An incompatible activity
When the leased property is an apartment, the lessee must respect the by-laws of the immovable. However more often than not, tourists renting a condo for a short period of time have not received a copy thereof and may not even realize they are contravening its provisions.They sometimes unduly use visitor parking spaces, reducing the number of available spaces. Others are shamelessly parked in spaces owned by co-owners or in their assigned spaces. Moreover, these in and out tourists may be less inclined to be concerned with security and the tranquility of co-owners. In short, they consider their leased unit they as a hotel room.
For their part, lessors, who advocate their right to rent their apartments without restriction, do not always realize its consequences. One should know that by remitting to temporary lessees for a short period the keys of their fraction, the latter generally get free access to the common portions of the immovable (such as: the pool, gym and terrace). The co-owners then have to share them with tourists.
The declaration of co-ownership
It governs without limitation the interaction between co-owners and directors, insofar as the immovable is concerned. It is a crucial legal document for living in the co-ownership. The declaration of co-ownership is divided into three parts: the description of the fractions, the act constituting the co-ownership and the by-laws of the immovable. The last two enunciate respectively:
In theory, the syndicate has no right to prevent a co-owner from leasing his apartment. However, the destination of the immovable can fix limits to the owner’s use of a private portion. Thereupon, the Quebec Court of Appeal has recognized that rentals may be restricted by a by-law, even though the declaration of co-ownership contains no specific provisions in this regard.
This being said, the declaration of co-ownership may regulate or prohibit short-term leases, in the event it is justified by the destination of the immovable. It could for instance stipulate that a given co-ownership has an exclusive residential character. The objective is to prevent a co-ownership being transformed into a hotel, so that its occupants can co-exist in harmony.
The by-laws of the immovable are enforceable against the lessee
The lessor-co-owner is required to notify the syndicate that his apartment is leased. It must also disclose the identity of the lessee, even if the rental is only for a few days. He is also compelled to give the lessee a copy of the by-laws of the immovable (and of any amendment thereto). Similarly, the syndicate shall keep a register in which appear the names of the lessees living in the immovable.
Article 1057 of the Civil Code of Québec states that the by-laws of the immovable may be set up against the lessee, or occupant of a private portion, once a copy of the by-laws is given to him by the co-owner or, if not by him by the syndicate. Once the by-laws of the immovable communicated to the lessee, the latter is obliged to abide to all of them. Failing doing so, the lessor-co-owner or the syndicate may not, at least in theory, blame the lessee for non-compliance.
It sometimes happens that the lessee of an apartment in a co-ownership sub-leases it to third parties. If this occurs, he will have to satisfy certain obligations towards the co-owner-lessor. In such circumstances, he must absolutely:
The co-owner-lessor cannot refuse, without a serious reason, this sublease, even if a clause in the lease provides otherwise. If he wishes to oppose it, the lessor will be required to inform the lessee - within fifteen days of receipt of the notice previously sent to him - stating the reasons justifying the denial of this right. He could for instance invoke that the repetitious leasing of an apartment to tourists is in breach of the destination of the dwelling, as article 1856 of the Civil Code of Québec states: "Neither the lessor nor the lessee may change the form or destination of the leased property during the term of the lease.".
Some decisions of the Rental Board have fixed limitations to and even sanctioned the use of Airbnb. It was thus recognized that:
WHAT YOU SHOULD KNOW! Article 1894 of Civil code of Québec requires the lessor, before signing the lease, to give the lessee, a copy of the by-laws of the immovable concerning the rules governing the enjoyment, use and maintenance of the dwellings and common portions. This obligation of the lessor should be transposed in the ongoing management of the co-ownership, by communicating to the syndicate a document proving that a copy of the by-laws of the immovable was given to all tenants and ultimately to any subtenant.
WHAT TO KEEP IN MIND : When the destination of the immovable is strictly residential, it is the owner-lessor responsibility to object to an Airbnb type sublease , on the grounds that it violates the destination of the immovable and the declaration of co-ownership .If he does not do it in the delay , he will be deemed to have consented to this sublease.
WARNING! Even if they lease their apartment only a few weeks per year, co-owners who do so, generally partake in a commercial activity. Allowing tourists to stay in a furnished unit against remuneration, and to provide them with amenities (such as towels and linen), is part and parcel of a hotel type operation.