April 17, 2021 Any co-owner may delegate his right to vote to an mandatary. Thus, with the notice calling the meeting containing agenda, financial statements and budget, there is usually a blank proxy form. However, since there is no requirement for the board to include one, it may be necessary for a co-owner to prepare one himself.
A formidable tool at assemblies and an object of covetousness for many when a decisive vote is planned in the co-ownership. However, proxies and their validity are often the subject of unfortunate questions and attempts to counter them. What about it?
Why encourage co-owners to fill out and give a proxy (power of attorney)?
In order for a meeting of co-owners to deliberate and pass decisions, the law provides that co-owners (present or represented), who are able to vote, must hold a majority of votes. This requirement is called the quorum. Thus, as indicated by section 1089 of the Civil Code of Quebec, the quorum at the meeting of the co-owners is made up of the co-owners holding the majority of the votes. The purpose of the use of proxies is to fight against the consequences of absenteeism and to avoid the postponement of meetings, failing to obtain a quorum.
What is a proxy (power of attorney)?
It is a document (written) signed by a co-owner (mandator) and which finds a warrant in favor of another co-owner or a third party (mandatary). Frequently, this mandate consists of representing and acting on behalf of a co-owner at the meeting of co-owners. It should be noted that the general power of attorney (the mandatary obtains broad powers) should be distinguished from that which is specific (the principal gives precisely his voting instructions). This power and, if necessary, the written word that sees it, are also called a mandate.
What is the formality of a proxy (power of attorney)?
There is no provision in the law for the form of a power of attorney. However, any power of attorney must include the identity of the co-owner (as a "principal") as well as that of the person he mandates (the "mandatary "). To ensure its validity, the mandatary must be an identifiable person, such as "Eric Lecours" and not "The Board of Directors." In addition, the co-owner who gives a power of attorney may require his mandatary to vote in a certain sense. To get a typical proxy model, you are invited to click on this hyperlink.
Should an individual co-owner hand over a proxy to the other co-owner in the event that he anticipates being absent?
It is no longer required to do so. Section 1090 of the Civil Code of Quebec was amended in December 2019 by Bill 16. This addition establishes a refragable presumption that an undivided person absent from an assembly consents to the other undivided representatives representing him, if he has not, in writing, mandated a third party or indicated his refusal to be represented. His right to vote is then shared in proportion to the rights of other individuals in the indivision.
What to do when the same co-owner has given more than one power of attorney for the same apartment?
A co-owner cannot appoint multiple mandataries for the same fraction, because the right to vote is by nature personal and indivisible. The date of the signature must then be taken into account. The most recent will be the one chosen.
Can the number of proxies be limited at a meeting?
The Civil Code of Quebec (C.c.Q.) does not prohibit a mandatary from receiving more than one power of attorney and does not limit the number of proxies he can receive. Indeed, when it comes to divided co-ownership, the right to vote is one of the essential prerogatives attached to property rights. Limiting the number of proxies would be tantamount to restricting a co-owner's right to entrust his or her power of attorney to anyone.
Finally, as section 1056 of the Civil Code of Quebec provides that "the declaration of co-ownership may not impose any restrictions on the rights of the co-owners, except those justified by the destination of the building, its characters or its situation", it is certain that the adoption by the assembly of such a restriction would be irregular, illegal and therefore null.
Do you have to choose another co-owner to give a proxy (power of attorney)?
Absolutely not, because the choice of mandatary is free. Every co-owner has the right to give his power of attorney to whom he wants: a co-owner or someone outside the co-ownership.
How long does a co-owner have to hand over his proxy (power of attorney)?
Some declaration of co-ownership have representation clauses. They sometimes require co-owners to hand over their power of attorney to directors 48 hours before the co-owners' meeting. Be aware, however, that the legality of such a provision is both delicate and questionable, since the declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable.
One wonders, and with good reason, whether this or that timetable is reasonable or not. As the answer is not always clear, the co-owners have an interest in meeting the deadline. For their part, directors should recall this delay in the notice of summons. All they have to do is put in place an effective control mechanism to achieve this, otherwise it could make a difference in court, if a co-owner challenges the validity of a meeting of co-owners.
What rights does the person who holds a proxy (power of attorney) have at the meeting?
The same rights as the owner he represents. He has the same right to speak and the same right to vote. Similarly, if, for example, the owner who gave his power of attorney has lost his right to vote because of the non-payment of his common expenses, the proxy mandatary will also not have the right to vote.
Can the validity period of a proxy (power of attorney) be indefinite?
The proxy is given for a fixed or indefinite period. In the second case, the proxy will remain in force until the death of the principal or mandatary, if no substitute is appointed, or until the proxy is revoked.
Eric Lecours, notary