THE DECLARATION OF CO-OWNERSHIP

The declaration of co-ownership (hereafter the “Declaration”) is the contractual document outlining the relationship between co-owners and/or the promotor. This document binds the parties to each other, and signatories must respect their obligations and the rights of other co-owners at the risk of judicial sanctions in the event of a breach.

Upon the publication of the Declaration, the co-owners as a body constitute a legal person called a “Syndicate”.[1] The Syndicate’s main purpose is the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights belonging to the building or the co-owners, as well as all business in the common interest.[2]

The rights and obligations of the Syndicate are outlined in the Declaration.

The Declaration will also establish the board of directors of the Syndicate who will manage the day-to-day administrative duties of the building.[3]

The Declaration consists of three parts.[4]

1. The act constituting the co-ownership, which defines the destination of the building, of the private portions and common portions. The act also specifies the:[5]

A) Relative value of each fraction, and how that value is determined;

B) Contribution to common expenses;

C) Number of votes; attached to each fraction;

D) Description of the rights and obligations of the syndicate of co-owners; and

E) Other agreements regarding the building or its private or common portions.

2. The bylaws of the immovable, which contains rules concerning:[6]

A) The enjoyment, use, and maintenance of private and common portions;

B) The operation and administration of the co-ownership; and

C) The procedure of assessment and collection of contributions to the common expenses.

3. Description of the fractions, which contains[7]

A) The cadastral description of the private and common portions of the building;

B) The allocation of private and common portions; and

C) The description of the real rights charging the building or existing in its favour, other than hypothecs and additional security accessory thereto.

The Declaration therefore divides the ownership of the building into distinct fractions, while outlining the contractual rights and obligations of co-owners concerning rules of enjoyment, usage and maintenance, as well as rules regarding the proper administration of the co-ownership.[8]

The contractual nature of the Declaration entails all the rules of contract formation and interpretation.[9] Contract law seeks to protect the reasonable expectations of the parties. Prospective co-owners must therefore be given notice of any unusual terms found in the Declaration.[10]

Any future modifications to the Declaration will require some form of consent, often expressed through voting rights, whether explicit or tacit.[11]

The ability to negotiate the terms of the contract will determine whether the Declaration can be classified as a contract of adhesion.[12] The Québec Civil Code provides more protection to parties who did not have a chance to determine the terms of their contract against abusive, ambiguous and external clauses. It must be noted that all the clauses contained within the Declaration are presumed valid unless explicitly rejected by the courts.[13]

It is therefore recommended that prospective co-owners review the Declaration with their lawyer to avoid any unwanted surprises.

[1] C.C.Q. Art. 1039.

[2] Ibid.

[3] C.C.Q.Art. 335.

[4] Christine Gagnon, La Copropriété Divise (Montréal: Edition Yvon Blais, 2015) at 111.

[5] C.C.Q.Art. 1053.

[6] C.C.Q. Art. 1054.

[7] C.C.Q.Art.1055.

[8] C.C.Q. Art 1063.

[9] Christine Gagnon, La Copropriété Divise (Montréal: Edition Yvon Blais, 2015) at p.71.

[10] C.C.Q.Art. 1435.

[11] Lemelin v. Labrousse, 2007 QCCS 5128 at para 29.

[12] C.C.Q. Art. 1379.

[13] Syndicat des copropriétaires du Château Renaissance v. Industries d’Orcini Ltd,2009 QCCA 159.

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The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.