In the common law, co-ownership refers to that conglomerate of property rights in one asset, generally in real property, in which there are more owners such as tenants in common or joint tenants or statutory co-ownership regimes such as condominium title or strata title.
In the civil law of Québec, co-ownership (co-propriété) refers to the specific equivalent regime of shared interest but not only in real assets but also in chattels.
In the Québec civil law, co-ownership is a creature of statute (the 2009 Civil Code, §1010). In any given co-ownership situation, the rights and responsibilities of the co-owners must be set out in a formal co-ownership agreement; thus, a contractual relationship.
The main categories of co-ownership are divided and undivided. Divided co-ownership means that there are some parts of the whole that are reserved for the exclusive use of one or more of the co-owners. Undivided co-ownership means that there are no exclusive use or enjoyment rights by a co-owner in regards to the asset.
Not unlike the common law, co-ownership in the civil law refers to consolidated property rights of an asset, real property or a chattel, comprised of exclusive use and common parts, the former available for the use of the assigned co-owner(s) only, the latter available for the use of all co-owners.
Even in Québec, it is not uncommon to refer to co-ownership not by the term preferred by the drafters of the Civil Code (co-ownership), but, rather, as condominium property. For example, in Gadanyi, Judge Prévost of the Québec Provincial Court used these words:
"In accordance with the (relevant co-ownership sections of the Civil Code) a buyer of a condominium unit is subject to the co-ownership agreement."
The 2009 version of the Québec Civil Code sets out co-ownership as a special form of property rights, §1010, §1015 and §1016:
"Co-ownership is ownership of the same property, jointly and at the same time, by several persons each of whom is privately vested with a share of the right of ownership.
Co-ownership is called undivided where the right of ownership is not accompanied with a physical division of the property.
It is called divided where the right of ownership is apportioned among the co-owners in fractions, each comprising a physically divided private portion and a share of the common portions.
"Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it.
"Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners."
In Chanteclerc, Justice Trudeau wrote:
"The co-ownership agreement includes its essential components: it regulates the enjoyment of property rights of each individual in regards to their respective exclusive area and his (her) share ownership of the common areas."
Authors Beaudoin and Morin wrote (translation):
"(Co-ownership) generally aimed at real property divided into units, each being the subject of distinct property rights and each including a proportionate share of common parts as set out in the Civil Code. Thus, it is a mixture of individual property rights and shared property rights. The individual property rights are enjoyed as regards the exclusive units, often referred to as apartments. The shared property rights are enjoyed on common parts: pool, elevators, hallways ...."
- Beaudoin, P. and Morin, B., La Copropriété des Immeubles au Québec, 30 Revue du Barreau 4-41 (1970)
- Chanteclerc Developments v Lerner 1987 RJQ 551 (Québec)
- Dahl, H., Dahl's Law Dictionary - English/French (Paris: Éditions Dalloz, 2001).
- Duhaime, Lloyd, Civil Law Dictionary
- Gadanyi v Booth 1983 CP 151 (Québec)
- Kélada, H., Code Civil du Québec - Texte Annoté (Toronto: Thomson-Reuters, 2009)
- Lamontagne, D-C., Biens et Propriété (Cowansville: Éditions Yvon Blais, 2009), pages 229-297
- Reid, H., Dictionnaire de Droit Québecois et Canadien, 3e éd. (Montréal: Wilson et Lafleur, 2004), pages 143-144