Two or more individuals co-own property when they share a right of ownership in the property.

Ownership of a dwelling is undivided when it is impossible to physically divide the building among the various co-owners. Therefore, if you and your spouse purchase a home together, you are undivided co-owners.

Of course, your name must be on the deed of purchase in order to be a co-owner.

This Infosheet deals specifically with undivided co-ownership between de facto spouses. Family residences owned by married or civil union couples are governed by the rules on family patrimony and civil union or matrimonial regime. Consult the Infosheet entitled Family patrimony for more information on this topic.

You and your de facto spouse are co-owners of your home: you bought the residence together and both your names appear on the deed of purchase. If ownership is not specifically apportioned in the deed of purchase, the law provides that each co-owner owns an equal share. In other words, you own half of the residence and your spouse owns the other half.

It might happen that only one spouse pays the whole down-payment. If no proportion of ownership is stated in the deed of purchase, it will be very difficult for this spouse to later claim back half of the down-payment from the other spouse.

Here's an example: Diana and Sean bought a house together that they intend to use as their common residence. Since Diana has savings and earns a higher salary than Sean, the couple agrees that Diana will pay the deposit on the house. She will then pay for 60% of the household costs and expenses, while Sean will pay for 40%. But they don’t include this arrangement in the written deed of sale. As a result, Diana only owns 50% of the house even though she is contributing more than Sean. If they split up, Diana would have difficulty proving that their real intention was for her to own 60% of the residence.

It may happen that both spouses in co-ownership want to have exclusive use of the residence once they split up.

The courts are authorized by law to grant the use of a family residence to one of the spouses following the breakdown of a marriage or civil union. However, there is no similar provision for de facto spouses.

One solution adopted by the courts is to grant one de facto spouse exclusive use of the residence, provided that the other spouse is paid compensation. Another option is for the spouses to take turns exercising exclusive use.

The courts may also grant the couple’s children, and therefore the custodial parent, the exclusive use of the residence. This right to use is granted as part of the parents' obligation to support their children, and with a view to protecting the children's best interest.

No, you are not released from your contractual obligations just because you leave your residence. You will still be responsible for payments such as your share of the hypothec (mortgage) and taxes. You remain responsible for costs in proportion to your share in the residence until it is sold to your ex-spouse or a third party.

As mentioned above, if two spouses who share ownership cannot agree, one of them can make a motion for the partition of the residence. Under the law, “no one is bound to remain in indivision.” In other words, no one can be forced to continue co-owning property.

During the hearing, the court can render various orders aimed at protecting the rights of the co-owners and preventing a loss from occurring, where possible. For example, let's say that you and your ex-spouse co-own a duplex. If the part you normally rent out is vacant, the court might order that each of you occupy one of the dwellings until it can be sold. (Obviously, this is only if the proximity is tolerable for the both of you!)

The court may also order the forced sale of the residence, which can be carried out in one of three ways:

• by agreement;
  
• by public auction;
  
• by a call for tenders.

In each case, the proceeds from sale will be divided among the co-owners according to their respective share in the property. A certified copy of the deed of purchase establishing the co-owners' respective shares must be filed with the court. If the deed of purchase does not specifically indicate the apportionment of ownership, each spouse is presumed to own 50% of the residence.

In order to determine the sale price, the court must establish the residence’s market value based on the evidence submitted.

This evidence may consist of a certified copy of the real estate assessment roll of the municipality in which the residence is located: the amount at which it was evaluated is usually found on the municipal tax account.

If one of the spouses feels that this amount does not accurately reflect the market value of the building, he can hire a professional evaluator. The other spouse may wish to oppose this amount and obtain her own evaluation. For its part, the court is not bound to accept the amount indicated in either of the reports submitted by the specialists. If the gap between the two evaluations differs greatly, the court can appoint a third expert.

Once the market value of the residence is determined, one of the ex-spouses may offer to buy the other’s share, taking their respective shares into account.

It may happen that neither of the spouses is willing or able to buy the other’s share. In such a case, the spouse who presented the motion in partition may want to show that a buyer is prepared to pay market value for the residence, or that a real estate agent has agreed to handle the sale and that offers will be submitted shortly.

The court will appoint a notary to draw up the deed of sale and may authorize a third party to sign it on behalf of a spouse who refuses to do so. It will also order the notary to remit to each ex-spouse their respective share of the proceeds once all related costs have been paid, such as property-related debts (i.e. the balance on the mortgage) and the sale costs (i.e. commission for the real estate agent).

The court will only order a sale by public auction when a private sale proves impossible. The court appoints a bailiff to conduct the auction according to the rules set by law.

This type of sale is considered a last resort because it usually means a much lower selling price than a private sale.

A call for tenders is mostly used for commercial or industrial buildings. For residential buildings, it is preferable to sell privately or by auction.

A co-owner who wants to sell his residence this way must ask the court to set the conditions of sale and suggest the name of a real estate agent who will find potential buyers. The potential buyers must in turn submit a proposal to purchase in compliance with the terms set by the court.

Besides stating you and your spouse’s respective shares in the deed of purchase, you may also wish to draw up a cohabitation contract. For more information, you can consult the Infosheet entitled Cohabitation contracts (common-law contracts).

A cohabitation contract allows you to set out your respective rights and obligations regarding the property: who pays what, who is in charge of maintenance, how to calculate the expenses according to share, etc. You may also want to indicate what would happen to the residence in the event of a breakup. For example, one of you could have priority in buying the other party’s share at market value, to be determined by an evaluator that you choose together.

A well-drafted cohabitation contract will save you many headaches and disagreements. It can also prove very useful if you nonetheless find yourself in court.

Sometimes when a couple breaks up, one spouse may try to prevent the residence from being sold, even if he refuses to buy the other spouse’s share.

If your ex-spouse adopts this attitude, you can ask the court to intervene by way of an application for partition. During this proceeding, you can also ask the court to:

• grant you exclusive use of the property throughout the duration of the proceedings;
  
• determine the compensation your ex-spouse must pay if he obtains exclusive use of the residence;
  
• determine each spouse’s obligations regarding the maintenance and upkeep of the residence until it is sold;
  
• order your ex-spouse to allow a real estate agent to have potential buyers visit the residence;
  
• order your ex-spouse, if living there, to keep the residence in good condition to facilitate its sale;
  
• order the sale of the residence and the sale proceeds to be divided.

This recourse should only be pursued if you and your ex-spouse cannot come to an arrangement. It’s always better if one co-owner buys the other’s share or if both co-owners can agree to sell it to a third party. If the spouses are able to agree, they will usually get a better sale price and avoid costly fees.