When shopping for an apartment, you must find out if it is in a divided or undivided co-ownership. Even though both concepts are similar in that their ultimate goal is the partition of an immovable between several persons called co-owners, the financial and legal commitments are different.
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The conversion of a immovable to divided co-ownership (condos) is subject to strict formalities and municipal by-laws, which can restrict the conversion or make it subject to certain conditions.. Unfortunately this does not always prove possible, more particularly because of the very high costs such a process implies (such as subdivision taxes known «Parkland taxes» applicable in certain boroughs of Montreal or other municipalities) and vested rights in favor of tenants.
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In undivided co-ownership, the rights of withdrawal and of first refusal may disrupt the course of a real estate transaction. It is important to know that other co-owners may take precedence over a potential purchaser. The title of the latter could be precarious for some time: a buyer who acquires rights in an undivided co-ownership without first receiving the approval of all the undivided co-owners is therefore liable to have his share redeemed and thus be excluded from the indivision.
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The co-ownership by phases allows the developer to spread the design of a real estate project over several years, and to modulate the pace of construction work according to the evolution of unit sales. This formula implies that the developer, rather than establishing once and for all the co-ownership he wants to create, proceeds in stages.
The co-ownership he creates as part of his real estate project evolves, during the realization of the project, before reaching its final form. Because of the complexity inherent in this type of legal structure, only lawyers and notaries who are fully in control of the applicable rules in the field can act.
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By purchasing a condo (apartment) in a residential tower, you automatically become an owner in a vertical co-ownership. You can also be in a divided co-ownership, if you purchase a house (semi-detached or townhouse), built on the same lot than other individual homes. It is then called a horizontal co-ownership.
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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. an apartment, 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 condominium. In other words, the addition of all the fractions constitutes, by the effect of the publication of a declaration of co-ownership, the condominium building.
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.
Private portions
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.
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The purchase of a condo gives you easier access to property, on account of lower costs compared to a single family home. Young couples and tenants take advantage of this formula. An increasing number of them opt for condo life, which allows them at last to become owners.
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You have taken the decision to purchase an apartment in a co-ownership. It is often an excellent investment and an easy way to have access to home ownership. In many instances, it will be the investment of a lifetime.
This purchase will involve you, from day one, in the community of co-owners for years to come. Be aware: this decision should not be taken lightly to ensure that your purchase will not become a nightmare.
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You have found the apartment of your dreams. At last, you will buy the property you have coveted. But before signing the offer to purchase, nagging doubts are in the back of your mind, you have many questions:
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After reaching an agreement on the conditions of sale with a builder or developer, you will be asked to sign a preliminary contract.
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Buying an apartment in a co-ownership is a major investment in a lifetime. To avoid being caught off guard during the process leading to your purchase, you should seek proper assistance.
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It is indeed a rare occurrence when a buyer pays its condo, in one single payment. Most of them must obtain a mortgage loan to finance their purchase. What are the criteria and conditions to get a mortgage loan? Whom should you get it from? Banks, credit unions or other sources? What are the policies of the major financial institutions in this market? What are the limitations when planning the financing of your new property?
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You may wish to occupy your apartment before signing the deed of sale. In order to do so, you will be asked to sign a interim occupancy agreement with your developer.
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The final step in the purchase of your apartment is the signing of the deed of sale. As soon as all the prior conditions of the sale are satisfied, the vendor must transfer the property upon the payment of the price.
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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.
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Before purchasing the apartment of your dreams, find out the status of the expenses (condo fees) of the apartment owing by the vendor, as you will have to pay the arrears once you become the owner of the apartment.
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Transfer duties, commonly called “welcome tax” implemented in 1976 by the then minister for Municipal affairs, Guy Tardif. An “urban myth” falsely attributes the parenthood of this tax to the liberal minister Jean Bienvenue. (Bienvenue means “welcome” in French). An additional source of revenue for cities and municipalities, the tax requires you, as the new owner, to pay duties on the acquisition of real estate. It applies to transfers of any new or used building and land, unless exempted by Law.
Any new owner has 30 days to pay his transfer duties from the receipt of an invoice asking him to pay. Generally, this invoice is sent a few weeks after the acquisition of the apartment.
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It is not compulsory to retain the services of a real-estate broker (real-estate agent).
This being said, unless you are capable of handling on your own the purchase or the sale of a condo, and investing a lot of your time and efforts and possess specific knowledge in relevant fields, it is in your best interest to be assisted by a competent real-estate broker.
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Since May 1st, 2020, mortgage brokerage has been supervised by the Autorité des Marchés Financiers, to ensure the protection of the public. Any hypothecary broker must maintain professional civil liability insurance, and abide by its code of ethics.
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