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Bourbonnais et al v. 9168-3615 Québec Inc. et al (Court of appeal of Quebec)

Fasken
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The Court of Appeal was asked to determine whether the rights of the group prevailed over the rights of the individuals in the context of divided co-ownership, especially where the rights of one group conflict with those of the other. In Bourbonnais et al v. 9168-3615 Québec Inc. et al (PDF), the Court of Appeal handed down just such a decision in favour of our client. Here, the rights of the group were ruled to take precedence over the rights of the individuals. The appeal basically consisted of determining the scope of a deed of correction that was passed by the requisite majority of the co-owners at a duly-held meeting. In this case, a second declaration of co-ownership had been published to transform and govern one of the units that was initially created in the project’s first phase. However, this second declaration had inadvertently been published for all of the units instead of just the unit in question. A deed of correction was then passed by a majority of the co-owners to limit the effects of the second declaration to the unit in question. In the first instance, Judge Corriveau of the Superior Court recognized that the deed of correction made the initially-problematical second declaration unenforceable against the two dissatisfied co-owners, which logically should have settled this case’s fate. Still, the co-owners were dissatisfied with this ruling and asked that not only the deed of correction be stricken, but that the second declaration be stricken as well. The Court of Appeal dismissed the two co-owners’ motion to strike. The trial judge’s decision was well founded in fact and in law. The decision made by the majority of the co-owners was indeed a logical and practical solution. The Court of Appeal points out, and with good reason, that by failing to challenge the trial judge’s finding that the impugned second declaration was unenforceable against them due to the deed of correction, the two dissatisfied co-owners “recognized the validity of the deed of correction, per se, and the assembly of co-owners’ power to adopt it” (par. 41). In conclusion, it rightfully stated one of the cardinal principles of divided co-ownership: “[46] Remember that the particular form of ownership that is divided co-ownership limits the classic ownership right of each divided owner, a point that Judge Forget emphasized in Société d’habitation et de développement de Montréal v. Bergeron [1996 R.J.Q. 2088]: It can undoubtedly be argued that the rights of divided owners are less broad that those of sole owners: they are limited by law and by the declaration of co-ownership. I can easily imagine that the rights of divided owners must, in some cases, yield to the rights of the many, in this case the syndicate, but only if these rights conflict […]. [47] The same holds in this case, where appellant’s motion to strike conflicts with the rights of the group that convened an assembly of co-owners and opted for another solution to deal with the inscription error of the second declaration, which is homogenous for all co-owners.”

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