Rights and remedies

expert-copropriete-215.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.

 

Preventing hotel type rentals

The by-laws of the immovable may be set up against the lessee or occupant of a private portion (1057 of the Civil Code of Québec), upon it being given to them by the co-owner or the syndicate of co-owners. However, as the occupation time of short-term rentals is ephemeral, most of the time, the syndicate will have a difficult time of intervening to bring to order temporary tenants who may have already left the premises when an action is undertaken. Compounding this problem is the difficulty of proving that these people have actually received a copy of the By-laws of the immovable. For both reasons, any syndicate must provide in its declaration of co-ownership, explicit and coercive provisions, if it wishes to regulate or prohibit short-term rentals.

Penal clause

The declaration of co-ownership may provide, by the insertion of a penalty clause, penalties arising from the failure (by a co-owner) to comply with the by-laws of the immovable (Article 1622 of the Civil Code of Québec). In such cases, the offending co-owner may be required to pay a pre-determined sum to the syndicate as damages. The penalty clause provides the syndicate, with a coercive tool whose implementation is inexpensive, thus avoiding costly injunctive remedies.

Fair and equitable penalties

The amount of the penalty clause should not be excessive or unreasonable, although it must take into account the revenues generated by the short-term rental to be truly effective. At the end of the day, this amount should be enough to discourage co-owners from renting their unit for the short term, if this activity is prohibited in the immovable. As it is sometimes difficult to determine a fair and equitable amount, the syndicate can refer to the Act respecting tourist accommodation establishments and its application regulation. It provides  fines for those who illegally practice short-term hotel type lodging .This being said, a co-owner who does not pay the penalties levied could be compelled to do so by the means of an application against him before  the Small claims court, Division of the Court of Québec (under reserve of  the conditions provided by the articles 953 to 998 of the Code of Civil Procedure), so that the syndicate can collect payment.

Ridiculously low penalties

If the amount of the penalty is insufficient, it will perhaps not have the desired effect. Some co-owners may not be deterred. They will continue to rent their apartment for short terms,more particularly if the cost-benefit ratio associated with this illegal activity is in their favor. Conversely, if the amount of the penalty is enough to convince the most recalcitrant, they will end their activity.

However sometimes, despite the syndicate’s best effort to end it, a few irreducible co-owners continue their activities? In such cases, an injunction is the ultimate weapon in case of recurrence. It can be obtained by petitioning the court.

Injunction: beware

Once the syndicate obtains from the court an injunctive order against the offending co-owner and the activity ceases, it may not claim from the latter penalties for the future. However the co-owner will be liable (for the fines) for any offense committed before this injunctive order and its enforcement. Also, be aware that if the co-owner violates the injunction or refuses to obey it, the court may, in addition to other penalties that may be imposed, order the sale of his fraction. (Art. 1080 C.C.Q.)

Gathering evidence

To obtain this injunction, the syndicate must prove that a co-owner rents his apartment in breach of the by-laws of the immovable. It should build up a file containing irrefutable evidence. It will need to be collected without infringing on the individual rights of the persons involved. If gathering such evidence is done in compliance with the Law, such evidence cannot be excluded, on the basis of being  detrimental to the administration of justice or that it infringes fundamental rights. Remember that doing things the right way will also prevent a possible recourse on the part of individualsconcerned.

This being said, a recent decision regarding short-term rental is food for thoughts. In this judgment, Syndicat des copropriétaires du Sir George Simpson c. Langleben, the Superior Court refused to order a co-owner to cease renting his apartment, even though the term of the  lease was three months and the declaration of co-ownership forbade leases of less than one year. The judge refused to apply Article 1057 C.C.Q. which provides unequivocally that the by-laws of the immovable is binding upon the tenant as soon as delivered to him. (At the time of this writing, this decision, which appears to us to be a one off, is still under appeal.)

Filing a complaint

The Act respecting Tourist Accommodation Establishments (and its regulation) provides fines for those who illegally supply short-term hotel type accommodation. Any syndicate struggling with delinquent landlords co-owners has the legal interest to file a complaint. Upon filing a complaint, agents can investigate. The investigator has the following powers:

  • To enter at any reasonable time in an establishment and carry out an inspection;
  • To take photographs of the premises and equipment;
  • To require communication for examination or reproduction of extracts from any book, account, register, record or document, if the inspector has reasonable grounds to believe that they contain information relevant  to the enforcement of the Law and its regulations .

 This avenue can be very effective against a non-compliant landlord-co-owner.

 WHAT YOU SHOULD KNOW! Once a violation of the declaration of co-ownership is demonstrated, the syndicate which has a penalty clause at its disposal is entitled to claim the amount of the penalty without having to prove the prejudice suffered. However, if the amount is excessive, and the co-owner disputes it in court, he could obtain a reduction of the penalty.

 WHAT TO KEEP IN MIND: The syndicate of co-ownership may crackdown against non-compliant co-owners, by the means of a penalty clause inserted in the declaration of co-ownership. You should know that such a clause is not automatically provided in the declaration when a co-ownership is created. Therefore, it is in the syndicate’s best interest to amend its declaration of co-ownership, to introduce this measure whose effects are usually an effective deterrent.

 WARNING! The amount of the penalty must be reasonable. The courts have the power to reduce penalties determined to be abusive. One must find a balance between deterrence and disproportion when fixing the amount of a penalty under the penal clause.

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