The right to vote is recognized as an essential element of any modern society, and as such, co-owners cannot be deprived of it except as provided in the law. In addition, each co-owner has, in principle, at the meeting a number of votes proportional to the relative value of his fraction. However, in certain circumstances, it is provided that the co-owner may have his right to vote suspended or reduced, by the sole effect of the law. It is important to know who may be affected by these restrictions and what the consequences are.The voting rights of the co-owners of the immovable can, in certain circumstances, be suspended or reduced. It is important to know who may be affected by these restrictions and their consequences.
Article 1094 of the Civil Code of Quebec states that "Any co-owner who has not paid his share of the common expenses for more than three months is deprived of his right to vote. He may once again exercise that right as soon as he has paid all the common expenses he owes.”. This withdrawal of voting rights affects only those votes attached to the relevant fraction for which payments are in default.
Thus the defaulting co-owner can no longer vote at the General Meeting, as long as it has not completely cured his default. To recover the right to vote said fraction, he will need to pay his dues. The co-owner concerned can do it at any time, even during the General Meeting. However, the syndicate may require payment in cash, by money order or certified check, credit card or bank transfer (article 1564 of the Civil Code of Québec).
Article 1076 of the Civil Code of Québec states that "the syndicate may, if authorized to do so, acquire or alienate fractions, common portions or other real rights". However in a general meeting, it cannot exercise the voting rights attached thereto. The number of votes that may be cast at the General Meeting of the co-owners is reduced accordingly.
In small co-ownerships comprising less than 5 fractions, the legislator intended to prevent one co-owner imposing his will if he holds a number of votes exceeding the majority (50% + 1 of the votes ). In accordance with the principle laid down in article 1091 of the Civil Code of Québec, the number of votes of the majority co-owner is reduced to the total votes of the other co-owners present or represented at the General Meeting. Thus he can never hold an absolute majority of the votes in the co-ownership.
The following example illustrates the calculation. In a four unit co-ownership respectively representing values of 35%, 25%, 20% and 20%, a co-owner holding the units worth respectively 35% and 20% would not have 55% of the voting rights, but 45% of the voting rights (equal to the relative value of the two other units, representing 25% and 20%) if all the co-owners are present at the meeting. If the only other co-owner present is the one holding a relative value of 25%, the co-owner holding the two units (totaling 55%) will hold voting rights of 25%.
In case of a disagreement between the majority co-owner and the other co-owners there will be a deadlock. The co-owners will have to reach a compromise, using if necessary the mediation or arbitration mechanisms provided in their declaration of co-ownership. And in the event there are no such provisions in the declaration of co-ownership, they may request the intervention of the court to resolve the deadlock.
To prevent that awith more than half the votes of the developer co-ownership imposes his will at General Meetings, article 1092 of the Civil Code of Québec limits his control over the decisions of the General Meeting of the co-owners. This article stipulates that "At the end of the second and third years after the date of registration of the declaration of co-ownership, a developer of a co-ownership comprising five or more fractions is not entitled to more than 60% of all the votes of the co-owners, in addition to the votes attached to the fraction he occupies.The limit is thereafter reduced to 25%.”.
Thus, the developer’s voting rights are progressively reduced, except for that fraction which he occupies. It is appropriate to identify three distinct periods:
Moreover, under article 1093 of the Civil Code of Québec, this vote reduction also applies to the successors of the developer. However, this rule does not apply if the latter has acquired, in good faith, the fraction, with the intention of occupying it and for a price equal to its market value.Thus, if the developer tries to circumvent this vote reduction by transferring fractions to close acquaintances (such as, family members, business partners, etc.), these persons would also be subject to the voting rights reduction and the voting rights attached to their fractions would be included in the maximum percentage of 60% or 25% attributed to the developer.
Consequences of voting rights reduction
Article 1099 of the Civil code of Quebec provides that: Where the number of votes to which a co-owner or a developer is entitled is reduced, or where a co-owner or a developer is deprived of his right to vote, the total number of votes available to all the co-owners is reduced by the same number.
This provision clarifies the effects of the suspension and reduction of voting rights at a meeting. It is thus provided that the reduction or suspension of the right to vote does not have the effect of preventing the holding of a vote that requires an absolute or enhanced majority.
WHAT YOU SHOULD KNOW! The rules related to the suspension or reduction of voting rights are compulsory. It is the duty of the President of the General Meeting of the co-owners to ensure their implementation. In the event of non-compliance with these rules, any co-owner is entitled to make an application to the court in annulment of the decisions taken at the General Meeting, in the period of 90 days following the meeting.
WHAT TO KEEP IN MIND : In co-ownerships comprising less than 5 fractions, the majority co-owner will see his number of votes reduced at all times, to the equivalent of the sum of the votes of the other co-owners.
WARNING! One must not confuse the consequences of a voting rights suspension with those of a voting rights reduction. In the first instance, it may be ended, without formality, by the defaulting co-owner paying to the syndicate all outstanding amounts owing. In the second case, the co-owner whose voting rights are reduced may not in any event recover their full value.
CONSULT THE PUBLICATION: Guide de procédure et de fonctionnement des assemblées des copropriétaires (Procedures and operation of general meetings of co-owners guide)