- Ownership right : Usufruct
Definition : Ownership right - Usufruct
Dismemberment of the right of ownership by which the holder of this right (the usufructuary) has, for a certain time, the right of enjoyment of property owned by another (the bare owner), subject to the obligation of the usufructuary of preserving its substance (preservation). The voting right attached to a fraction of co-ownership belongs to the usufructuary. However, the bare owner may exercise such voting rights when the object of the vote is modifying the substance of the property held in co-ownership, changing its destination or terminating the syndicate of co-owners. This allocation of voting rights is not opposable to the syndicate; it is to be discussed only between the usufructuary and the bare owner. In addition, the co-owner who grants such a right of use must, within 15 days, notify the syndicate of co-owners. It indicates the name of the usufructuary, the duration of the right of use and the date on which he gave him a copy of the by-laws of the immovable.
The right to vote is a founding principle of democracy. Citizens of a democracy can express their will in a ballot. In principle, this right is equal amongst all voters. Practically speaking, it is equivalent to the «one person, one vote" rule, which means that every vote has the same weight. However, co-ownership derogates from this principle, namely in that the number of votes held by the co- owners is in direct correlation with their rights of ownership in the immovable. An overview of the various aspects of voting in General Meetings of co-owners.
The declaration of co-ownership is binding upon the co-owners and, in principle, on the occupants and tenants of the immovable. It is the responsibility of the Board of Directors to enforce its content. By failing to do so, the members of the Board may, in some cases, be held liable toward the co-owners. Anyone who does not respect it is exposed to legal proceeding based in particular on article 1080 of the Civil Code of Quebec. This action may be brought by both a co-owner and the syndicate.
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.
When the rented property is an apartment, all tenants must comply with the by-laws of the immovable. However, tourists who rent a condo temporarily have often not received a copy. Therefore, without even knowing it, they may be in breach of the provisions included in this regulation. These tourists can use the parking spaces reserved for visitors, thus reducing the number of spaces available. Others park squarely in the spaces belonging to the co-owners. In addition, these temporary occupants may be less aware of safety considerations, as well as the tranquility of the co-owners. In short, they usually consider the unit they rented as a hotel room.
The first sentence of article 1090 of the Quebec civil Code states that "Each co-owner is entitled to a number of votes at a general meeting proportionate to the relative value of his fraction." The number of votes is related to the share of property rights each co-owner holds in the building. Therefore, the co-owner of a private portion whose relative value is higher will have more voting rights. In return, he or she will have to contribute to a larger portion of the costs related to the preservation of the immoveable and the maintenance and administration of the common portions, since common expenses are also distributed among all the co-owners according to the relative value of each portion.
The contingency fund is set up on the basis of forward planning limited to certain works, namely those aimed at the conservation of the common portions. This collective savings thus makes it possible to finance the execution of works allowing the rehabilitation of the common portions as well as the common portions for restricted use. The contingency fund must be used to pay the cost of very specific work, namely those relating to major repairs or the replacement of the common portions of the building. The board of directors must therefore be able to clearly identify what constitutes the common portions and what the notion of major repairs and replacement of the common portions means.