The Declaration of Co-ownership: Restrictions That Derail a Purchase

Published October 27, 20267 min read

Your buyer plans to rent the unit on Airbnb for a few years, or to bring a large dog, or to open up the kitchen. The declaration of co-ownership (déclaration de copropriété) may say no. It binds every co-owner and their successors from the moment it is registered (art. 1062), so your buyer takes it as it stands, including rules adopted the year before they arrived.

The question is never only "what does the declaration say". It is also which part of it says so, because that decides how easily the rule can change and where the latest version is kept.

Three documents in one

The declaration has three parts (art. 1052):

The act constituting the co-ownership (acte constitutif) sets the destination of the building and of the private and common portions, each unit's relative value (valeur relative) and votes, and the powers of the board and the meeting (art. 1053).
The by-laws of the immovable (règlement de l'immeuble) set the rules on enjoyment, use and maintenance of the private and common portions (art. 1054). Pets, noise, renovations and rental conditions usually live here.
The description of the fractions (état descriptif) gives the cadastral designation of the private and common portions and the real rights on the building (art. 1055).

Our article on what your client is really buying covers why the buyer acquires more than an apartment. This one is about the rules that come with it.

How easily each part changes

Change	Vote required	Where it is recorded
The by-laws	Majority of the votes of co-owners present or represented (art. 1096)	In the minutes or a written resolution, deposited in the syndicate's register; not in the land register (art. 1060)
The act constituting the co-ownership or the description of the fractions	Three quarters of the votes of co-owners present or represented (art. 1097)	Registered in the land register
The destination of the building	Three quarters of the co-owners, representing 90% of the votes of all co-owners (art. 1098)	Registered in the land register

Two consequences matter for your buyer. A rule in the by-laws can change at any annual meeting by a simple majority of those in the room. And that change will not show up in a search of the land register: it lives in the minutes and in the syndicate's register (art. 1070). The declaration as registered years ago can be out of date the day your buyer reads it.

What a restriction can and cannot do

The declaration may impose only the restrictions justified by the destination of the building, its characteristics or its location (art. 1056). Within that limit, each co-owner uses their unit freely, provided they respect the by-laws and the destination (art. 1063).

The Court of Appeal applied that test to rentals in Kilzi c. Syndicat des copropriétaires du 10 400 boul. L'Acadie, 2001 CanLII 10061. The syndicate had adopted, by majority, a by-law barring leases of less than a year. The court upheld that restriction as justified by the building's residential destination, and declined to second-guess the length the majority chose. It struck down two other articles aimed at owners of several units and at companies. The lesson for brokers: a by-law can validly restrict short-term rental in a residential building, and it can be adopted after your buyer has made plans.

The by-laws also bind tenants once they receive a copy (art. 1057), and an owner who rents must notify the syndicate within 15 days, with the tenant's name, the term of the lease and the date the tenant received the by-laws (art. 1065).

The restrictions that most often derail a purchase

Short-term rental. To register a tourist accommodation in a condo, the operator must file the provisions of the declaration that allow it or, failing that, the syndicate's authorization (Regulation respecting tourist accommodation, s. 3). A buyer counting on short-term rental income needs that answer in writing before the conditions are lifted.
Long-term rental. Minimum lease terms, notice to the syndicate and the tenant's undertaking to respect the by-laws are common. A buyer who plans to rent needs to know them before setting a rent and a date.
Pets. Bans, size or number limits and rules on common areas are usually in the by-laws, which means they can change by simple majority.
Smoking. Smoking tobacco, including cigars, and electronic cigarettes is already banned by law in the enclosed common areas of any residential building with two or more dwellings (Tobacco Control Act, s. 2). Inside the unit and on its balcony, the by-laws decide. In El-Helou c. Syndicat de la copropriété du 7500, 7502 et 7504 rue Saint-Gérard, Montréal, 2019 QCCS 2238, the Superior Court upheld a smoking ban covering the private portions, adopted by simple majority, because smoke was reaching other units. The court found the ban did not change the building's residential destination. A buyer who smokes, or who looks forward to a cigar on the balcony, needs to read the by-laws and the latest minutes: a ban can be adopted at the next meeting.
Renovations. Flooring standards for soundproofing, approval before work, and limits on plumbing or walls are frequent. Windows, balconies and exterior doors are often common portions, so work on them is the syndicate's decision, not the owner's.
Use of the unit. A residential destination can rule out a home business that receives clients. A home office without visitors is usually a different question; read the clause.
Parking and lockers. A space can be its own lot, a restricted common portion (partie commune à usage restreint) attached to the unit by the declaration, or something the syndicate rents out. Owners of restricted common portions pay their maintenance and ordinary repairs alone (art. 1064). And a listing can simply be wrong: in one case, a second indoor parking space advertised with a unit turned out to be on a common portion (Côté c. Huot, 2021 QCCQ 3638). To see the lot numbers at an address, unit by unit, our free lookup tool lists them.

One clause, two buyers

An illustrative example

A 40-unit building, residential destination, registered in 2008. The registered by-laws allow leases of any length. Two buyers look at the same unit in the spring.

The first plans to live there. The second plans to rent it on a short-term platform for three years before moving in. The minutes of last year's annual meeting show a by-law, adopted by majority, that bars leases of less than 30 days, and the attestation lists it among the amendments of the last three years.

For the first buyer, the amendment changes nothing. For the second, it removes the plan the price was based on. Nothing in the land register shows it.

Where to look

The registered declaration, for the destination clause, the by-laws as first adopted, and the description of the fractions.
The syndicate's register, for every by-law amendment since registration.
The minutes of the owners' meetings, for amendments adopted and proposed. Our article on the meeting minutes shows where to look.
The syndicate's attestation, which summarizes the amendments made to the declaration over the last three years (Regulation, s. 10). Our article on the attestation covers what else it contains.

What to do with it

Ask your buyer early what they plan: to rent, and for how long; pets; smoking; renovations; a home business; how many cars.
Get the full declaration and every amendment, including the by-law amendments kept in the syndicate's register, not only the registered version.
Check each plan against the destination clause and the by-laws, and note which part of the declaration each rule comes from.
For short-term rental, find the clause that allows it or the syndicate's written authorization before the conditions are lifted.
Read the latest minutes for amendments proposed or on the agenda.
Confirm whether a parking space or locker is its own lot, a restricted common portion, or a rental.
Make the promise to purchase conditional on reviewing the declaration and its amendments, with enough time to read them.

Sources

Read the whole file, not one document.

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This article is for general information only and is not legal advice.

This article was written with the help of AI tools, then reviewed and checked against the laws, regulations and decisions it cites by the Quotepart team.