Warning! Proceed with care: owners of heritage immovables are now subject to much more stringent rules including with respect to the preservation of the heritage value of their immovables. In the Fall of 2012, a new act was passed to modernize the legislative framework governing cultural heritage in Québec. The Cultural Heritage Act, which replaces the Cultural Property Act, allows a much more forceful intervention by the Minister of Culture and Communications in respect of owners.
In a rejuvenation effort, certain innovations have been incorporated into the legislation. Henceforth, any owner of a classified heritage immovable shall be required to take necessary measures to ensure the preservation of the heritage value of said immovable. Hence, owners are now subject to a duty to maintain their immovable in a good condition and, as a result, may no longer leave it to deteriorate. Should an owner fail in this regard, the Minister of Culture and Communications may obtain an order of the Superior Court to have the necessary work carried out to preserve the heritage value of the immovable. Should the owner not comply, the Court may authorize the Minister to have the work carried out, and the cost of same shall then be secured by a legal hypothec on the property.1
Under the Cultural Heritage Act,2 the prior notice of sale remains mandatory. As such, no person may, without giving the Minister at least 60 days’ prior written notice, sell a classified heritage immovable or an immovable situated on a classified heritage site. Such notice allows the Minister to exercise its right of pre-emption, in other words the right to acquire the immovable by preference over any other purchaser. If the Minister exercises its right of pre-emption, it is required to acquire the immovable at the price the potential purchaser is willing to pay rather than the price the seller is asking. If the Minister does not exercise its right of pre-emption, the immovable may then be sold to the person identified in the prior notice of sale. Promoters and investors beware that any sale in contravention of these provisions is absolutely null, no matter the length of time that has intervened since the sale.
It also remains mandatory to secure the Minister’s authorization prior to carrying out certain work, including work to alter, restore, repair, change, or demolish all or part of a classified heritage property.3
The new act is much more incisive! Obdurate promoters and owners should therefore proceed with care, as the prescribed fines are much heavier. Any person who, for instance:
Does not take the necessary measures to preserve the heritage value of an immovable;
Sells a heritage immovable without having given the Minister the prior 60 day notice of sale; or
Carries out work without authorization,
is guilty of an offence and is liable to a fine of $2,000 to $190,000 for a natural person, and of $6,000 to $1,140,000 for a legal person.
Finally, any potential acquirer should, as part of its due diligence process, consult the Répertoire du patrimoine culturel [Cultural Heritage Directory].
Sections 26 and 195 of the Cultural Heritage Act, R.S.Q., c. P-9.002.
Op. cit., ss. 54 57, 194 and 198.
Op. cit., s. 48.