DESTINATION OF THE BUILDING
The destination of the building is an important concept as it constitutes a major restriction on co-owner’s proprietary interests, at the same time as ensuring their protection.[57] The destination focuses on the quality and character of a building by giving it a “personality”[58] based on objective, subjective and collective elements.[59] Therefore, the destination of the building is the sum of many factors which contributes to its own definition.
A) Objective elements: Geographic location, environment, material used, layout, degree of luxury;
B) Subjective elements: Considerations which motivates a buyer to purchase, conditions to which a buyer who became a co-owner purchased his/her fraction of the building; and
C) Collective elements: General interests of all co-owners, and whether their interest in the building are represented and preserved.
The function of the destination of the building is twofold:[60]
- The declaration of co-ownership cannot restrain individual rights over private portions unless justified by the destination of the building.[61]
- Each co-owner must exercise their right of enjoyment without infringing other’s right of enjoyment, or the destination of the building.[62]
Consequently, the destination of the building is a reference point to which co-owners are not entitled to displace, unless in accordance with the amendment mechanism provided by law under Art. 1098 C.C.Q.
The destination of the building is a relevant concept when dealing with:[63]
-Animals;
-Leasing of units (leasing, Airbnb);
-Activity within a private unit;
–Parking; and
-Other privative layouts and arrangements.
Whenever exercising one’s rights, or seeking to modify the declaration of co-ownership, it is crucial to determine whether such an exercise of a right would impact the destination of the building.
[57] Christine Gagnon, La Copropriété Divise (Montréal: Edition Yvon Blais, 2015) at p. 112.
[58] Ibid at p. 113.
[59] Wilson v. Syndicat des copropriétaires du Condominium Le Champlain 1996 QCCS 4562.
[60] Christine Gagnon, La Copropriété Divise (Montréal: Edition Yvon Blais, 2015) at p. 113.
[61] C.C.Q. Art. 1056.
[62] C.C.Q. Art. 1063.
[63]Christine Gagnon, La Copropriété Divise (Montréal: Edition Yvon Blais, 2015) at p. 120.
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