Par Me Clément Lucas
Presentation on January 26th, 2023 at 4:00 p.m.
For further information and to answer your questions, Me Clément Lucas will be accompanied by Valérie Anne Brouillard, engineer at the Office of Ecological Transition and Resilience, for a presentation of the regulation.
*Please note that the presentation will be given in French
Dates to remember: January 1st, 2023 and January 1st, 2024.
It is on these dates that condominiums located on the territory of the City of Montreal (“City”) with the following characteristics will have to comply with the By-law respecting the disclosure and rating of greenhouse gas emissions from large buildings (21-042) (“By-law”):
- 2023: Any building with a floor area of 5,000 m² ¹ or more or with 50 or more dwelling units;
- 2024: any building with a floor area of 2,000 m² or more or with 25 or more dwelling units.
As for the calculation of the surface area, the cadastral plan or the global certificate of location are essential tools. Every syndicate should already have them as they are one of the components of the co-ownership registers provided for by the Law ². At any event, the cadastral plan is accessible online for $1 via the Land Register of Québec.
As for the number of dwellings, the By-law does not distinguish between those occupied by owners and those rented or occupied by third parties or even vacant. All dwellings are therefore considered.
The By-law and its purposes
The By-law came into force on September 27, 2021. Essentially, it establishes a mandatory procedure for disclosing data related to GHG emissions generated by the energy consumption of buildings.
Multi-unit buildings are covered, which includes condominiums, whether they are held in divided or undivided ownership, or in other forms (e.g., condominium shares).
Article 2 of the By-law explicitly defines the concept of an owner as follows “any person, corporation, partnership and, in the case of a condominium, a syndicate of co-owners who owns all or part of the property in a building“. Even though most syndicates of co-ownership do not hold a “right of ownership in a building,” they are constituted by the community of co-owners⁴ who are themselves owners in indivision (of the common portions or exclusively of the private portions). In our opinion, this ambiguous wording of the By-law is not a sufficient reason to allow condominiums to escape the application of the regulations.
Mixed-use buildings (residential and commercial), for example, are also affected if the area or number of units meet the thresholds.
As indicated by the By-law⁷, the ultimate goal is to assign a rating to each building and “allow the City to develop measures to reduce them.“
It is foreseeable that further regulations will follow. The first step is to get an idea of the situation, and the second is to try to improve it. The City’s GHG reduction goals are very (perhaps overly?) ambitious⁸.
Duty to collect and disclose
The owner of a building subject to the By-law (which includes the Board of Directors or manager of the condominium corporation) shall, on or before June 30 of each year (commencing June 30, 2023 or June 30, 2024), disclose to the City the following information for the period of January 1st to December 31st of the preceding year:
- In the case of a co-ownership:
- Identification of the natural person responsible for the disclosure.
- Building identification:
- building information: street address, year of construction, building floor area in square metres;
- the number of dwelling units if the building is residential or mixed use;
- identification of each type of use of the building and the area occupied by each type of use in square metres.
- Sources of consumed energy:
- electricity;
- natural gas;
- steam supplied by a district heating network;
- hot water supplied by a district heating network;
- cold water supplied by a district heating network.
- Delivery date and fee for the delivery of each of the following energy sources:
- kerosene;
- fuel oil;
- diesel;
- propane;
- coal;
- wood.
- Electrical power demand per billing period, which is the highest rate of electrical consumption in each billing cycle and measured in kilowatts (kW).
- When energy consumed at the site is supplied by a district heating network, the name of the district heating network supplier.
How does one comply?
There are two ways to submit the requested information. The recommended way is through a dedicated portal (ENERGY STAR Portfolio Manager®). Training as well as a guide are available online. A specific web link is provided by the City to submit the information. Alternatively, a data entry tool is available. Additional information is provided on the City website⁹.
The challenge for co-ownerships does not seem to be so much in the transmission of information as in its collection, particularly in obtaining information relating to the personal consumption of each condo owner. According to us, the syndicate is entitled to expect the collaboration of the co-owners, especially since non-compliance with the By-Law exposes the offenders (here the syndicates of co-ownership) to fines¹⁰. This is the very purpose of the syndicate¹¹, which notably includes: the safeguarding of the rights pertaining to the building or the co-ownership, as well as all operations of common interest.
The information available on the Hydro-Québec site can also potentially assist syndicates with respect to some non-collaborative owners.
[1] La superficie brute correspond à la superficie totale, mesurée à partir des principales surfaces extérieures du bâtiment. Elle ne comprend pas les aires de stationnement. Le portail fournit plus de détails.
[2] Art. 1070 C.c.Q.
[3] Voir art. 2 « propriétaire » et annexe A du Règlement.
[4] Art. 1039 C.c.Q.
[5] Art. 1046 C.c.Q.
[6] Art. 1042 C.c.Q.
[7] Art. 1er du Règlement.
[8] Réduire les GES de 55% d’ici 2030 par rapport à 1990 ; voir Plan climat Montréal.
[10] Art. 15 du Règlement.
[11] Art. 1039 C.c.Q.