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.
The private portions are the portions of the buildings and land that are owned by a specific co-owner and are for his exclusive use. 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) and serve for their common use. 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.
Common portions for restricted use (CMUR)
Among the common portions, some are for restricted use. The Civil Code of Québec provides specific rules for these common portions, in particular as regards the apportionment of the co-owners’ contribution to the common expenses. These are, either by their nature or by their situation, intended for the exclusive use of certain co-owners or sometimes only one. The use of a common portion for restricted use is not a property right. It is a simple right of use that can be temporary or permanent. For some, these distinctions may seem simple, a priori, although several syndicates of co-owners do not always manage to decide between them in their building.
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.
Some common portions are for restricted use solely because of their configuration or usefulness, and this without the declaration of co-ownership having to mention or describe them. This can be the case for balconies, ventilation or dryer ducts, a door giving access to a dwelling, windows. In a horizontal co-ownership, a sidewalk that serves only a townhouse can thus be qualified as a common portion for restricted use.
In principle, the right of exclusive use of a CMUR cannot be alienated separately from the fraction when this right is ancillary to the private portion and makes up the fraction of co-ownership. However, when the co-owner has been exclusively awarded a CMUR, for example by the developer, this right of use is subsequently transferable to the benefit of another co-owner of the building. It is generally provided in the declaration of co-ownership that such an assignment must be
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 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 Horizontal co-ownership Indivision Lot Notarial act en minute Private portion Register of allocation of common portions for restricted use Register of co-ownership Undivided co-owner of a fraction