Divided Co-Ownership Servitude in Quebec: A Guide

A properly drafted and published servitude protects essential access, utility networks and uses in a divided co-ownership. In Quebec, these real rights must be established carefully and then published in the land register to be opposable to third parties. This article explains, step by step, how to create, modify and publish a servitude in a condo context, from the draft deed to the meeting resolution.

Updated as of 2026-06-15.

Understanding servitudes in divided co-ownership

A servitude is a real right encumbering an immovable (the servient land) for the benefit of another immovable (the dominant land). It may confer, for example, a right of way or the right to install utility lines. In divided co-ownership, the servient or dominant land may be a common portion, a private portion (a lot) or a neighbouring building. The Civil Code of Quebec governs the creation, exercise and extinction of servitudes (see sections 1177 to 1184 C.C.Q.; publication of rights, see section 2941 and following of the C.C.Q.).

Two key points to remember:

• The servitude follows the immovable, not the person. It binds subsequent co-owners as long as it is published.
• To be opposable to third parties, it must be published in the land register under the land register index of the affected lots (servient land and, as applicable, dominant land).

The declaration of co-ownership (DCV) may provide for or mention servitudes; when it creates or modifies a real right, it is received before a notary and published. The by-laws of the immovable, on the other hand, are not sufficient to create a servitude opposable to third parties: they govern use but do not produce a real effect in the land register.

When should a servitude be created? Common condo examples

Several situations may justify a servitude in a divided co-ownership:

• A pedestrian right of way over a common portion to serve a neighbouring building or a landlocked lot.
• A public utility servitude (electricity, telecommunications or gas) for the installation and maintenance of equipment on the building’s property.
• A drainage or sewer servitude for the flow of water, including access for maintenance.
• Access to the roof through the neighbouring property to maintain mechanical equipment or the building envelope.
• Internal servitudes between fractions (e.g., utility lines running through a private portion for the benefit of another).

Before moving forward, confirm the destination of the immovable and the restrictions set out in the DCV. A servitude that conflicts with the destination (e.g., commercial use in a strictly residential building) could require a higher majority or even be inadmissible without a prior amendment to the declaration.

For an overview of the legal implications, see LégisQuébec on servitudes and the publication of rights (C.C.Q., sections 1177-1184; 2941 and following).

Who decides? The role of the board of directors, the annual general meeting and the required majorities

The board of directors prepares the file: reviewing the DCV, consulting a notary and, if necessary, a land surveyor, then making a recommendation to the meeting.

• If the servitude encumbers a common portion or grants its use, authorization from the meeting of co-owners is generally required. The Civil Code sets voting thresholds based on the nature of the decision and its effects (see sections 1097 and 1098 C.C.Q.). For example, a decision that substantially restricts rights to use common portions or changes the destination may require unanimity; other significant decisions require qualified majorities.
• If a private portion is directly encumbered (e.g., utility lines running through a condo), the consent of the co-owner concerned is required. The hypothecary creditors of the fraction may also have to consent.

Record the decision in the minutes of the meeting and attach the resolution detailing the authorization given to a director or professional to sign the deed. For organizing notices of meeting, agendas and minutes, see our administrative management services.

Steps for creating and publishing a servitude in the land register

Here is a proven process for securing your file and limiting back-and-forth with the land register:

1. Document review

   • Review the declaration of co-ownership and the by-laws of the immovable to confirm compliance with the destination and majority requirements.
   • Identify the cadastral lots concerned (common and/or private portions) and existing charges.

2. Technical survey

   • If necessary, retain a land surveyor to prepare a location sketch or a clear technical description of the servitude area.
   • Determine access for maintenance and the scope of permitted work.

3. Draft notarial deed

   • Describe the servient and dominant land precisely (lot numbers, measurements and reference points).
   • Set out the purpose of the servitude, how it may be exercised, the hours, limitations, and the allocation of maintenance and restoration costs.
   • Where applicable, provide for compensation, insurance obligations and advance notice before work is carried out.

4. Meeting authorization

   • Have the resolution adopted by the required majority (see C.C.Q., sections 1097-1098). Document the quorum, voting result and any conditions.

5. Signing authority

   • The deed is received before a notary. The syndicate’s signatory is the person authorized by the resolution (e.g., the board president).
   • Obtain the consent of affected co-owners and hypothecary creditors, where applicable.

6. Publication in the land register

   • The notary submits the deed for publication of rights under the land register index of all lots subject to and benefiting from the servitude, as applicable. Without publication, the servitude is not opposable to third parties (see section 2941 C.C.Q.).
   • Verify the presentation status and retain the registration references.

7. Internal updates

   • File a copy of the deed and registration in the syndicate’s records (documents accessible to co-owners).
   • Revise maintenance procedures, notify the condominium manager and insurer, and adjust common expenses if the servitude results in recurring costs.

For a better understanding of the legal foundations, consult the Civil Code of Quebec (C.C.Q.) – Servitudes and the section on the publication of rights.

Modifying, relocating or extinguishing a servitude

• Modification or relocation: a servitude may be adjusted if its original exercise becomes more onerous for the servient land, provided that the use of the dominant land is not adversely affected; this requires a new deed and publication (see the principles in sections 1181 and following of the C.C.Q.). In a co-ownership, a meeting resolution based on the same majorities as those required for creation is usually required.
• Extinction: a servitude may be extinguished by consent of the holders, when the lands come into the same ownership (merger), when its usefulness disappears or through non-use for 10 years (see section 1184 C.C.Q.). Contractual extinction is carried out by notarial deed and must also be published.
• Public utility servitudes: when a public body is the holder (e.g., an electricity provider), its internal procedures apply; contact the organization for any relocation or modification.

For both a modification and an extinction, always review the DCV and the required consents, and publish the deed so it is opposable to third parties.

Common mistakes to avoid

• Failing to publish the deed in the land register: the servitude is then not opposable to third parties.
• Unclear drafting: a poorly described servitude area can lead to disputes. Specify the route, width, access, maintenance and responsibility.
• Overlooking consents: co-owners, hypothecary creditors or public authorities may have to sign.
• Ignoring the destination of the immovable and legal majorities: an insufficient resolution may be challenged.
• Neglecting management and insurance: plan for access, work supervision and adjustments to common expenses.

For practical guidance for co-ownerships, see the RGCQ and, for real estate transactions, the OACIQ – Servitudes.

Documentation and management best practices

• Keep the deed and registration references in the syndicate’s records; make them available on the extranet or at annual general meetings.
• Add a reminder to the maintenance logbook/EUC for any inspection or periodic access related to the servitude.
• Review affected maintenance contracts (e.g., snow removal for an encumbered passage) and adjust the budget accordingly. Need assistance? See our financial management services.
• Train the board of directors on the difference between internal use rules and real servitudes, and when to consult a notary.

Also see our blog for other legal and operational issues affecting co-ownerships in Montreal.

Quick FAQ

• Does periodic access permission amount to a servitude? No. Personal permission is not a real right and is not opposable to third parties; a servitude is once it has been published.
• Must a servitude between two fractions in the same building be published? Yes. Even when internal, it remains a real right over separate lots; publication is required for it to be opposable.
• Who pays for maintenance related to the servitude? Unless the deed provides otherwise, maintenance generally falls to the beneficiary of the servitude; state this clearly in the deed to avoid ambiguity.

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

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