Definition : Declaration of co-ownership - Penal clause

Clause of the declaration of co-ownership which fixes in advance the monetary sanction (a fine) the syndicate may claim from a co-owner following the occurrence of a contravention of one of its provisions. However, the amount of the penalty may be reduced by the court if the clause is determined to be abusive.

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The declaration of co-ownership is a contract that orchestrates and regulates the lives of co-owners, lessees and other occupants of the immovable. It represents the guideline for everyone who lives in the immovable.The declaration of co-ownership provides, systematically, that it is up to the board of directors to have its content abided to. However, it happens that people break the rules, in particular by a non-compliant use of a private portion with regard to the destination of the immovable, a noise nuisance and work carried out in violation of the by the laws of the immovable. Other examples illustrate the problems that can occur in the co-ownership, such as an encroachment on a common portion or the improper installation of a floor covering. Anyone who does not abide to the declaration of co-ownership is liable, inter alia, to a legal recourse based on article 1080 of the Civil Code of Quebec . This action may be brought by a co-owner or the syndicate.
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9 octobre 2019 – Si le projet de loi 16 est adopté et sanctionné dans sa version actuelle, la clause pénale ne pourra plus être enchâssée dans le règlement de l’immeuble. Pour qu’elle soit valide, il faudra l’intégrer à l’acte constitutif de la déclaration de copropriété.  
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  Co-ownership conflicts often arise from a lack of knowledge of the rules governing the immovable, a lack of communication or transparency, or from an unresolved misunderstanding. In such cases, a trial is not the only avenue. Before commencing legal proceedings, and even once they are engaged, it is still time to opt for the services of a mediator. The latter could resolve the conflict between co-owners or with the members of the board of directors.  
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Even though a co-owner is at home in his apartment, its use should be in accordance with the prescriptions of the declaration of co-ownership. This document may contain provisions prohibiting any activities other than residential ones in the immovable. To ensure the welfare of its residents, it may be necessary for the syndicate to impose sanctions to co-owners or tenants who disregard the by-laws of the immovable. It may even, on occasion, petition the court to assert the rights of all co-owners.
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June 5, 2015 - A resounding judgment was handed down on June 4, 2015 by Judge Danielle Turcotte, Superior Court judge, on the vote required in a co-ownership to adopt a penal clause. What is a penal clause? A penal clause is a provision allowing the syndicate to impose to a co-owner penalties or fines if he fails to comply with co-ownership rules. This is a penalty of a pecuniary nature: a sum of money is claimed from the defaulting co-owner. The penal clause must be sufficiently detailed for its application to be simple.
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  All co-owners should supply a duplicate of the keys to their apartment to the directors of the co-ownership. The law is silent on this issue, but most declarations of co-ownership have a provision that imposes this rule upon co-owners, tenants or any other occupant of the immovable. These keys must be given to a representative of the board of directors or to the condo manager.    
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