Definition : Right of retention

Right granted to a creditor allowing him to retain the debtor’s property that has been remitted to him and which is closely related to the performance of an obligation, until the debtor pays his debt. The right of retention may be exercised by a creditor, provided that the amounts due to him are related to the property he detains and that the debt is liquid and exigible. In certain circumstances, the co-ownership manager may exercise this right.

WARNING !The co-ownership manager, whether or not he is a member of a professional order, for example the Ordre des administrateurs agréés du Québec is required to act (with diligence) at the request of a client who wants to recover his retained property. This will be the case, even if a fee has not been paid. According to a judgment of the Court of Quebec (small claims division), issued in April 2021, the right of retention under the second paragraph of section 1369 of the Civil Code of Quebec is not part of the rights of an administrator (manager) responsible for the simple administration of the property of others.

Retrieving the register of co-ownership

Usually declarations of co-ownership list the patrimony of the syndicate of co-owners. Among the items owned by the syndicate is the register of co-ownership. It contains all the syndicate's archives, such as the declaration of co-ownership, the up-to-date list of co-owners and tenants of the immovable and the minutes of the co-owners meetings and the board of directors meetings, enabling it to carry out its mission adequately. The co-owners must have access to this register, which can be entrusted to a director or a condo manager.

Co-ownership manager or condo manager: two distinct functions

Distinguishing between the function of the Co-ownership manager (gérant) and the Condo manager (gestionnaire) is not an easy task. Most participants who work in the field of co-ownership are struggling with this issue. In fact, the general perception of the similarity of their incumbent duties is wrong, as there are several differences between these two functions. The Co-ownership manager has decision-making powers regarding the management of the co-ownership. On the other hand the Condo manager acts as an advisor and is the one who implements the decisions made by the board of directors. This does not preclude him from making recommendations before these decisions are implemented. A discussion on two similar but not identical functions whose attributes, powers and duties are to be distinguished in many ways.

The condo manager’s tasks are numerous. Therefore, his civil liability could be engaged. As a mandatary of the Syndicate of co-owners, the condo manager is required to fulfill the terms of his mandate. He is thus liable for damages that may result from the non-performance or improper execution of his mandate. This means that he incurs liability in two ways, in contractual civil liability towards the one who mandated him, namely the Syndicate of co-owners and in extracontractual civil liability towards a co-owner or a third party who would suffer damage as a result of a fault. It is therefore imperative that he takes out civil liability insurance for the duration of his service contract.

Definition : Right of retention

Related articles