September 2015
PFD | Real estate

Condo life, building bylaws and the limits of individual freedoms

By François Laplante Lawyer

There are many advantages to living in a condominium: the proximity of shops and services, shared common areas such as a pool or terrace and the little upkeep required as compared to a single-family home.

Still, living in a condo places certain limitations upon the exercise of one's property rights. These limitations are dictated by the building bylaws, which are set out in the declaration of co-ownership.

The courts have handed down decisions in many disputes between co-owners and their condominium associations. There is no shortage of examples, with cases pertaining to new flooring, flower boxes on balconies, solariums on terraces and a range of other issues.

The Superior Court of Québec recently ruled in a case in which co-owners had brought their condo association to court to invalidate the bylaw requiring that all co-owners leave duplicates of their keys with building administrators?a provision that is common to most, if not all, condo regulations.

The plaintiffs argued that the bylaw was in violation of the Charter of Human Rights and Freedoms, which states that a person's home is inviolable.

The condo bylaw stipulated that the person in possession of the duplicate keys may only enter the unit in the case of an emergency resulting in a fire, a break in a water pipe, electrical circuit, door or window or water infiltration?urgent situations that require immediate intervention.

The co-owners argued that the provision was in violation of article 6 of the Charter, which states that every person has a right to the peaceful enjoyment and free disposition of his or her property, except to the extent provided by the law.

The co-owners also maintained that the provision was in violation of articles 7 and 8 of the Charter, under which a person's home is inviolable and no one may enter upon the property of another without express or implied consent.

After considering the parties' arguments, the judge ruled that the plaintiffs' action was not receivable and that the bylaw did not violate the Charter. The judge's conclusion was clear and simple: article 1066 of the Civil Code of Québec stipulates that a co-owner may not interfere with the carrying out of work required for the preservation of the building, even inside his or her private portion, thus setting article 6 of the Charter aside.

In addition, article 1062 of the Code states that the declaration of co-ownership binds the co-owners. The judge explained that the plaintiffs had implicitly adhered to the building bylaws when they became co-owners. The action therefore pertained to a clause to which they had already given their express consent.

The judge concluded by stating that the issue was among the inconveniences of condo living, adding that certain personal freedoms must yield before the common good.

Do not hesitate to contact us should you have any questions regarding your declaration of co-ownership. The attorneys in our property law group are available to advise and guide you.