The main distinction between undivided co-ownership and divided co-ownership lies in how ownership shares are defined. In a divided co-ownership, property is physically divided among the co-owners. A clear example would be a triplex where each unit is owned by a separate individual, with exclusive rights to that specific space. While each owner has exclusive rights over their private portion, decisions regarding common areas typically require collective agreement.
In contrast, undivided co-ownership means that each owner holds a right over the entire property, without any specific attribution of space.
What Is undivided Co-Ownership?
In other words, undivided co-ownership refers to property jointly owned by two or more individuals, where each person holds ownership rights over the entire property. As a common-law partner involved in such a setup, it’s essential to understand that each partner owns a share of the whole property.
According to Article 1015 of the Civil Code of Quebec (C.c.Q.), “co-owners are presumed to have equal shares.” This means that if a notarized deed states both parties are co-owners but does not specify ownership percentages, it will be presumed that both own 50%. To override this presumption, a clear agreement must be made between the parties to define different shares.
What happens when Co-Owners disagree?
Many common-law couples live in an undivided co-ownership arrangement for their family residence. But what happens in the event of a breakup? Upon separation, either partner can request the division of the undivided co-ownership, as no one is obligated to remain in undivided co-ownership, according to Article 1030 C.c.Q.
If the partners cannot reach an agreement amicably, the matter can be brought before the court to request the division of the property. As outlined in Article 476 of the Code of Civil Procedure (C.p.c.), “the court granting the request for partition of undivided property may order either partition in kind or the sale of the property.” The court may also “appoint one or more experts to evaluate the property, create lots, and distribute or sell them according to the court’s instructions.”
It’s important to note that the court generally cannot force one co-owner to buy the other’s share or transfer their own share. However, Article 1033 C.c.Q. provides an exception: if there are more than two co-owners and one opposes remaining in co-ownership while the others wish to continue, the court may authorize a forced buyout of the opposing party’s share in order to preserve the undivided ownership.
In practice, it’s often possible to find alternative solutions to end the co-ownership without lengthy litigation.
Conclusion
In summary, undivided co-ownership between common-law partners in Quebec requires a clear understanding of rights and responsibilities. Partners share ownership of the entire property, and establishing transparent agreements is key. In the event of separation, a request to divide the property can be made before the court. If a conflict arises, legal options such as partition in kind or a property sale are available to resolve the situation.
If you have any questions regarding undivided co-ownership or your rights as a common-law partner, don’t hesitate to contact us.