Appartment Access : With Limitations

The directors  of a co-ownership could, eventually, be called upon to enter the private portion of a co-owner. Article 1066 of the Civil Code of Québec obliges the co-owner, as well as his tenant or another occupant, to undergo work within his unit. This also includes justified pre-inspections for the conservation of the building and the safety of the occupants. Any co-owner will have to cooperate in such a situation. Although he as the complete use and enjoyment of his private portion, and no one can infringe upon his fundamental right, he must nevertheless allow access in certain circumstances. More particularly when the syndicate needs to carry out urgent or preservation work to ensure the conservation of the immovable.

 

General legal principles

Before getting to the crux of the matter, the syndicate and the co-owners must understand their respective rights and duties. Article 1042 of the Civil Code of Québec defines the privative portion concept, stating that they are owned by a specific co-owner - which precludes the notion of the collective ownership of undivided portions - and are for his exclusive use. As for the limited access to the home of a co-owner, the Charter of Human Rights and Freedoms specifies (without limitation):

Article 6: Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law;

Article 7: A person’s home is inviolable;

Article 8: No one may enter upon the property of another or take anything therefrom without his express or implied consent.

The Charter of Rights and Freedoms is based on the principle that "every human being possesses intrinsic rights and freedoms designed to ensure his protection and development", that "all human beings are equal in worth and dignity, and are entitled to equal protection of the law", and that "the rights and freedoms of the human person are inseparable from the rights and freedoms of others and from common well being."

The inviolability of the home

As to the inviolability of a home stipulated in Article 7 (cited above), it is not absolute. You should keep in mind that the Civil Code of Québec governs, in harmony with the Charter of Human Rights and Freedoms and the general principles of law, the persons, the relationships between persons, as well as property. In divided co-ownership, sharing collective real estate property (common portions) must strike a balance between the individual and collective interest. Therefore, inviolability has limits, provided that the co-owner concerned is not harmed in a lasting manner in the enjoyment of his property, to avoid management problems within a co-ownership.

Crucial access

This being established, however, this right of access enjoyed by the syndicate does not allow the directors to have abusive access to the unit without the consent of the co-owner. To gain access to a co-owner’s the unit of, the onus is on the syndicate. It will need to demonstrate that access is crucial to carry out work necessary for the preservation of the immovable. This access is predicated upon no other reasonable alternative being available, or that entry into an apartment represents the optimal solution.

Regardless of the nature of the work, the syndicate must always avoid, insofar as feasible, entering an apartment merely to facilitate workplace access. For example, if a balcony needs repairs, it should be done from the outside (if possible) - even if it needs to be accessed with a nacelle - rather than through an apartment. The syndicate should not invade an apartment, on the mere grounds that it is more convenient or less expensive.

 

   WHAT YOU SHOULD KNOW! The syndicate has a legal obligation to maintain and preserve the immovable. If work is necessary, it must take all the means at his disposal to fulfill this obligation.

  WHAT TO KEEP IN MIND: If a co-owner persists on refusing, without valid grounds, access to his unit to allow urgent or preservation work, the syndicate may apply to the court to compel him to comply.

  WARNING! The of the co-owner’s liability could be invoked if he does not collaborate with the syndicate. If he refuses to allow workers to enter his private portion (if no other alternative is possible), to carry out important work to preserve the immovable, he may be condemned to pay the additional costs resulting therefrom.

  CONSULT THE PUBLICATION: Travaux en condo: Tout ce qu’il faut savoir (Condo work: All you need to know) on pages 99 and following.

 

Back to the mega-factsheet: The work of the syndicate in a privative portion