|Écrit par Me Sébastien Fiset , LL.B., B.A.A.|
|Vendredi, 09 Avril 2010 08:15|
COMMON PORTIONS FOR RESTRICTED USE: PRIVILEGES AND OBLIGATIONS
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A property which benefits from « something extra », such as a rooftop terrace or a skylight, is considered to be privileged. However, there are obligations attached to this privilege. Let’s take a look at them.
Definition of common portions for restricted use
The exclusive rights of enjoyment are what differentiate a « common portion for restricted use » from a « common portion » which would be designated as « ordinary ».
Although all the co-owners are owners of the common portions, and benefit from the undivided portions of these, it is different for common portions for restricted use. Even though they are the undivided property of all co-owners, as indicated by their definition «restricted use», the common portions for restricted use may only be used by certain co-owners, or even just a single co-owner.
The fact remains that it is the responsibility of the syndicate to see to the maintenance and the preservation of both the « common portions » and the « common portions for restricted use » (art. 1039 and 1077 C.c.Q.). Unless otherwise stated in the declaration of co-ownership, the syndicate shall carry out all the work, repairs and maintenance required.
Meanwhile, the distinction between the « common portions » and the « common portions for restricted use » will affect the payment of expenses associated with these portions.
Payment of expenses
On the one hand, the collectivity of co-owners (represented by the syndicate) are responsible for the expenses designated for the major repairs and replacements, regardless of the type of common portion (for restricted use or not) to which the funds are designated. Each co-owner contributes according to the respective value of his fraction. These amounts make up the « contingency fund ». By exception, article 1072 of the Civil Code of Quebec takes into account the rights of exclusive enjoyment of the co-owners of the common portions for restricted use in determining their contribution. Therefore, we are of the opinion that it is possible to collect the costs for major repairs and replacements from only the co-owners who benefit from these common portions for restricted use, on the condition that a clause in the declaration of co-ownership requires this and the budget of the syndicate has made provision for this.
On the other hand, the expenses related to maintenance and minor repairs pertaining to the common portions for restricted use are the sole responsibility of those co-owners. (art. 1064 C.c.Q.). It is the responsibility of the syndicate to allocate the common expenses for common portions for restricted use, taking into consideration the usage of these portions.
Thus, the co-owners benefitting from the exclusive use of a parking space (defined as such in the declaration of co-ownership) are responsible to defray the costs of regular maintenance and minor repairs related to it, as compared to a co-owner in the same building who does not own a parking space. Another example, all other conditions being equal, the co-owners who benefit from the exclusive use of two balconies or two windows should pay double for the maintenance or necessary minor repairs, compared to the co-owner who has only one.
With respect to the common portions from which all co-owners benefit, and identified as such in the declaration of co-ownership or according to the presumption established in article 1044 of the Civil Code of Quebec, these will be taken into account in the budget of operating expenses of the syndicate. All co-owners should contribute according to the respective value of their fraction.
Certain « common portions for restricted use » may have, as a privilege, the right to be modified by their co-owner who has exclusive usage, under the conditions of the restrictions outlined in the declaration of co-ownership and in harmony with the immovable.
In fact, the co-owners who have full enjoyment, for example a rooftop terrace, may, unless otherwise stated in the declaration of co-ownership, install their furniture or make minor changes of a non permanent nature (decoration).
Meanwhile, the installation of a permanent fixture such as: a spa, glass wall, duckboard, permanent partition, awning, satellite antenna, air conditioner and other objects physically attached or connected to the immovable, require the prior approval of the assembly of co-owners. Article 1097 of the Civil Code of Quebec requires a majority (50%) of the co-owners who represent 75% of the votes of all the co-owners for all work which would alter, enlarge or improve the common portions or the common portions for restricted use.
Note: This privilege may involve other restrictions. A balcony, for example, may be for the exclusive use of one of the co-owners however modifying the appearance could interfere with the harmony of the entire immovable, thus violating the declaration of the co-owners and the destination of the immovable.
Even though it could be a difficult subject for a syndicate to oversee the application of the clauses outlined in the declaration of co-ownership of the immovable, it is not an entitlement but an obligation to ensure these clauses are respected.
When in doubt with regards to the rights and obligations of a co-ownership, or in planning additions, modifications or changes, consult a legal professional who specialises in co-ownership law.
Also, for those considering a co-ownership dwelling: become familiar beforehand with the declaration of co-ownership and the rules of the immovable. If you have difficulty understanding these, seek the advice of a professional.
The information provided on this page is general in nature and cannot compensate for the need to obtain legal advice specific to a particular situation.
 According to article 1044 of the Civil Code of Quebec, the following are presumed to be « common portions »: the ground, yards, verandas or balconies, parks and gardens, access ways, stairways and elevators, passageways and halls, common service areas, parking and storage areas, basements, foundations and main walls of buildings, and common equipment and apparatus, such as the central heating and air-conditioning systems and the piping and wiring, including what crosses private portions, unless they are designated otherwise in your declaration of co-ownership agreement.
Mise à jour le Samedi, 16 Août 2014 17:37