Definition : Grandfathering clause

Clause introduced when modifying the declaration of co-ownership maintaining the acquired rights. It allows the initial requirements of the declaration of co-ownership to apply to those who already benefited from them, usually for a limited period. It thus allows co-owners, when amending the declaration of co-ownership, to be excluded from the application of new rules. For example, we may want to prohibit dogs in the co-ownership, but allow co-owners who already own one to keep it until his death.

WARNING ! In her book La copropriété divise, 5th edition (page 167), author Christine Gagnon is of the opinion that this type of clause is legally questionable. Moreover, authors Christine Gagnon and Yves Papineau, in their book Guide de la réglementation en copropriété (page 171), are of the opinion that the "notion of acquired rights concerns only rights that are intimately linked to the immovable and not personal rights such as the right to have several animals..." They conclude as follows: "It should also be noted that no provision of the Civil Code in co-ownership specifically allows this type of regulation that recognizes prior rights contrary to the new standard. ".

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The declaration of co-ownership is the deed containing all the organizational rules of a co-ownership. This document also provides conditions of use and enjoyment of the common and private portions. Life in a co-ownership surmises that changes will become compulsory on account of changing living habits, temperaments, the era and technological advances. Thus the declaration of co-ownership is evolutionary. It can be amended by the co-owners, provided they abide to the relevant formalities of the Law.  
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