Article 1047 C.C.Q. - A practical guide for every co-ownership owner and prospective buyer of a divided co-ownership unit.
Are you a condo owner or considering buying one? There is an essential document you need to know: the description of private portions. Behind this technical term lies a very concrete reality: it defines exactly what you own, what you must maintain, and how your charges are calculated.
WHAT IS THE DESCRIPTION OF PRIVATE PORTIONS?
In divided co-ownership, the building is divided into fractions. Each fraction corresponds to a part of the building that belongs exclusively to one co-owner: a residential unit, a parking space, a storage space. Article 1047 of the Civil Code of Quebec specifies that each fraction constitutes a distinct entity, capable of being alienated separately and encumbered with real rights independently.
The description of private portions is the document that legally delimits each of these fractions. It precisely identifies the physical boundaries of each lot, the spaces that are included and those that are not, as well as the share of each co-owner in the common portions of the building. Under article 1070 para. 3 C.C.Q., the description of private portions must be included in the syndicate's records and be available for consultation upon request by any co-owner.
PRIVATE PORTIONS, COMMON PORTIONS, RESTRICTED-USE COMMON PORTIONS: WHAT IS THE DIFFERENCE?
This is one of the most important — and most often misunderstood — distinctions in co-ownership law.
Private portions are the parts of the building over which a co-owner has exclusive use and for which they alone bear the maintenance responsibility: the interior of their unit, floors, interior walls, windows (depending on the declaration), etc.
Common portions belong collectively to all co-owners according to their respective shares: the roof, hallways, elevator, visitor parking, mechanical room, etc. Their maintenance is funded through the common charges paid by all.
Restricted-use common portions form an often-overlooked intermediate category: these are common portions — belonging collectively to all — but whose use is reserved exclusively for one co-owner. The balcony is the most common example. Although it is «your» balcony in practice, it legally belongs to the syndicate. Major repairs (e.g., waterproofing) are the syndicate's responsibility, funded by all co-owners, while routine maintenance may fall on the co-owner depending on the declaration.
THE SHARE: WHAT IS IT AND WHY DOES IT MATTER?
Each co-ownership fraction comes with a share, expressed as a percentage. This figure represents the proportion of the building you own collectively, beyond your own unit. The share has three direct and concrete effects:
- Your common charges: you pay collective expenses (maintenance, insurance, contingency fund, self-insurance fund) in proportion to your share. If your unit represents 3.5% of the building, you bear 3.5% of the charges.
- Your voting right at meetings: in most decisions, your voting weight corresponds to your share. A larger unit therefore carries more weight than a smaller one.
- Your share of collective value: if the building is sold or demolished, you receive a portion of the proceeds proportional to your share.
WHO DRAFTS THE DESCRIPTION OF PRIVATE PORTIONS?
The description of private portions is established in the constituting act of co-ownership, drafted by a notary. It is based on the cadastral plan prepared by a land surveyor, who assigns each fraction a distinct lot number in the Quebec Land Registry.
This lot number then allows rights to be registered against a specific fraction independently of the other fractions in the same building. Each co-owner therefore holds a distinct title of ownership, indexed to their cadastral lot number.
THE LINK WITH THE SYNDICATE'S CERTIFICATE
Upon a sale, the syndicate's certificate (art. 1068.1 C.C.Q.) must identify the targeted fraction. If the description of the private portion is incorrect or incomplete in the declaration of co-ownership, this may complicate or delay the production of the certificate — and ultimately block the transaction.
This is why it is strongly recommended to verify the consistency between the description recorded in the declaration of co-ownership and the physical reality of the unit before signing any offer to purchase.
THE USEFULNESS FOR INSURERS
The description of private portions plays a fundamental role in the field of co-ownership insurance. In divided co-ownership, there are two distinct levels of insurance: the syndicate's policy, which covers the building as a whole (common portions), and the co-owner's personal policy, which covers their personal property, improvements, and personal civil liability. The description of private portions helps establish who bears responsibility for damages.
Dangerous grey zone. In the event of a claim — water damage, fire, equipment failure — the first question the insurer will ask is: who owns the damaged element? Is it a private portion or a common portion? An imprecise description may lead both insurers to pass the buck, leaving the affected owner without clear coverage. Some insurers now require a copy of the description of private portions when underwriting a policy, in order to determine exactly what is covered by the syndicate's policy.
WHAT HAPPENS WHEN THE DESCRIPTION IS INCORRECT OR INCOMPLETE
An imprecise or incorrect description is not merely an administrative problem. In practice, it can lead to serious consequences:
- Dispute over a party wall: if the boundary between two units is not clearly defined, a disagreement over maintenance or repair responsibility may arise between neighbours.
- Parking space or storage unit not clearly assigned: some transactions have led to conflicts because the parking space sold «with» the unit was not included in the description of the fraction — it actually belonged to the common portions without exclusive assignment.
- Blockage upon resale: if the description does not match what is physically occupied, the buyer's notary may refuse to proceed with the deed of sale. Correcting this may require an amendment to the declaration of co-ownership — a lengthy and costly process.
- Insurance problem: if the description of the fraction is imprecise, the syndicate's insurer may raise difficulties at the time of a claim regarding the limits of coverage.
THE TRANSITIONAL RULE
If you live in a building constructed before the entry into force of the recent insurance reforms, the law provided for an important transitional provision. For co-ownerships created before June 2018, syndicates had until June 2020 to establish and record in the co-ownership register a precise description of the private portions.
The purpose of this measure was to avoid any legal ambiguity in the event of a claim: by formalizing the original finishes of the building — and not modifications made by successive co-owners — the syndicate and insurers can clearly distinguish what falls under collective coverage from what constitutes an improvement made by a co-owner (which must be covered by their individual insurance).
Even though this deadline has now passed, any syndicate that has not yet adopted this description has a legal obligation to do so in order to protect all co-owners.
Following the government's June 2020 deadline, any modification to the description of private portions must be approved by a vote of the co-owners. Under art. 1097(3) C.C.Q., any decision that has the effect of modifying the description of private portions must be adopted by the approval of three-quarters of the co-owners.
For all new co-ownerships, it is the developer's responsibility, under article 1106.1 C.C.Q., to provide the syndicate with a description of private portions that complies with art. 1070 para. 3 C.C.Q.
THE RIGHT REFLEX
Before buying a condo, ask to review the declaration of co-ownership and verify that the description of the fraction corresponds to what is being offered to you. Ensure that the parking space and storage unit are properly included in your lot description, and not merely assigned verbally. When in doubt, consult a notary or a lawyer specializing in real estate law before signing.
Where to start?
If you need assistance with the purchase of a condominium or are a co-owner wishing to exercise your legal rights, consult your lawyer or contact us at Fiset Légal for legal advice in real estate and condominium law.
Knowing exactly what you own is the foundation of a well-lived co-ownership.
