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 a document that encompasses all the rules specific to a syndicate of co-owners, in order to ensure the proper functioning of an immovable and cohesion between its occupants. It also specifies the conditions of use and enjoyment of the common and private portions. Co-ownership living is not static. It is evolutionary and subject to change, which will sooner or later be claimed by co-owners. This evolution will sometimes lead to amendments to the declaration of co-ownership, subject to compliance with the terms and conditions set out in the Act. Thus, any amendment to the declaration of co-ownership is generally the subject of a vote at a meeting of co-owners. The vote to make such an amendment differs according to the nature of the change to be made.
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