JUDICIAL SANCTIONS

A failure to conform with the declaration of co-ownership could bring about judicial sanctions. The types of sanctions available for a violation of the declaration of co-ownership includes:

-Injunction: A court can order a defendant to cease the impugned action, or demand specific performance of the obligation.[68]

-Damages: Damages are available to compensate for an injury suffered by the plaintiff which results from the actions or omissions of the defendant.[69] Damages can be rooted in extra-contractual or contractual obligations.

-Court order to sell a unit.[70]

Legal Hypothec

The declaration of co-ownership may also contain penalty clauses which applies in the event of a breach of the declaration of co-ownership.[71] Penalty clauses are a pre-estimated penalty often found in the declaration of co-ownership which allows the syndicate of co-owners to recuperate damages without resorting to the discretion of the courts. If the penalty is reasonable, a co-owner acting in breach of the declaration of co-owners may be ordered to pay the expected penalty.

It must also be noted that the “clean hand doctrine” applies whenever making a complaint to the court. This doctrine means that a claimant must come to court with “clean hands”, or that he has done nothing reproachable vis-à-vis the declaration of co-ownership. For example, someone who owns a pet in violation of the declaration of co-ownership cannot demand an injunction from the court against his neighbor who also owns a pet.[72]

It is also important to bring a formal complaint within the prescribed time of three (3) years.[73] A failure to do so would amount to a tacit renunciation to exercise one’s right, and in some circumstances, it could amount to a tacit validation of an impugned clause.[74]

 

[68] C.C.Q. Art. 1080; Art. 1590.

[69] C.C.Q. Art. 1458; Art. 1479; Art. 1607; Art. 1613.

[70] C.C.Q. Art. 1080.

[71] C.C.Q. Art. 1622.

[72] Rehmat v. Montazami, 2013 QCCS 1745 at para 59.

[73] C.C.Q. Art. 2925.

[74] Lemelin v. Labrousse, 2007 QCCS 5128 at para 33.

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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.