The partition would be déclaratif and not attributif
Even the owners are part of an indivision and they can dispose of their share, their right to an object is precarious
I.e. their right of ownership is subject to that partition
Since all the undivided owners shared the same right, the nature and quality of their right is identical, even though their proportions may be different (the one that has 75% does not have a better right of ownership than another)
They must thus always act in unanimity, so the person with less proportions would still have the same right, which led to awkward situations
A consequence of this is that the fruits and revenue would automatically flow to the co-owners, which does not easily allow for the accumulation of revenue for reserves
Indivision was seen historically as a difficult situation
Would often lead to conflict and litigation
Against human nature and the public interest
There was then just one article that dealt with indivision
This article, a rule of public order, was in the section in successions
This article, however, was given a general application beyond indivision that arose though succession
Under the new code the process of partition was changed significantly
The old code had a concept called licitation (or forced sale)
It could result from an involuntary or forced
This could follow an action in partition in which the partners don’t agree on the value or the shares, or whether property should be sold or not
It could also follow the provisions of a forced sale under the code of civil procedure
When this action takes places the property is said to have been inherited directly by the person who obtain the property as if he had inherited from day one
This created a great deal of insecurity within the situations in which people did want to be in an indivision for specific reasons
For example a developer would team up with a lender or a tenant and formed an indivision, which was very efficient from a tax point of view, as each individual could retain specificity
This became a very popular and important way to do this, so indivision agreements had to be developed to deal with these situations
While it was not a partnership, it closely resembled one in law
There were many legal challenges though in general it worked out well
Practitioners were able to include a section in the book of property that would deal with indivision and would not be against public order
The section of co-ownership is in the book of property, designed to deal with this arrangement in a much broader and elaborate way that would not deal with succession exclusively
Arts. 1012 to 1037
This is an entirely new regime
There are still special rules under the book of succession that apply exclusively to indivision that arise from successions
The French Code, in 1976, has already been amended to deal with this kind of successions
Establishment of indivision
Indivision arises from a contract, succession or judgment or by operation of law.
Already introduces other forms in which indivision may arise
Art. 1013 allows for the postponement of partition
The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision.
Such an agreement may not exceed thirty years, but is renewable. An agreement exceeding thirty years is reduced to that term.
Co-owners may agree in writing to postpone partition for 30 years
Why 30 years?
It is the normal amortization period for mortgage financing
One aspect of licitation was that any financing of the property became due in full at this time
No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.
The dispositions that didn’t exists under the old code
Operation of law; if the liquidation has not been terminated
Appropriation for durable purpose
Indivision ends by the partition or alienation of the property.
In the case of partition, the provisions relating to the partition of successions apply, adapted as required.
However, the act of partition which terminates indivision, other than indivision by succession, is an act of attribution of the right of ownership.
The State or a municipality may, in the manner of the holder of a found thing, sell movable property in its hands by auction, without further delay than that required for publication, in the following cases:
(1) the owner of the property claims it but neglects or refuses to reimburse the holder for the cost of administration of the property within sixty days of claiming it;
(2) several persons claim the property as owner, but none of them establishes a clear title or takes legal action to establish it within the sixty days or more allotted to him;
(3) a movable deposited in the office of a court is not claimed by its owner within sixty days from notice given him to fetch it or, if it has not been possible to give him any notice, within six months from the final judgment or from the discontinuance of the proceedings.
On a motion by an undivided co-owner, the court, to avoid a loss, may postpone the partition of the whole or part of the property and continue the indivision for not over two years.
A decision under the first paragraph may be revised if the causes shown for continuing the indivision have ceased to exist or if the indivision has become intolerable or too high a risk for the undivided co-owners.
This was also very complicated under the previous law
It couldn’t have been predicted that indivision agreements would come into place and become popularized
The agreements were somehow based on the good will of the parties
But these agreement often were made by institutions in the financial sector which new each other
Indivision by agreement in respect of an immovable shall be published if it is to be set up against third persons. In particular, publication mentions the expected length of indivision, the identification of the shares of the co-owners and, where applicable, the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment of a portion of the undivided property.
Art. 1014 allows for publication
The indivision agreement will be opposable, but is everything in it opposable?
Since most issues in indivision are not real rights is opposability the case?
There are some restrictions: under art.1015, there is a presumption of equality
The court also seems to protect preemptive rights by publication
Presumably, this provision authorizes the publication of these agreements and all these rules will probably be enforceable and opposable to third parties
The list herein in not exhaustive
It is interesting that in this case a personal right is allowed to be published
There is also enough in Art.2938 which supports that these rights are publishable and thus binding to successive owners
This is sort of an open question, nonetheless, and there are no cases about this
The acquisition, creation, recognition, modification, transmission or extinction of an immovable real right requires publication.
Renunciation of a succession, legacy, community of property, partition of the value of acquests or of the family patrimony, and the judgment annulling renunciation, also require publication.
Other personal rights and movable real rights require publication to the extent prescribed or expressly authorized by law. Modification or extinction of a published right shall also be published.
The shares of undivided co-owners are presumed equal.
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.
The principle of equality is referred to often
Even if co-owners find themselves sharing the same right, each is considered to be considered an absolute owner
Even a person with 99% of the share she cannot force decisions on the other
The share will affect issues like how much of the income belongs to each owner, etc
A 99% owner of a building can sell his share of the building but cannot force the other owner to sell his 1%
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.
If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation.
The balance again between individual and collective rights
You can exercise your rights as long as it doesn’t affect others
The issues of destination is also important: what was the destination of the property?
The right of accession operates to the benefit of all the undivided co-owners proportionately to their shares in the indivision. Nevertheless, where a co-owner holds a right of exclusive use or enjoyment of a portion of the undivided property, he also has exclusive use or enjoyment of property joined or incorporated with that portion.
The first part seems obvious and self-evident
The second sentence makes reference to a provision that have been created to get around the moratorium of conversion
Some limitations on condominium were created, so indivision were used to get around this
This refers to situations in which people are in indivision but has agreed to have exclusive portions of the buildings
The fruits and revenues of the undivided property accrue to the indivision, where there is no provisional partition and where no other agreement exists with respect to their periodic distribution. They also accrue to the indivision if they are not claimed within three years from their due date.
Awkward writing in the first sentence, seems it portrays the idea that an indivision has a juridical personality, but this is not the case
What it means is that in principle the income will be capitalized and added to the value of the total asset if not distributed
Partition which takes place before the time fixed by the indivision agreement may not be set up against a creditor holding a hypothec on an undivided portion of the property unless he has consented to the partition or unless his debtor preserves a right of ownership over some part of the property.
First of all, partition makes the hypothec executable and the forced sale that will result will extinguish the hypothec
What this article is referring to is Art. 2679 (see article)
Usually following a partition, a hypothec is extinguished if the person who took the hypothec no longer holds rights over the asset
A premature partition, will not take away hypothecary interests (consent is needed)
A partition will not cancel the hypothec as stipulated in art.2679
A hypothec on an undivided share of a property subsists if the grantor or his successor preserves rights over some part of the property by partition or other act declaratory or act of attribution of ownership, subject to the Book on Successions.
If the grantor does not preserve any rights over the property, the hypothec nevertheless subsists and extends, according to its rank, to the price of transfer payable to the grantor, to the payment resulting from the exercise of a right of redemption or a first refusal agreement, or to the balance payable to the grantor.
If a person hypothecates his property, this hypothec will not survive partition, unless the person who has the hypothec still maintain an interest on the property following the partition
If following partition, you will no longer own any part of a property, it is not right for your hypothec to still remain with the property
This would make your other people liable for your hypothec
Any undivided co-owner, within sixty days of learning that a third person has, by onerous title, acquired the share of an undivided co-owner, may exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid. This right may be exercised only within one year from the acquisition of the share.
The right of redemption may not be exercised where the co-owners have stipulated pre-emptive rights in the indivision agreement and where such rights, if they are rights in an immovable, have been published.
In indivision, it is important to know the identity of your co-owners, their financial capacity, etc
So the law provides a right within 60 days of knowledge to exclude a person from an indivision
The second paragraph provides that if an indivision agreement was pre-emptive right, the indivision agreement will take precedence
STCUM Community v. Bandera investments
STM was a co-lender with National Bank and the bank decided to share its portion of the loan to this group called Bandera at a very low price
Bandera were “fund vultures” who buy loans at low prices to try and get money out of them
The bank wanted to exercise the pre-emptive right, claiming that by being in a syndicated loan, they were in indivision and Art. 1022 would apply
The judge came to the conclusion that not because the nature of the case, but the way the documents were drafted, the loan was not in indivision
Pension Fund for the Employees of STCUM Community v. Bandera investments  C.S. 1906
This case deals with syndicated loans (a number of lenders together lend a sum of money). The question that was asked was whether this could qualify as indivision or not. It was held that syndicated loans could be considered as indivision, however, in this particular case it could not.
A pension fund made a loan to a numbered company. The company was having problems and the loan was in difficulty. The lenders, were the pension funds and the other was the national bank. At this time the banks experienced financial difficulty and tried to get rid of their bad loans.
Guys from Texas came in with a Vulture Fund = bought loans in distress at a significant discount. The banks sold to these funds to get them off their books and write them off. This was fine except that the market was just about to change after the bank sold to Bandera.
This particular loan STCUM did not sell their share, only the bank sold it. The STCUM learnt that if they could have bought it at price that Bandera did they would have reduced their risk in the loan.
They looked to see if they were in indivision for co-owner, then 1022 would allow them to acquire from the 3rd party at the price paid could operate. The National Bank said indivision does not apply.
Godin was part of the case – The court recognized the possibility that indivision could exist in such a situation as co-lenders. BUT in analyzing this current loan they found that indivision did not exist in this scenario. They did not carry on as co-owners. The point was that the articles on indivision should not only relate to tangibles, but should also relate to joint lenders.
During the process of Appeal they settled out of court with Bandera.
Point – that can apply to intangibles as well.
All of this would have been impossible under the old code.
Also see Alexandre c. Dufour on WebCT
An undivided co-owner having caused his address to be registered at the registry office may, within sixty days of being notified of the intention of a creditor to sell the share of an undivided co-owner or to take it in payment of an obligation, be subrogated to the rights of the creditor by paying him the debt of the undivided co-owner, with costs.
An undivided co-owner not having caused his address to be registered has no right of redemption against a creditor or the successors of the creditor.
Notice of address is established in arts. 3022 and following
This mechanism is designed to have the registrar inform the creditors is anything is happening that could affect their right
A hypothecary creditor, for instance
In the case of Harel c. 2760-1699 Quebec Inc (CS)(one of the co-owners), the share of the other co-owner was ceased and sold by the sheriff
Wife and husband co-owners (indivisaires) of their house. Husband goes bankrupt and creditor seizes the right in the indivision of the husband.
The husband had never registered his address (see 1023 CCQ) and so wife could not repay the debt of her husband to acquire the share.
However, she decided to invoke art. 1023 but since she hadn’t registered her address it was argued that she had lost her rights
The judge decided that despite this article not being applicable, she had not lost her rights as per art. 1022
The court deemed that arts. 1022 and 1023 are not mutually exclusive
Cadieux c. Caron (CA) 2004
Couple lived together during that time one paid for the apartment (immeuble) in which they both lived while the other paid for the food and disposable items.
Issue: are they still owners in equal part of the building?
The claim for unjust enrichment that the appellant claims is rejected; “rejeté la demande reconventionnelle de l’appelant, fondée sur l’article 1493 CCQ (enrichissement injustifié) pour un partage inégal de la valeur de la même propriété”
Confirms: que les parties sont proprétaires à parts égales de l’immeuble
Both paid for things. Both profited from this.
“Bref, l’appelant investissait dans l’immobilier, alors que l’intimée payait les biens périssables”
Undivided co-owners of property administer it jointly.