In certain very specific cases, the Civil Code of Québec provides that the number of votes that may be cast personally by a co-owner can be reduced. These rules are enacted by the legislator in order to avoid that a co-owner who has the majority of the fractions and the votes can control the assembly of the co-owners at the expense of minority co-owners. In other circumstances, the votes of co-owners deprived of their right to vote because of their failure to pay their share of the common expenses or contribution to the emergency fund for more than three months must be subtracted from the total votes of the co-owners.
The case of co-ownerships of less than five fractions
Article 1091 of the Civil Code of Québec provides that when a co-owner has, in a co-ownership with less than five fractions, a number of votes greater than half the total votes of the co-owners, the number of votes he has at an assembly is reduced to the sum of the votes of the other co-owners present or represented at this assembly.
So, in practice, in a co-ownership consisting of four fractions, three of which belong to the same person, the votes that this person can express must obligatorily be reduced to a number held by the other co-owner under section 1091 CCQ. Here is an illustration of this principle:
The purpose of section 1091 C.C.Q. is thus to avoid that Mr. XYZ can control the assembly of co-owners and turn any decision in his favour, possibly to the detriment of Mrs. ABC. It should be understood, however, that this legal protection has the effect of requiring unanimity for decisions made in assembly. However, it is important to note that this reduction of the votes is only effective in the context of the assembly of co-owners and does not reduce the share of the costs which Mr. XYZ must pay, i.e., 75% of all charges arising from the operation of the building and contributions to the emergency fund.
The case of a developer /co- owner of a co-ownership of five fractions and more
To prevent that a co-owner who has acted as a developer of a project in co-ownership with five fractions and more can control the assembly of co-owners to his advantage, article 1092 CCQ provides that this developer / co-owner is not entitled, in addition to the voting rights attached to the fraction that serves as his residence, to more than 60% of the total votes of the co-owners at the end of the second and third year of the date of registration of the declaration of co-ownership. Thereafter this number is reduced to 25%.
Under the terms of Article 1093 CCQ : is considered as a "promoter" him/her, who at the time of registration of the declaration of co-ownership, owns at least half of all fractions or his successors, except he/she who acquires in good faith and with the intention of living in it a fraction for a price equal to its market value.
Here is an illustration of this principle:
So, in the example above the promoter having become co-owner can cast the following number of votes:
Until the second anniversary of the publication of the declaration: 80 votes out of 100
From the day after the 2nd anniversary until the 3rd Anniversary: 70 votes out of 100
From the day after the third anniversary and all subsequent years: 35 out of 100
The case of non-payment of common expenses
Under Article 1094 CCQ, any co-owner who, for more than three months has not paid his/her share of the common expenses or his contribution to the emergency fund, is deprived of his right to vote.
The effect of vote reductions
When the votes of a co-owner or former developer are reduced by the application of Articles 1091 or 1092 CCQ, there is a definite effect on the ordinary decisions of the assembly of co-owners which require a simple majority of the votes of the co-owners present or represented at the assembly.
However, when the same reductions apply and when the assembly must vote on a matter requiring the majority in number and in votes, or the topics listed in Articles 1097, 1098 and 1108 CCQ, the total number of votes of the co-owners must be reduced accordingly by applying Article 1099 CCQ, which has the effect of reducing its impact.
In case of doubt in your particular situation, do not hesitate to contact our team of lawyers specializing in property law.