Usually declarations of co-ownership list the patrimony of the syndicate of co-owners. Among the items owned by the syndicate is the register of co-ownership. It contains all the syndicate's archives, such as the declaration of co-ownership, the up-to-date list of co-owners and tenants of the immovable and the minutes, enabling it to carry out its mission adequately. The co-owners must have access to this register, which can be entrusted to a director or a manager.
Transmission of the register
In the event of the termination of his duties, a director or manager may not, in principle, retain the documents in his possession. It must be remembered that he does not own them, but is rather a depositary. The Board of Directors therefore has a legitimate interest in retrieving the register without delay, since the documents it contains are indispensable for the day-to-day management of the co-ownership.
How to recover the register?
The first step in retrieving the registry is to request that it be returned to the syndicate. This will be done by means of a notice in writing which will have the objective of:
If this first notice is not respected, a formal demand letter will need to be sent requiring the remittal of the documents, under certain conditions and under a specific timetable, otherwise legal proceedings will be instituted. If push comes to shove, then the syndicate must resort to the courts to obtain an order (injunction) enjoining the ex-manager, former director or other third party to return the register in accordance with pre-determined conditions, such as the time and place chosen for the delivery to take place. Also, if the syndicate considers that the person who retained its property was not entitled to do so, it may also claim damages against the latter.
Right of retention: a right of exception
In the normal exercise of its activity, the co-ownership manager is called upon to safeguard the archives of the co-ownership. If the syndicate that hired him does not pay his fees, the question arises as to whether he can refuse to return these records, as long as he has not been paid.
In a 2003 decision, the Quebec Court of Appeal found that the “business manager of the business of another”, does not hold a right of retention because he acts without the consent of the other. On the other hand, the judgment seems to open the door for such a right in favor of the “administrator of the property of others responsible for simple administration” such as the manager (condo manager).
Moreover, in order to exercise this right, its holder has to fulfill certain conditions, such as holding an exigible claim related to the asset retained. Such would not be the case, for example, of a manager who would not have agreed with the board of directors on the amount of his work in managing of an insurance claim, when such work was not included in his contract.
Another condition for this right of retention to be exercised is that its beneficiary must not be in default of fulfilling its own obligations. In other words, if the syndicate has terminated the contract of the manager, because of a failure in the performance of his contractual obligations, the manager will not be entitled to retain the register of co-ownership in order to obtain the payment for services that he has not rendered. It will obviously be necessary for the syndicate to demonstrate that the manager has failed in one or more of its duties.
The special case of the professional manager
When a manager is a member of a professional order, such as the Quebec Order of Chartered Administrators, the rules of professional conduct (article 55 of the Code of ethics of chartered administrators) require him to act diligently on the request of a client who wants to retrieve his documents. It will be so, even if fees have not been paid.
WHAT YOU SHOULD KNOW ! Syndicates of co-owners are legal persons required to be represented by a lawyer before the courts. The preparation of a proceeding for the issuance of an injunction is a complex matter. Therefore, it should be entrusted to an experienced lawyer.
WHAT TO KEEP IN MIND: The right of retention is a means of applying pressure to force a client to settle an outstanding account. This right may be exercised so long as the debtor has not paid the amounts owing to his creditor. In such cases, the debtor may propose an equivalent guarantee, or a payment under protest to end to the retention of his property.
WARNING! A Board of Directors shall, for the purposes of the administration of the immovable, safeguard all the documents and archives necessary to carry out its duties . It cannot tolerate that the register of the co-ownership be taken hostage by anyone.