By the implicit expression of their will, the co-owners of a divided co-ownership can unanimously amend their declaration of co-ownership and establish an "informal" process, both tacit and explicit, for all alleged violations by a co-owner.
Many people choose to live in a divided co-ownership, but many of them neglect to play an active role in the management and administration of "their condo", behaving in fact like tenants or believing they are living in a hotel.
A couple, co-owners within a co-ownership consisting of 3 housing units, concludes that another co-owner has committed a series of violations of the declaration of co-ownership. The couple asks this person to buy back their unit at a price corresponding to double the price appearing in the municipal evaluation or to make a payment of $75,000.
Following the failure of negotiations, the couple turns to the Court* and requests an injunction for the co-owner in question to remove their heat pump and satellite dish, demolish their garden shed, solarium, and wine cellar, and finally restore their parking space to its original state. The couple supports their request on the grounds that all of these works were never "approved at a meeting of the co-owners". However, the targeted co-owner claims that "all the works were subject to prior informal approval".
The court recalls that, by expressing their will, co-owners can informally modify the content of the declaration of co-ownership. But, conversely, the failure to oppose it does not necessarily reveal the intention to authorize it. It is a matter of fact for the court to decide. The court concluded in this case that by the tacit expression of their will, the co-owners unanimously modified the declaration and established an "informal", tacit and explicit process for all the violations attributed to the co-owner, except for the installation of the heat pump, which will have to be removed.
The Court invites co-owners to follow the procedures established in the declaration of co-ownership. Neglecting to do so allows the informal to become formal. In this regard, let us recall a medieval proverb: "He who suffers a loss due to his negligence is not considered to have suffered damage."
*CA 500-09-019626-092
