In vertical co-ownership, each apartment is represented by a volume of air registered in the cadastral survey. This volume defines what each co-owner possesses. The land and the building's structure (foundations, load-bearing walls, roof) form the common portions, which are also identified in the cadastre.
But what happens if the building is partially or completely destroyed, for example, due to a fire or a flood? Many people think that it is simply a matter of rebuilding and continuing as if nothing happened. Unfortunately, this is not the case, because rebuilding without adapting the cadastre can lead to serious legal problems.
Why is it necessary to modify the cadastre?
When a building is reconstructed, even if the new plans closely resemble the previous ones, the new apartments will never be located in exactly the same place as before.
For example, the former unit 302 was located on the third floor, at the rear. After reconstruction, its replacement is slightly shifted towards the front, or its height differs by a few centimeters. This is enough for the former cadastral volumes to no longer match the physical reality.
The Result? If a co-owner tries to sell their unit, the certificate of location prepared by the land surveyor will reveal that the unit encroaches on other private portions or common portions. This constitutes a title defect: the notary will not be able to publish the sale, or numerous reservations will need to be included.
Article 1049 of the Civil Code of Québec confirms this requirement:
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.
This means that without updating the cadastre and the declaration of co-ownership, it is legally impossible to transfer ownership of a fraction whose boundaries have been changed by the reconstruction.
Can the co-ownership be dissolved and restarted?
The option of dissolving the co-ownership to establish a new one must be ruled out. Such an action would result in the disappearance of all registered real rights—namely mortgages, servitudes, and rights of use—which would have serious consequences for co-owners, creditors, and insurers. It is therefore necessary to maintain the existing co-ownership while updating the cadastral plan to restore consistency between each co-owner’s property right, the volume occupied, and the cadastre.
As article 3030 C.c.Q. states:
Except where it pertains to an immovable situated in territory without a cadastral survey, no right of ownership may be published in the land register unless the immovable concerned is identified by a separate lot number on the cadastre.
No declaration of co-ownership or of co-emphyteusis may be registered unless the immovable is the subject of a cadastral plan that contains the immatriculation of the private and common portions.
The building must therefore exist and be properly identified in the cadastre to allow the publication of ownership rights.
Additionally, article 3041 C.c.Q. specifies that registration of private and common portions cannot take place before the main walls of the building allows them to be measured and their boundaries to be determined. It is thus necessary to avoid dissolving the co-ownership and to instead preserve the building’s shell so that the cadastre can be updated to accurately reflect the new configuration of the immovable.
Modifying the cadastre: A complex but feasible process
The Civil Code of Québec does not provide any simplified mechanism to adapt the cadastre of a vertical co-ownership following partial or total reconstruction. Nevertheless, two approaches are possible to allow this essential adaptation.
1. The Temporary Creation of an Undivided Co-ownership
This frequently used method involves establishing a transitional undivided co-ownership among all the co-owners over the affected private lots (and, if necessary, the common portions).
Concretely:
Each co-owner transfers to all the other co-owners a symbolic undivided share of their fraction.
This process creates unity of ownership over all existing lots.
A new cadastral plan can then be produced and filed since all fractions belong to the same group of persons.
Once the plan is approved and the description of fractions is updated, the co-owners proceed to a formal partition, and each becomes the full owner of their new private portion, now conforming to the new cadastral plan.
This approach, though technical, has the advantage of preserving the legal continuity of the co-ownership while regularizing property titles, thereby avoiding issues related to potential encroachments or title defects.
2. Reconfiguration Through Intermediate Lots
More burdensome from a legal and administrative standpoint, this method involves:
Individually registering the affected portions of the private and common lots.
Carrying out the appropriate transfers of rights between co-owners.
Filing a new cadastral plan.
Amending the declaration of co-ownership to reflect the new configuration of the immovable.
Although this solution is viable, it is particularly costly and time-consuming, especially in large co-ownerships.
Why Is This Regularization Essential?
Failure to adapt the cadastre to the physical reality of a reconstructed building exposes co-owners to significant legal consequences.
Consider the example of a co-owner who wishes to sell their fraction a few years after a loss. When preparing the certificate of location, the professional will find that the volume actually occupied by the unit does not correspond to the volume registered in the cadastre. The transaction will then be blocked or delayed, and corrective measures will need to be undertaken in the land register—often at considerable expense.
Even worse, if this problem is discovered after the expiry of the insurer’s coverage period, the costs related to the regularization will have to be fully borne by the co-owners, with no possibility of filing a claim.
Pay Attention to Insurance Coverage
It is also important to ensure that the insurance coverage includes the costs related to updating the cadastre, notably the fees of land surveyors, notaries, and lawyers involved in the cadastral reconfiguration operations. This aspect is often neglected or overlooked by insurers, yet it is an integral part of the reconstruction costs.
Several co-ownership syndicates are later denied reimbursement of these expenses on the grounds that they do not directly concern the material repair of the building. It is therefore essential to explicitly discuss this matter with your insurance broker when purchasing or renewing the policy to avoid unpleasant surprises in the event of a loss.
What Steps Must Be Taken After Reconstruction?
To fully restore the legal and cadastral framework of the co-ownership following reconstruction, several steps must be undertaken without delay:
Engage a land surveyor to measure the reconstructed building.
Modify the vertical cadastre so that the new volumes of air reflect the physical reality.
Amend the declaration of co-ownership by filing a new description of the fractions.
Arrange for the necessary notarial deeds for the transfer and partition of the fractions.
Ensure that all this is done promptly, ideally with powers of attorney granted to a representative to avoid delaying the process.
WHAT YOU SHOULD KNOW ! Reconstruction after a loss in vertical co-ownership requires much more than architectural plans and insurance. The cadastre must absolutely be modified, otherwise, the property titles will be affected.
WHAT TO KEEP IN MIND ! Two methods allow the cadastre to be regularized after the reconstruction of a building. In both cases, it is necessary to file a new cadastral plan and to amend the declaration of co-ownership. The first method, generally the simplest, is based on the creation of a temporary undivided co-ownership between all co-owners to enable the cadastral reconfiguration. The second, more complex and costly, involves the individual registration of the affected portions, followed by the appropriate transfers of rights and the required amendments.
WARNING ! Rebuilding a building is not enough. The cadastre must reflect the physical reality of the premises, that is, the new volumes of air occupied by the units. Otherwise, the validity of the property titles is compromised.
SEE ALSO: La copropriété divise, 5e édition by Me Christine Gagnon (Chapter 2, par. 51, beginner to the page 38).
