First of all, it should be understood that basically, a common portion called “for restricted use”, is located outside the limits of the privative portions described in the declaration of co-ownership and the certificate of localization of the privative portion, as built. Being basically a common portion of the building, all the co-owners are the undivided owners of these portions, meaning that each co-owner of the building is the owner of an undivided share of the whole of the common portions, without being entitled to a right of ownership on a given portion.
On the other hand, the right to enjoy elements of the common portions can be reserved to one or more co-owners under the declaration of co-ownership.1 The description, the enumeration and the destination of the common portions for restricted use are contained in the part, deed-of-partnership, of the declaration of co-ownership.2 The practical application of this principle results in the fact for the instrumenting notary to indicate as common portion for restricted use : the balconies, windows, entrance doors of the privative portions and of which the right of use of these portions will be reserved exclusively to the owner of the contiguous privative portion (example: the balcony of unit 101 will be for the restricted use of the owner of this unit, and thus not for the use of the other co-owners). It concerns here common portions physically connected to the privative portion included in the fraction of the co-owner.
In addition to those, a common portion for restricted use can be physically detached from the privative portion, as in the case of parking and storage spaces.3 In co-ownerships comprising a co-ownership initially known as “horizontal” on which are built two or several “vertical” buildings and which are the subject of declaration of distinct co-ownerships, certain portions of the land such as the front and back yards, and the parking spaces, will be indicated as common portions for restricted use by the co-owners of one of the vertical buildings.
However, it should not be forgotten that it is not the syndicate, but rather all the co-owners who are the owners of the common portions of the building, and this, in proportion of their undivided quota. Therefore, by the application of article 1039 C.c.Q., it is the syndicate, by means of its Board of Directors, which is in charge of the preservation, the maintenance and the administration of the common portions.
The foundation of the right of restricted use of the common portions of each co-owner is thus in the deed-of- partnership part of the declaration of co-ownership, but it is in the regulations part of the building that we find the rules and the conditions of enjoyment of these portions which the co-owners are held to abide by.
On this level, we will probably see a series of rules on the following subjects:
- the prohibited objects (inflammable materials, pieces of furniture other than seasonal, clothes lines, tires, etc…), or another object or contents likely to constitute a harmful effect for the other co-owners or causing an increase in the fire insurance premiums;
- prohibition to change appearance or consistency (of these portions) without the permission of the syndicate;
- the obligation to keep them clean;
- potentially prohibited uses (like cooking on a BBQ stove);
- prohibition to use a parking space to park a vehicle which is not running anymore, or in order to carry out repairs on the aforementioned vehicle.
Certaines declarations of co-ownership can allow the transfer or the sale, separately, of the privative portion, or a right of restricted use on a common portion when, within the terms of the declaration of co-ownership this right is not considered to be an integral part of the fraction, which would be a departure from the general rule.4 We are thinking here of the possible rights on an external terrace, or storage boxes and surplus parking spaces. Certain declarations of co-ownership will prohibit the transfer or the sale of the rights of use in a surplus parking space if the purchaser is not also owner of a fraction in this co-ownership.
It is important to remind that the exercise by the co-owner of his individual right of property in his fraction is carried out in a collective framework of the rights of all the other co-owners. Thus, it's important to be aware necessary to be aware of this legal framework imposed by the relevant provisions of the Civil code of Quebec and the declaration of co-ownership.
In case of doubt, do not hesitate to contact our team of lawyers specialized in real-estate and co-ownership law.