DIVIDED CO-OWNERSHIP OF IMMOVABLES
(Last update March 4, 2019)
ESTABLISHMENT OF DIVIDED CO-OWNERSHIP
Extract from the Civil Code of Quebec concerning the co-ownership of an immovable:
Article 1063 of the Civil Code of Quebec: Each co-owner disposes of his fraction; he freely uses and enjoys his private part and the common parts, on the condition of respecting the regulations of the building and not infringing either the rights of the other co-owners or the destination of the co-ownership building.
1038. Divided co-ownership of an immovable is established by publication of a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons.
1039. Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are the preservation of the immovable, the maintenance and administration of the common portions, the protection of the rights appurtenant to the immovable or the co-ownership, as well as all business in the common interest. The legal person must, in particular, see to it that the work necessary for the preservation and maintenance of the immovable is carried out.
The legal person is called a syndicate.
FRACTIONS OF CO-OWNERSHIP
1042. Those portions of the buildings and land that are owned by a specific co-owner and are for his exclusive use are called the private portions.
1044. 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 that which runs through private portions.
1045. Partitions or walls that are not part of the foundations and main walls of a building but which separate a private portion from a common portion or from another private portion are presumed common.
1046. Each co-owner has an undivided right of ownership in the common portions. His share of the common portions is equal to the relative value of his fraction.
1047. Each fraction constitutes a distinct entity and may be alienated in whole or in part; the alienation includes, in each case, the share of the common portions appurtenant to the fraction, as well as the right to use the common portions for restricted use, where applicable.
1048. The share of the common portions appurtenant to a fraction may not, separately from the private portion of the fraction, be the subject of alienation or an action in partition.
1049. Alienation of a divided part of a private portion is without effect unless the declaration of co-ownership and the cadastral plan have been altered prior to the alienation so as to create a new fraction, describe it, give it a separate cadastral number and determine its relative value, or to record the alterations made to the boundaries between contiguous private portions.
1051. Notwithstanding articles 2650 and 2662, a hypothec, any additional security accessory thereto or any prior claims existing at the time of registration of the declaration of co-ownership on the whole of an immovable held in co-ownership are divided among the fractions according to the relative value of each or according to any other established proportion.
DECLARATION OF CO-OWNERSHIP
- 1. — Du contenu de la déclaration
1052. A declaration of co-ownership comprises the act constituting the co-ownership, the by-laws of the immovable and a description of the fractions.
1056. No declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable.
1057. The by-laws of the immovable may be set up against the lessee or occupant of a private portion upon his being given a copy of the by-laws or the amendments to them by the co-owner or, if not by him, by the syndicate.
- 2. — De l’inscription de la déclaration
1061. The registration of an act concerning a private portion is valid with regard to the share of the common portions appurtenant to it, without any requirement to make an entry under the registration number of the common portions.
1062. The declaration of co-ownership binds the co-owners, their successors and the persons who signed it, and produces its effects towards them from the time of its registration.
RIGHTS AND OBLIGATIONS OF CO-OWNERS
1067. A co-owner who, as a result of work carried out, suffers injury in the form of a permanent diminution in the value of his fraction, a grave disturbance to enjoyment, even if temporary, or through deterioration, is entitled to obtain an indemnity from the syndicate if the syndicate ordered the work or, if it did not, from the co-owners who did the work.
RIGHTS AND OBLIGATIONS OF THE SYNDICATE
Les modifications apportées par 2018, c. 23, a. 638 entrent en vigueur le 13 décembre 2018 à l’égard des copropriétés divises établies à compter du 13 juin 2018 et le 13 juin 2020 à l’égard des autres copropriétés divises. (2018, c. 23, a. 814 (2)).
En ce qui concerne le carnet d’entretien et l’étude du fonds de prévoyance, voir 2019, c. 28, a. 165 (3).
1071. The syndicate establishes, according to the estimated cost of major repairs and the cost of replacement of common portions, a contingency fund to be used exclusively for such repairs and replacement. The fund must be partly liquid and be available at short notice, and its capital must be guaranteed. The syndicate is the owner of the fund, and the fund’s use is determined by the board of directors.
1074. A co-owner’s non-compliance with a condition of the insurance contract may not be set up against the syndicate.
1074.3. Where insurance against the same risks and covering the same property has been taken out separately by the syndicate and a co-owner, the insurance taken out by the syndicate constitutes primary insurance.
1077. The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any recursory action.
1082. he syndicate, within six months of being notified by the owner of an immovable under emphyteusis or superficies that he intends to transfer by onerous title his rights in the immovable, may acquire such rights in preference to any other potential acquirer during that period. If it is not notified of the planned transfer, it may, within six months from the time it learns that a third person has acquired the owner’s rights, acquire such rights from that person by reimbursing him for the transfer price and the costs he has paid.
BOARD OF DIRECTORS OF THE SYNDICATE
GENERAL MEETING OF THE CO-OWNERS
LOSS OF CONTROL OF THE SYNDICATE BY THE DEVELOPER
1° the maintenance log kept for the immovable and the contingency fund study;
2° where the immovable is new or has been renovated by the developer, the plans and specifications showing any substantial changes made to it during construction or renovation in comparison with the original plans and specifications;
3° the other plans and specifications relating to the immovable that are available;
4° the location certificates relating to the immovable that are available;
5° la description des parties privatives prévue à l’article 1070;
6° any other document or information prescribed by government regulation.
The developer is liable for any injury resulting from his failure to provide such documents and information.
1107. The new board of directors may, within 60 days after the election, terminate without penalty a contract entered into before the election by the syndicate for maintenance of the immovable or for other services, if the term of the contract exceeds one year.
TERMINATION OF CO-OWNERSHIP