The characteristic of divided co-ownership is to divide the building into various lots that will be the exclusive property of the co-owners (private portions), and for others that will be the property of all the co-owners (common portions). These lots are identified by an individual number, which was assigned during the cadastral operation. Each of the private lots of the co-ownership thus constituted becomes a unique property. The distinction between the common and private portions is essential, particularly from the point of view of maintenance, which is the responsibility of the syndicate of co-owners for the common portions and of the co-owners for the private portions.
The private portions are the portions of the buildings and land that are owned by a specific co-owner and are for his exclusive use. They are described in the part of the declaration of co-ownership dedicated to the cadastral description of the fractions. These portions are physically identifiable. It can be a residential unit, a parking space or a parcel of land in the case of townhouses. Each private portion has its own cadastral designation.
The common portions are the fundamental purpose of the co-ownership. They are the property of all co-owners and serve their common use. By purchasing an apartment in a divided co-ownership, the buyer acquires a private portion and a share (undivided right of ownership) in the common portions, all forming a fraction of co-ownership. Although it is not the owner, the syndicate of co-owners has the mission to ensure its maintenance and conservation.
The common portions are the portions of the buildings and land which are not private portions. They are identified, as to their cadastral description, in the description of fractions and generally described in the constituting act of the co-ownership.
In the absence of specific provisions in the declaration of co-ownership, are deemed 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. Any of these items can be common portions even though they run through private portions. However, this presumption is not absolute. It can be refuted by the cadastral plan that provides for the immatriculation of the private portions and common portions of the co-ownership, or by the declaration of co-ownership when it describes in detail their composition and their respective boundaries.
Common portions for restricted use (CPRU)
Among the common portions, some are for restricted use. The Civil Code of Québec provides specific rules for these common portions, in particular as regards the apportionment of the co-owners’ contribution to the common expenses. These are, either by their nature or by their situation, intended for the exclusive use of certain co-owners or sometimes only one. The use of a common portion for restricted use is not a property right. It is a simple right of use that can be temporary or permanent. For some, these distinctions may seem simple, a priori, although several syndicates of co-owners do not always manage to decide between them in their building.
The common portions for restricted use are generally described in the declaration of co-ownership. For example, balconies, roof terraces and windows are frequently designated as common portions for restricted use in the declaration of co-ownership. They are not always contiguous to the residential unit (for example, lockers situated in the basement of the building). In such cases these portions are the object of an allocation by the developer/vendor, acting in its capacity of interim director, or by the board of directors of the syndicate.
This type of common portion is sometimes illustrated on allocation plan of the common portions for restricted use (e.g., parking or storage areas). Filed in the register of the co-ownership, its main purpose is to inform the Board of Directors, and by extension the co-owners, of the exclusive rights of enjoyment of the co-owners in the common portions. The allocation plan generally allows the identification of common portions for restricted use that are not contiguous to a private portion. It delimits them in relation to the other common portions, and usually identifies them with a number. This document is an integral part of the register of co-ownership and shall be made available to any co-owner upon request.
Some common portions are for restricted use solely because of their configuration or usefulness, and this without the declaration of co-ownership having to mention or describe them. This can be the case for balconies, ventilation or dryer ducts, a door giving access to a dwelling, windows. In a horizontal co-ownership, a sidewalk that serves only a townhouse can thus be qualified as a common portion for restricted use.
In principle, the right of exclusive use of a CPRU cannot be alienated separately from the fraction when this right is ancillary to the private portion and makes up the fraction of co-ownership. However, when the co-owner has been exclusively awarded a CPRU, for example by the developer, this right of use is subsequently transferable to the benefit of another co-owner of the building. It is generally provided in the declaration of co-ownership that such an assignment must be
WHAT YOU SHOULD KNOW! It is sometimes difficult to determine, notwithstanding the enumeration in the declaration of co-ownership, the boundaries between private and common portions. The cadastral plan and the certificate of location allows the precise determination of the limits between privates and common portions.
WHAT TO KEEP IN MIND: In most cases, the co-owners who have the exclusive use of a common portion must assume the maintenance expenses arising therefrom, on the other hand, the syndicate will generally be responsible for the major repairs and replacement cost unless the declaration of co-ownership provides differently.
WARNING! No one may hold such a right of enjoyment in the common portions of a divided co-ownership (e.g. for parking or storage areas) if he is not a co-owner, i.e. owning a fraction.