You’re currently in a common-law relationship, you both own the family home and you have questions about what will happen to it in the event of a separation? We’re here to help.
While many questions can be answered with the help of the guides, sample letters and forms in our legal toolkit, an independent jurist affiliated with PSP Legal will always be happy to help you by answering any questions you may have.
Of course, if you prefer to have an experienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here.
What is undivided co-ownership?
When more than one person owns a property that has no physical division, it is considered to be held in undivided co-ownership. In fact, when a property is held in joint ownership, each of the owners possesses all the property rights relating to this property, i.e. the right to use, enjoy and dispose of it, and the right of accession to it. Undivided ownership may relate to movable or immovable property, and to tangible or intangible assets.
De-facto spouses who are both owners of the family residence are therefore co-owners of an undivided immovable property. Spouses and civil union partners may also be co-owners of an undivided immovable property. However, they can also benefit from the protection of the family residence and the sharing of the family patrimony in certain cases. As de facto spouses are not covered by these protections, they will have to rely on the deed of purchase of the residence or, as the case may be, on an undivided co-ownership agreement.
Thus, it is always preferable to include clauses in the purchase contract or in an undivided co-ownership agreement covering the terms and conditions applicable to the division of undivided co-ownership in the event of separation. For example, de facto spouses could include a clause in the deed of purchase specifying that they will be able to recover their down payment for the purchase of the residence before the balance is divided in proportion to the shares held by the co-owners. It’s always easier to come to an agreement when the situation between the parties is not tense.
Use of the building
In principle, in cases of de facto union, the law does not recognize the possibility of evicting another co-owner in the case of undivided ownership, since the owners are legally equal. Both have the right to use the property, and article 500 of the Civil Code of Québec cannot be invoked by one of the spouses. However, it is possible for one spouse to obtain exclusive use and enjoyment of the property. First, the spouses can stipulate in the deed of purchase or in an undivided co-ownership agreement that one of them will have exclusive use of the property in the event of separation. They can also agree to this effect following the end of their cohabitation. Alternatively, a spouse may ask the court to grant him or her exclusive use and enjoyment of the property when he or she is the custodial parent of children.
Sharing the property
By law, no one is obliged to remain in joint ownership. In the event of separation, the court may be asked to divide the property if the spouses cannot reach an amicable agreement, or if it is impossible to reach an agreement. It is therefore possible for one of the spouses to force the sale of the property by filing an application for partition and licitation.
At the time of partition, the co-owners’ shares in the immovable are presumed to be equal, in accordance with Article 1015 of the Civil Code of Québec. Consequently, the spouses may provide in the deed of purchase for priority reimbursement of the down payments for the acquisition of the immovable, otherwise the balance will be divided according to the co-owners’ shares in the immovable, regardless of their respective down payments.
Claiming common expenses
Under Article 1019 of the Civil Code of Québec, undivided co-owners are required to assume administrative and other common expenses in proportion to their share. These common expenses include mortgage repayment, electricity, heating, municipal and school taxes, and so on. A spouse who pays more than his or her share of these costs and other charges will generally be able to claim the excess from his or her spouse. The time limit for such a claim is three years. Thus, the spouse will be able to claim the excess of his or her contribution to expenses and other charges for the last three (3) years. However, particular attention must be paid to the deed of purchase and the agreement, if applicable. It is possible for owners to stipulate that the higher contribution of one of the owners to costs and expenses will constitute a donation. In such a case, the owner who has contributed to these expenses and other charges in excess of his or her share in the building will not be able to claim the surplus paid from the other owner.
Claiming fruits and revenues
In cases where the property generates income for the de facto spouses, such as rent, this income will be divided according to the shares established in the purchase contract or in an undivided ownership agreement.
Article 1020 of the Civil Code of Quebec states that the spouses may claim reimbursement for expenses incurred to maintain the undivided property.
The following expenses may be considered necessary:
- Installation of a septic tank or artesian well;
- Replacement of windows;
- Water heater costs;
- Roofing expenses.
This article also provides that spouses may obtain an indemnity equal to the increase in value for authorized expenses.
The time limit for claiming reimbursement or indemnity is three years following separation.
How we can help
However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:
Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:
- Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
- Assisting and advising you on your legal rights and obligations;
- Representing you before the courts when legal action is taken;
- Guiding you through the choices available to you, leading to a fair and satisfactory solution.
PSP Legal, because you deserve expert advice!
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