The reception of common areas according to the rules of law or... equity

In application of Regulation on the guarantee plan for new residential buildings¹, the guarantee of a plan relating to buildings held in divided co-ownership (condominiums) must cover, among other things, the repair of defects, hidden defects and defects in design, construction, construction and/or soil.

While it is true that these guarantees have a common objective — namely the quality of the work carried out by the contractor — they are distinguished in particular by their date of entry into force. While the departure of the guarantees offered against non-visible defects and hidden defects begin at the time of reception, the guarantee against defects in design, construction, construction and/or soil begins, for its part, at the end of the work.

In view of the above, it goes without saying that it is in the interest of the contractor that the common areas are received expeditiously, in order to mark the starting point of the guarantees offered against hidden defects and hidden defects.

In principle and according to the terms of the Regulation, the reception of the common areas must be done jointly by the contractor, the building professional chosen by the syndicate of co-ownership (or the “syndicate”) and the latter².

Although the contractor has every interest in receiving the common areas as soon as possible, it appears that the reception of the common areas depends on the syndicate, which must, under the terms of the Regulation, mandate a building professional to do so. It is in fact consistent case law that the entrepreneur cannot mandate the said professional himself.

In these circumstances and in order to hold the union accountable and to limit the guarantees over time, the Regulation also incorporates the concept of “presumed reception” in which the reception of the common areas by the syndicate is presumed when the following conditions are met:

• The work is over;
• The syndicate is formed and is no longer under the control of the contractor;
• The notice of the end of work sent to the syndicate, at the time when the latter is no longer under the control of the contractor, informed it of the end of the work and of its obligations with regard to the reception; and
• A period of 6 months has passed since the union received this notice and the union, without reason, did not receive the common areas³.

That said, does the contractor's failure to send the notice of completion of work to the syndicate or the absence of proof of delivery and/or receipt of the notice of completion of work allow the syndicate, which is slow in receiving the common portions, to take refuge behind this omission and a strict interpretation of the Regulations in order to unduly extend, by several years, the deadlines for guarantees inherent in non-visible defects and hidden defects?

According to arbitral case law, which seems to us to be consistent, the answer to this question must be negative.

Indeed, the arbitration courts have determined that in order to avoid an unfair situation with respect to a party — which includes the contractor and, even more so, the administrator, the arbitrator is justified, in certain circumstances, to use the concept of equity provided for in section 116 of the Regulation and to establish the date of receipt of the common elements in “equity” by considering in particular the concept of habitability of the building (i.e. the date on which the building). is in a condition to be used for its intended purpose), the date of transfer of control of the syndicate and the date of the first meeting of the co-owners.

In conclusion, although the arbitration courts have ruled that the use of the concept of equity provided for in the Regulation may be applied in favor of the contractor and the administrator of the guarantee plan and allow, in certain circumstances, to fix the date of receipt of the common elements in equity while the syndicate delays, without reason, in proceeding with the receipt of the common elements, it is useful to recall that the contractor has every interest in working with the syndicate in order to proceed with the reception of the common areas in conjunction with this last, and as soon as possible.

1 Regulation on the guarantee plan for new residential buildings, RRQ, c B-1.1, r 8.

2 Article 33 of the Regulation.
3 Article 25.1 of the Regulation

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