Yves Joli-Coeur is counsel at Therrien Couture Joli-Coeur. A graduate of the University of Montréal in 1981, he has been a member of the Quebec Bar since 1983. He is also a mediator and arbitrator accredited to the Barreau du Québec, a member of Mediation and Arbitration in co-ownership and one of the founders of the Regroupement des gestionnaires et des copropriétaires du Québec (RGCQ) Since the founding of this organization in 1999, he has acted as Secretary-General.
In 2009, the Barreau du Québec awarded him the honorary distinction of Lawyer Emeritus (Ad. E.) for his great contribution to the profession and to the law of co-ownership. Me Joli-Cœur is indeed one of the pioneers in this field; he has made it his main field of expertise for many years. He advises and represents many co-owners and syndicates of co-ownership in the defense of their rights.
Me Joli-Cœur regularly collaborates with the media, both in terms of print, radio and television. Its interventions pursue the same objective: to raise awareness among the population and decision-makers of the specific characteristics of life in co-ownership.
December 31, 2022 - Co-ownership law is booming and is currently undergoing a major reform. But what about tacit changes to the declaration of co-ownership and the by-laws of the immovable? For example, if a co-owner has been using unused space in the garage for more than ten years to store his personal belongings, does he have the right to use it indefinitely? Will the person who eventually purchase their unit also be able to use this space to store their belongings?
In December 2019, article 1060 of the Civil Code of Quebec was amended by Bill 16. It is now clear that the " amendments to the by-laws ... must be made expressly, in minutes or in a resolution in writing of the co-owners". Section 157 of Bill 16, which came into force on January 10, 2020, specifies that the amendments made to article 1060 C.C.Q. are declaratory. Consequently, the legislator confirms that its intention has always been that amendments to the by-laws of the immovable be made expressly and not tacitly.
Despite the above, on February 24, 2020, a Superior Court decision muddied the waters in Syndicat des copropriétaires Le Saint-Amable v. Northon[1]. In this case, a real estate developer extended on a roof the terraces of certain units, all well after the drafting of the declaration of co-ownership and without any express modification on this subject thereafter. The defendant purchased two of these units and kept its terraces on the roof of the building. Several years later, the Syndicate wanted it to remove its facilities, a request that was rejected by the court, which considered that the by-laws of the building had been tacitly modified at the meetings of co-owners.
It is important to note that in this case, the by-laws of the immovable contained a tolerance provision towards structures or structures, subject to a decision of the general meeting of co-owners. Moreover, this judgment completely ignores the recent reform and amendment to article 1060 of the Civil Code of Québec. It is therefore not clear that they were analysed by the judge who heard this case. Moreover, the court defines in a way the rights of the co-owner in question by specifying that his rights in connection with his terraces are of a personal nature, so would no longer exist in case of removal by it and could not be transferred to potential buyers of his units.
Despite this recent decision, we remain of the opinion that the period of tacit amendments to the by-laws of the immovable is over. However, it is only through additional case law on this subject that we will have confirmation of this. In the meantime, as mentioned by Christine Gagnon, notary emeritus, in her recent article Les décisions tacites en copropriété[2], "caution is therefore required until the courts return to this issue." It is strongly recommended that directors, syndicates and managers of co-ownership do not delay in acting to stop co-owners, when they act against the by-laws of the immovable, in order to avoid that this inaction is eventually perceived as a tacit modification to this by-law.
Yves Joli-Coeur, Ad. E.
Therrien Couture Joli-Coeur
Tél. : 1.855.633.6326
Courriel : [email protected]
[1] Syndicate of co-owners Le Saint-Amable v. Northon, 2020 QCCS 849 (CanLII)
[2] Tacit decisions in co-ownership, Me Christine Gagnon, notary emeritus, Special Coronavirus Bulletin, 3rd edition
