The declaration of co-ownership is binding upon the co-owners and, in principle, on the occupants and tenants of the immovable. It is the responsibility of the Board of Directors to enforce its content. By failing to do so, the members of the Board may, in some cases, be held liable toward the co-owners. Anyone who does not respect it is exposed to legal proceeding based in particular on article 1080 of the Civil Code of Quebec. This action may be brought by both a co-owner and the syndicate.
In theory, each co-owner uses and enjoys his privative portion and the common portions as he sees fit. However, he must not infringe on the rights of the other co-owners nor upon the destination of the immovable. This right of enjoyment is also governed by the declaration of co-ownership, which imposes upon co-owners various constraints in order to ensure their collective well-being and the sustainability of the immovable.
In order to maintain the stability of this contractual framework, every purchaser undertakes, by signing his deed of purchase, to abide to the declaration of co-ownership and the by-laws of the immovable adopted and filed in the register of the co-ownership. The purchaser is thus bound by the declaration of co-ownership, even though he has not signed it, as well as by its amendments (Article 1062 of the Civil Code of Québec). In this regard, a clause providing that the new co-owner will comply with the rules of the declaration of co-ownership is generally included in the deed of sale.
The tenant is a third party from the syndicate’s standpoint. He cannot invoke a clause in his lease against the latter. His rights are limited to those held by the co-owner-lessor. Although the tenant is not involved in the syndicate’s decision-making process, the tenant must behave in a way that is respectful of the rules of life prevailing in the immovable. Article 1057 of the Civil Code of Québec stipulates that the by-laws of the immovable may be enforced against him as soon as a copy of the by-laws or any amendments thereto are given to him by his co-owner-lessor. This article subjects tenants to the same legal rules as co-owners.
Although the co-owner-lessor does not have a formal obligation to remit (before the lease is signed) a copy of the by-laws of the immovable, it is in his best interest to do so as it will avoid, in the event of a breach of the by-law of the immovable, the tenant claiming he is unaware of this document.
It should be noted that it is the responsibility of the co-owner-lessor to ensure his tenant complies with the by-laws of the immovable. In this regard, several declarations of co-ownership stipulate that the co-owners are liable for their tenant, and by extension, for their inadequate behavior. In addition, the co-owner who rents his unit is required to inform his syndicate of co-owners and communicate the name of his tenant and, if applicable, the name of his sub-tenant. The declaration of co-ownership may also require him to provide to the syndicate a copy of the lease or sub-lease, as well as other contact information of the tenant or subtenant such as his address (if different from the unit ), email address and telephone number.
An occupant, as the term indicates, occupies an apartment (private portion) without being a co-owner or tenant of the immovable. For example, the spouse and children of a co-owner are generally considered to be occupants. The Board should ask the co-owner who lodges them to provide their name and record this information in a list that will enable it to determine that these persons, identified by name, are allowed access to the immovable and to circulate in the common areas.
Along with the tenant, the occupant must abide to the provisions of the by-laws of the immovable. This opposability is expressly mentioned in Article 1057 of the Civil Code of Québec, as soon as a copy of the by-law or its amendments is remitted to him by the co-owner or the syndicate.
In principle, it is the duty of the Board to ensure compliance with the various provisions enacted by the declaration of co-ownership. As soon as it becomes aware of a breach, it must urge offenders to abide by the rules.
Failure to enforce the provisions of the declaration of co-ownership may be detrimental to other co-owners. In such circumstances, a co-owner who feels aggrieved may require compliance with the declaration of co-ownership, and ultimately, instigate legal proceedings if and as necessary.
WHAT YOU SHOULD KNOW! The tenant will be the party primarily responsible for the damage or inconvenience caused to the co-owners and occupants of the immovable. His co-owner-lessor must intervene, if necessary, to rectify the situation. Failure to do so may engage his liability.
WHAT TO KEEP IN MIND: The co-owner-lessor must ensure his tenant complies with the by-laws of the immovable, which may not be set up against him unless he has received a copy of it.
WARNING! When the Board is informed that a private portion is leased, it must ensure the co-owner-lessor has provided (to his tenant) a copy of the immovable's by-laws. If this has not been done, the syndicate shall provide him with a copy, in order to avoid, as the case may be, the tenant pleading ignorance of the by-laws of the immovable.