- 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! A penal clause included in the By-Laws of the immovable, before the entry into force of Bill 16 (January 10, 2020) is deemed to be part of the constituting act of co-ownership in accordance with article 1053 of the Civil Code of Quebec.Bill 16 amended article 1053 of the Civil Code of Quebec by specifying that any penalty clause applicable in the event of a contravention of the declaration of co-ownership is 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. Finally, since they are part of the constitutive act of co-ownership, any decision to introduce or modify a penalty clause in a declaration of co-ownership must be taken by the meeting of co-owners in accordance with article 1097 of the Civil Code of Quebec.
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.
In such cases, a trial is not the only avenue. Before commencing legal proceedings, and even once they are engaged, it is still time to opt for the services of a mediator. The latter could resolve the conflict between co-owners or with the members of the board of directors.
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. »
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.
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.
In the event of an emergency work (for example during water damage), the co-owners are required to give free access to their private portions to a representative of the syndicate. In order not to delay the execution of such work, any co-owner should supply a duplicate of the keys to their apartment to a representative of the board of directors or to the condo manager. Although the law is silent on this issue, most declarations of co-ownership have a provision that imposes this rule upon co-owners, tenants or any other occupant of the immovable.