The entry into force of guarantees for common areas

It is well known, with respect to buildings subject to Regulation on the guarantee plan for new residential buildings, a guarantee plan must guarantee the execution of the legal and contractual obligations of an entrepreneur to the extent and in the manner provided for in Regulation¹. In the case of buildings held in divided co-ownership, there will be several guarantees issued: one for each of the private units and one for the common areas. Each of these guarantees has different effective dates, all of which is determined according to the dates received. Although it seems simple, too often mistakes are made for the reception of common areas. A reminder therefore seems necessary.

It is in article 25 of the Regulation That we find the definition of reception of common areas.

Analyzing this definition, we see that several criteria must be met in order for the reception of common areas to be carried out in due form:

• The work on the common areas must be completed.
• The condominium syndicate (or “syndicate”) must be formed and no longer be under the control of the contractor: it must be independent;
  • Obviously, the declaration of co-ownership must be published;
  • A board of directors composed of the co-owners must have been elected at an extraordinary meeting of the co-owners convened by the entrepreneur (also called Transitional Assembly);
  • For this purpose, the wise entrepreneur will note that this transition meeting must be convened within 90 days from the day when the promoter/contractor of a condominium no longer holds a majority of the votes at the meeting of co-owners² , but it can also be convened before;
• The contractor must send to each known beneficiary and to the independent syndicate a notice of completion of the work;
• A declaration of the date of completion of the work of the common areas must be made by a building professional chosen by the independent syndicate and delivered to each known co-owner, to the independent syndicate and to the contractor;
  • Only an architect, engineer or technologist who is a member of a professional order and who has a background in the field of engineering or construction meet the definition of building professional That can be found at Regulation³ ;

Each of the above criteria is important and it should be borne in mind that it is in the contractor's best interest to ensure that the warranties are properly implemented, since in the end, the contractor is responsible for the obligation to correct eligible deficiencies.

Thus, in the event that one of the criteria is not met, the starting dates of the common areas warranty periods could be significantly modified by an arbitration court.⁴ , which then results in warranty coverage for deficiencies that would not have benefited from it, had it not been for the contractor's laxity.

However, considering that the contractor is dependent on the independent syndicate for the reception of the common areas, since it is the latter that must retain the services of a building professional, the Regulation also provides for a concept of Presumed reception. For this purpose, the acceptance of the common portions is presumed when a period of six months has elapsed since the independent syndicate received the notice of completion of the work and the latter, without reason, has not received the common portions, provided that the other criteria are met.⁵ .

In short, this Presumed reception avoid cases where a diligent contractor could be penalized and see the guarantees extended when, in fact, it is the independent syndicate that neglects its obligations and unduly delays the entry into force of the guarantees.

In conclusion, in order to avoid potential slip-ups, the contractor and the syndicate have every interest in collaborating and communicating: the reception of the common areas will be much easier this way and each party will then be able to act in full knowledge of the facts.

DID YOU KNOW THAT?
Only an organization dedicated to the arbitration of disputes may be authorized by the Régie du Bâtiment du Québec to organize an arbitration under the Regulation respecting the guarantee plan for new residential buildings. The list of authorized organizations can be found in http://www.garantie.gouv.qc.ca/maison/quels-sont-vos-recours/arbitrage/organismes-darbitrage.html

¹Article 7 of the Regulation on the guarantee plan for new residential buildings.
² See article 1104 of the Civil Code of Quebec.
³Article 1 of the Regulation.
⁴See for example Syndicat des CoLes Villas du Golf, Phase II et Maisons Zibeline, Me Michel A. Jeanniot, arbitrator, Canadian Commercial Arbitration Center (CCAC), S09-180801-NP and S09-100902-NP, 2010-03-15 or Syndicat de la Condominium du 5700 Place Trenet et Domaine des Manoir inc., Me Michel A. Jeanniot, arbitrator, Canadian Commercial Arbitration Center (CCAC), 2010-03-15 or Syndicat de la Condominium du 5700 Place Trenet et Domaine des Manoir inc., S14-0522-NP, 2010-03-15 or Syndicat de la Condominium du 5700 Place Trenet et Domaine des Manoir inc. 601-NP and 52968—7187, 2016-04-08.
⁵Article 25.1 of the Regulation.

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