The legal hypothec of the syndicate of co-owners registered for the payment of common expenses (hereinafter “legal hypothec of the syndicate of co-owners”) is a legal action that allows the syndicate’s representatives to use the fraction of a co-owner as security for the payment of common expenses.
To guarantee the payment of common expenses, the Quebec legislator has provided for certain protection mechanisms. The legal hypothec of the syndicate of co-ownership is one such mechanism. To guarantee its legal effects, it is essential to register and publish the legal hypothec of the syndicate of co-ownership. This involves formally sending a notice of registration to the land registry. This is the first judicial step in acquiring the rights arising from the legal hypothec of the syndicate of co-ownership. To this end, persons duly authorized to act on behalf of a syndicate of co-owners must register the legal hypothec. If the legal hypothec of the syndicate of co-ownership is not registered and published, the legal hypothec will not produce its legal effects and will not be valid.
The advantages of this type of legal hypothec are very useful for the co-owner who does not receive the sums due. The registration of the syndicate’s legal hypothec has legal effects on the solvency of the co-owners and on the original hypothec.
Since the legal hypothec of the syndicate of co-ownership exists only for the Syndicat des copropriétaires (hereinafter ” Syndicate “) itself, no individual co-owner will be able to register the legal hypothec. It is therefore the Syndicate or a person duly authorized by it who must register the legal hypothec of the syndicate of co-ownership.
The legislator has set a reasonable “waiting” period before registering the legal hypothec of the syndicate of co-ownership. Indeed, underarticle 2729 of the Civil Code of Quebec, it is only if the default has persisted for 30 days that it will be possible to register the legal hypothec. Once the 30-day period has elapsed, it will be possible to register the legal hypothec of the syndicate of co-ownership.
The legislator and the law are clear about the terms of the registration notice. Article 2729 of the Civil Code of Québec states the following:
2729. The legal hypothec of the syndicate of co-owners charges the fraction of the co-owner who fails, for more than 30 days, to pay his share of the common expenses; it is acquired only upon registration of a notice indicating the nature of the claim, the amount due on the day of registration of the notice, the amount foreseen for the expenses and claims of the current fiscal year and those of the two following years.
Source: Civil Code of Quebec, RLRQ c CCQ-1991, art. 2729
Thus, when the duly authorized person prepares the notice of registration, he or she must be sure to indicate the nature of the claim, the amount that is in default of payment on the day the notice is registered, and the fees and claims for the current fiscal year and the two following years. If the notice complies with these conditions and is sent within the prescribed time, the Land Registry will officially register the syndicate of co-ownership’s legal hypothec.
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