Distinguishing between the function of the Co-ownership manager (gérant) and the Condo manager (gestionnaire) is not an easy task. Most participants who work in the field of co-ownership are struggling with this issue. In fact, the general perception of the similarity of their incumbent duties is wrong, as there are several differences between these two functions. The Co-ownership manager has decision-making powers regarding the management of the co-ownership. On the other hand the Condo manager acts as an advisor and is the one who implements the decisions made by the board of directors. This does not preclude him from making recommendations before these decisions are implemented. A discussion on two similar but not identical functions whose attributes, powers and duties are to be distinguished in many ways.
What is a Co-ownership manager?
Normally, the board of directors assumes the syndicate’s day-to-day administration. Nevertheless, article 1085 of the Civil Code of Québec authorizes the syndicate of co-owners to entrust to a Co-ownership manager some of the powers generally entrusted to the board of directors. The Co-ownership manager can be chosen from the co-owners or from any third party. As for the second sub paragraph of this article, it states that the "manager acts as an administrator of the property of others charged with simple administration". This precision is useful as it clarifies the status, powers and duties of the Co-ownership manager.
The mission of the Co-ownership manager
Generally, the declaration of co-ownership does not define the powers and the duties of the Co-ownership manager, nor those which could be entrusted to him eventually, either by the board of directors or by the meeting of the co-owners. Article 1301 of the Civil Code of Québec provides that the Co-ownership manager «shall perform all the acts necessary for the preservation of the property or useful for the maintenance of the use for which the property is ordinarily intended". Article 1302 of the Civil Code of Québec in turn stipulates that he is "bound to collect the fruits and revenues of the property under his administration and to exercise the rights pertaining to the property. He collects the claims under his administration ...”. In addition, under article 1303 of the Civil Code of Québec, "He shall continue the use or operation of the property which produces fruits and revenues, without changing its destination, unless he is authorized to make such changes by the beneficiary or, in case of impediment, by the court”. Thus, the Co-ownership manager is a managerial decision-making body for the syndicate, who may on its own initiative make certain acts relating to the preservation of the property under his administration.
The powers of the Co-ownership manager
Therefore article 1085 of the Civil Code of Québec grants to the Co-ownership manager the decision-making powers of the administrator of the property of others in charge of the simple administration. This status confers upon him powers that go beyond strict material tasks, such as the mere implementation of the decisions taken by the board of directors. Among the tasks that he is entitled to perform, the Co-ownership manager could:
The Condo Manager is entrusted with powers. Yet he also has duties, such as to render account. At the end of his administration, he must report on his activities to the syndicate of co-owners, as well as to his successor or to the members of the board of directors, as the case may be. His activities and decisions will generally be recorded in a written document, in which he will also report on the expenses he incurred on behalf of the syndicate, as well as the sums of money he has been called upon to manage.
What is a Condo manager?
Responsible for the sound management of a co-ownership, the manager plans, controls and acts as an advisor. He plays a key role for the syndicate, while usually working under the authority of the Board of Directors. In the same manner, he must also ensure the preservation of the immovable for which he is responsible. His objective is to reduce the burden of the directors’ tasks, without however replacing them. Thus, the directors will better exercise the decision-making powers entrusted upon them. The one man band of the co-ownership, the manager shall use his experience and knowledge for the benefit of the syndicate of co-owners for which he works.
The Condo manager and his mission
Managing a co-ownership is a delicate and often complex task. To improve co-ownership management, the directors would be well advised to retain the services of a competent manager. They could, as needed, entrust to the latter several administrative, financial and technical tasks, to name only a few, or limit him to a specific role (e.g. accounting).
The powers of the "Condo manager" of the co-ownership
As a service provider or an employee of the syndicate, the manager has, in principle, very limited powers. Essentially, his role is to implement the decisions made by the board of directors, and to safeguard the interests of the co-owners’ community. However, it is not to be excluded that a specific mandate be entrusted to him, so that he may represent the syndicate toward service providers. In such cases, he would become the "mandatary" of the syndicate for the purpose of this mandate.
WHAT YOU SHOULD KNOW! The Condo Manager has a right of retention over the property administered until all amounts due to him, if any, are paid. However, if he is a member of a professional order, such as the Order of Chartered Administrators of Quebec (Ordre des ADMA), the manager will not be allowed to do so, on account of Article 42 of the Code of Ethics of Chartered Administrators which require him to respond diligently to the request of a client who wants to recover his property affected by the right of retention; and this even though the fees of the manager have not been paid.
WHAT YOU SHOULD KEEP IN MIND: There is a fundamental difference in Law between a Condo Manager and a manager. The Condo Manager exercises his own decision-making power within the co-ownership, similarly to an independent decision-making body, while the manager is usually a service provider or an employee of the syndicate, to whom the latter can assign various tasks.
WARNING! Currently, anyone who wants to be a Condo Manager or a co-ownership manager can do so, without being accountable to any controlling body. This can be detrimental to the protection of the public. Several observers believe that this is an unacceptable situation, given the great responsibilities they must assume.