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Vehicle parking within the immovable may be organized as a common portion for restricted use. Most often than not, declarations of co-ownership (constituting act of co-ownership) designate the legal status of exterior parking spaces as common portions for restricted use; this is also true for indoor parking spaces when the developer (declarant) decides that it is not necessary to create a specific lot number for each space and so, these are therefore an integral part of the lot constituting the common portions of the immovable.
Exclusive right of enjoyment
Some common portions within a co-ownership (condominium) are intended for restricted use meaning that one or several co-owners have an exclusive right of enjoyment. To benefit from the right of enjoyment, the co-owner must own a private portion; however, this does not imply to possess an absolute right of ownership. It should be noted that spaces designated as common portions for restricted use are common portions in their own right and remain the undivided property of all co-owners.[i]
Determination
In principle, with the exception of those reserved for visitors or for the use of all co-owners, the developer (declarant) grants to himself exclusive enjoyment rights to all parking spaces in the common portions; he retains this right as long as he does not assign it to a co-owner.
Allocation plan
Usually prepared by a land surveyor or an architect, the allocation plan’s purpose is to determine the parking spaces’ location and superficial area relative to other common portions as well as to identify them with a number. Filed in the register of the co-ownership or annexed to the declaration of co-ownership, this allocation plan is essential because it reduces the risks of litigation between co-owners such as disputes caused by bad markings or misunderstandings concerning the scope of the right of enjoyment to these spaces.
The exclusive use of a parking space is generally granted to a co-owner by the developer; he is the only one entitled to designate the location where a parking space will be allocated to his buyer at the occasion of the first sale following the construction of the immovable. The developer also prepares the list of concordance between the numbering and the allocation of such exclusive right of enjoyment; once all of the private portions owned by the developer have been sold, he loses his assignment rights.
Transfer conditions of these parking spaces
Although a co-owner is the only one allowed to use a given parking space to park his vehicle, he does not have an absolute right of ownership; therefore, the co-owner can't transfer it without including the private portion because it is part of the fraction of which he is the owner. In the event that the co-owner sells his fraction without specifying in the deed of sale that a parking space is included in the transaction, the buyer (purchaser) would still benefit from this right. However, if the exclusive rights of enjoyment regarding the parking space are not a component of the fraction but have been conferred personally to a co-owner, section 1047 of the Civil Code of Québec does not apply to them. The declaration of co-ownership can allow a co-owner to transfer his rights of enjoyment regarding a parking space in favor of another co-owner without him having to sell his fraction.
Particular common expenses
The Civil Code of Québec provides specific rules on the allocation of expenses attached to common portions for restricted use. Maintenance work and minor repairs are, more often than not, assumed by the co-owners benefiting from their use; as for major work and replacement costs of these common portions, they could also be assumed by them if the declaration of co-ownership specifies it but if this document does not contain any provisions regarding this question, all co-owners will have to bear such costs and so, proportionally to the relative value of their fraction.
Non-regulatory parking spaces
Some developers use the concept of common portions for restricted use for parking spaces that do not comply with municipal building or planning standards; they are often too small, too narrow or located in prohibited places. Municipal regulations generally state that a parking space must be of a minimum length of 5.5 meters; however, a developer may thus have an interest in not qualifying the parking spaces as private portions because the municipal authorities would be informed during the cadastral operations and they would refuse the subdivision of parking spaces that do not comply. However, whether he is a developer or not, a seller can't include in the deed of sale such parking space without the buyer having been informed and so, regardless of its qualification.
WHAT YOU SHOULD KNOW! It is generally mentioned in the declarations of co-ownership that no right of exclusive use of a common portion for restricted use conferred to a co-owner or his private portion may be withdrawn without his consent and so, as long as the latter remains co-owner.
WHAT TO KEEP IN MIND: Common portions for restricted use are defined in the declaration of co-ownership; although they are the property of all co-owners, they are intended for the exclusive use of a certain number of them and sometimes only one of them.
WARNING! Many co-owners incorrectly believe that they are the absolute owners of their parking space when it is designated as a common portion for restricted use; in fact, this can only be possible if this space has the legal status of a private portion.
[i] Bouchard c. Syndicat des copropriétaires de la Tour de l'Île, 2018 QCCS 2128
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