Updating declaration of co-ownership : is it realy necessary?

Each syndicate of co-owners has a declaration of co-ownership, which, in principle, should be a veritable bedside book for both the co-owners and the members of the board of directors. However, the declaration of co-ownership is a document that may seem inaccessible at first glance for the latter. This problem can sometimes be increased, when it was more or less well written, more or less long ago. This is not to mention the confusing clauses, which create difficulties of interpretation and even clauses contrary to the legislation that evolved after its publication.

Legally, what is the declaration of co-ownership?

The declaration of co-ownership is an agreement that organizes and regulates the collective life of the co-owners and occupants of the building. This convention defines, among other things, their rights and obligations. It is usually developed unilaterally by the developer or owner of the building. Legally, the declaration of co-ownership is a real membership agreement for the purchaser of a fraction, because any new co-owner is obliged to respect it.

How long does it last?

In principle, the declaration of co-ownership has no validity limit. It usually dates from the construction of the building or its division between several owners thus forming the divided co-ownership. This notarial act can therefore be old and have accumulated many changes over the years.

The declaration of co-ownership must still be adapted and reviewed as regularly as possible. These updates are important to ensure compliance with the various laws governing the organization of the co-ownership. It should be remembered that this legislation has evolved significantly with the passage in 2018 and 2019 of Bills 141, 41 and 16.

If the declaration of co-ownership has provisions contrary to the new provisions of the law, they do not apply. The law replaces it. Moreover, a large part of the declarations of co-ownership in Quebec have not been updated.

Is it mandatory to update the declaration of co-ownership?

No, because this exercise is based on the goodwill of the co-owners. In any event, updating it is essential, as outdated provisions could generate a variety of legal problems. As a result, clauses that do not comply with the new provisions of the Civil Code of Quebec will be removed. By incorporating new legislation and amendments, the end will result in a reference document that is both user-friendly and unequivocal. A declaration of compliant co-ownership will guarantee adequate operation within a building. And it will make it all the more attractive to potential buyers.

What is an update to a declaration of co-ownership?

The update of the declaration of co-ownership removes all clauses that are in violation of the public order provisions of the Civil Code of Quebec. This exercise thus takes into account the legislative changes that took place after the publication of the declaration of co-ownership and the new imperatives expressed by co-owners or the board of directors

It should be remembered that a public policy provision is a mandatory provision that applies to all and cannot be excluded, in principle, contractually by the parties, even by a provision of the declaration of co-ownership.

Thus, if we take the example of the majority rules, a clause in the declaration of co-ownership stating that any change to the constituting act of the co-ownership can only be voted on by the majority of the co-owners, representing 75% of the votes of all co-owners, will be modified by the majority that replaced it: that of three-quarters (3/4) of the votes of the co-owners present or represented at the meeting.

The update of the co-ownership declaration consists of:

  • Remove the clauses in the declaration of co-ownership that are contrary to the new provisions of the Civil Code of Quebec;
  • Insert new clauses;
  • Incorporate all published or produced amending acts into the co-ownership register, thus allowing for a single reference document;
  • Insert improvement clauses (as examples, it would be indicated that any board of directors has a responsibility to develop and track a maintenance book. Another provision would include an emergency management plan.)

What is the update procedure?

Although updating declarations of co-ownership is not mandatory and it is strongly recommended that the Board of Directors put the issue on the agenda of the annual meeting of co-owners. This exercise is all the more important to realize since the last legislative reform significantly changed the provisions of the Civil Code of Quebec, in particular in their provisions concerning insurance, the rules of operation of the board of directors and the assembly of co-owners.

Which decision-making body has jurisdiction over this issue?

The meeting of the co-owners has a field of competence separate from that of the board of directors. Any update to the statement is its responsibility. The draft amendment (update), which has been previously attached to the convenings at the meeting, will be put to the vote of the co-owners. The vote may be on the entire new document or on article by article. These changes may be initiated by the Board of Directors or by a co-owner through an application for an amendment to the agenda within five days of receipt.

The notarial team of Therrien Couture Joli-Coeur

The legal rules for updating a co-ownership declaration can be complex. This is why such an exercise requires the intervention of an experienced professional. The notarial team of Therrien Couture Joli-Coeur,  proposes to accompany you in updating your declaration of co-ownership. The purpose of this legal benefit is to bring the provisions of the declaration of co-ownership into line with the public policy provisions of the Civil Code of Quebec. As part of such an update, our firm performs the following services:

  • Legal analysis of the declaration of co-ownership and its amendments;
  • Removing clauses that have become outdated, abusive or illegal;
  • Review of phraseology and vocabulary update;
  • Insertion of the mandatory provisions of the new law and any amendments required or desired;
  • Preparing an interim document showing the original clauses to be amended and the proposed clauses to replace them;
  • Establishing the amended declaration of co-ownership, ready to be voted by the meeting of the co-owners, notarized and published in the Land Registry;
  • Drafting the resolution of the co-owners' meeting;
  • Signing and publication of the updated co-ownership declaration.

The co-owners will thus have a unique document that is perfectly legible, which corresponds to the legislature's primary objective, namely the full information of the "co-owner-consumer".

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Eva Daraghi, notary

Therrien Couture Joli-Cœur S.E.N.C.R.L