Duties and obligations of a syndicate of co-owners

The Civil Code of Québec confers juridical personality on the community of co-owners. Article 1039 of the Civil Code of Quebec provides that as soon as the declaration of co-ownership is published, the community of co-owners constitutes a legal person called a syndicate of co-owners.

Those duties and obligations are mainly aimed to ensure the preservation of the immovable, the administration of the common portions and the protection of the rights affecting the immovable or co-ownership, as well as all operations in the common interest. However, it is essential to understand them well because failure to comply with these duties and obligations towards a co-owner or a third party could lead to the civil liability of a syndicate.

The preservation of the immovable

The objective of the Law is to compel the syndicate to take any and all necessary measures to ensure the sustainability of the immovable. It shall without limitation:

• Maintain common portions (such as: snow removal purchasing supplies and entering into various maintenance contracts);
• Ensure that necessary work is carried out to prevent the degradation of the immovable common portions;
• Ensure that design or construction defects affecting the immovable common portions are repaired;
• Take out insurance against ordinary risks such as fire and theft on the whole immovable , except improvements made by a co-owner in his private portion;
• Ensure it keeps a certificate of the condition of the immovable and a maintenance log;
• Constitute a sufficient contingency fund to cover the cost of major repairs work to common portions and of their replacement.

Furthermore, it should be noted that the syndicate’s jurisdiction upon work on the common portions is, in principle, exclusive. No co-owner is entitled to meddle in the work in a common portion (even to repair it). The counterpart for this exclusivity is that the syndicate is in held responsible for any negligence whatsoever in the fulfillment of its duty towards the common portion preservation and maintenance.

The administration of common portions

Through its Board of Directors, the syndicate administers the common portions. This mission includes managing the immovable common portions and common facilities. To this end, it shall, without limitation:

• Enter into any and all contracts to provide the essential services essential to the immovable's operation (for instance, maintenance contracts);
• Manage human resources;
• Maintain and safeguard the registers of the co-ownership and control their access;
• Establish rules for the use of common portions.

Safeguarding the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest

To fulfil this mission the syndicate has the power and the duty to represent the collectivity of co-owners, both civilly and before the courts, in order:

• To recover common expenses owing by the co- owners;
• To exercise against liable third parties (such as, architects, engineers and contractors) the recourses related to defects affecting the common portions and also, under reserve of certain conditions, the private portions;
• To take action against co-owners or occupants of the immovable (for example, tenants.) contravening the declaration of co-ownership;
• To purchase insurance covering its liability towards third parties, and any other insurance coverage imposed by the declaration of co- ownership.

WHAT YOU SHOULD KNOW! The syndicates mission can extend beyond the mere maintenance of common portions. It may also undertake alteration or improvement work, under reserve of obtaining the prior approval of the General Meeting of co-owners.

WHAT TO KEEP IN MIND:  Although it is not the private portions owner, nor the owner of the immovable’s common portions, its status implies (article 1046 C.c.Q), that it is responsible for the preservation of the whole immovable. Thus it must, on a best effort basis, keep it up to standards, which requires undertaking work on a regular basis to ensure its sustainability.

 WARNING! The syndicate’s absolute duty of ensuring the preservation of common portions entails that it will be liable if a construction or design defect causes prejudice to any co-owner or third party. This liability can also be invoked in the case of lack of maintenance of common portions.

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