- Declaration of co-ownership : Penal clause
Definition : Declaration of co-ownership - Penal clause
Clause of the declaration of co-ownership (constituting act of co-ownership) which fixes in advance the monetary sanction (a fine) the syndicate may claim from a co-owner following the occurrence of a contravention of one of its provisions. However, the amount of the penalty may be reduced by the court if the clause is determined to be abusive. The penal clause may also hold the co-owner liable for extrajudicial fees incurred by the syndicate to enforce the declaration of co-ownership, to the extent that they are reasonable reasonable in all the circumstances. In particular, the Court must take into account that the payment of extrajudicial fees and disbursements, where permitted by such a clause, is intended to encourage a co-owner to comply with his obligations and, where he does not, to avoid a recurrence.
WHAT YOU SHOULD KNOW ! Bill 16 (art. 30) amended article 1053 of the Civil Code of Quebec by specifying that all penalty clauses applicable in the event of a contravention of the declaration of co-ownership are now part of the constituting act of co-ownership. In addition, any penalty clause included in a By-Laws of the immovable, before the coming into force of Bill 16 (January 10, 2020) is now deemed to be part of the constituting act of co-ownership (art. 150 of Bill 16)). Consequently, any decision to introduce or modify a penalty clause in a declaration of co-ownership must be made by the meeting of co-owners in accordance with article 1097 of the Civil Code of Quebec.
WARNING ! The sums that could be due under a penalty clause are not common expenses (condo fees). They cannot be legally transformed into common charges, despite the requirements of a declaration of co-ownership to this effect. These sums cannot be secured by a legal hypothec in favour of the syndicate of co-owners. Nor can a co-owner be sanctioned for his non-payment, by suspending his voting rights and disqualification from being a director. Finally, the buyer of a fraction cannot be required to pay such sums due by his seller, because of article 1069 of the Civil Code of Quebec.
I am a co-owner in a co-ownership in phases of 10 syndicates of co-owners who share a grassy lot in common part. Until the arrival of young children in the condos the space was not very busy. Currently it is the regular meeting place for children and their parents (end of the day during the week and weekends depending on the temperature). The temporary installation of inflatable games and water games (stored after each use) attracts several children from the neighborhood and consequently increases the noise level. Many homeowners who live nearby complain about the noise and use of this space. In our declaration of co-ownership, it is mentioned that the tranquility of all co-owners must be respected.
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La déclaration de copropriété est le document maître d'un syndicat de copropriétaires. Elle définit les fondements mêmes d'une copropriété, et indique le code de vie à y adopter.
Les copropriétaires irrespectueux du règlement de l’immeuble (déclaration de copropriété) sont nombreux. Leurs infractions peuvent notamment se traduire par du tapage nocturne (trouble anormal de voisinage), un animal bruyant ou le non-respect des règles relatives au stationnement. Ces comportements peuvent causer un préjudice sérieux à certains copropriétaires ou au syndicat.
En pareille situation, il revient au conseil d’administration d’agir, en faisant respecter les règlements prévus dans la déclaration de copropriété. Dès qu’un manquement est constaté ou porté à sa connaissance, en cette matière, il doit intervenir pour que cesse un comportement délinquant. Les copropriétaires concernés ne doivent donc pas hésiter à se tourner vers leur syndicat, en l’occurrence les administrateurs, afin que soient mises en œuvre diverses mesures visant à sanctionner toute personne fautive.
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.
Co-ownership conflicts often arise from a lack of knowledge of the rules governing the immovable, a lack of communication or transparency, or from an unresolved misunderstanding.
Know that in such cases, a trial is not the only avenue available to you. Before commencing legal proceedings, and even once they are engaged, and even once they are initiated, there is always time to opt for the services of a mediator. The latter, who is a neutral and impartial third party, could help you resolve (without decision-making power) a dispute between a co-owner and the syndicate or members of the board of directors between them.
6 février 2020 — Un copropriétaire de Québec a été condamné à payer quelque 15 000 $ à son syndicat, fruit d’une décision rendue par la Cour du Québec – Division des petites créances. L’homme en question louait son unité à court terme (location de type hôtelière), en contravention avec sa déclaration de copropriété.
Le défendeur estimait pourtant avoir le droit d’utiliser son condo « à des fins personnelles, que la location à court terme n’était pas interdite par la déclaration de copropriété initiale, et que ce n’est qu’à l’occasion de modifications apportées en 2017 que pareille location fut prohibée. »
Relocations and move-ins involve going through the common portions of the building to transport furniture, boxes and other personal belongings. These operations could turn into a real mess or nightmare if, in a co-ownership, the framework for managing them has not been clearly established. While certain provisions of the Declaration of Co-Ownership are universal on this issue, nothing prevents a syndicate of co-owners from improving its content in order to adapt them to its own reality.
I live on the 5th floor of an 8-storey building. The co-owner on the 7th storey uses his balcony to let the dog urinate and defecate. Unfortunately, the urine and droppings fall back on our balconies. The situation has been going on for almost two years. We sent him e-mails, but they didn’t solve anything. The syndicate has been aware of this situation for a year and a half but nothing is happening. The last few weeks the situation has worsened, because we receive several times a day drops of urine and it stains the windows and the smell is always present. I have to remove my plants and herbs from the edge of the balcony. This week I made a complaint to the City, which should send the co-owner a letter.
Question: If the situation persists, I would like to know what are my rights?
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The declaration of co-ownership includes the set of rules ensuring the efficient organization of a co-ownership. Its knowledge by the members of the board of directors and by each co-owner is essential to the proper operation of the co-ownership. This co-owners reference document is consulted, for example, in the case of work. For a promisor-buyer, the declaration of co-ownership contains a wealth of useful information regarding the conditions of use and enjoyment of the private and common portions. Hence the necessity of reading this document before buying, to avoid unpleasant surprises, especially as to the use one intends to make of his private portion.
A co-owner may be at home in his apartment, but the use he makes of it must comply with what is prescribed in the declaration of co-ownership. However, short-term rentals such as Airbnb's are sometimes prohibited if the declaration of co-ownership expressly indicates it or if the destination of the building is exclusively residential. This document may contain provisions prohibiting non-residential activities in the immovable. In order to ensure the well-being of the people who live there, it may be necessary for the syndicate to impose sanctions on co-owners or tenants who violate the by-laws of the immovable. He may even have, on certain occasions, to resort to the court to assert the rights of all the co-owners.
Article 7 of the Charter of Human Rights and Freedoms guarantees the inviolability of the dwelling. In principle, no one can have access to the apartment of a co-owner without his consent. However, it was rightly held that this rule was not absolute. This is why most declarations of co-ownership provide that a co-owners, tenants or any other occupant of the immovable must leave, at all times, a duplicate of the keys to the board of directors or the person mandated to keep the keys. In the event of emergency work (for example during water damage), the co-owners are required to leave free access to their private portions to a representative of the syndicate. It should be noted that the Civil Code of Québec governs, in harmony with the Charter of Human Rights and Freedoms and the general principles of law, persons, relations between persons, as well as property.
In order for a Meeting of co-owners to deliberate and adopt decisions, the Law provides that the co-owners (present or represented), eligible to vote, must hold the majority of votes. This requirement is called a quorum.It is also necessary that the quorum be maintained for the duration of the meeting. In the event that it cannot be reached or maintained, the Law provides for holding a second Meeting of co-owners (Make-up Meeting) during which the rules for calculating the quorum will be less stringent. An overview of the various requirements to obtain a quorum.