The common portions include all parts of the building which are the property of all the co-owners. Unlike the private portion, the common portions belong to all the co-owners by quota, which is equivalent to the value of its fraction.
Unless otherwise stated in the declaration of co-ownership, the following are considered to be common parts:
Each building has its own rules on the designation of common portions. For example, the declaration of co-ownership may provide that each co-owner has his own parking space.
The common portions remain common even if they run through the private portion, for example, the water piping or the ventilation ducts for the heating system.
What is a Declaration of Co-ownership?
The Declaration of Co-ownership is a notarized contract, signed by all the co-owners and published in the land register. After signing, you have the obligation to respect it. This declaration binds all the co-owners, even those who acquired a condo after signing the Declaration of Co-ownership. The syndicate of co-owners must give you a copy of the declaration.
For example, the signing of the Declaration of Co-ownership for the building constructed by "Lamaisoncondo Inc." took place on November 1, 2018. Six months after the signature and publication of the Declaration of Co-ownership in the land register, Ms. Beaulieu made the acquisition of a condo in divided co-ownership in the “Lamaisoncondo Inc” building. Ms. Beaulieu cannot ignore the existence of a Declaration of Co-ownership by justifying the fact that she did not sign this declaration.
You must check with the syndicate of co-owners to find out if there are any changes to the Declaration of Co-ownership after publication in the land register.
To find out about the changes to the building regulations, you must inquire with the syndicate of co-owners, the law does not require that these changes be published in the land register.
To know about any changes made to the constitutive act and the descriptive state or any modification, you must inform yourself with the Registre foncier du Québec where the syndicate of co-owners must register them.
When does one become a co-owner?
In general, the transfer of the property right takes place at the time of the signing of the contract of sale. However, buyers of a condominium in a new divided co-ownership building will have one more step to take: the creation of a syndicate of co-owners.
Indeed, for the syndicate of co-ownership and its members to enjoy all of the rights to their properties, there must be a transfer from the syndicate led by the entrepreneur to the syndicate of co-owners.
Syndicate of co-owners
The syndicate of co-owners is a legal person made up of all the co-owners. It is a separate entity from the members it represents and the directors who make up its board of directors. It can hold property and can have debts independently of its members, and is responsible for the administration, maintenance and conservation of the building.
The transitional period
A transition from the management of the contractor's union to the syndicate of co-owners must be made when the entrepreneur holds less than 50% of the votes.
A contractor usually begins to sell the units one by one and takes over the management of the building. Once he has sold units totaling more than 50% of the votes provided for in the constitutive act, the entrepreneur must transfer the management of the building to the new co-owners who are then deemed able to manage their new building themselves.
The syndicate of co-owners receives the notices of the end of work and receives the common portions of the building. Thus, before the contractor can send a notice of the end of work, the syndicate of co-owners must be trained and independent.
Also, as a beneficiary of the mandatory Guarantee Plan, you have the right of access to the file concerning your building held by the administrator of the Guarantee Plan (GCR or the provisional administrators of the previous plan, Abritat and Qualité Habitation). This right of access includes, among other things, inspection or intervention reports, faults noted, corrective measures made, plans and specifications, expert reports used for the purposes of the administrator's report, and other documents of similar nature.
It may be useful and relevant to have access to this information before inspecting and accepting the common portions.
Formation of the syndicate of co-owners
The transition mechanism for the management of the syndicate of co-owners is provided for in the Civil Code of Quebec. The legislator specifies that the board of directors must convene an extraordinary meeting of co-owners for the election of a new board of directors within 90 days from the time when the entrepreneur no longer holds the majority of the votes in the assembly of co-owners.
Note that the number of votes at the co-owners' meeting is linked to the number of units sold. The entrepreneur no longer holds the majority of the votes when he has sold units totaling more than 50% of the votes.
Initially, the board of directors of the syndicate of co-owners is formed by buyer-beneficiaries. By purchasing a condo, each buyer automatically becomes a member of the board of directors. Subsequently, when the transfer mechanism is activated, this board of directors convenes an extraordinary meeting of co-owners to elect the directors of the new board of directors and form the syndicate of co-owners.
Note that if the meeting is not convened within 90 days from the time when the entrepreneur no longer holds the majority of votes, any co-owner is entitled to call it.
This convening obligation is important in the transition of powers between the entrepreneur and the co-owners because it marks the starting point for the creation of the independent syndicate of co-owners. Also, for the contractor to be able to send a notice of end of work to the syndicate, the syndicate must be trained and independent.
For example, on April 12, 2019, 60% of the units were sold by the construction company "Comme 9 Inc.". It no longer holds the majority of the votes; proceedings must be started within 90 days for the election of a new board of directors.
In this example, the board of directors will have until July 11, 2019 to elect its directors and form a new syndicate of co-owners.
It is only from the moment that the transition between the entrepreneur and the syndicate of co-owners is finalized that the entrepreneur can send a notice of end of work to the syndicate so that it may proceed to receive the common portions.
End of work
The law defines the end of work as the time when the work is delivered and ready to serve it is intended use.
The first step of the acceptance of the common portions is the contractor sending the notice of the end of work to each known co-owner, as well as to the syndicate of co-owners, when it is formed and he is no longer under his control. Following the notice, the syndicate of co-owners must start looking for a building professional to inspect it.