The impact of the coming into effect of the Civil Code of Quebec and the majorities required to modify the contents of a declaration of co-ownership
The declaration of co-ownership is the key document which governs relations between the co-owners and the Board of Directors acting as the syndicate's mandatees. Many clauses of the declaration of co-ownership reiterate word for word the provisions of the Civil Code of Quebec regarding divided co-ownerships, but it is important to know that the declaration of co-ownership also contains the description of the rights and obligations of the co-owners, of the Board of Directors and of the syndicate in general.
In the case of a co-ownership whose declaration of co-ownership was published in the Québec Land Registry prior to January 1, 1994, it is important to know that it subject to, with some exceptions, to the provisions of the Civil Code of Quebec which has been in effect since the same date. In order interpret a declaration of co-ownership published prior to January 1, 1994, it's important and useful to have it explained to you by a legal expert (a notary or a lawyer) familiar with the legal framework of divided co-ownerships in order for them to explain to you its intricacies when read in conjunction with Civil code of Quebec and the evolving case law.
Whoever purchases a fraction of a divided co-ownership must take the declaration of co-ownership as it stands and cannot negotiate its content as a condition of the purchase of the fraction. The declaration of co-ownership binds the co-owners, their successors, and the people who signed it and it binds them from the moment of its publication in the Québec Land Register.
The provisions contained in the declaration of co-ownership fall under one of the following three categories: the constituting act of co-ownership, the building bylaws and the description of the fractions.
The constituting act of co-ownership
The provisions of the constituting act of co-ownership define the destination of the building, and of the private and common portions.
It also determines the relative value of each fraction and indicates the method followed to establish it, the shares of the common expenses, the number of the votes attached to each fraction and any other agreement regarding the building or its private or common portions.
It also specifies the respective powers and duties of the Board of Directors of the syndicate and of the general meeting of the co-owners.
The constituting act is thus a very important part of the declaration of co-ownership, because it includes provisions which set forth the rights, duties and obligations for several parties: the syndicate, the Board of Directors, and the co-owners on an individual, and sometimes collective basis. These provisions are an essential part the co-ownership, and consequently, changing them follows an exacting procedure (the conditions of article 1097 C.c.Q., in addition to defining the modifications in a notarized document which is then published in Quebec Land Registry) as compared to the building bylaws (modified according to article 1096 C.c.Q., noting of the modifications in the minutes of the general meeting of the co-owners and the filing of the modifications in the syndicate's register of co-ownership maintained by the Board of Directors).
The building bylaws
The building bylaws contain the rules relating to the enjoyment, the use and the maintenance of the private and common portions, as well as those relating to the functioning and the administration of co-ownership.
The bylaws also establish the procedure of payment and recovery of the contributions to the common expenses.
The composition of the Board of Directors of the syndicate, their method of nomination, replacement or remuneration, as well as the other terms of their appointment are established the building bylaws.
The building bylaws are more easily modified than the constituting act, but any modification which restricts the rights of the co-owners must be justified by the destination of the building, its characteristics or its location.
The description of the fractions
The description of the fractions contains the cadastral designation of the private portions and of the common portions of the building.
It also contains a description of the real rights affecting the building or existing in its favour, other than hypothecs and additional security accessory thereto.
The modifying the declaration of co-ownership
It is possible to modify the provisions of the declaration of co-ownership by following the rules specific to the constituting act (article 1097 C.c.Q.) and the building bylaws (article 1096 C.c.Q.). Modifications to the description of the fractions, although less frequent, follow the rules of article 1097 C.c.Q.
Any modification of the constituting act and the description of the fractions must be done by a notarized act en minute and they must be signed by the members of the Board of Directors on behalf and in the name of the syndicate.
However, certain provisions of the declaration of co-ownership reiterate imperative legal provisions of the Civil code of Quebec. These provisions cannot be modified under any circumstances. In order to be able to distinguish them, we strongly advise you to consult a lawyer or a notary specializing in divided co-ownership.