Le mois dernier, Yolande m’a contactée au sujet de la vente de sa maison de ville. Présidente d’un syndicat de trois copropriétés partageant une seule entrée d’eau et une mince bande de terrain, elle se dit dépassée par les nouvelles obligations issues de la réforme de la Loi sur la copropriété divise.
Son problème : un copropriétaire refuse de payer sa part pour l’étude du fonds de prévoyance et le fonds d’auto-assurance. Même si le montant est limité, il soulève une question fondamentale : le refus d’un copropriétaire peut-il bloquer le respect des obligations légales du syndicat?
Last month, Yolande contacted me about selling her townhouse. As president of a syndicate of three co-ownerships sharing a single water inlet and a narrow strip of land, she feels overwhelmed by the new obligations stemming from the reform of the law on divided co-ownership.
Her problem: one co-owner refuses to pay his share for the contingency fund study and the self-insurance fund. Even if the amount is small, it raises a fundamental question: can a co-owner’s refusal prevent the syndicate from fulfilling its legal obligations?
A reform for all, even small syndicates
The latest legislative reform in co-ownership aims to protect collective assets and promote transparent management. Its requirements — maintenance logbook, contingency fund study, and syndicate insurance — apply to all co-ownerships, regardless of their size.
Horizontal co-ownerships, sometimes limited to two or three units connected only by a water line, access road, or common strip of land, are not exempt. These obligations may seem burdensome, but they remain mandatory.
Inescapable obligations
Each syndicate must be registered, hold an annual meeting, establish a contingency fund based on a professional study, maintain insurance covering both common and private portions, and keep a maintenance logbook. These rules aim to ensure the sustainability of buildings and financial transparency, even in small structures.
The contingency fund puzzle
In a small co-ownership like Yolande’s, where the common portions are limited to the water inlet, the sanitary sewer, and a narrow strip of land, the cost of a study may seem disproportionate. However, the law provides no exemption from this obligation.
It is nevertheless possible to mitigate the financial impact by adopting a targeted approach:
Limit the study to truly common elements;
Pool certain services with a neighboring co-ownership;
Call upon a professional familiar with micro co-ownerships, capable of adapting the scope and costs of the analysis.
The contingency fund study concerns the common portions, but the maintenance logbook may also include certain private elements, such as roofs. Preventive maintenance helps reduce the risk of claims and the rise in insurance premiums.
When a co-owner refuses to pay
A co-owner who disputes the expense and delays payment places the syndicate in a difficult position. Article 1064 of the Civil Code of Quebec is unequivocal: the payment of common expenses is mandatory.
The meeting of co-owners is consulted on the budget, but it is the board of directors that adopts it and authorizes expenditures. Refusal to pay constitutes a breach of the declaration of co-ownership.
The syndicate must send a formal notice to the defaulting co-owner. If the refusal persists, it may initiate legal proceedings to recover the amount owed. If the claim is under $15,000, the case may be filed in the Court of Quebec, Small Claims Division. In certain cases, a legal hypothec may be registered against the concerned fraction.
Collection costs are recoverable if the declaration of co-ownership so provides. Before taking any action, it is advisable to consult a lawyer to ensure the process complies with the law.
Registration: a crucial step
Many small syndicates remain unregistered, without realizing the consequences. Although the declaration of co-ownership creates the syndicate and its legal personality, it must be registered with the Quebec Enterprise Register within 60 days of its publication in the Land Register, in accordance with the Act respecting the legal publicity of enterprises. This process makes public the main information about the syndicate, including its address and the composition of its board of directors.
Failure to register does not eliminate the syndicate, but limits its powers: it cannot open a bank account or act effectively in court. In the case of prolonged non-compliance, the Registrar may impose fines or strike the syndicate from the register, suspending its rights until regularization.
Syndicate insurance: an often-neglected obligation
Many mistakenly believe their individual home insurance is sufficient. However, Article 1073 C.c.Q. requires each syndicate to insure the common and private portions, except for improvements made by co-owners.
In the event of a loss, an individual insurer may deny coverage upon learning that it involves a co-ownership not collectively insured. The co-owners would then have to bear the costs, and the directors could be held personally liable for negligence.
Governance and transparency: the key to peace
Even on a small scale, a co-ownership like Yolande’s remains a complete legal entity. Keeping records, adopting a budget, obtaining insurance, and planning repairs are both legal obligations and sound management practices.
Rigorous governance prevents conflicts and protects the value of the units.
The key to success lies in communication, diligence, and collaboration — three pillars of a healthy, well-managed co-ownership.
Note: This column is published for informational purposes only and does not constitute legal advice. The author thanks Me Yves Joli-Coeur, distinguished lawyer, for his collaboration and contribution to the legal accuracy of the text.
Nathalie Audet, Residential Real Estate Broker
3299 Rue Beaubien E,
Montreal, QC H1X 1G4
Office Tel.: 514 374-4000
Cell Tel.: 514 966-4417
Email: [email protected]
The columns express the personal opinion of their authors and do not in any way engage the responsibility of the publisher of the site, Condolegal.com Inc. The content and opinions expressed in a column are solely those of their author.
