Definition : Encroachment

In the case of a real estate transaction in a divided co-ownership, the certificate of location of the private portion is not always sufficient. A certified copy of the certificate of location of the entire building could also be requested. It is this certificate of location that will inform the buyer of the compliance of the overall property with respect to laws and regulations, encroachments, servitudes, as well as possible restrictions regarding the addition of a pool, sheds, for example.

The declaration of co-ownership is a contract that orchestrates and regulates the lives of co-owners, lessees and other occupants of the immovable. It represents the guideline for everyone who lives in the immovable.The declaration of co-ownership provides, systematically, that it is up to the board of directors to have its content abided to. However, it happens that people break the rules, in particular by a non-compliant use of a private portion with regard to the destination of the immovable, a noise nuisance and work carried out in violation of the by the laws of the immovable. Other examples illustrate the problems that can occur in the co-ownership, such as an encroachment on a common portion or the improper installation of a floor covering. Anyone who does not abide to the declaration of co-ownership is liable, inter alia, to a legal recourse based on article 1080 of the Civil Code of Quebec . This action may be brought by a co-owner or the syndicate.

Section 1719 of the Civil code of Québec states that the seller must provide the buyer with a copy of the deed of purchase, as well as with a copy of the owner history and of the certificate of location he has on hand. Prepared by a land surveyor, the certificate of location is part of the property titles the seller must supply.  In the interest of the buyer, the certificate of location should clearly describe the current condition of all private portions (for instance, an apartment, a parking or storage space, or even land). Should the seller not have a certificate of location on hand (and unless the promise to purchase states otherwise), they will need to have one prepared, at their own expense. 

When the work of a co-owner has an impact on the common portions, the latter must obtain authorization from the meeting of co-owners to have it undertaken, even if the work is carried out in his private portion. This authorization requires a vote, the majority of which is greater than that required for the current decisions. Failure to comply with this rule could result in a co-owner being ordered to restore the premises to their original state or even to pay damages.    

Even after the transfer of ownership, the buyer benefits from several guarantees. Unless otherwise stated, the sale of a building is subject to a basic guarantee, generally called the "legal guarantee". This guarantee exists by the sole effect of the law, that is to say without it being necessary to provide for it in the contract. Under article 1716 of the Civil Code of Quebec (C.c.Q.), the legal guarantee has two components, namely the guarantee of the right of ownership  (1723 C.c.Q.) and the guarantee of quality (1726 C.c.Q.) against  hidden defects. This guarantee covers the validity of the right of ownership and guarantees the buyer that the building and its accessories are free from hidden defects likely to make them unfit for use or which reduce its usefulness so much that the buyer would not have bought or would not have paid the same price if they had known them.