The essence of divided co-ownership (condo) is to divide the building into private portions for the exclusive use of a co-owner, and into common portions for the common use of all the co-owners or of one or more co-owners.
The private portions are the fractions of the immovable in which the co-owners have an exclusive right of property. 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 an apartment, 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 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.
The common portions of the building are not, contrary to common wisdom, the property of the syndicate of co-ownership. They are owned by all the co-owners, in joint ownership (indivision). When buying its private portion, the co-owner acquires a share of the common portions of the immovable which are for the common use of all the co-owners. The syndicate’s purpose is to ensure their maintenance and conservation.
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.
The common portions for restricted use
These are common portions, but they are intended for the exclusive use of some co-owners and occasionally only one of them. The Civil Code of Québec provides specific rules for these common portions, in particular as regards the distribution of the common expenses.
They 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. The common portions for restricted use 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 provisional administrator, 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.
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.
CONSULT THE PUBLICATION: Purchase and sale of a condo: Everything you should know, at pages 60 and following.
Allocation plan of the common portions for restricted use Apartment Assignment (sale of the right of use) Cadastral description Cadastre Common portion Common portions for restricted use Constituting act of the co-ownership Description of the fractions Foundations and main walls Private portion Register of allocation of common portions for restricted use