When an annual or special general meeting of the syndicate of co-ownership is convened, the majority of the co-owners will choose to assist to it to exert their right to speak and to vote on the questions within the competence of the assembly of the co-owners. However, it is possible that a co-owner cannot be present for various reasons. In such a case, any co-owner can be represented at the assembly by the person of his choice, who will exert all the rights of the co-owner in the same way as the co-owner if he were present. It concerns a mandate under article 2130 of the C.c.Q.: “Mandate is a contract by which a person, the mandator, empowers another person, the mandatary, to represent him in the performance of a juridical act with a third person, and the mandatary, by his acceptance, binds himself to exercise the power. The power and, where applicable, the writing evidencing it are called the power of attorney.”
Thus, the co-owner who wishes to be represented at an assembly of the co-owners will give a power-of-attorney to a designated person. The writing which notes it will have to carry the signature of the co-owner, and it will have to identify clearly the person to whom the mandate is given, and for which end. It may be that a person holds a general power-of-attorney for the achievement of all the legal actions in the name of his constituent, but normally a co-owner will give a power-of-attorney whose validity will be limited to an assembly of the co-owners in particular, or to every continuation of the latter in the event of adjournment, of which the lack of a quorum following a first convocation of assembly. Therefore, the power-of-attorney will cease binding the co-owner to his mandatary once the object of the entrusted mandate is achieved, that is to say the holding of an assembly of the co-owners and the exhaustion of the subjects appearing on its agenda.
Certain co-ownerships can have difficulty holding an assembly for co-owners, for lack of assistance of a number of co-owners holding sufficient votes to constitute the quorum by a simple majority of the votes. According to the majority of the declarations of co-ownership the quorum must be reached in the hour following the hour indicated on the notice of convocation. Failing this, the assembly cannot take place and must thus be deferred to another date whose notice must be delivered to all the co-owners. At the time of this new assembly, three quarters of the members present or represented by power-of-attorney at the new assembly constitute the quorum there. The co-owners there present or their proxy representatives will be able to make ordinary decisions of the syndicate by a simple majority, but they will not be able to make decisions for which the law requires a double majority, that is to say the decisions aimed at by articles 1097, 1098 and 1108 of the Civil code of Quebec. Then, it is obvious that the ordinary business of the syndicate will not be paralysed by a continuous incapacity to obtain the quorum, but the assembly of co-ownership will not be able to decide more important questions then.
It should be understood that the fact for a co-owner of giving his power-of-attorney to a person of his choice is very useful, and will be able to avoid the syndicate additional administrative work which a second convocation represents failing to obtain a quorum following a first convocation. On the other hand, the ideal would be a participation of all the co-owners in person.
Moreover, when a fraction is held by two or several people, there is not any presumption that an owner with a tenant in common can validly represent one or other owners with a tenant in common and exert the voting rights of these at the time of an assembly. This causes sometimes problems in the cases of a married or living-together or common-law couple, of which both are owner of the fraction. Article 1090 of the C.c.Q. specifies that each co-owner disposes, at the assembly, of a number of votes proportional to the relative value of his fraction, and each owner with a tenant in common exerts these rights in proportion of their undivided quota. In the case of a couple, this means that each member will then have half of the votes allotted to this fraction and can then exert them as they wish. If a member of the couple cannot assist to an assembly of the co-owners, this member must thus give a power-of-attorney in favour of the other member of the couple, in the absence of which his portion of the votes cannot not be entered for purposes of calculation of the quorum, nor for the making of any other decision by the assembly of the co-owners.
The co-owner who signs and who gives his power-of-attorney to a person of his choice, does not then loose the personal exercise of his rights. He will thus be able to choose to revoke his power-of-attorney at any time in order to retake the personal exercise of his rights, and the co-owner who will choose to attend the assembly of the co-owners in person will be able to require that the power-of-attorney be given to him by his mandatary. Certain co-owners will prefer to assist to it in person all the while allowing their agent to exert their right to speak at the time of the assembly, but the co-owner will have to live with this choice: there is only one right to speak, and this in order to prevent that questions and proposals are formulated in a cumulative way by the co-owner and his agent. The co-owner will thus not be able to adopt such a strategy in order to monopolize or to abuse his right to speak to the detriment of the other co-owners present.
It can happen that a co-owner signs a first power-of-attorney in favour of a person, for then signing a second one on a later date for purposes of the same assembly of the co-owners, but by whom he nominates a different person. As the co-owner-constituent preserves the control of the exercise of his rights, it should be understood that any co-owner has the right to change his mind as for his choice of an agent or instructions given to the latter. Another power-of-attorney signed later on, even later on the same day, will come to cancel the first one without the first agent being able to assert from it the exclusiveness in representation or execution.
Under article 2138 of the C.c.Q., the mandatary is held to achieve the mandate which he accepted and he must, in the execution of his mandate, act with prudence and diligence. He must also act with honesty and loyalty in the best interest of the constituent and avoid being placed in a situation of conflict between his personal interest and the one of his constituent.
However, it should be understood that more often than anything else, a co-owner will choose to be represented at the assembly by another person to whom he will have given a power-of-attorney, not because he has no possibility to assist to it in person, but because he does not wish to assist to it. The co-owner will then give his power-of-attorney to a person in whom he has confidence.
Unless the power-of-attorney contains particular directives to the agent concerning the exercise of the rights of the co-owner having given it, the agent will be held to act in a way so as to respect article 2138 of the C.c.Q. The decision of a co-owner as for the choice of the person to whom he will give his power-of-attorney is in many cases based on the relation of confidence which will be able to exist between these two people, or, on the fact of sharing the same opinions concerning the decisions which should be taken by the co-owners brought together in assembly and according to the limits of the capacities of the latter: the election and the dismissal of the administrators, ordinary decisions of the syndicate (article 1096 of the C.c.Q.), and extraordinary decisions (articles 1097, 1098 and 1108 of the C.c.Q.).
The power-of-attorney is thus an element of influence on the direction of the business of the co-ownership. The concentration of a significant number of powers-of-attorney in the hands of one person, or of a small number of people constitutes a capacity of influence on the fate of the decisions of the assembly of the co-owners.