The careful maintenance of the condominium registers (hereinafter referred to as the ” Registers “) by the Board of Directors of the Syndicat des copropriétaires (hereinafter the ” Syndicat “) is of the utmost importance. It contributes to the smooth running of condominiums and helps prevent conflicts between co-owners and the Syndicat.
Let’s take a look at some important practical points to bear in mind.
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The contents of the Registers kept by the Syndicat
The content of the Registers is mainly established by article 1070 of the Civil Code of Québec (hereinafter CcQ “), which provides for an non-exhaustive list of documents that must be kept in the Registersnamely :
- Name and postal address of co-owners
- Tenants’ names and postal addresses
- Minutes and/or written resolutions of co-owners’ meetings
- Minutes and/or written resolutions of the Syndicat’s Board of Directors
- Building regulations and amendments
- Co-ownership financial statements
- Declaration of co-ownership
- Contracts to which the Syndicat is a party
- Cadastral plans of the building
- Building construction plans and specifications
- Certificate of location (if available)
- Maintenance booklet
- Pension fund study
- Description of the private portions sufficiently precise to identify the improvements made by the co-owners.
- All other documents and information prescribed by government regulation
- All other documents and information relating to the building and the Syndicat; including, according to legislation and jurisprudence, the following elements :
- Certificate of building condition
- Asset management plan
- Insurance policy
- Evaluation report
- Expert report
- Estimated costs for refurbishing common areas
- Call for tenders and contractor bids
- Documents from the Registraire des entreprises (REQ) concerning the Syndicat
- Legal proceedings involving the Syndicat
- Allocation deeds and plans for restricted-use common areas (e.g. parking and storage spaces)
This is a so-called “public order” article. ordre public “This means that the Syndicat cannot avoid this obligation. It is also part of the Syndicat’s broader mission to preserve, maintain, administer and safeguard the condominium. .
The above list being non-exhaustive, the Declaration of Co-ownership, its amendments, additional by-laws and/or resolutions adopted by the the Syndicate and the co-owners may provide for more content to be included in the Registers.. Pour nommer qu’un exemple, les déclarations de copropriété prévoient habituellement que leurs Registres doivent contenir une liste des créanciers hypothécaires de chaque copropriétaire ainsi que les droits de vote qui leur sont cédés.
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Register consultation by co-owners
The Registers are the property of the Syndicat, but must be made accessible to co-owners. Ils doivent être rédigés in French and can be stored on paper or electronic format. De plus, la tenue des Registres peut être déléguée par le Syndicat à un managerwhich is common practice in large condominiums.
Co-owners are entitled to consult the Registers according to certain conditions. In particular, the CcQ stipulates that consultation must be carried out in the presence of a director or a person designated by the designated by the Union, during reasonable hoursand that fees may be charged by the Syndicat for copies of documents consulted. In addition, the additional terms and conditions may be adopted by the Syndicat
to further regulate the consultation of the Registres. For example, the Cour du Québec ruled that the Syndicat was entitled to stipulate in its procedures that only electronic copies of documents be sent to co-owners, and that it was under no obligation to provide and mail paper copies. .
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Limits to consulting the Registers
Access to the Registers does not an unlimited right to co-ownership documents. For example, a co-owner may consult the financial statements, but may not claim all related accounting documents, such as copies of co-owner cheques and lists of arrears owed by certain co-owners. . Dans cette même veine, un copropriétaire peut consulter les procès-verbaux du Syndicat, mais ne peut pas exiger l’ensemble de leurs argumentaires et décisions de gestion quotidienne .
A co-owner does not have access to another co-owner’s confidential information such as bank details, telephone number, e-mail address, age and state of health. A co-owner must also act in good faith towards the Syndicat when requesting to consult the Registers
. Certains jugements ont d’ailleurs condamné des copropriétaires abuse of process following a lawsuit brought against the Union without legitimate evidence and damage to the Union’s reputation due to unfounded verbal and written attacks on the Syndicat. These decisions show that consulting the Registers cannot be equated with a witch-hunt against the Syndicat.
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Respecting the privacy of co-owners
The Syndicat shall exercise due care and diligence in keeping in the keeping of its records, and shall act honestly and faithfully in the performance of its duties.. Cela inclut notamment le respect les droits fondamentaux des copropriétaires, dont leur droit à la protection de leur privacy.
In order to preserve the privacy of co-owners, the Syndicat must limit its collection of personal information to that which is necessary.. Plus spécifiquement, un renseignement est « personnel » lorsqu’il concerne une physical person and identifies him or her. Dans un tel cas, un copropriétaire peut faire une demande auprès de la Commission d’accès à l’information du Québec (hereinafter the ” Commission “) for access to personal information held by the Syndicat in its regard. In addition, recent legislative amendments to the Act respecting the protection of personal information in the private sector (“the Bill 25 “impose new new obligations in terms of confidentiality
. Désormais, le Syndicat doit notamment :
- Establish a clear policy for the protection of co-owners’ personal information;
- Obtain the express consent of each co-owner to collect such information;
- Maintain a separate register for this information, which must be inaccessible to other co-owners;
- Designate a person responsible for protecting this information;
- Notify the Commission of any breach of confidentiality by a co-owner, and;
- Respond in writing to any request from a co-owner regarding his or her personal information.
Thus, a diligent Syndicat will have to carry out a complete review of its Registers to ensure compliance with this major reform.
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The consequences of neglecting record-keeping
Poor management of the Registres can lead to legal action by co-owners against the Syndicat. For example, in the absence of minutesIt would be difficult to determine whether the required majorities and quorums are met at Syndicat and/or co-owners’ meetings. Thus, in the event of a lawsuit, these decisions could be challenged as to their validity.
The absences and dissents of directors must be recorded in writing in the minutes. Otherwise, it would be difficult for a director to limit his or her liability with respect to decisions of the Syndicate to which he or she was not a party or with which he or she disagrees. .
Financial decisions made by the Syndicate are often a source of conflict, hence the importance of keeping financial statements of the co-ownership in the Registres. An administrator unable to justify certain financial irregularities could be accused of appropriating property from the Syndicate. and of having placed himself in a situation of conflict of interest. Un promoteur ayant construit l’immeuble détenu en copropriété qui agit également à titre d’administrateur du Syndicat doit particulièrement faire attention de ne pas favoriser ses propres intérêts au détriment de ceux du Syndicat et des copropriétaires .
With regard to work carried out by the Syndicat in the common areas, it is prudent to record in the Registers the complete complete maintenance and repair reports the building, the tendering tendering process and the various bids received by contractors in order to avoid potential future contestations by a co-owner. In a decision in which a Syndicate was accused of “inflating” the price of work and unfairly distributing the related costs, the Syndicate successfully defended itself by diligently maintaining documents relating to the work. .
In terms of insurance, the Syndicat is obliged to take out a deductible covering the replacement value of common and private portionswhereas co-owners must take out a separate deductible for rental improvements made to their private portions since the initial construction of the building. Le Syndicat et les copropriétaires ont donc tout intérêt à consigner aux Registres architectural or engineering plans and specifications at the time of building construction and photos, invoices and quotes for improvements to the private areas. These supporting documents will help reduce disputes and claim delays in the event of a claim.
Conclusion
The rights and obligations of the Syndicate and co-owners regarding the maintenance and consultation of the Registres de copropriété are vast and complex. Consult your notary or lawyer to ensure that you are adequately protected by procedures regarding their content and accessibility.
By Mélissa Dion