Destination of the immovable

The destination of the immovable, of the private portions and of the common portions is a fundamental concept in co-ownerships. It is both a real regulator of the rights and obligations of co-owners and a reference value between the permit and the prohibited. The destination of the building is determined in the 1st part of the declaration of co-ownership (constituting act of co-ownership). It is it that also makes it possible to establish the type of co-ownership established and defines the use(s) that can be made of the private and common portions. It can thus be exclusively commercial or residential or residential but with the possibility of practicing a professional activity. It can also be mixed, such as, allowing shops on the ground floor and apartments on the upper floors.

Its purpose

The concept of the destination of immovable property is both the limit of the use that the co-owner can make of his unit and the restrictions that may be imposed on him by the declaration of co-ownership: can one operate a business, practice a profession, or rent one’s unit for less than a year? At the same time, it protects it from misuse that may be practiced by any other co-owner or occupant of the building.

These limitations are of great importance in the administration of the immovable and have an ongoing influence on all of the syndicate’s decisions and on the co-owners use or activities. Thus, co-owners are required to respect the destination of the private parties they hold as defined by the declaration of co-ownership. A co-owner is not free to make the use he wishes of his private portion. He cannot change the assignment according to his needs. If, for example, a private portion is intended only for residential use, the owner who wishes to convert his apartment (even partially) into a workplace will first have to obtain the approval of the general meeting of the co-owners in order to change the declaration of co-ownership.

Definition of: destination of the immovable

Although it is the constituting act of co-ownership that defines it, the courts apply the broad concept of the destination of the immovable according to which it does not depend solely on a clause inserted in the declaration of co-ownership. This is why other elements external to the declaration of co-ownership must also be taken into account, such as:

• The character of the immovable : its physical characteristics, its mode of occupation or its layout;
• The location of the immovable : the characteristics of the neighborhood, etc;
• The quality of its materials : the quality of sound insulation, the energy quality of the building as well as its architectural aspect;
• The apartments distribution: the number of pieces they include;
• The category, level of luxury and comfort of the immovable and of its units : the presence of a doorman or an elevator.

Its implementation under the Civil Code of Québec’s provisions

The legislator gave great importance to the concept of destination of the immovable. Several articles of the Civil Code of Quebec (C.c.Q.) refer thereto:

• Article 1053 C.c.Q. states that the act constituting the co-ownership defines the destination of the immovable, of the private portions and of the common portions.
• Article 1056 C.c.Q. prescribes that no declaration of co-ownership may impose any restriction on the rights of the co-owners, except restrictions justified by the destination, characteristics or location of the immovable;
• Article 1063 C.c.Q. indicates that each co-owner has free use and enjoyment of his private portion and the common portions, provided he complies with the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable;
• Article 1098 C.c.Q. provides that the meeting of co-owners may authorize, subject to certain conditions, a change in the destination of the immovable or the alienation of common portions the retention which is necessary to maintain the destination of the immovable; and
• Article 1102 C.c.Q. proclaims the right of the co-owners not to be imposed, both by the board of directors and by the general meeting of co-owners, any change to the destination of their private portion.

WHAT YOU SHOULD KNOW!​ The concept of destination of the immovable, of the private portions and of the common portions is primary importance in divided co-ownerships. It is the only valid scheme of reference to determine what is allowed and forbidden, it thus justifies the restrictions that the declaration of co-ownership can impose upon the co-owners’ rights.

WHAT TO KEEP IN MIND: The destination of the immovable as well as that of the private and common portions is determined in particular by the constituting act of co-ownership. Thus the immovable may be "for exclusive residential use " or "mixed commercial and residential use ".

WARNING! The destination of the immoveable might change over time. It could be informally modified, for example by stopping in-house maintenance services. It is thus possible that certain clauses relating to the destination, such as prohibiting certain practices, fall into disuse and may no longer be enforced upon the co-owners.

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