TACIT MODIFICATION OF THE DECLARATION OF CO-OWNERSHIP

The Civil Code of Québec provides different amendment mechanisms to the declaration of co-ownership depending on the nature of the proposed amendment. In most cases, decisions are adopted by the syndicate of co-owners at the general meeting of the co-owners.

However, the contractual nature of the declaration of co-ownership (hereafter the “Declaration”) allows for the possibility of tacit modifications if the rules of contract formation have been respected.[1] Consent is necessary to amend the Declaration, but it can also be implied from conduct, silence or omission.[2]

In a 2007 decision from the Québec Superior Court,[3] a plaintiff made a complaint to the court that his upstairs neighbour replaced carpet flooring for wooden panels, which resulted in a decrease in soundproofing. The installation of the new floors was in direct contravention of the Declaration.

Generally, a plaintiff would have a cause of action against the co-owner in breach of the Declaration and could seek judicial remedies.

However, in the present matter, more than 70% of co-owners had already replaced their flooring in direct violation of the Declaration. The court inferred from the conduct of the majority of co-owners that they had consented to a tacit modification of their Declaration. The ratification of a prohibited act by the syndicate may also be interpreted as a tacit renunciation of the prohibition.[4]

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

[2] Ibid at para 32.

[3] Ibid.

[4] Ibidat 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.