The meticulous maintenance of the co-ownership registers (hereinafter referred to as the “Registers“) by the board of directors of the syndicate of co-ownership (hereinafter the “Syndicate“) is of great importance. Indeed, it contributes to the proper functioning of buildings held in co-ownerships and helps prevent conflicts between co-owners and their Syndicate.
Let’s overview some important practical points to retain in this matter.
1. The Contents of the Registers Maintained by the Syndicate
The content of the Registers is primarily established by Article 1070 of the Civil Code of Quebec (hereinafter “CcQ“), which provides a non-exhaustive list of documents to be kept in the Registers, including:
- Name and postal address of co-owners
- Name and postal address of tenants
- Minutes of proceedings and/or written resolutions of co-owners’ meetings
- Minutes of proceedings and/or written resolutions of the Syndicate’s board of directors’ meetings
- Building regulations and amendments
- Financial statements of the co-ownership
- Declaration of co-ownership
- Contracts to which the Syndicate is a party
- Cadastral plans of the building
- Construction plans and specifications for the building
- Certificate of location of the building (if available)
- Maintenance log
- Study of the contingency fund
- Detailed description of private portions to identify improvements made by co-owners.
- Any other documents and information provided by government regulation
- Any other documents and information related to the building and the Syndicate; including, according to legislation and jurisprudence, the following:
- Certificate of building condition
- Asset management plan
- Insurance policy
- Evaluation report
- Expertise report
- Estimate of costs for common area refurbishment
- Calls for tenders and contractor submissions
- Registraire des entreprises (REQ) documents related to the Syndicate
- Judicial proceedings involving the Syndicate
- Acts and plans allocating common areas for restricted use (e.g., parking and storage spaces)
This article is of “public order“, meaning that the Syndicate cannot exempt itself from this obligation. It also is part of the Syndicate’ broader mission to conserve, maintain, administer, and safeguard the co-ownership.
The above list is not exhaustive, meaning that the declaration of co-ownership, its amendments, additional regulations, and/or resolutions adopted by the Syndicate and co-owners may stipulate additional content to be included in the Registers. For example, declarations of co-ownership usually specify that their Registers must contain a list of each co-owner’s mortgage creditor and the voting rights assigned to them.
2. Consultation of the Registers by the Co-Owners
The Registers are the property of the Syndicate but must be made accessible to the co-owners. They must be written in French and can be kept in paper or dematerialized format. Additionally, the task of maintaining the Registers can be delegated by the Syndicate to a manager, which is common practice in larger co-ownership buildings.
The co-owners have the right to consult the Registers under certain conditions. The CCQ specifies that the consultation must be done in the presence of a director or a designated person by the Syndicate, during reasonable hours, and the Syndicate may charge fees for providing copies of the consulted documents.
Furthermore, additional terms may be adopted by the Syndicate to further regulate the consultation of the Registers. For instance, the Court of Quebec ruled that the Syndicate was entitled to specify in its procedures that only electronic copies of documents be sent to co-owners and that it has no obligation to provide and post paper copies.
3. Limits to the Consultation of the Registers
Access to the Registers does not constitute an unlimited right to co-ownership documents. For example, a co-owner can review financial statements but cannot demand all accounting records related to them, such as copies of co-owners’ checks and lists of arrears owed by certain co-owners. Similarly, a co-owner can review the Syndicate’s minute proceedings but cannot demand the entirety of their arguments and daily management decisions.
A co-owner does not have access to another co-owner’s confidential information without the latter’s express authorization, such as their banking details, phone number, email address, age, and health status.
A co-owner must also act in good faith toward the Syndicate in their request to consult the Registers. Some judgments have condemned co-owners of abuse of procedures following unfounded lawsuits against the Syndicate and for damaging the reputation of the Syndicate due to baseless verbal and written attacks against the Syndicate. These decisions demonstrate that the consultation of the Registers cannot be reduced to a witch hunt against the Syndicate.
4. Respecting the Privacy of Co-Owners
The Syndicate must exercise prudence and diligence in maintaining its Registers and must also act with honesty and loyalty. This includes respecting the fundamental rights of co-owners, including their right to privacy.
To preserve the privacy of co-owners, the Syndicate must limit its collection of personal information to necessary elements. Specifically, an information is considered “personal” when it concerns a natural person and identifies such person. In such cases, a co-owner can make a request to the Commission d’accès à l’information du Québec (hereinafter the “Commission“) to access the personal information that the Syndicate holds about them.
Moreover, recent legislative amendments to the Act Respecting the Protection of Personal Information in the Private Sector (known as “Bill 25“) impose new confidentiality obligations. From now on, the Syndicate must also:
- Establish a clear policy regarding the protection of co-owners’ personal information;
- Obtain express consent from each co-owner regarding the collection of 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 a co-owner’s confidentiality, and;
- Respond in writing to any co-owner’s request regarding their personal information.
Thus, a diligent Syndicate will need to conduct a comprehensive review of its Registers to ensure compliance with this major reform.
5. Consequences of Neglecting the Maintenance of the Registers
A poor management of the Registers can lead to lawsuits by co-owners against the Syndicate. For example, in the absence of minutes of proceedings, it would be difficult to determine if the required majorities and quorums are met during Syndicate and/or co-owners’ meetings. Thus, in a lawsuit, these decisions could be contested as to their validity.
The absences and dissents of the directors must be recorded in writing in the minutes of proceedings. Otherwise, a director could difficultly limit their liability for decisions made by the Syndicate to which they did not participate or disagreed.
Financial decisions by the Syndicate are often a source of conflict, which stresses the importance of keeping the co-ownership’s financial statements in the Registers. A director unable to justify certain financial irregularities could be accused of appropriating the Syndicate’s assets and putting themselves in a conflict of interest. A developer that built a co-ownership building that also acts as a director of the Syndicate must be particularly careful not to favor their own interests over those of the Syndicate and co-owners.
Regarding work carried out by the Syndicate in common areas, it is prudent to record in the Registers the complete maintenance and repair reports for the building, the tendering process, and the various submissions received from contractors to avoid potential future challenges by a co-owner. In a court case where a Syndicate was accused of “inflating” the prices of repair work and unfairly distributing the associated costs, the Syndicate successfully defended itself due to its diligent bookkeeping regarding these repairs.
In insurance, the Syndicate is obligated to take out a deductible covering the replacement cost of common and private portions, while co-owners must take out a separate deductible for improvements made to their private portions since the initial construction of the building. The Syndicate and co-owners therefore have every interest to record in the Registers the architect and engineer plans and specifications of the building at the time of its construction, and the photos, invoices, and submissions for improvements made subsequently to the private portions. In the event of a loss, these supporting documents will help reduce conflicts and claims processing times.
The rights and obligations of the Syndicate and co-owners regarding the maintenance and consultation of the Registers are vast and complex. Consult your notary or lawyer to protect yourself adequately by providing appropriate procedures for their content and accessibility.
By Melissa Dion