What you need to know about the declaration of co-ownership

Thinking of buying a divided co-ownership property, more commonly known as a condo? There is a charter setting out all the regulations for the building. It’s called the Declaration of Co-Ownership.

Here's everything you need to know about the declaration of co-ownership.

Summary:

• What does the declaration of co-ownership contain?
  • 1. The incorporating document
  • 2. The building by-laws
  • 3. Description of fractions
• A condition of the offer to purchase
• Administration of the declaration of co-ownership
• What happens if the declaration of co-ownership is not respected?
• Modification of the declaration of co-ownership

In this notarized document, you’ll find information about the building’s ethics and aesthetics, for example, whether animals are allowed or whether barbecues are permitted on the balcony. You'll also find information on the condominium's common charges, what they include and to whom you'll have to pay them.

What does the declaration of co-ownership contain?

The declaration of co-ownership basically includes three sections.

1. The constituting act

The constituting act, which defines, among other things, the private portions (residential units) and the common portions (main building), the provisions concerning building insurance and the number of votes each co-owner is entitled to at the general meeting.

The key elements generally included in it are :

1. Identification of the immovable: It specifies the details of the immovable to be co-owned, including its location, boundaries and common portions.
2. Designation of co-ownership units: It identifies each individual co-ownership unit and allocates a share of the common portions to each unit.
3. Description of common and private portions: It clearly describes which parts of the building are considered common portions (such as lobbies, corridors, swimming pools) and which are private portions (individual units belonging to co-owners).
4. Quota shares: This establishes each co-owner's share of the common areas, which generally determines each owner's financial contribution to common expenses.
5. Management and administration rules: It defines the rules governing the management and administration of the co-ownership. These generally include the creation of a syndicate of co-owners, the holding of general meetings, the powers of the board of directors, etc.
6. Conditions for use of private and common areas: It stipulates the rules for use of private and common areas (including restricted common areas), including any specific restrictions or obligations.
7. Clauses relating to common charges: It sets out the terms and conditions for sharing common charges between co-owners, including maintenance, repair and management costs.
8. Insurance clauses: It includes provisions concerning the insurance required, both individually and collectively, to protect the condominium and its owners.

The constituting act is a binding document, and it is essential for every co-owner to read it in order to understand the rights, obligations and rules governing life within the co-ownership.

2. The building by-laws

The by-laws of the building, which contain the rules for living, operating and administering the condominium. They include the following:

1. Use of private and common areas: It specifies the rules for use of the private areas (individual units) and common areas (shared spaces) of the building. This may include restrictions on modifications to units, hours of use of common areas, etc.
2. Pet rules: It regulates the possession and keeping of pets in condominium units.
3. Financial rules: It may contain provisions concerning special dues, additional fees, payment of common charges, etc.
4. Standards of conduct: It can set out standards of conduct for residents, covering aspects such as noise, nuisance, maintenance of common areas, etc.
5. Alterations and modifications: It specifies rules to be followed for modifications to individual units, such as renovations or additions.
6. Equipment rules: It concerns the use and maintenance of common equipment such as elevators, swimming pools, recreational areas, etc., can be included in the bylaws.
7. Dispute resolution procedures: It details the procedures to be followed in the event of a dispute between co-owners or with the syndicate of co-owners.

3. Description of fractions

The description of fractions, which contains the numbers of private and common lots (cadastral designation) in the building, and other more technical details, such as servitudes. It usually contains :

1. Identification of condominium units: It identifies and describes each condominium unit in detail. It may include information such as the surface area of each unit, its location in the building, as well as specific features that are unique to it.
2. Description of common areas: It specifies the common areas of the building. This may include shared spaces such as corridors, elevators, lobbies, parking areas, swimming pools, etc.
3. Cadastral references: It refers to the lot and cadastral numbers assigned to each condominium unit and common areas. These cadastral references clearly identify each portion of the building.
4. Conditions and servitudes: It includes specific conditions relating to the use of units or common portions. It may also mention servitudes affecting the property.

To avoid unpleasant surprises, it's important to read this official document before purchasing a condo, even if it's not the most entertaining read!

A condition on the offer to purchase

There is a clause in the Offer to Purchase that specifies that the purchase of the condominium is conditional on the reading of the Declaration of Co-ownership. This means that the promise to purchase can be cancelled if the potential owner is so dissatisfied with an item in the Declaration that they no longer want to buy a unit in that building.

Administration of the co-owned property

You can also ask the current co-owner to show you the financial statements and operating budgets, as well as the most recent minutes of the co-owners’ meetings, which is overseen by a board. These will give you a better overview of the building’s history. Looking at all these documents will allow you to be well informed about the building you want to purchase as well as the shared rules for living there. If need be, call on the services of a lawyer or notary to read and analyze the documents and give you a summary.

What happens if the declaration of co-ownership is not respected?

Failure to comply with the declaration of co-ownership can have a number of legal and financial consequences. Failure to comply with the declaration of co-ownership may have the following implications:

• Formal notices: In the event of non-compliance with the rules set out in the declaration of co-ownership, the syndicate of co-owners (the entity responsible for managing the co-ownership) can issue formal notices to offenders. These formal notices can be used to request the correction of infringements or compliance with the rules.
• Financial sanctions: The declaration of co-ownership may provide for financial sanctions in the event of failure to comply with the rules. These may take the form of penalties, fines or additional charges imposed on offenders. Specific terms and conditions will generally be set out in the declaration.
• Legal remedies: If formal notices are not followed by correction of the violations, the syndicate of co-owners may initiate legal proceedings to enforce the declaration. This may include legal action to obtain an injunction compelling compliance, as well as claims for damages caused by the violations.
• Foreclosure: In certain serious and repeated cases of non-compliance with the declaration, foreclosure may be considered. Foreclosure is a legal procedure that can result in the forced sale of the violator's condominium unit to settle debts or violations.

It is important to note that specific measures are detailed in the Declaration of Co-ownership and in the Civil Code of Québec.

Modification of the declaration of co-ownership

In Quebec, the process for amending a declaration of co-ownership is governed by the Civil Code of Québec. Here are the general steps for making changes:

1. Owners or the condominium's Board of Directors identify the need to amend the declaration of co-ownership. This may be for reasons such as structural changes, renovations, by-law adjustments, etc. Before making any changes, it is strongly recommended that you consult a notary or lawyer specializing in Quebec condominium law. This will ensure that the proposed modifications comply with the Civil Code of Québec and any other relevant regulations.
2. Proposed amendments must be drafted in such a way as to comply with current legislation. They may be included in a notarial deed, and plans and descriptions may be required depending on the nature of the changes.
3. Decisions concerning the following requires three quarters of the votes of the co-owners, present or represented:
   • Deeds of acquisition or disposal of property by the syndicate
   • Alteration, extension or improvement work on common areas, as well as the apportionment of the cost of such work and the creation of a moveable hypothec to finance it
   • Construction of buildings to create new fractions
   • Modification of the constituting act or the description of fractions
   • Modification of the description of the private portions
4. Decisions concerning the following are taken by a majority of three quarters of the co-owners, representing 90% of the votes of all the co-owners:
   • Change the destination of the building
   • Authorize the alienation of common portions whose preservation is necessary to maintain the destination of the building
   • Modify the declaration of co-ownership to allow the holding of a fraction by several persons with a periodic and successive right of enjoyment.
5. The declaration, together with any amendments to the constituting act and the description of the fractions, is submitted to the registry office. The declaration is entered in the land register under the registration numbers of the common portions and the private portions; amendments are only entered under the registration number of the common portions, unless they directly affect a private portion. Amendments to the by-laws of the building must be expressly recorded in the minutes or in a written resolution of the co-owners, and need only be deposited in the register kept by the syndicate in accordance with article 1070.

It is essential to follow the steps prescribed by law and the declaration of co-ownership to ensure the validity of the modifications. The consultation of a notary or a lawyer specialized in co-ownership law in Quebec is strongly recommended to guide the process.

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