate to contact our team of lawyers who can counsel you on what steps to take in your particular circumstances.