Converting a Common Portion into a Private Portion in Quebec

Converting a common portion into a private portion raises significant legal, technical and financial issues in a divided co-ownership. Before presenting a project to the board of directors or annual general meeting, you must understand what the declaration of co-ownership provides, which approvals are required and the impacts on relative values and common expenses. This article guides you step by step in planning a process that complies with the Civil Code of Quebec and avoiding common pitfalls.

Common portions, private portions and restricted use: understanding the distinction

In a divided co-ownership, the declaration of co-ownership divides the building into common portions and private portions (see arts. 1038 et seq. C.C.Q.). Corridors, the building envelope and the structure are generally common portions. Your unit (the interior rooms) is a private portion. Certain areas, such as a balcony or terrace, may also be classified as common portions for restricted use, assigned to one or several co-owners.

Before “converting” a common portion into a private portion, check whether a simpler solution would meet the objective:

• Common portion for restricted use: grants an exclusive right of use without transferring private ownership. The required majority is often lower.
• Exchange of private portions between co-owners: may sometimes be possible if the declaration of co-ownership permits it and no common portion is alienated.

The exact classification in the declaration of co-ownership is decisive. Read the constituting act, the descriptive statement of fractions and the by-laws of the immovable to determine what the common portions and rights of use cover.

Legal framework and approval thresholds

Converting a common portion into a private portion usually involves:

• Amending the declaration of co-ownership (the constituting act and/or the descriptive statement of fractions) to reflect the new allocation of rights.
• A decision by the co-owners requiring a qualified majority, depending on the nature of the change and its effects (the destination of the immovable, co-owners’ rights or the alienation of a common portion), as provided for in arts. 1096 to 1099 C.C.Q.
• Updating the relative values and, consequently, the allocation of common expenses and contributions to the contingency fund.

Voting thresholds vary depending on the scope of the change. For example, an amendment affecting the destination of the immovable or impairing the essential rights of co-owners requires a higher majority than the adoption of a simple internal by-law (see arts. 1097–1098 C.C.Q.). When the conversion amounts to alienating a common portion, unanimity may be required. If in doubt, have the project reviewed by a notary or lawyer.

To consult the legal framework:

• Civil Code of Quebec – provisions on divided co-ownership (C.C.Q.): https://www.legisquebec.gouv.qc.ca/fr/document/cs/CCQ-1991
• RGCQ resources on governance and the declaration of co-ownership: https://rgcq.org/

Step-by-step process for the board and syndicate

Here is a practical sequence for managing a compliant project and avoiding costly back-and-forth.

1) Preliminary checks

• Document review: declaration of co-ownership, building plans, maintenance logbooks/EUC, warranties and insurance policy. Confirm the current classification (ordinary common portion or common portion for restricted use) and the applicable restrictions.
• Technical study: if the conversion affects the structure, fire separation, waterproofing, accessibility or ventilation, obtain an opinion from an engineer or architect. Critical common portions must remain safe and compliant.
• Administrative scenarios: restricted use versus private portion, impacts on relative values and the allocation of common expenses/condo fees, access for future maintenance and responsibilities.

For subsequent work, check the contractors’ licences and the regulatory requirements for compliance:

RBQ – General information on licences and compliance: rbq.gouv.qc.ca

2) Prepare the resolution and call the meeting

• Draft a clear resolution, with plans, a technical description, reasons, financial impacts and a summary of the amendments to the declaration of co-ownership. Specify precisely the voting threshold required under the relevant articles (see arts. 1096–1099 C.C.Q.).
• Call a special meeting (or add the item to the annual general meeting agenda) in accordance with the declaration of co-ownership. Comply with the deadlines and mandatory documents to be sent to co-owners.
• During the meeting, provide a transparent presentation, record all questions and decisions in the minutes, and have the attendance sheet signed to establish quorum and the validity of the vote.

Need help organizing your meetings, agendas and minutes? See our administrative management service.

3) Notarial deed and publication

• If adopted, a notary prepares the amending deed to the declaration of co-ownership (and, if applicable, the adjustments to the descriptive statement of fractions). Technical documents may be required.
• The deed is published in the land register. Once published, the amendment becomes opposable to third parties. The co-ownership register maintained by the syndicate must be updated.
• Adjust the syndicate’s certificates issued when a fraction is sold to reflect the new obligations and relative values.

To better understand the implications during a transaction, consult the OACIQ: oaciq.com.

4) Work, insurance and follow-up

• Obtain municipal permits where necessary. Hire contractors holding the appropriate licences and sufficient insurance.
• Coordinate access to common portions, safety measures and schedules. Keep a site log and update the maintenance logbook.
• Inform the syndicate’s insurer and, where applicable, adapt the coverage and deductibles. Document the acceptances and warranties.

For on-site operations (calls for tenders, work monitoring and inspections), see our operations management.

Financial and administrative impacts to anticipate

Converting a common portion into a private portion often changes the relative value of the fractions. This may lead to:

• A recalculation of the relative values and, therefore, contributions toward common expenses and the contingency fund.
• Budget adjustments (future maintenance, repairs and responsibilities) and updated financial statements.
• Possibly, a transfer price if the syndicate “sells” a common portion to the co-owner concerned. Also assess professional fees (notary, engineering, publication, land surveyor and so on).

Depending on the circumstances, tax issues may arise (sales taxes and taxable income). Refer to Revenu Quebec for the applicable rules: revenuquebec.ca.

To budget properly, plan contributions and prepare reliable financial statements, explore our financial management services and the blog advice.

For more information:

• C.C.Q. provisions on meetings, resolutions and majorities: LégisQuébec
• Co-ownership governance and best practices: RGCQ

Common mistakes and best practices

• Overlooking the “common portion for restricted use” option when it would meet the need with a potentially less demanding voting threshold.
• Underestimating the effects on relative values, creating inequitable contributions and disputes.
• Failing to complete the notarial deed and publication: without publication, the amendment is not opposable to third parties.
• Ignoring technical issues (structure, fire separation and waterproofing) and subsequently facing costly non-compliance issues.
• Communicating too late. Inform co-owners early, share the documents and record everything in the minutes.

FAQ – Conversion of a Common Portion

Can a balcony be converted into a private portion?

A balcony is often a common portion for restricted use. Converting it into a private portion requires an amendment to the declaration of co-ownership and a qualified-majority vote. Depending on the impact on the rights of other co-owners or the destination of the immovable, higher thresholds may apply (see arts. 1097–1098 C.C.Q.). An engineer’s opinion is recommended for the building envelope and structure.

Who pays the costs of the conversion?

When a project primarily benefits one co-owner, that co-owner often assumes the fees (plans, notary and publication) and sometimes a transfer price. However, the syndicate must approve the arrangements in the resolution and ensure that future common expenses are equitable. Obtain advice to ensure these elements are properly reflected in the declaration of co-ownership and the budget.

What is the notary’s role in the process?

The notary confirms the applicable voting threshold, prepares the amending deed to the declaration of co-ownership, coordinates the signing and then publishes the deed in the land register. The notary also verifies the required technical documents and may propose wording that limits the risk of subsequent litigation.

This article provides general information and does not constitute legal advice. Consult a lawyer or notary regarding your situation.

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