The declaration of co-ownership is a legal document that governs the organization and operation of a building in divided co-ownership. It consists of three parts: the Constitutive Act of Co-ownership, the Building Regulations, and the Description of Fractions. Although this document has a quasi-contractual value, it is not fixed in time. It can be amended to reflect changes in the co-ownership or to correct certain irregularities. However, amending a declaration of co-ownership is a process governed by rigorous formalities.
Notice of meeting and agenda: the basis of a valid procedure
First and foremost, the co-owners must be convened to a meeting at which the proposed amendment will be examined. The notice of meeting must be sent within the time limits prescribed by law or the declaration of co-ownership and must contain the agenda.
It is essential that the draft deed of amendment be attached to the notice of meeting. The information provided must be sufficient to allow the co-owners to understand the scope of the proposed amendment.
Meeting procedure and minutes
During the meeting, the co-owners discuss the proposed amendment. Depending on its nature, it must be adopted by the required majority (absolute, reinforced, or double majority).
The decision must be clearly stated in minutes signed by the secretary and the chair of the meeting. This document serves as proof of the validity of the decision and must be kept in the co-ownership register.
Written form and drafting of the act of amendment
The Civil Code of Quebec imposes different formal requirements depending on the part of the declaration of co-ownership affected by the amendment.
It is not recommended to rely solely on an excerpt from the minutes. A specific amendment text must be drafted to ensure sufficient traceability and clarity of the content of the amended by-laws.
Signing the act of amendment
Amendments to the declaration of co-ownership are signed by the syndicate. In practice, it is up to an authorized representative of the syndicate—as determined in the declaration or by a resolution of the board of directors or the general meeting—to sign the deed. The exact name of the syndicate must also be verified in the Quebec enterprise register.
Mortgagees are not required to sign amendments, except in cases referred to in Article 1100 of the Civil Code of Quebec, particularly when an amendment affects the relative value of the fractions. In this case, their consent must be obtained.
Even if Article 1059 of the Civil Code of Quebec. does not require their signature, it is essential not to place co-owners in default with their creditors, particularly in the event of an amendment that reduces the surface area of a private portion, which could constitute a breach of the guarantee.
Notarial act and publication in the Land Register
Registration in the Land Register is mandatory for amendments to the constitutive deed of co-ownership and the description of the fractions. It makes the amendment binding on everyone, including third parties and subsequent purchasers. The notarial act is published under the immatriculation of the common areas or the fraction concerned.
Building regulations: vigilance required
Amendments to building regulations can be made by private writing. While this flexibility reduces costs, it increases the risk of errors. The regulations often contain reproductions of mandatory legal texts. Poor drafting or ignorance of the applicable rules can lead to contradictions or even invalidate the amendment.
It is therefore advisable to consult a competent lawyer for any amendment, even if the law does not formally require it.
GOOD TO KNOW! It is common for the minutes of a meeting to mention a resolution without reproducing its content. This practice should be avoided: it affects the readability of the applicable rules and the legal security of co-owners and future buyers.
TO REMEMBER! A notarial deed is required for certain amendments. The building regulations can be amended in private writing, but must be rigorously documented. The association, not the co-owners individually, signs the amendment act. The consent of creditors may be required in certain cases.
WARNING! A poorly drafted or poorly documented amendment may be challenged and invalidated. It may also result in liability for the board of directors. It is essential to comply with the substantive and formal rules set out in the Civil Code of Quebec.
Return to the sheet : Modifying a declaration of co-ownership
