Question: Are the co-owners of a vertical co-ownership considered undivided in the horizontal condominium? And if so, what would be the impact on representativeness at the general meeting of the horizontal condominium (AGM)? For example, could a few co-owners of a vertical condominium act for all the co-owners without having previously held proxies as for the undivided co-owners of a condo during the vertical condominium AGM?
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In compliance with its legal obligations to preserve the building, a syndicate of co-owners is frequently called upon to retain the services of contractors over the years to carry out, among other things, conversion work in the common portions. In this regard, the directors forming the board of directors of the syndicate have the obligation to act with prudence, honesty and loyalty and in the interest of the community of co-owners, in accordance with Article 322 of the Civil Code of Québec, when awarding a construction contract to one or more contractors.
With this in mind, can directors contract with a contractor who offers the syndicate a competitive price in return for a cash payment "under the table", i.e., without paying or remitting the taxes usually payable?
The co-owners who do not respect the By-laws of the immovable (Declaration of Co-Ownership) are plentiful. Their offences may include nighttime disturbances (abnormal neighbourhood disturbance), noisy animals or non-compliance with parking regulations. Such behaviour can cause serious prejudice to certain co-owners or to the syndicate.
In such a situation, it is up to the Board of Directors to act, by enforcing the regulations set out in the Declaration of Co-Ownership. As soon as a breach is noted or brought to its attention, the Board of Directors must intervene to put an end to delinquent behaviour. The co-owners concerned should therefore not hesitate to turn to their syndicate, in this case the directors, for the implementation of various measures aimed at sanctioning any person at fault.
]]>In compliance with its legal obligations to preserve the building, a syndicate of co-owners is frequently called upon to retain the services of contractors over the years to carry out, among other things, conversion work in the common portions. In this regard, the directors forming the board of directors of the syndicate have the obligation to act with prudence, honesty and loyalty and in the interest of the community of co-owners, in accordance with Article 322 of the Civil Code of Québec, when awarding a construction contract to one or more contractors.
With this in mind, can directors contract with a contractor who offers the syndicate a competitive price in return for a cash payment "under the table", i.e., without paying or remitting the taxes usually payable?
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Question: Our co-ownership has 6 apartments. I am on the board of directors, which is made up of three directors. Having been unable to attend a board meeting, I gave a power of attorney to my neighbour. The two members of the Board of Directors denied this person the right to participate in the meeting. Is it legal?
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.
Fond of legal challenges and debates, Raphaëlle is a member of our litigation team, especially in the area of latent defects. She also practices in the areas of construction law and real estate law.
During her studies, Raphaëlle was able to expand her knowledge by working in different areas, such as in a large financial services firm and an international firm.
She also completed an academic internship with the American-Turkish Council and participated in The Washington Center program, from which she received a bursary from the Department of State Foreign Service. Raphaëlle also has an MBA, which undoubtedly gives her an edge in understanding the issues affecting our business clients.
Her passion, determination and desire to be innovative in her law practice explain why Raphaëlle is a lawyer who is particularly appreciated by both her colleagues and her clients.
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Marie-Lou works mainly in civil litigation, including civil liability and real estate.
Her files deal with civil and commercial litigation where she represents homeowners, businesses and individuals in the areas of rental law, real estate law and civil liability.
Marie-Lou is a rigorous, accessible lawyer who listens to her clients and places the quality of customer service at the heart of her priorities.
Marie-Lou Ringuette, avocate
Therrien Couture Joli-Cœur S.E.N.C.R.L
1134, Grande Allée O., #600
Quebec (Quebec) G1S 1E5
The declaration of co-ownership is a contract that orchestrates and regulates the lives of co-owners, lessees and other occupants of the immovable. It represents the guideline for everyone who lives in the immovable.The declaration of co-ownership provides, systematically, that it is up to the board of directors to have its content abided to. However, it happens that people break the rules, in particular by a non-compliant use of a private portion with regard to the destination of the immovable, a noise nuisance and work carried out in violation of the by the laws of the immovable. Other examples illustrate the problems that can occur in the co-ownership, such as an encroachment on a common portion or the improper installation of a floor covering. Anyone who does not abide to the declaration of co-ownership is liable, inter alia, to a legal recourse based on article 1080 of the Civil Code of Quebec . This action may be brought by a co-owner or the syndicate.
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Your co-ownership is exposed to various risks, such as fire, water damage, theft and vandalism. When a loss occurs, the insurance of the co-ownership covers the immovable and the civil liability of the syndicate of co-owners.
The syndicate has the obligation to subscribe this type of insurance. The Law and the vast majority of declarations of co-ownership make it compulsory. The insurance contract describes the guarantees offered, their limits, exclusions, and the amounts of the deductibles.
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The director plays a leading role in a co-ownership. As a mandatary of the syndicate of co-owners, he ensures the smooth running of the immovable’s day to day business, which implies a working knowledge of the tasks related to this key function. As such, directors must act with prudence, diligence, honesty and loyalty, and never lose sight of the co-owners community interests.
The civil liability of the directors with regard to the tasks incumbent upon them is largely ignored. Thousands of Quebeckers who sit annually on a board of directors, maybe including yourself, are unaware of this state of affairs.
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The Tobacco Control Act prohibits anyone from smoking in enclosed public premises. It applies to, but is not limited to, the enclosed common areas of any co-ownership comprising two dwellings or more. Terraces and outside areas - operated commercially - are also governed by this prohibition.
Do not take for granted that the words “common areas” have the same meaning as “common portions”. The Law applies only to public enclosed areas of a co-ownership. Therefore, it does not apply to all common portions.
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The appointment of meeting officers is necessary to hold a general meeting of co-owners.The range of their titles and functions are without limitation: president, vice-president, secretary and scrutineer of the general meeting. It is the declaration of co-ownership, in the chapter By-laws of an immovable that provides the rules to be followed. However, the civil liability of a general meeting officer with regard to the tasks incumbent upon him is largely unknown. Yet many Quebeckers accept this charge, while not being aware of this reality.
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The Internet spawned a collaborative economy. Web sites such as Airbnb allow co-owners to rent their apartments to third parties a few days a year. This accommodation formula, intended for travelers, sometimes generates substantial income. For this reason, some owners are tempted by these easy pickings. And they believe they are entitled to do so, (wrongly in many cases) and to use their private portion as they see fit.
Many co-owners are unaware that this activity is prohibited in their building. Others are fully aware, but are unconcerned. However the incessant ins and outs of strangers brings its lot of disadvantages. Late and noisy arrivals, as well as departures at dawn are generally not compatible with the lifestyle sought by the resident-co-owners of the building. This practice can potentially have a negative impact on their safety.
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The tasks of the condo manager are numerous. The latter may be mandated to manage the immovable, and thus ensure its preservation and maintenance; implement the decisions of the board of directors; settle major losses, take out the insurance required for your syndicate, but also to enforce the by-laws of the immovable. Therefore, his civil liability may be invoked. If he is at fault, he is exposed to recourses or claims for compensation, whether by the syndicate or the co-owners themselves. It is therefore imperative that civil liability insurance be underwritten for the duration of his contract for service or his contract of employment.
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The failure to pay general or special common expenses (condo fees), as well as those relating to the contingency fund, is one of the most contentious co-ownership’s issues. It is the duty of the board of directors of the syndicate of co-owners to collect them, unless this task has been delegated to the condo manager.
When a co-owner's contributions have been in arrears for more than three months, the law provides, ex officio, that he automatically loses his right to vote at the general meetings of the co-owners. He is also exposed to legal recourses, so that the syndicate can recover the amounts owing. A review of the options in such cases.
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A bathtub or a washing machine that overflows into the apartment below, a hot water tank that conks out and spills down six floors: losses involving the civil liability of a co-owner are many co-ownerships. And they are expensive! This is why the amount of insurance premiums and deductibles have increased significantly in recent years.
Worse still, some insurers no longer want to insure co-ownerships, because of a loss ratio that has become out of control. This situation is directly related to the insurer of the syndicate, which is almost always called upon to cover a loss, when damage has been caused to the common and private portions. Thus the question of who is responsible arises. It is also necessary to know the applicable law to the owner at fault. Other considerations affect both the insurer of the syndicate and those of the co-owners concerned, to determine who will pay what?
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The Self-Insurance Fund will become mandatory on April 15, 2022 following the adoption of the Bill 141, in 2018, which notably created section 1071.1 of the Civil Code of Québec. It had become necessary due to a substantial increase in insurance deductibles. Most of the time, the amount of these deductibles was formerly negligible, whereas today, it can reach tens, even hundreds of thousands of dollars.
Several syndicates of co-owners did not wait, or will not wait until April 15, 2022, in order to constitute a Self-Insurance Fund, according to their management based on logic and pragmatism.
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When you own an apartment in a co-ownership, you share the common portions, such as the roof, the lobby and the elevators in undivided ownership with the other owners. By the same token, you also share a portion of the liabilities attached to them.
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The law regulates the liability of contractors and building professionals for any problem related to the quality of construction work. In this regard, the legislator has provided for a specific protection regime for divided co-ownership. Section 1081 of the Civil Code of Québec recognizes the legal interest of any syndicate of co-owners to assert the rights of all co-owners to correct defects that appear, in the short or long term. This could occur during the initial construction of the building, or during work carried out several years after its erection. In short, when problems affect the common portions, the syndicate benefits from several legal warranties. Among them is the one against latent defects, design or construction defects. These warranties are worth their weight in gold, because very often, the cost of the work to be carried out in a co-ownership can be substantial.
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