June 7, 2022 - The main duty of the board of directors in a condominium is to manage the Syndicate’s business. This means first to ensure the maintenance and conservation of the building, secondly to see to it that everyone respects every disposition of the declaration of co-ownership.
The directors shall act with prudence and diligence, with honesty and loyalty, in the sole interest of the co-owners as a whole. They must also act within the limits of the powers conferred on them by law, the constituting act or the by-laws (Art. 321 and 322 of the Quebec Civil Code). Incidentally, most (if not all) declarations of co-ownership specify that the directors must ensure its respect by all co-owners, tenants, occupants or invitees in the building.
Your particular declaration of co-ownership contains restrictions regarding a co-owner’s use of his apartment? It forbids keeping a domestic animal? It requires prior authorization by the board of directors before doing any modification or work within an apartment? If so, the directors must see to the strict respect of all of those rules, without any preference or exception, subject however to the law. For example, the rule forbidding domestic animals would be set aside if a Mira dog is necessary to a co-owner or occupant in order to overcome a visual handicap or a hearing impairment. In such cases, the Quebec Charter of Rights overrides the declaration of co-ownership, but only for the handicapped person. All other resident in the building would still be bound by the declaration’s prohibition. Dura lex, sed lex! (“The law is harsh, but it’s the law!”…)
Construction defects and insufficiently funded reserve funds put aside, I think that the main source of problems occurring in condominiums comes from co-owners who do not respect the declaration of co-ownership and directors who neglect to have it fully respected.
You absolutely must, as directors, intervene every time the declaration’s terms are not followed or respected, in order to stop this infraction. Do not elude the problem by pretending that it affects only a few co-owners or that it concerns only two “neighbours”. It is your obligation to do whatever it takes to stop every infraction and non-respect of the declaration, even if it requires judicial recourse. Failing to act could result in a demand for damages against the Syndicate or even you, as director. Also, failing or neglecting to act is a sure way towards total anarchy in the building.
What’s the solution? It’s simple: every breach or infringement to the declaration of co-ownership must be addressed by you, the directors, politely but firmly. It is part of your mandate and it is at the heart of your mission.
In a subsequent chronicle, we will examine the obligation to ensure the maintenance and conservation of the building.
Richard LeCouffe, Lawyer
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