- Common portion : Maintenance
Definition : Common portion - Maintenance
Set of operations or activities aimed at preserving, cleaning, keeping in good condition the common portions of the building, according to ordinary means, and this to prevent their degradation. The syndicate of co-owners has the obligation to ensure the conservation of the immovable and, by the same token, the maintenance of the common portions. The maintenance of the common portions concerns, a priori, both the common portions and the common portions for restricted use, because the law makes no distinction. However, the declaration of co-ownership may provide that the maintenance of common portions for restricted use, such as balconies, be entrusted (in part) to the co-owners who have the enjoyment. Failure to maintain the common areas implies a breach of an obligation. Article 1077 of the Civil Code of Quebec provides that the syndicate is liable for damages caused to the co-owners or third persons by the lack of maintenance of the common portions.
The law does not establish an exhaustive list of the duties and obligations that the members of the board of directors must assume. It is the declaration of co-ownership (constituting act of the co-ownership) and certain articles of the Civil Code of Québec which, for the most part, determine them. Furthermore, the administrators are considered to be agents of the syndicate. Directors must therefore act within the limits of the powers conferred on them by law and by the declaration of co-ownership. As such, they are required to act with care, diligence, honesty, loyalty, efficiency, fairness, and in the interest of the union.
Works for the alteration, enlargement or improvement of the common portions are subject to a special regime. On the one hand, such work must be the subject of a formal authorization from the meeting of co-owners, by the enhanced majority of article 1097 of the Civil Code of Quebec. On the other hand, this kind of work must be compatible with the destination of the immovable and not infringe the rights of the co-owners over their private portions. This strict framework is directly derived from the legal conception of divided co-ownership, namely: the building must, in principle, be maintained as it is. This is why, for work that goes beyond the simple maintenance or retrofitting to standards of the common portions of the building, it will require the approval of the meeting of co-owners.
All co-ownerships have common portions that need to be maintained. These may include corridors, stairs, gardens and elevators. The syndicate has an obligation to ensure their maintenance, since the declaration of co-ownership generally provides that it is the main person responsible for them.
In addition, article 1039 of the Civil Code of Quebec stipulates that the syndicate has the obligation to ensure the preservation of the immovable and, by the same token, the maintenance of common portions. As for the maintenance of common portions for restricted use, for example balconies, it can be entrusted (in part) to the co-owners who have the enjoyment. This reduces the use of external service providers, thereby reducing the amount allocated to common expenses.
The co-ownership gives rise to expenses relating to the maintenance of the common portions and the day-to-day administration of the syndicate. Administrative, maintenance, replacement, improvement or alteration expenses of the common portions are divided among the co-owners. General common expenses are to be distinguished from particular common expenses, which are allocated under different rules. In the first case, it is the relative value of each fraction that is used to establish the co-owners contribution. As for particular common expenses arising from common portions for restricted use, the co-owners using them are alone responsible of the expenses resulting therefrom.
The powers of the syndicate are designed according to the collective interest of the co-owners and find their limits in respect of the individual rights of the co-owners guaranteed by the declaration of co-ownership and by the Charter of Human Rights and Freedoms (e.g.: the inviolability of the home). These powers of the syndicate are based on four principles: the preservation of the immovable, the administration of the common portions, the protection of the collective rights and the amendments to the declaration of co-ownership. For this, he must ensure the maintenance in good condition of use and enjoyment of all the common portions. The syndicate may also take legal action against a co-owner. The Civil Code of Quebec gives the syndicate of co-owners extensive powers to administer the co-ownership.
The work to be done in the common portions is subject to rules of which it is useful to know all the ins and outs. The syndicate of co-owners acts in this matter through its two bodies, the board of directors and the meeting of the co-owners. It is up to the board of directors to analyze the scope and budget of the work, and to organize, when required by law, a meeting of co-owners (annual meeting or special meeting.) which will aim to vote by majority the final decision. The majorities to be obtained in a vote will not necessarily be the same, depending on the type of work.
The syndicate of co-owner’s mission is to ensure the preservation of the immovable and the maintenance of the common portions. To ensure the good performance of the building, the syndicate involves various service providers (for example: a housekeeping company, an elevator operator, a building professional, etc.). Technical and property management aims at the conservation of common portions. In addition, a well-maintained building necessarily involves carrying out the necessary work to avoid the deterioration of the common portions. In the case of work, the syndicate has a central role. It puts the various service providers in competition upstream, and follows the site throughout its execution. In addition, to perform these tasks correctly, it is essential that the syndicate set up a maintenance logbook, an asset management plan and a certificate of the state of the immovable.