- Destination : Destination of the immovable
Definition : Destination - Destination of the immovable
The use intended for the immovable in accordance with its purpose, location and construction features. For instance, the destination may be residential, commercial or mixed. It has, more particularly, the object of protecting individual rights of the co-owners and of imposing certain limits to the manner in which co-owners can enjoy their private portions. The declaration of co-ownership (Constituting Act) defines in part the destination of the immovable.
WARNING! Given its fundamental importance, any change to the destination of the immovable requires a favourable vote by three-quarters of the co-owners, representing 90% of the votes of all co-owners. Article 53 of the Act Respecting the Implementation of the Reform of the Civil Code (L.Q. 1992, c. 57) provides, however, that if a declaration of co-ownership registered prior to 1994 establishes the unanimity rule for decisions regarding the change of the destination of the immovable, this requirement remains, despite sections 1098(1) and 1101 of the Civil Code of Québec.
In principle, co-owners have the right to enjoy their private portion as they see fit. This use nevertheless has limits, namely that the right of enjoyment must not exceed normal neighborhood inconveniences. If the nuisance caused by an occupant of the immovable becomes excessive, it constitutes an abnormal neighborhood disturbance. This is the case in the event of non-compliance with clauses relating to the peaceful enjoyment of private portions, stipulated in the by-laws of the immovable. However, an abnormal neighborhood disturbance does not systematically constitute a violation of the declaration of co-ownership, as in some circumstances, this type of nuisance can be sanctioned, even if the perpetrator has not committed any fault.
The destination of the immovable, of the private portions and of the common portions is a fundamental concept in co-ownerships. The destination allows the determination the type of co-ownership established and defines the use(s) that can be made of the private and common portions. The destination of the immovable can be exclusively residential or commercial or residential but with the possibility of exercising professional activities. It can also be mixed, such as, allowing shops on the ground floor and apartments on the upper floors.
Question: During our last general meeting of co-owners, the president of the board of directors suggested to sell a parcel of land located in the backyard of our immovable. According to him, the amount that we could receive would allow to replenish the contingency fund. Can you tell me if that is possible? If this is the case, I would like to know who has the authority to make this decision.
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The declaration of co-ownership is binding upon the co-owners and, in principle, on the occupants and tenants of the immovable. It is the responsibility of the Board of Directors to enforce its content. By failing to do so, the members of the Board may, in some cases, be held liable toward the co-owners. Anyone who does not respect it is exposed to legal proceeding based in particular on article 1080 of the Civil Code of Quebec. This action may be brought by both a co-owner and the syndicate.
The declaration of co-ownership includes the set of rules ensuring the efficient organization of a co-ownership. Its knowledge by the members of the board of directors and by each co-owner is essential to the proper operation of the co-ownership. For a promisor-buyer, the declaration of co-ownership contains a wealth of useful information regarding the conditions of use and enjoyment of the private and common portions. Hence the necessity of reading this document before buying, to avoid unpleasant surprises, especially as to the use one intends to make of his lot.
The resolutions of the General Meeting of the co-owners are adopted or rejected, as the case may be, if a majority is reached or not. Depending on the repercussions such resolutions may have on the co-ownership, the majority required will be more or less difficult to achieve. The General Meeting of the co-owners adjudicates at two different majority levels: absolute majority and double majorities (enhanced majorities).