Definition : Private portion

A source of permanent controversy in co-ownership, cannabis and tobacco smoking arouse passions. However, it is recognized that there is no inalienable right for a co-owner to smoke in the common portions or in a private portion. On the contrary, the common law on abnormal neighbourhood disturbances and the effects of second-hand smoke on the health of people exposed to it advocate prohibition. In this regard, the right to life and to the safety and integrity of the person enshrined in the Charter of Human Rights and Freedoms is moving towards an obligation to abstain from smoking in collective dwellings. Under the circumstances, should co-ownership syndicates banish this habit?  This is not an easy question to answer. Easier said than done, some will say. And they are not wrong. Here’s a look at the whole legal issue that defines smoking in co-ownerships.

June 28th, 2020 - The law concerning co-ownership insurance has undergone major changes since June 2018.  Section 1070 of the Civil Code of Quebec now contains a third paragraph, which provides that the syndicate keeps a sufficiently precise description of the private portions available to the co-owners, for insurance purposes, so that the improvements made by the co-owners are identifiable. The same description may apply to several portions when they have the same characteristics.   

Parking spaces qualified as private portions are commonplace in divided co-ownership. This special legal status is attributed to them by the declaration of co-ownership, which designates them as fractions in the section devoted to the description of the fractions. Like an apartment held in co-ownership, all these spaces have a unique lot number, along with a relative value, and a share. Their owners may, at a general meeting of co-owners, prevail themselves of the votes attached thereto. These votes are added, as the case may be, to those they have for their apartment  

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.

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.   

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. 

The Law and the overwhelming majority of declarations of co-ownership require that syndicates of co-owners insure their building. This may seem surprising at first glance as the syndicate does not own the private portions nor the common portions. However, its main object is to ensure the preservation and the longevity of the building and to manage and administer it diligently following rules of the trade. This is why the legislator has given to the syndicate an insurable interest and has made it compulsory that it subscribe building insurance.