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Undivided co-ownership (articles 1012 à 1037)

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Undivided co-ownership (articles 1012 à 1037)

Written by Me Sébastien Fiset , LL.B., B.A.A.
Friday, 11 June 2010 07:28

CHAPTER II

UNDIVIDED CO-OWNERSHIP

(Last update June 3, 2010)

DIVISION I

ESTABLISHMENT OF INDIVISION

1012. Indivision arises from a contract, succession or judgment or by operation of law.

1013. The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision.

Such an agreement may not exceed 30 years, but is renewable. An agreement exceeding 30 years is reduced to that term.

1014. Indivision by agreement in respect of an immovable shall be published if it is to be set up against third persons. In particular, publication mentions the expected length of indivision, the identification of the shares of the co-owners and, where applicable, the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment of a portion of the undivided property.

DIVISION II

RIGHTS AND OBLIGATIONS OF UNDIVIDED CO-OWNERS

1015. The shares of undivided co-owners are presumed equal.

Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it.

1016. Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners.

If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation.

1017. The right of accession operates to the benefit of all the undivided co-owners proportionately to their shares in the indivision. Nevertheless, where a co-owner holds a right of exclusive use or enjoyment of a portion of the undivided property, he also has exclusive use or enjoyment of property joined or incorporated with that portion.

1018. The fruits and revenues of the undivided property accrue to the indivision, where there is no provisional partition and where no other agreement exists with respect to their periodic distribution. They also accrue to the indivision if they are not claimed within three years from their due date.

1019. The undivided co-owners are liable proportionately to their shares for the costs of administration and the other common charges related to the undivided property.

1020. Each undivided co-owner is entitled to be reimbursed for necessary disbursements he has made to preserve the undivided property. For other authorized disbursements, he is entitled, at partition, to compensation equal to the increase in value given to the property.

Conversely, each undivided co-owner is accountable for any loss which by his doing decreases the value of the undivided property.

1021. Partition which takes place before the time fixed by the indivision agreement may not be set up against a creditor holding a hypothec on an undivided portion of the property unless he has consented to the partition or unless his debtor preserves a right of ownership over some part of the property.

1022. Any undivided co-owner, within 60 days of learning that a third person has, by onerous title, acquired the share of an undivided co-owner, may exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid. This right may be exercised only within one year from the acquisition of the share.

The right of redemption may not be exercised where the co-owners have stipulated pre-emptive rights in the indivision agreement and where such rights, if they are rights in an immovable, have been published.

1023. An undivided co-owner having caused his address to be registered at the registry office may, within 60 days of being notified of the intention of a creditor to sell the share of an undivided co-owner or to take it in payment of an obligation, be subrogated to the rights of the creditor by paying him the debt of the undivided co-owner, with costs.

An undivided co-owner not having caused his address to be registered has no right of redemption against a creditor or the successors of the creditor.

1024. If several undivided co-owners exercise their rights of redemption or subrogation against the share of an undivided co-owner, it is partitioned among them proportionately to their rights in the undivided property.

DIVISION III
ADMINISTRATION OF UNDIVIDED PROPERTY

1025. Undivided co-owners of property administer it jointly.

1026. Administrative decisions are taken by a majority in number and shares of the undivided co-owners.

Decisions in view of alienating or partitioning the undivided property, charging it with a real right, changing its destination or making substantial alterations to it require unanimous approval.

1027. The undivided co-owners may appoint one of their number or another person as manager and entrust him with the administration of the undivided property.

The court may designate the manager on the motion of one of the undivided co-owners and determine his responsibilities where a majority in number and shares of the undivided co-owners cannot agree on whom to appoint, or where it is impossible to appoint or replace the manager.

1028. Where one of the undivided co-owners administers the undivided property with the knowledge of the others and without objection on their part, he is presumed to have been appointed manager.

1029. The manager acts alone with respect to the undivided property as administrator of the property of others charged with simple administration.

DIVISION IV

END OF INDIVISION AND PARTITION

1030. No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.

1031. Notwithstanding any agreement to the contrary, 3/4 of the undivided co-owners representing 90% of the shares may terminate the undivided co-ownership of a mainly residential immovable in order to establish divided co-ownership of it.

The undivided co-owners may satisfy those who object to the establishment of divided co-ownership and who refuse to sign the declaration of co-ownership by apportioning their share to them in money; the share of each undivided co-owner is then increased in proportion to his payment.

1032. On a motion by an undivided co-owner, the court, to avoid a loss, may postpone the partition of the whole or part of the property and continue the indivision for not over two years.

A decision under the first paragraph may be revised if the causes shown for continuing the indivision have ceased to exist or if the indivision has become intolerable or too high a risk for the undivided co-owners.

1033. If one of the undivided co-owners objects to continuing in indivision, the others may satisfy him at any time by apportioning his share to him in kind, provided it is easily detachable from the rest of the undivided property, or in money, as he chooses.

If the share is apportioned in kind, the undivided co-owners may make the allotment least prejudicial to the exercise of their rights.

If the share is apportioned in money, the share of each undivided co-owner is increased in proportion to his payment.

1034. If the undivided co-owners fail to agree on the share in kind or in money to be apportioned to one of them, an expert appraisal or a valuation is made by a person designated by all the undivided co-owners or, if they cannot agree among themselves, by the court.

1035. Creditors whose claims arise from the administration are paid out of the assets before partition.

No creditor, not even a hypothecary creditor, of an undivided co-owner may demand partition, except by an indirect action where the undivided co-owner could demand it himself.

1036. Indivision may be terminated by the decision of a majority in number and shares of the undivided co-owners where a substantial part of the undivided property is lost or expropriated.

1037. Indivision ends by the partition or alienation of the property.

In the case of partition, the provisions relating to the partition of successions apply, adapted as required.

However, the act of partition which terminates indivision, other than indivision by succession, is an act of attribution of the right of ownership.

Last Updated on Friday, 11 June 2010 07:31

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FISET LÉGAL inc. is a law firm located in Montreal and specialized in real estate and in commercial litigation. We are especially active in Condominium Law and in Construction Law.

We represent many syndicates of co-ownership and many co-owners located in Montreal and its surroundings. We provide legal advising to our clients and their property managers in the fields of Real Estate Law, Condominium Law and Commercial Litigation.

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