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.
A certificate of location is a minute presented in two (2) parts – namely a location plan and a written report in which the land surveyor, at a specific date, expresses a professional opinion on the following matters :
Certificate of location relating to a private portion
Given the fact that an up-to-date certificate of location encompassing the whole property is rather pricey and takes a long time to prepare, sellers of private portions usually provide a buyer with a certificate which only addresses their own portion. Such a document, however does not reveal everything there is to know – even more so when the portion in question is part of a property composed of a large number of units.
When it comes to properties held in divided co-ownership, a global remeasuring (including a new survey of all private portions and common areas) should occur every ten (10) years. In fact, some declarations of co-ownership state that the board of directors must, on a regular basis, commission a new certificate of location covering the whole property.
An incomplete certificate of location may bring about several unwanted consequences, in particular when work not compliant with relevant laws or regulations (or to the land register) were carried out elsewhere in the building or within common areas.
Report of the land surveyor
When asked to deliver a report which deals only with a specific private portion (an apartment, for instance) the land surveyor must, among other things, confirm the accuracy of the following elements:
For its part, the location plan prepared by the land surveyor in connection with a private portion must, among other things, contain the following :
Certificate of location vs. real estate broker
As required by the form “Promise to purchase – Divided co-ownership” published by the Organisme d’Autoréglementation du Courtage Immobilier du Québec (Québec Real Estate Brokerage Self-Regulating Agency), the seller must provide the buyer with a certificate of location which describes the current condition of the premises. Such a certificate must not only reflect the physical status of the property (the installation of an air conditioning unit on the balcony, for instance), but also confirm the compliance of the property to applicable laws and regulations.
More specifically, the form states that “The SELLER shall supply to the BUYER (…) a certificate of location describing the current state of the entire co-ownership and including the private portion, or, failing this, a certificate of location pertaining to the private portion only, reflecting any cadastral renovation if applicable ; the cost of any new certificate of location shall be borne by the BUYER where the previous certificate proves not to have been amended.”
So...why update the certificate of location ? Because the co-owner must provide the buyer with a document describing the current state of the property – including their own private portion. Only if changes have occurred since a certificate of location was last ordered shall the cost of the new certificate be charged to the seller.
Certificate of location vs. notary
In accordance with the terms of the promise to purchase, the notary who is given the task of preparing the deed of sale must have on hand an up-to-date certificate of location describing the current condition of the property. Only with such a document at the ready can the notary provide accurate advice to the parties.
The certificate of location must reflect the property’s current condition
After several years have passed, it might become necessary to review the measurements, surface area, shape, and position of a private portion put up for sale. Over time, legal and physical changes might have altered the overall condition of the premises, (as compared to other private portions or common areas of the property), and thus bring a buyer, a mortgage lender, or a notary to request a current certificate of location.
Because it was no longer representative of our landscape, the government of Québec began, at the end of the 1990’s, a complete rejuvenation of the original land register (adopted in 1860). From then onwards, each and every property was to be represented on a plan included to Québec’s land register, and identified by a specific lot number. In fact, each “renovated lot” was given an exclusive seven-digit number (1 461 867, for instance) – a reality a new certificate of location must now take into account. Hence, whenever a certificate of location bears an original lot number (let’s say 2019-101 Village de Côte-des-Neiges, registration division of Montréal) whereas the cadastral renovation occurred since said certificate was prepared, a prospective buyer is entitled to request an up-to-date document from the seller. Such a formality has, indeed, been included in the promise of purchase form.
Term of validity
In April 2017, the Supreme Court of Canada ruled that it was advisable to commission a new certificate of location every ten (10) years, since section 2918 of the Civil code of Québec (as the court interpreted it) allows the possessor of a piece of land to acquire property of it after ten (10) years of unopposed possession, through a legal mechanism known as acquisitive prescription. Consequently, a notary to whom is handed a certificate of location prepared fifteen (15) years prior should assume that such a document, as it no longer reflects reality, might not protect the buyer’s interests as well as it should. So unless the parties instruct him/her otherwise, the notary will request a current certificate.
As a rule, it must be assumed that any modification of the property’s legal condition might require the preparation of a new certificate of location. Such could be the case, for instance, when a co-owner decides to carry our construction or renovation work which, unbeknownst to them, encroach on common areas – if not on one or several other private portions.
Situations of encroachment come in many shapes and sizes, including:
The impact of such encroachments might not be restricted to the limits of the property, as they are likely to compromise the integrity of the original land register, and, consequently, the proprietary rights of each and every co-owner of the property – who, must we point it out, holds an undivided right of ownership in all common areas. Yet in some circumstances, a situation of encroachment might very well translate into a violation of relevant municipal regulations. Furthermore, one must remember that encroachment deriving from work improperly performed allows the syndicate (as well as any co-owner, individually) to require that the new facilities be demolished at the builder’s sole expense, even though they are modest and/or only cause relatively minor harm.
WHAT YOU SHOULD KNOW! Even if the seller purchased a title insurance policy drafted to the buyer’s name, the latter might still request an up-to-date certificate of location.
WHAT TO KEEP IN MIND: The certificate of location which pertains only to a specific private portion will not inform of irregularities that may plague some of the property’s common areas. In such cases, the land surveyor will only take measurements of the unit, and, if need be, of private storage and parking spaces.
WARNING! Do not confuse the certificate of location with the cadastral plan (which must be incorporated into the co-ownership register), as the latter only reflects the measurements, surface area, shape, and position of a private portion or common area (identified by a lot number) in comparison to others.
CONSULT THE PUBLICATION: Purchase and sale of a condo: Everything you should know at pages 298 and following.
Acquisitive prescription Apartment Cadastral plan Certificate of location Certificate of location of a private portion Deed of sale Document en minute Encroachment Global certificate of location Horizontal cadastral plan Land surveyor Locker Offer to purchase (promise to purchase) Original lot Parking space Private portion Property title Registration division Title insurance Vertical cadastral plan