On September 17, the Chambre des notaires du Québec (CNQ) issued a communiqué to its members concerning the application of article 1068.1 of the Civil Code of Québec, relating to the Certificate attesting to the condition of the immovable held in co-ownership (ASEC). The CNQ specified that, even though the law does not expressly provide for a “validity period” for this certificate, the information it contains must faithfully reflect the current state of the co-ownership. Below is the full reproduction of the CNQ communiqué.
Contemporaneity of the Attestation under article 1068.1 C.c.Q.
The attestation is intended to reflect the state of the co-ownership (financial data, planned work, pending litigation, major losses, etc.) at a given point in time. However, the law does not set a formal “lifespan” for this certificate. The Chamber has been informed that certain syndicates or co-ownership managers advocate that the syndicate issue only one attestation per year, based on the information presented at the annual meeting.
However, during the detailed study of the bill that led to article 1068.1 C.c.Q., the Minister specified that this addition “corrects a situation that often placed the buyer in a delicate position, without essential information, compromising the free and full knowledge of what he or she was purchasing.” She added that “the attestation issued by the syndicate will provide every buyer with an up-to-date overview of the co-ownership, allowing for informed consent at the time of purchase. This is indispensable, given the major investment represented by acquiring a property.”
She further stated that she was inspired by the Ontario model, where a “status certificate” has been provided to buyers prior to sale for several years, adding that Québec “has invented nothing; we are simply joining best practices for transparency in co-ownership.” Even though Ontario law did not provide for a validity period, Ontario courts have sanctioned condominium associations that issued certificates lacking the most up-to-date information.
The legislator’s intent—that the attestation is an important document for ensuring the buyer’s informed consent—argues in favor of a certificate issued specifically with the actual data available at the beginning of or during the sales process, and not an older, potentially obsolete document that could lead to a defective consent.
Although the notary is not required to verify whether the content of the attestation has been updated since its issuance by the syndicate, unless specific instructions are given by the mortgage lender, nor to require the seller to provide the attestation before completing the sale, he or she does have a duty to advise the parties of the importance of the contemporaneity of the information contained in the attestation.
