Amending the declaration of co-ownership is a legal act governed by strict rules. In principle, all amendments must be adopted by the meeting of co-owners, in accordance with varying majority requirements. These majorities depend on the nature of the proposed amendment and the specific section of the declaration involved (the Constituting Act of Co-Ownership, the By-Laws of the immovable, or the Description of the Fractions).
The Civil Code of Québec provides for three types of majorities, each offering a level of protection that corresponds to the importance of the amendment.
The double majority (article 1098 C.c.Q.)
The double majority represents the highest threshold required by law. It is necessary when the proposed amendment:
Aims to change the destination of the immovable (for example, converting a strictly residential building into a mixed-use building);
Or aims to allow periodic and successive enjoyment rights over a fraction (a form of "time-sharing").
For such a resolution to be adopted, it requires:
The favorable vote of at least 90% of all the votes in the co-ownership (regardless of attendance at the meeting);
And that these votes come from at least 75% of the co-owners in number, as listed in the co-ownership register.
This high threshold is intended to prevent any major transformation of the immovable without the approval of a very large majority.
The enhanced majority (article 1097 C.c.Q.)
Since January 10, 2020, with the coming into force of Bill 16, a new type of majority has been introduced: the enhanced majority.
It is required to amend:
The constituting act of co-ownership;
The description of the fractions,
provided that the amendment does not change the destination of the immovable.
This majority corresponds to: 75% of the votes of the co-owners present or represented at the meeting. It is therefore not a majority of all co-owners listed in the register, but only of those who are actually participating in the decision-making process.
The absolute majority (article 1096 C.c.Q.)
The absolute majority is the basic majority required for several other amendments to the declaration, including:
Any amendment to the by-laws of the immovable, unless it affects the destination;
The correction of a material error in any of the three parts of the declaration (by-laws of the immovable, constituting act of co-ownership, description of the fractions).
This majority corresponds to: 50% plus one of the votes cast by the co-owners present or represented at the meeting.
It constitutes the usual majority for day-to-day decisions, although caution remains necessary when the amendment affects essential rights or obligations of the co-owners.
Scope of transitional law
It is important to note that certain declarations of co-ownership published before January 1, 1994 may require unanimity to amend the destination of the immovable. This rule is maintained, despite article 1101 C.c.Q., by virtue of article 53 of the Act respecting the implementation of the reform of the Civil Code. Thus, in these older co-ownerships, unanimity of votes is still required, unless the declaration has since been amended.
Majority at a meeting ≠ individual consent
The majority required to adopt a resolution must not be confused with the personal consent of a co-owner who is specifically affected. Pursuant to article 1102 C.c.Q., a co-owner cannot be compelled to accept:
An amendment to the relative value of his or her fraction;
A change in the destination of his or her private portion.
Even if a (absolute, enhanced, or double) majority is achieved at the meeting, the express consent of the affected co-owner(s) remains necessary. This is an individual protection that the collective majority cannot override.
GOOD TO KNOW! The required majority varies according to the nature of the amendment. It is therefore essential to correctly identify the section of the declaration to be amended before convening a meeting.
IMPORTANT! Since January 10, 2020, Article 1097 C.C.Q. requires an enhanced majority of 75% to amend the constituting act or the description of the fractions.
CAUTION! Even if a resolution is adopted by the required majority, it may be invalid if it infringes on the rights of a co-owner without his or her consent (Art. 1102 C.C.Q.).
Back to the factsheet Amending the Declaration of Co-Ownership
