Co-owners (or a director) can now take legal proceedings to oppose decisions taken by the Board of directors. Article 1086.2 of the Civil Code of Quebec, which came into force on January 10, 2020, allows the court to set aside or, exceptionally, to correct a decision of the board of directors. The proceedings must be initiated within 90 days of the decision of the board of directors. In order to promote stability of the Board’s decisions, the legislator allows to bring such recourses only in certain circumstances
The co-owners have a legal proceeding when they oppose decisions taken by the general meeting of co-owners. They generally seek to contest decisions they consider unjustified. In order to promote the stability of the decisions made at the general meeting, the legislator allows such recourse only in certain circumstances. Thus, Article 1103 of the Civil Code of Québec provides that any co-owner may apply to the court to annul or, exceptionally, to amend a decision of the general meeting if the decision is biased, if it was taken with the intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes.
Every syndicate of co-owners has obligations regarding common portions maintenance. Article 1039 of the Civil Code of Québec provides that "Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest”. In the event that the latter fails to maintain and preserve the immovable, the syndicate may incur civil liability.
This means that it is bound to have the necessary work carried out to prevent deterioration of the common portions of the immovable. The declaration of co-ownership and other legal provisions impose this obligation.
When shopping for an apartment, you must find out if it is in a divided or undivided co-ownership. Even though both concepts are similar in that their ultimate goal is the partition of an immovable between several persons called co-owners, the financial and legal commitments are different.
The declaration of co-ownership is a convention that organizes and regulates the collective life of the co-owners and occupants of the building. This Convention defines in particular their rights and obligations. It is usually developed unilaterally by the developer or owner of the building. Legally, the declaration of co-ownership is a real contract of adhesion, because any new co-owner is obliged to adhere to it.
This is a key legal document. Its publication gives rise to the co-ownership and the syndicate. Look at the different aspects of the declaration of co-ownership.
From the first day of existence of the co-ownership, that is to say when its declaration of co-ownership is published in the Land Register of Quebec, the co-owners as one body constitute a “syndicate of co-owners”. This legal person must ensure the "preservation of the immovable and manage the common portions." To form this co-ownership several steps involving many protagonists are necessary.
Over time, there is several maintenance or improvement work that require the Syndicate to access Private Portions, and even sometimes, work to be executed inside Private Portions.
In order that such crucial work for the Syndicate of co-owners not be obstructed, Article 1066 of the Civil Code of Québec provides that no co-owner may interfere with the carrying-out, even inside its private portion, of work required for the preservation of the immovable, decided upon by the Syndicate or urgent work.
This obligation to allow said work is opposable not only to co-owners but also to occupants and tenants.
In undivided co-ownership, the rights of withdrawal and of first refusal may disrupt the course of a real estate transaction. It is important to know that other co-owners may take precedence over a potential purchaser. The title of the latter could be precarious for some time: a buyer who acquires rights in an undivided co-ownership without first receiving the approval of all the undivided co-owners is therefore liable to have his share redeemed and thus be excluded from the indivision.
Before starting renovation work in your apartment, keep in mind that you live in a condo. Performing such work requires that you carry out prior verifications. It is necessary to refer to the declaration of co-ownership to know the co-owner’s rights and obligations toward the syndicate. It goes without saying that your work must not affect the rights of other co-owners and occupants of the immovable. In addition, it is important to know if your work will have an effect on a common portion which may be located in your privative portion, such as a load-bearing wall, a beam, a column for the various pipes of the immovable.
An immovable whose dwellings are all occupied by undivided owners, can be converted into divided co-ownerships, subject to certain conditions. But carrying out this conversion requires to overcome several steps involving all owners concerned.