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Can one change the number of votes required for a decision in co-ownership?

Can one change the number of votes required for a decision in co-ownership?

Sometimes, directors and co-owners raise the question whether, through an amendment to the declaration of co-ownership adopted by the assembly of co-owners, they can change the number of votes required for a decision?

It is an interesting question. With regard to the level of motivation that administrators or co-owners can have to consider a modification of this order, we think that it is sometimes difficult to obtain the required majorities to vote on issues such as changing common portions, changing the constitution of the act of declaration, or even a real-estate acquisition by the syndicate. In this case, some would wish that these decisions could be taken by a slimmer majority than those prescribed by sections 1097, 1098 and 1108 of the Civil Code of Quebec.

Also, it is possible that in a co-ownership, there is a history of adoption and cancellation of building regulations by the assembly of co-owners from one year to another, which possibly reflects a struggle of influence between groups of co-owners and members of the Board of Directors. In order to avoid these annual setbacks, certain directors and co-owners wish that any decision on this matter would be taken not by an absolute majority of section 1096 of the Civil Code of Quebec, but rather by a stronger majority, for example by a two-thirds majority vote of the assembly.

It must be understood that the majorities prescribed by the legislature in Sections 1096, 1097, 1098 and 1108 of the Civil Code of Quebec are usually reproduced verbatim in co-ownership declarations published since 1 January 1994. Except for derogations provided by the legislator, those sections apply to co-ownership declarations issued before January 1, 1994. In order to ensure adequate protection of the public, especially of the co-owners of buildings in divided co-ownership, Parliament introduced section 1101 of the Civil Code of Quebec, which reads as follows:

“Section 1101. Any stipulation of the declaration of co-ownership which changes the number of votes required in this chapter for taking any decision is deemed unwritten.”

The “in this chapter” referred to in this article is the one of Chapter III, Title Three, Book Four of the Civil Code of Quebec, i.e. sections 1038 to 1109 inclusive, dealing with the divided co-ownership of a building. So, if the text of a statement of co-ownership issued by the condominium developer to create a co-ownership provides for majorities different from those prescribed by sections 1096, 1097, 1098 and 1108 of the C.c.Q, they are deemed unwritten and therefore null and void. Notaries who draft co-ownership declarations must ensure that the stipulations contained in them are in accordance with current law.

The same section would therefore invalidate any amendment to the declaration of co-ownership by the syndicate following a decision of the assembly of co-owners that modifies these majorities, either by increasing or reducing them.

Therefore, the decisions of the assembly of co-owners shall be taken by majorities stipulated in the above-mentioned sections.

For any additional questions on this subject please do not hesitate to contact our team of lawyers specialized in real estate law.

Note 1: Section 53 of the Act respecting the implementation of the reform of the Civil Code, 1992, C.57 states that when a co-ownership declaration published before January 1, 1994 lays down the rule of unanimity for decisions made to change the destination of the building, this is maintained notwithstanding section 1101 of the new Code. So, the special double majority of a three-fourths majority in number of the co-owners of the building with a minimum of 90% of the votes set forth in Section 1098 (1) of the C.c.Q does not apply, and in such co-ownerships an unanimous vote to change the destination of the building remains the rule.

About the author

Me Kevin J. Lebeau, avocat

Diplômé de l'Université McGill (B.A.) et l'Université de Montréal (LL.B.), Me Lebeau est membre du Barreau du Québec depuis 2000.

Depuis 2001, il a exercé en droit immobilier avec concentration en droit de la copropriété dans plusieurs contextes, dont en milieu d'association, en société et en contentieux d'entreprise au sein d'une firme de gestion se spécialisant dans la gestion des copropriétés divise, Gestion Immobilière Ges-Mar Inc. Me Lebeau est également conseiller juridique aux membres d'Avantages Condo.

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