The declaration of co-ownership drafted before the entry into force of the new Civil Code of Quebec, on January 1st, 1994, remain valid. However, it is strongly advised to update them considering the significant changes brought by the new Code. Moreover, the law of divided co-ownership has continued to evolve since 1994, making it even more appropriate to have an up-to-date declaration of co-ownership that incorporates principles derived from recent jurisprudence and new practice rules developed by legal professionals.

The new Civil Code of Quebec has introduced important changes both in the structure of the text of the declarations of co-ownership and in the concepts used. Thus, the new Code provides that declarations of co-ownership must now be structured in three parts: the constitutive act, the building regulations, and the descriptive statement of fractions.

The new Civil Code of Quebec has also introduced several important concepts and rules that were absent or incomplete under the old Code. Among these changes, the following can be mentioned:

• The community of co-owners constitutes a legal person called the "syndicate" whose powers and obligations are shared between the board of directors and the general meeting of co-owners;

• Co-owners can benefit from the use of common areas for restricted use, such as a terrace or a parking space, and are then required to assume the costs associated with these common areas for restricted use through an additional contribution;

• The syndicate is required to establish a contingency fund to finance future work on the common areas of the building;

• The syndicate must compulsorily take out collective insurance covering the replacement value of the building in the event of a disaster, and the insurance proceeds must be paid to a trustee responsible for overseeing the reconstruction of the building, if necessary;

• As mentioned above, the new Civil Code of Quebec now provides for different majority votes required at a general meeting of co-owners depending on whether one wants to, for example, modify the building regulations, modify the constitutive act, or change the use of the building.

Given these innovations, it is reasonable to believe that declarations of co-ownership drafted before 1994 will have significant gaps in relation to the current law and are likely to generate many disputes between co-owners. Updating the declaration of co-ownership is the best way to prevent these conflicts.

Furthermore, it is common for declarations of co-ownership that were drafted many years ago to no longer reflect the current state of the building they are supposed to govern, considering, for example, new developments that have emerged on the premises. It is also possible that certain rules provided for in the declaration of co-ownership are outdated. Updating the declaration of co-ownership is an opportunity to harmonize it with the actual state of the building and the needs of the co-owners.

Thus, through an update of the declaration of co-ownership, it is possible, among other things:

• To regularize encroachments on the common areas of the building;
• To create any servitude necessary for the proper functioning of the building or for good relations between co-owners;
• To revise the building regulations;
• To include any provision permitted by law and absent from the original declaration of co-ownership, such as a mediation clause and applicable arbitration in the event of a dispute between the syndicate and a co-owner.

Do you think it would be appropriate to update your declaration of co-ownership? Consult the professionals at Notaire-Direct.