A source of permanent controversy in co-ownership, smoking arouses passions. A growing number of co-owners are complaining about neighbors who smoke. Given the abnormal neighbourhood disturbances that second-hand smoke can cause, many non-smoking co-owners want it completely banned. They worry about the effects of second-hand smoke on their health. Under the circumstances, should co-ownership syndicates banish this habit? This is not an easy question to answer. Easier said than done, some will say. And they are not wrong. Here’s a look at the whole legal issue that defines smoking in co-ownerships.
The declaration of co-ownership is a contract that orchestrates and regulates the lives of co-owners, lessees and other occupants of the immovable. It represents the guideline for everyone who lives in the immovable.The declaration of co-ownership provides, systematically, that it is up to the board of directors to have its content abided to. However, it happens that people break the rules, in particular by a non-compliant use of a private portion with regard to the destination of the immovable, a noise nuisance and work carried out in violation of the by the laws of the immovable. Other examples illustrate the problems that can occur in the co-ownership, such as an encroachment on a common portion or the improper installation of a floor covering. Anyone who does not abide to the declaration of co-ownership is liable, inter alia, to a legal recourse based on article 1080 of the Civil Code of Quebec . This action may be brought by a co-owner or the syndicate.
Your co-ownership is exposed to various risks, such as fire, water damage, theft and vandalism. When a loss occurs, the insurance of the co-ownership covers the immovable and the civil liability of the syndicate of co-owners.
The syndicate has the obligation to subscribe this type of insurance. The Law and the vast majority of declarations of co-ownership make it compulsory. The insurance contract describes the guarantees offered, their limits, exclusions, and the amounts of the deductibles.
The director plays a leading role in a co-ownership. As a mandatary of the syndicate of co-owners, he ensures the smooth running of the immovable’s day to day business, which implies a working knowledge of the tasks related to this key function. As such, directors must act with prudence, diligence, honesty and loyalty, and never lose sight of the co-owners community interests.
The civil liability of the directors with regard to the tasks incumbent upon them is largely ignored. Thousands of Quebeckers who sit annually on a board of directors, maybe including yourself, are unaware of this state of affairs.
The appointment of meeting officers is necessary to hold a general meeting of co-owners.The range of their titles and functions are without limitation: president, vice-president, secretary and scrutineer of the general meeting. It is the declaration of co-ownership, in the chapter By-laws of an immovable that provides the rules to be followed. However, the civil liability of a general meeting officer with regard to the tasks incumbent upon him is largely unknown. Yet many Quebeckers accept this charge, while not being aware of this reality.
The Internet spawned a collaborative economy. Web sites such as Airbnb allow co-owners to rent their apartments to third parties a few days a year. This accommodation formula, intended for travelers, sometimes generates substantial income. For this reason, some owners are tempted by these easy pickings. And they believe they are entitled to do so, (wrongly in many cases) and to use their private portion as they see fit.
Many co-owners are unaware that this activity is prohibited in their building. Others are fully aware, but are unconcerned. However the incessant ins and outs of strangers brings its lot of disadvantages. Late and noisy arrivals, as well as departures at dawn are generally not compatible with the lifestyle sought by the resident-co-owners of the building. This practice can potentially have a negative impact on their safety.
The tasks of the condo manager are numerous. The latter may be mandated to manage the immovable, and thus ensure its preservation and maintenance; implement the decisions of the board of directors; settle major losses, take out the insurance required for your syndicate, but also to enforce the by-laws of the immovable. Therefore, his civil liability may be invoked. If he is at fault, he is exposed to recourses or claims for compensation, whether by the syndicate or the co-owners themselves. It is therefore imperative that civil liability insurance be underwritten for the duration of his contract for service or his contract of employment.
The failure to pay general or special common expenses (condo fees) is one of the most contentious co-ownership’s issues. It is the duty of the board of directors of the syndicate of co-owners to collect them, unless this task has been delegated to the condo manager.
When a co-owner's contributions have been in arrears for more than three months, the law provides, ex officio, that he automatically loses his right to vote at the general meetings of the co-owners. He is also exposed to legal recourses, so that the syndicate can recover the amounts owing. A review of the options in such cases.
A bathtub or a washing machine that overflows into the apartment below, a hot water tank that conks out and spills down six floors: losses involving the civil liability of a co-owner are many co-ownerships. And they are expensive! This is why the amount of insurance premiums and deductibles have increased significantly in recent years.
Worse still, some insurers no longer want to insure co-ownerships, because of a loss ratio that has become out of control. This situation is directly related to the insurer of the syndicate, which is almost always called upon to cover a loss, when damage has been caused to the common and private portions. Thus the question of who is responsible arises. It is also necessary to know the applicable law to the owner at fault. Other considerations affect both the insurer of the syndicate and those of the co-owners concerned, to determine who will pay what?
The Self-Insurance Fund will become mandatory on April 15, 2022 following the adoption of the Bill 141, in 2018, which notably created section 1071.1 of the Civil Code of Québec. It had become necessary due to a substantial increase in insurance deductibles. Most of the time, the amount of these deductibles was formerly negligible, whereas today, it can reach tens, even hundreds of thousands of dollars.
Several syndicates of co-owners did not wait, or will not wait until April 15, 2022, in order to constitute a Self-Insurance Fund, according to their management based on logic and pragmatism.