What is the distinction between undivided co-ownership and divided co-ownership? The main difference lies in how the shares of the co-ownership are determined.
In a divided co-ownership, the shares are physically divided among each co-owner. The best example would be a triplex where each apartment is owned by a distinct owner. Each owner has exclusive rights over their private portion, but decisions concerning common areas will generally require collective agreement.
Conversely, in an undivided co-ownership, each co-owner has a right to the entire property without precise allocation. In other words, undivided co-ownership is a property held by at least two individuals, where each person holds property rights over the entire asset.
As a common-law partner involved in an undivided co-ownership, it is crucial to understand that each partner owns a share of the property. It is important to note that the laws of undivided co-owners still apply despite the existence of marriage and parental union rules.
Furthermore, according to Article 1015 of the Civil Code of Quebec (CCQ), “the shares of co-owners are presumed equal.” In other words, a notarized deed stating that both parties are co-owners of the building without specifying a share will lead to a presumption of equal shares. To rebut this presumption, an agreement between the two co-owners explicitly providing for a different proportion must be made.
What if co-owners disagree?
Since many common-law partners have an undivided co-ownership as their family residence, what happens in the event of a breakup?
In the event of separation, each spouse has the power to compel the other to share the undivided co-ownership. Indeed, in accordance with Article 1030 of the CCQ, no one is compelled to remain in undivided co-ownership.
If the spouses cannot reach an amicable agreement or if an agreement is impossible, the matter can be brought before the court to request the division of the property. Under Article 476 of the Code of Civil Procedure, “[t]he court that grants the application for the division of an undivided property may order either division in kind or the sale of the property.” It may also “appoint an expert, or several if necessary, to appraise the property, compose the lots and divide them, if the property can be conveniently divided or allocated, or sell them, according to the terms set by the court.”
It is essential to note that the court normally does not have the power to compel one co-owner to buy out the other’s share or to transfer their share to the other co-owner. However, according to Article 1033 of the CCQ, if there are more than two co-owners and one of them opposes the continuation of the undivided co-ownership while the others wish to maintain it, it might be possible to compel the buyout of their share to preserve the undivided co-ownership. Moreover, alternative solutions are often found in such cases to terminate the undivided co-ownership.
Undivided co-ownership between common-law partners in Quebec requires a clear understanding of rights and responsibilities. Partners share property equitably, but it is crucial to establish transparent agreements. In the event of separation, the possibility of requesting the division of property before the court exists. In a conflict situation, an application can be filed, offering options such as division in kind or the sale of the property.
Summary
What is undivided co-ownership?
In an undivided co-ownership, each co-owner has a right to the entire property without precise allocation. In other words, undivided co-ownership is a property held by at least two individuals, where each person holds property rights over the entire asset.
Does my common-law partner get half of my house?
Partners share property equitably, but it is crucial to establish transparent agreements. In the event of separation, the possibility of requesting the division of property before the court exists. In a conflict situation, an application can be filed, offering options such as division in kind or the sale of the property.
