Legal documentation

The declaration of co-ownership is intertwined with the purchase of an apartment held in divided co-ownership. A genuine "user's guide", this document defines the rules to be observed in the immovable, as well as its administrative and management guidelines. Before acquiring a condo, any careful buyer should, imperatively, read the declaration of co-ownership. He will thus be able to verify the extent of his obligations and duties and the limits to his ownership rights. He will be able to evaluate its terms and conditions and make a decision on buying or not.

Content of the declaration of co-ownership

The instruction manual of a syndicate of co-owners, the declaration of co-ownership is divided into three parts: The Constituting act of the co-ownership, the Description of the fractions and the By-laws of the immovable. It lays down all the rules ensuring the proper functioning of the co-ownership and the management of the community of co-owners, lessees and occupants of the immovable. From a legal standpoint, its role is, without limitation to:

What you should know

The declaration of co-ownership contains information on the immovable and the use of the private portions. It includes (inter alia) a section that addresses the destination of the immovable, the living conditions that have been implemented, and the means used to ensure compliance and management thereof. Its content is voluminous, but enlightening. The prospective buyer will learn what is allowed or not in the co-ownership. For example:

  • Is it allowed to have an animal?
  • Can a co-owner install hard flooring (e.g. hardwood floors and ceramic tiles) in his apartment?
  • Is the practice of a profession allowed in a unit?
  • Are short term rentals (such as Airbnb) prohibited?
  • Do the by-laws of the immovable prohibit the rental of units for a term of less than one year?
  • Does the co-owner-lessor have obligations with respect to leasing his unit, such as providing proof that the by-laws of the immovable's have been remitted to his lessee?
  • Does a co-owner-lessor have the obligation to give a copy of the lease to the syndicate?
  • How is the right to use outdoor parking spaces determined?
  • How is the allocation of common expenses calculated?

Amendments to the declaration of co-ownership

The declaration of co-ownership may have been modified over time. It is therefore necessary to obtain a copy and pay attention to the amendments to the declaration of co-ownership  since the establishment of the co-ownership. Such verification is all the more difficult regarding the amendments to the by-laws of the immovable, since they are neither notarized nor published in the Quebec Land Registry. Although these changes are filed in the register of the co-ownership, and they are private information, a prospective buyer can nevertheless consult them on request.

Access to documentation

Section 1068.2 introduced to the Civil Code of Quebec by Bill 16 now requires the syndicate to provide the promisor-buyer with documents or information that allow the purchaser to make an enlightened consent.  Legislator states that documents and information must be provided diligently to the promisor-buyer, at the latter’s expense, subject to provisions relating to the protection of privacy, including sections 37 to 41 of the Civil Code of Quebec.  Once communicated to the promisor-buyer, the syndicate must inform the owner in question of all the documents or information he has provided, so that all parties have the same information. To learn more about this, refer to this question/answer, which outlines how to ask to see the documentation of a co-ownership.

 

 WHAT YOU SHOULD KNOW ! A prospective buyer should always check if the rules in the declaration of co-ownership are respected. For example, a prospective co-owner should be wary if an apartment has hardwood floors, while the immovable's by-laws only allow carpeting as a floor covering, and even if a hard floor installation is allowed, it will be necessary to verify if the installation is compliant.

 WHAT TO KEEP IN MIND: The declaration of co-ownership is an essential tool for any prospective buyer. It allows ensuring that the applicable rules fulfill his aspirations.

 WARNING ! Before signing a promise to purchase, one must ensure that it comprises a condition precedent, in order to be able to consult the declaration of co-ownership and its amendments. If necessary, it may be shown for consultation to an experienced lawyer or notary, who will determine whether its content is adequately drafted and adapted to the said co-ownership.

 

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