Definition : Preservation of the immovable

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 represents the co-ownership and manages it. He acts in the name and on behalf of the syndicate, he collects the common expenses (condo fees), he concludes the contracts for the maintenance and conservation of the building. 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 certains articles of the Civil Code of Québec which, for the most part, determine them. Furthermore, directors are considered to be the mandatary 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 syndicate.

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.

It is to the board of directors as a whole, as a decision-making body, that the Civil code of Quebec confers the power to administer the affairs of the syndicate. Individual directors do not have any powers unless they have been specially authorized to do so. All decisions concerning the syndicate, the 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 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 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.

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 Civil Code of Québec confers juridical personality on the community of co-owners. Article 1039 of the Civil Code of Quebec provides that as soon as the declaration of co-ownership is published, the community of co-owners constitutes a legal person called a syndicate of co-owners. 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. However, it is essential to understand them well because failure to comply with these duties and obligations towards a co-owner or a third party could lead to the civil liability of a syndicate.

The syndicate acts as a legal person bringing together all the co-owners of the building and not each of them individually. The Civil Code of Quebec (C.c.Q.) provides that the syndicate of co-owners arises, by operation of law, at the time of publication of the declaration of co-ownership in the Land register. With the powers devolved to it by law and exercised by its two decision-making bodies, it thus expresses the autonomy of the community of co-owners. As a result, the co-owners are third parties to the syndicate. The assets of the syndicate are thus distinct from those of each co-owner. Despite the collective nature of this type of co-ownership, the legislator has not attributed to the syndicate the ownership of the common portions, which is distributed among the co-owners according to the relative value of their fraction.