Who should decide of the work to be carried out?

As a general rule, the syndicate of co-owners decides upon and carries out the work to be done in common portions. It acts through its two bodies, the board of directors and the general meeting of the co-owners. However, certain work must be decided upon by the co-owners convened at an annual general meeting, or at a special general meeting. The majorities to be obtained in a vote will not necessarily be the same, depending on the type of work.

 

 

 

Work decided upon by the board of directors

The board of directors acting alone makes most decisions concerning work to be carried out. As the representative of the syndicate, it is its responsibility to ensure the preservation of the immovable and the maintenance of the common portions. It must react promptly when the immovable requires repairs, but also be proactive, to prevent it from deteriorating over time, failing having maintained it properly.

If the board of directors can decide alone (with exceptions) of work to be carried out in the immovable, the co-owners must nevertheless be informed and consulted. This rule is all the more important when special assessments are required for their execution.

Work decided upon by the general meeting of the co- owners

Some work must be formally authorized by the general meeting. It is:

1) Work concerning the alteration, the enlargement or improvement of common portions (article 1097 du Code civil du Québec);

In this case, the necessary majority is higher than usual, since the authorization must be given at the double majority ("majority of three quarters "). To reach it, it requires a favorable vote:

  • Of a majority in number (50 + 1) of all co-owners of the immovable, representing 75% of the votes of all co-owners of the immovable.

2) Of work that has the effect of modifying the destination of the immovable (article 1098 of the Civil Code of Québec).

In this case, the work requires a favorable vote:

  • Of a majority in number representing three quarters of all co-owners of the immovable, and representing 90% of the votes of all co-owners of the immovable.

For certain co-ownerships constituted before 1 January 1994, the declaration of co-ownership may validly provide for a higher majority. It could impose unanimity that is to say to obtain the agreement of all co-owners.

Exceptional cases

The board of directors may undertake by itself alteration work in the co- ownership, if it proves that it is necessary for keeping it up to standards. According to a judgment of the Superior Court of Quebec, the Tribunal concluded that in the event that the safety of the immovable is at stake, the provisions of article 1097 of the Civil Code of Québec do not apply. . The syndicate therefore has no choice but to have the work carried out, which will then be decided by the board of directors.

 WHAT YOU SHOULD KNOW ! When major work is planned by a syndicate, it is possible to ask the professionals or contractors who will take charge thereof, whether in terms of their execution or supervision, to be present at the general meeting of the co-owners to explain the issues. A lawyer or notary experienced in co-ownership law could also be invited to attend at the meeting. He will be able to answer legal questions.

WHAT TO KEEP IN MIND : Differentiating a co-ownership maintenance work, from that intended to alter or improve common portion is not always easy. Separating those that affect the destination of the immovable is an even more difficult task. If in doubt, consult a lawyer or a notary experienced in co-ownership law. The latter will be able to determine which of the two decision-making bodies, the board of directors or the general meeting of the co-owners, has jurisdiction on a particular type of work.

WARNING ! Certain declarations of co-ownership contain clauses that require the board of directors to obtain the consent of the general meeting of the co-owners to carry out work whose cost exceeds a pre-established sum. These clauses, which generally go back before the reform of the Civil Code of Québec (in 1994), may not be in conformity with the law.

 

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