- Declaration of co-ownership : Declaration of co-ownership
Definition : Declaration of co-ownership
A notarial act en minute, published in the Land Register, the main purpose of which is to subject the immovable to the regime of divided co-ownership. The declaration of co-ownership determines :
- The rules for the operation and the organization of the co-ownership (private and common portions, allocation of expenses, etc.)
- The rights and obligations of the co-owners and of the syndicate.
It is divided in three sections: the constituting act of the co-ownership, the By-Laws of the immovable, and the Description of the fractions.
Each syndicate of co-owners has a declaration of co-ownership, which, in principle, should be a veritable bedside book for both the co-owners and the members of the board of directors. However, the declaration of co-ownership is a document that may seem inaccessible at first glance for the latter. This problem can sometimes be increased, when it was more or less well written, more or less long ago. This is not to mention the confusing clauses, which create difficulties of interpretation and even clauses contrary to the legislation that evolved after its publication.
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.
The interpretation of a declaration of co-ownership during a general meeting of the co-owners is sometimes problematic. If, moreover, it has been published before the coming into force of the Civil Code of Québec, in 1994, things can get dicey.
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.
Afflicted with a health issue, you want to move to an apartment closer to your daughter, which is fitting, given that a unit in her condo building is for sale. However, this unit is rented. During a visit to the premises, the tenant informs you that he has no intention of leaving, claiming a right to stay there for life. At least, for as long as he wants to.
On the other hand, the seller tells you that the tenant will have to leave the unit upon receiving a notice of repossession. Intrigued by the tenant's statement, you take time to interview several people to verify this "lease for a lifetime" matter. The answers provided reassure you: if it is sent six months before the planned repossession date, the notice of repossession should allow you to take back the apartment.
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.
The declaration of co-ownership is a convention that organizes and regulates the collective life of the co-owners and occupants of the building. This Convention defines in particular their rights and obligations. It is usually developed unilaterally by the developer or owner of the building. Legally, the declaration of co-ownership is a real contract of adhesion, because any new co-owner is obliged to adhere to it.
This is a key legal document. Its publication gives rise to the co-ownership and the syndicate. Look at the different aspects of the declaration of co-ownership.
In undivided co-ownership, the rights of withdrawal and of first refusal may disrupt the course of a real estate transaction. It is important to know that other co-owners may take precedence over a potential purchaser. The title of the latter could be precarious for some time: a buyer who acquires rights in an undivided co-ownership without first receiving the approval of all the undivided co-owners is therefore liable to have his share redeemed and thus be excluded from the indivision.
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.
The law provides that a syndicate must keep a register at the disposal of the co-owners. Article 342 of the Civil Code of Quebec specifies that the board of directors keeps the list of members and the books and registers necessary for the proper functioning of the legal person. This register is the memory of the syndicate, and consequently, its archives. In is thus invaluable. Much more than a mere witness of the sound management of an immovable, it is its prime instrument. Therefore, preservation and access are the hallmarks of this register.
Question: At the time of the purchase of my condo, do I have a right to ask the seller for a certified true copy (authentic copy) of the Declaration of Co-Ownership?
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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.
The intervention of the notary is very important when purchasing an apartment in a divided co-ownership. A professional, member of the “Chambre des notaires du Québec” (Québec Chamber of Notaries), he is also a public officer. As such, the notary has without limitation the mission of executing deeds to which the parties wish or are required to endow with authenticity (such as a declaration of co-ownership). Even though it is preferable that he should get involved at the outset of a transaction, this legal adviser usually gets involved after the signing of the offer to purchase or of the preliminary contract.
The notary, in his capacity of public officer:
Warrants the validity of the deed of sale;
Is bound to act objectively and to give legal advice to all the parties (equally to the purchaser and the vendor);
Is bound to a duty of information to the parties, which means he should give the parties relevant advice and information in relation with the deeds signed before him.
13 septembre - Au Québec, les acheteurs de condos sont en droit d'exiger qu'une déclaration de copropriété soit rédigée en français, même si le promoteur a demandé à un notaire qu'elle ne soit écrite qu'en anglais. Une déclaration unilingue anglaise "contrevient à la Charte de la langue française".
December 11th 2015 - The main duty of the board of directors in a condominium is to manage the Syndicate’s business. This means first to ensure the maintenance and conservation of the building, secondly to see to it that everyone respects every disposition of the declaration of co-ownership.
At the signing of the deed of sale before the notary, an authentic copy of the declaration of co-ownership must be remitted to you.In order to maintain the stability of this contractual framework, every purchaser undertakes, by signing his deed of purchase, to abide to the declaration of co-ownership and the by-laws of the immovable adopted and filed in the register of the co-ownership.
The purchaser is thus bound by the declaration of co-ownership, even though he has not signed it, as well as by its amendments (article 1062 of the Civil Code of Quebec). In this regard, a clause providing that the new co-owner will comply with the rules of the declaration of co-ownership is generally included in the deed of sale.