The co-owner who signs and submits his power of attorney to a person of his choice does thus not lose the personal exercise of his rights. He may thus choose to revoke his power of attorney at any time to resume the exercise of his personal rights, and the co-owner who will choose to attend in person at the assembly of co-owners may require that the power of attorney is remitted by his agent. Some co-owners prefer to attend in person while allowing their agents to exercise their right to speak at the assembly, but the co-owner will live with this choice: there is only one right to speak, and this in order to avoid that the issues and proposals are made cumulatively by the co-owner or his agent. The co-owner can therefore not adopt such a strategy to monopolize or abuse the right to speak to the detriment of other co-owners present. However, in our opinion, the presence of the co-owner and his agent, seems to go against the intent of the mandate, i.e. to represent and attend oneself instead of another person.
It may sometimes happen that a co-owner signs a first power of attorney in favour of a person and then signs a second one at a later date for the same assembly of co-owners, but by which he means a different person. As the principal co-owner retains control over the exercise of his rights, one must understand that any co-owner has the right to change his mind about his choice of an agent or instructions given to the latter. Another power of attorney signed later, even later on the same day, will cancel the first one without the first agent being able to claim thereof the exclusive representation or execution.
Under section 2138 of the C.c.Q, the agent is required to fulfill the mandate he has accepted and he must, in carrying out his mandate, act with prudence and diligence. He must also act with honesty and loyalty in the best interest of the client and avoid placing himself in a situation of conflict between his personal interests and those of his principal.
However, it should be understood that more often than otherwise, a co-owner chooses to be represented at the assembly by another person to whom he has given a power of attorney, not because he is unable to attend in person, but because she does not want to attend. The co-owner will then give his power of attorney to a person that he trusts.
Unless the power of attorney contains particular directives to the agent on the exercise of the rights of the co-owner who has given it, the agent will be required to act in compliance with section 2138 of the C.c.Q. The decision of a co-owner on the choice of the person to whom he gives his power of attorney relies in many cases on the relation of trust that can exist between two people, or on the fact of sharing the same opinions about the decisions that should be taken by the co-owners being in assembly and within the limits of the powers of the latter: the election and removal of directors, ordinary decisions of the syndicate (section 1096 of the C.c.Q), and extraordinary decisions (sections 1097, 1098 and 1108 of the C.c.Q). In cases where the co-owner gives a mandate to his lawyer, or to his solicitor, in many cases this is because of legal knowledge, and the abilities of expression of these professionals, that the owner will choose them to better represent his interests .
The power of attorney is thus an element of influence on the direction of the affairs of the co-ownership. The concentration of a large number of powers of attorney in the hands of a person, or a small number of people will give a power to influence decisions on the fate of the decisions of the assembly of the co-owners.
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