Skip to main content

Powers of attorney in the framework of a general assembly of co-owners

Powers of attorney in the framework of a general assembly of co-owners

When an annual general or special assembly of the syndicate of co-owners is convened the majority of co-owners will choose to attend in order to exercise their right to speak and vote on matters within the competence of the general assembly of co-owners. However, it is possible that a co-owner can not be present there for various reasons. In this case, any co-owner may be represented at the assembly by the person of his choice who will exercise all the rights of the co-owner in the same manner as if the co-owner were present. It is a mandate under section 2130 of the C.c.Q: « The mandate is a contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power. The power and, where applicable, the writing evidencing it are called the power of attorney. »

Therefore, the co-owner who wishes to be represented at an assembly of the co-owners will give a power of attorney to a designated person. The writing evidencing it must be signed by the co-owner and shall clearly identify the person to whom the mandate is given, and for what purpose. It may be that a person holds a general power of attorney for the fulfillment of all legal acts on behalf of his client, but normally a co-owner will give a power of attorney whose validity will be limited to a meeting of co-owners in particular, or any repetition of the latter in case of an adjournment, of which the absence of a quorum at a first convocation to an assembly. So, the power of attorney will cease to bind the co-owner to his agent once the object of the mandate is fulfilled, whether it be the holding of an assembly of co-owners or the depletion of the topics on its agenda.

Some co-ownerships may have difficulty holding an assembly of co-owners, without assistance from a number of co-owners holding enough votes to constitute a quorum of a simple majority of votes. According to the majority of declarations of co-ownership the quorum must be reached within the hour after the time specified in the convocation notice. Alternatively, the assembly can not take place and must be adjourned to another date of which notice must be given to all co-owners. In this new assembly three-quarters of the members present or represented by power of attorney at the meeting constitute a quorum there. The co-owners present there or their procured representatives can make ordinary decisions of the syndicate by a simple majority of the votes present or represented at the assembly, but these can not make the decisions for which the law requires a double majority, i. e. the decisions referred to under sections 1097, 1098 and 1108 of the Civil Code of Québec. So, it is clear that the ordinary business of the syndicate will not be paralyzed by a continued inability to obtain a quorum, but the assembly of the co-owners will then only be capable to decide about more important issues.

It should be understood that the fact that a co-owner gives his power of attorney to a person of his choice is very useful, and can avoid the syndicate additional administrative work that a second convocation represents to failure to obtain a quorum at a first meeting. However, the ideal would be a participation of all the co-owners in person.
Moreover, when a fraction is owned by two or more persons, there is no presumption that an undivided co-owner may validly represent one or more co-owners and exercise the voting rights of these at an assembly. This sometimes causes problems in the cases of a married couple or a common law or a civil union couple, both of which are owner of the fraction. Section 1090 of the C.c.Q. stipulates that each co-owner has, at the assembly, a number of votes proportional to the relative value of his fraction, and each co-owner exercises these rights in proportion to their undivided share. In the case of a couple, this means that each member will then have half of the votes allocated to that fraction and can then exercise as he/she sees fit. If one member of the couple is unable to attend an assembly of co-owners, he should give a power of attorney in favour of the other spouse, otherwise his share of the vote will not be counted for purposes of calculating the quorum, or for taking any other decision by the general assembly of co-owners.

The co-owner who signs and submits his power of attorney to a person of his choice does thus not lose the personal exercise of his rights. He may thus choose to revoke his power of attorney at any time to resume the exercise of his personal rights, and the co-owner who will choose to attend in person at the assembly of co-owners may require that the power of attorney is remitted by his agent. Some co-owners prefer to attend in person while allowing their agents to exercise their right to speak at the assembly, but the co-owner will live with this choice: there is only one right to speak, and this in order to avoid that the issues and proposals are made cumulatively by the co-owner or his agent. The co-owner can therefore not adopt such a strategy to monopolize or abuse the right to speak to the detriment of other co-owners present. However, in our opinion, the presence of the co-owner and his agent, seems to go against the intent of the mandate, i.e. to represent and attend oneself instead of another person.

It may sometimes happen that a co-owner signs a first power of attorney in favour of a person and then signs a second one at a later date for the same assembly of co-owners, but by which he means a different person. As the principal co-owner retains control over the exercise of his rights, one must understand that any co-owner has the right to change his mind about his choice of an agent or instructions given to the latter. Another power of attorney signed later, even later on the same day, will cancel the first one without the first agent being able to claim thereof the exclusive representation or execution.

Under section 2138 of the C.c.Q, the agent is required to fulfill the mandate he has accepted and he must, in carrying out his mandate, act with prudence and diligence. He must also act with honesty and loyalty in the best interest of the client and avoid placing himself in a situation of conflict between his personal interests and those of his principal.

However, it should be understood that more often than otherwise, a co-owner chooses to be represented at the assembly by another person to whom he has given a power of attorney, not because he is unable to attend in person, but because she does not want to attend. The co-owner will then give his power of attorney to a person that he trusts.

Unless the power of attorney contains particular directives to the agent on the exercise of the rights of the co-owner who has given it, the agent will be required to act in compliance with section 2138 of the C.c.Q. The decision of a co-owner on the choice of the person to whom he gives his power of attorney relies in many cases on the relation of trust that can exist between two people, or on the fact of sharing the same opinions about the decisions that should be taken by the co-owners being in assembly and within the limits of the powers of the latter: the election and removal of directors, ordinary decisions of the syndicate (section 1096 of the C.c.Q), and extraordinary decisions (sections 1097, 1098 and 1108 of the C.c.Q). In cases where the co-owner gives a mandate to his lawyer, or to his solicitor, in many cases this is because of legal knowledge, and the abilities of expression of these professionals, that the owner will choose them to better represent his interests .

The power of attorney is thus an element of influence on the direction of the affairs of the co-ownership. The concentration of a large number of powers of attorney in the hands of a person, or a small number of people will give a power to influence decisions on the fate of the decisions of the assembly of the co-owners.

For any questions on the law of co-ownership or real-estate law do not hesitate to contact our team of lawyers specialized in the matter

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.

Join now

Not already member of the APQ ?

Take advantage of all our services by joining now

This site uses cookies in order to provide you with the best possible user experience. By continuing to browse this site, you agree to the use of cookies.