- Declaration of co-ownership : Penal clause
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.
WHAT YOU SHOULD KNOW! A penal clause included in the By-Laws of the immovable, before the entry into force of Bill 16 (January 10, 2020) is deemed to be part of the constituting act of co-ownership in accordance with article 1053 of the Civil Code of Quebec.
La déclaration de copropriété est le document maître d'un syndicat de copropriétaires. Elle définit les fondements mêmes d'une copropriété, et indique le code de vie à y adopter.
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.
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.
6 février 2020 — Un copropriétaire de Québec a été condamné à payer quelque 15 000 $ à son syndicat, fruit d’une décision rendue par la Cour du Québec – Division des petites créances. L’homme en question louait son unité à court terme (location de type hôtelière), en contravention avec sa déclaration de copropriété.
Le défendeur estimait pourtant avoir le droit d’utiliser son condo « à des fins personnelles, que la location à court terme n’était pas interdite par la déclaration de copropriété initiale, et que ce n’est qu’à l’occasion de modifications apportées en 2017 que pareille location fut prohibée. »
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.
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. This co-owners reference document is consulted, for example, in the case of work. 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 private portion.
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.
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.