Most often than not declarations of co-ownership (Constituting Act of co-ownership) designate the legal status of exterior parking spaces as common portions for restricted use. This is also true for indoor parkings, when the developer (declarant) decides that it is not necessary to create a specific lot number for each space. These are therefore an integral part of the lot constituting the common portions of the immovable.
Exclusive right of enjoyment
Some common portions (within a co-ownership) are intended for restricted use, meaning that one or several co-owners have an exclusive right of enjoyment thereto. To benefit from such rights, you must own a private portion. This does not mean, however, that you possess an absolute right of ownership. It should be noted that spaces designated as common portions for restricted use are common portions in their own right and remain the undivided property of all co-owners. [i]
As a general rule, the developer (declarant) grants to himself exclusive enjoyment rights to all parking spaces in the common portions, with the exception of those reserved for visitors or for the use of all co-owners. He retains this right as long as he does not attribute it to a co-owner.
Usually prepared by a land surveyor or an architect, the allocation plan’s purpose is to determine the parking spaces’ location and superficial area (relative to other common portions), and to identify them by number. Filed in the register of the co-ownership or annexed to the declaration of co-ownership, this plan is essential, because it reduces the risks of litigation between co-owners, such as disputes caused by bad markings, or misunderstandings concerning the scope of the right of enjoyment to these spaces.
The exclusive use of a parking space is generally granted to a co-owner by the developer. He is the only one entitled to designate the location where a parking space will be allocated to his buyer, at the occasion of the first sale following the construction of the immovable. He also prepares the list of concordance between the numbering and the allocation of such exclusive right of enjoyment. Once all of private portions owned by the developer sold, he loses his allocation rights.
Transfer conditions of these spaces
Although a co-owner is the only one allowed to use a given parking space to park his vehicle, he does not have an absolute right of ownership. The co-owner cannot therefore transfer it without including the private portion, because it is part of the fraction of which he is the owner. In the event that he sells his fraction, without specifying (in the deed of sale) that a parking space is included in the transaction, the buyer would still benefit from this right. However, if the exclusive rights of enjoyment in the parking space are not a component of the fraction, but have been conferred personally on a co-owner, then article 1047 of the Civil Code of Quebec does not apply to them. The declaration of co-ownership can then allow a co-owner to transfer his rights of enjoyment in a parking space in favor of another co-owner without him having to sell his fraction.
Particular common expenses
The Civil Code of Québec provides specific rules on the allocation of expenses attached to restricted common portions. Maintenance work and minor repairs are, more often than not, allocated to the co-owners benefiting from their use. As for major work and replacement costs of these common portions, they could also be supported by them, if the declaration of co-ownership specifies it. However if the declaration of co-ownership does not contain any provisions thereon, it will be up to all co-owners to bear such costs, proportionally to the relative value of their fraction.
Non-regulatory parking spaces
Some developers use the concept of common portions for restricted use for parking spaces that do not comply with municipal building or planning standards. These are often too small, too narrow or located in prohibited places. Municipal regulations generally provide that a parking space must have a minimum length of 5.5 meters. However, a developer may thus have an interest in not qualifying the parking spaces as private portions, because the municipal authorities would be informed during the cadastral operations. They would refuse the subdivision of parking spaces that do not comply. However, a seller, whether he is a developer or not, cannot include in the deed of sale, such a parking space without the buyer having been informed, regardless of his qualification (private portion or common portion for restricted use).
WHAT YOU SHOULD KNOW ! It is generally provided in the declarations of co-ownership that no right of exclusive use of a common portion for restricted use conferred on a co-owner or his private portion may be withdrawn without his consent, as long as the latter remains co-owner.
WHAT TO KEEP IN MIND : Common portions for restricted use are defined in the declaration of co-ownership (Constituting Act). Although they are the property of all co-owners, they are intended for the exclusive use of a certain number of them, sometimes only one of them.
WARNING! Many co-owners incorrectly believe that they are the absolute owners of their parking space, when it is designated as a common portion for restricted use. In fact, this can only be possible if this space has the legal status of private portion.
[i] Bouchard c. Syndicat des copropriétaires de la Tour de l'Île, 2018 QCCS 2128
Allocation plan of the common portions for restricted use Assignment Assignment (sale of the right of use) Cadastral operation Common portions for restricted use Deed of sale Fraction Maintenance Parking Parking space Particular common expenses Register of allocation of common portions for restricted use Subdivision