Definition : Divided co-ownership

Il existe deux types de copropriétés différentes soit la copropriété divise et la copropriété indivise. Voici une capsule vidéo où l'avocat émérite Yves Joli-Coeur explique ces deux concepts juridiques qui sont bien différents.      

If you are shopping for an apartment, ask yourself if it is located in a divided or undivided co-ownership. Although these two concepts are similar, as they ultimately aim to share the same building by several people called co-owners, the legal and financial implications are not the same. These two types of co-ownership thus have very different terms of ownership, ownership and liability between the co-owners of a building. A look at the main distinctions between divided co-ownership and undivided co-ownership.  

Whether you are a real estate developer (for a new building) or several owners of an existing building who wish to convert it, the rules for subjecting a building to divided co-ownership are the same. The creation of a divided co-ownership is necessary when an immovable must be divided into lots composed of a private portion and a share  of the common portions, and which belong to one or more different persons. The community of co-owners acquires the status of legal person from the day a declaration of co-ownership is published at the Land registry office (Land Register). The legal person thus constituted takes the name of “syndicate of co-owners”. Its mission is to ensure 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 ". To form this co-ownership several steps involving many protagonists are necessary.

In undivided co-ownership, the rights of withdrawal and of first refusal may disrupt the course of a real estate transaction. It is important to know that other co-owners may take precedence over a potential purchaser.  The title of the latter could be precarious for some time: a buyer who acquires rights in an  undivided co-ownership  without first receiving the approval of all the undivided co-owners is therefore liable to have his share redeemed and thus be excluded from the indivision.    

When it comes time to acquire a home, many buyers turn to the acquisition of a multi-unit building (such as a duplex, triplex, quadruplex, etc.). The direct conversion of rental units to divided co-ownership is prohibited in some cities, with a few exceptions, which is why owners first turn them into undivided co-ownership. It should be noted that a building, whose dwellings are all occupied by undivided owners,can be converted into divided co-ownership, subject to certain conditions. But carrying out this conversion requires to overcome several steps involving all owners concerned.

In divided co-ownership, the right of ownership is divided, among the co-owners, by "fractions", each comprising a materially divided private portion (e.g. a residential unit, a parking or storage space, and sometimes even a plot of land) and a share  of the common portions. To each fraction is attached an undivided right of ownership in the common portions, and sometimes the right to use the common portions for restricted use. The fraction is the result of the division of a building to create a co-ownership. In other words, the addition of all the fractions constitutes, by the effect of the publication of a declaration of co-ownership, the co-ownership building.

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