- Preservation of the immovable : Preservation of the immovable
Definition : Preservation of the immovable
Action of maintaining the immovable in a good state of repair by its physical maintenance and by keeping its common components and equipment to standards. It is one of the tasks of the syndicate of co-owners. But this mission goes far beyond mere maintenance. It also consists of adequately insuring the common and private portions and establishing a sufficient contingency fund so that the syndicate can, eventually, carry out major repairs to the immovable as well as replace common portions that have reached their life expectancy.
Every syndicate of co-owners has obligations regarding common portions maintenance. Article 1039 of the Civil Code of Québec provides that "Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest”.
However, this section was amended following the adoption of Bill 16. At the end of the first paragraph, referring to the syndicate of co-ownership, it reads the following sentence: "The legal person must, in particular, see to it that the work necessary for the preservation and maintenance of the immovable is carried out."
In the event that the latter fails to maintain and preserve the immovable, the syndicate may incur civil liability. This means that it is bound to have the necessary work carried out to prevent deterioration of the common portions of the immovable. The declaration of co-ownership and other legal provisions impose this obligation.
The Board of Directors manages the affairs of the syndicate of co-owners, so that it can operate in accordance with the law and the declaration of co-ownership. All decisions concerning the syndicate, co-ownership or the immovable which is not under the jurisdiction of the meeting of co-owners, are the competence of the board of directors. Its main role is to ensure the preservation of the immovable. As a general rule, it is the decision-making body that ensures the maintenance of its common portions. If necessary, it must undertake the necessary work to ensure its sustainability.
The syndicate has the legal obligation to safeguard the immovable, concerning work in common and private portions. Such work includes minor or major repairs, and urgent interventions, when the conservation of the built-up patrimony is affected by a fortuitous event. In such occurrences, article 1066 of the Civil Code of Québec provides that no co-owner may interfere with carrying out, even inside his private portion work required for the preservation and which is necessary to maintain the immovable in a good state of repairs.
Like any other natural or legal person, a syndicate of co-owners is susceptible to incur civil liability. It can be invoked when performing work in common portions when one of the stakeholders of the immovable or a person in its environment suffers direct or indirect damage. It may of course be a co-owner but also all those therein, such as tenants and occupants. Its scope also extends to the owners of neighboring immovables, such as in the context of work having an impact on a common wall.
As a general rule, the syndicate of co-owners decides upon and carries out the work to be done in common portions. It acts through its two bodies, the board of directors and the general meeting of the co-owners. However, certain work must be decided upon by the co-owners convened at an annual general meeting, or at a special general meeting. The majorities to be obtained in a vote will not necessarily be the same, depending on the type of work.
The Law and the overwhelming majority of declarations of co-ownership require that syndicates of co-owners insure their building. This may seem surprising at first glance as the syndicate does not own the private portions nor the common portions. However, its main object is to ensure the preservation and the longevity of the building and to manage and administer it diligently following rules of the trade. This is why the legislator has given to the syndicate an insurable interest and has made it compulsory that it subscribe building insurance.
The duties and obligations of a syndicate are determined by law and the declaration of co-ownership. However, it is essential to fully understand those duties and obligations as their non-compliance towards a co-owner or another person could engage the civil responsibility of a syndicate.
Those duties and obligations are mainly aimed to ensure the preservation of the immovable, the administration of the common portions and the protection of the rights affecting the immovable or co-ownership, as well as all operations in the common interest.
The Civil Code of Quebec (C.c.Q.) provides that upon the publication of the declaration of co-ownership, the community of co-owners of an immovable constitutes a syndicate.This is necessary to reconcile the rights of each co-owner with the destination of the immovable. The syndicate acts as a legal person regrouping all the co-owners of the immovable.