The declaration of co-ownership is a contractual document drawn up by the person who subjects an immovable to the regime of divided co-ownership. Its publication in the Québec Land Register is a necessity for the existence of a syndicate of co-owners. It includes the set of rules ensuring the efficient organization of a co-ownership. Its knowledge by the members of the board of directors and by each co-owner is essential to the proper operation of the co-ownership. This co-owners reference document is consulted, for example, in the case of work. For a promisor-buyer, the declaration of co-ownership contains a wealth of useful information regarding the conditions of use and enjoyment of the private and common portions. Hence the necessity of reading this document before buying, to avoid unpleasant surprises, especially as to the use one intends to make of his private portion.
Its legal structure
The Law provides that the declaration of co-ownership is divided into three parts: the constituting act of co-ownership, the by-laws of the immovable and the description of the fractions. The content of each of these parts is defined in articles 1053, 1054 and 1055 of the Civil Code of Québec. Its amendment is subject to specific requirements and procedures which must be observed without fail.
Constituting Act (1st part of the declaration of co-ownership):
The Constituting Act contains the essential elements to understand what divided co-ownership is. It purpose is to:
Determine the name and head office of the syndicate;
Establish the destination of the immovable, the destination of the private and common portions, and the conditions for their enjoyment (type of residential use, for example a clause defining the immovable as high-end or for professional or mixed use);
Distinguish and detail the composition of the private and common portions;
Determine the relative value of each fraction, the share of common expenses and the number of votes attached to them;
Establish the powers and duties of the Board of Directors and the general meeting of the co-owners;
Indicate any other agreement relating to the immovable or its portions;
Define additional concepts, such as "substantial loss", useful in determining the terms and conditions of handling a loss.
By-Laws of the Immovable (2nd part of the declaration of co-ownership):
More down to earth than the Constituting Act, the By-laws of the immovable affect the daily life of the co-ownership. It imposes the code of conduct that all co-owners and occupants must observe at all times and in all circumstances. The co-owners will have to refer to them very often. The By‑laws of the immovable determine:
The rules regarding the operation and administration of the co-ownership
These rules concern all the provisions governing the general meeting of the co-owners and meetings of the Board of Directors, namely its composition and the provisions governing the holding of general meetings and meetings.
Rules relating to the enjoyment, use and maintenance of common portions and private portions
The rules of enjoyment refer to the concept of destination, which is contained in the Constituting Act. They deal with the individual rights of each co-owner in common and private portions, such as the exclusive use of common portions for restricted use, limitations on the use of the premises, infrastructure and equipment under the responsibility of the syndicate. They also specify the conditions for the use of the private portions (e.g. authorization or prohibition of carrying out certain work). Insofar as maintenance rules, they set out the terms and conditions for the maintenance and preservation of the premises and also of the infrastructure for which the syndicate is responsible.
The procedure for the assessment and collection of common expenses, as well as the contribution to the contingency fund.
These rules define, among other matters, the method of payment for common expenses (condo fees) and the management of arrears.
Description of the Fractions (3rd part of the declaration of co-ownership):
This part of the declaration of co-ownership makes it possible to identify each of the lots by their registration number, while specifying their nature. It lists the cadastral designations of each private and common portion of the co‑ownership (e.g. status and lot identification number). In addition, the description of the fractions indicates the real rights encumbering the immovable or existing in its favor, with the exception of hypothecs.
Cadastral designation of private and common portions
The private portions and the common portions of the immovable must imperatively be the subject of a cadastral designation in the declaration of co-ownership, so that they may be validly registered.
A description of the real rights encumbering the immovable and those in its favor
Again, this is a technical description of the real rights encumbering the immovable or existing in its favor, with the exception of hypothecs and additional security rights attached thereto, in accordance with article 1055 of the Civil Code of Québec. The real rights to appear in this section, could be, without limitation, an usufruct or a real servitude (e.g. a right of way).
WHAT YOU SHOULD KNOW! If the declaration of co-ownership of the syndicate predates January 1, 1994, Article 54 of the Act respecting the implementation of the reform of the Civil Code creates a presumption, under which each clause is classified in the appropriate section, and that the relevant rules apply to them in accordance with that classification.
WHAT TO KEEP IN MIND: An essential tool for co-owners, the declaration of co-ownership defines the terms of living together. It is essential for potential buyers. By reading it, they can ensure that the rules of co-ownership are consistent with their values.
WARNING! The declaration of co-ownership must be respected by the co-owners, tenants and occupants of the building. Its clauses must apply, as long as the judge has not deemed them unwritten or the meeting of co-owners has not cancelled them. It should be noted that the Civil Code of Quebec provides that the by-laws of the immovable are enforceable against a tenant and an occupant, as soon as the co-owner or syndicate gives him a copy.
Authentic act By-laws of the immovable Cadastral description Clause deemed unwritten. Commercial destination Constituting act of the co-ownership Declaration of co-ownership Description of the fractions Destination Destination of common portions Destination of the immovable Destination of the private portions Dominant land Fine (penalty) Head office Hypothecary creditor Mixed destination Mixed use destination Name Opposability Penal clause Real servitude Rent Residential destination Servient land Servitude Servitude of right-of-way Usufruct Usufructuary
