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Real Estate Law: Presumption of equal co-ownership between joint co-owners, whether or not they are spouses

Co-ownership by indivision

When you buy a property in undivided ownership (i.e. a house, a condo) and you do not stipulate in the notarized deed of purchase the proportion in which each of the parties is the owner, you are deemed to each own it for half, regardless of any down payment or financial contribution.

When conflicts arise in a couple, whether the couple is married or not, this is often the exact moment when one, if not both, of the individuals seek the services of a real estate lawyer.

 

The shares of the undivided co-owners are presumed to be equal

Indeed, according to the terms of article 1015 of the Civil Code “the shares of the undivided co-owners are presumed to be equal”. The case law – which is abundant in this area – shows that it is very difficult in practice to rebut this presumption.However, analysis does not stop there, and the courts regularly expand on the effects and consequences of the presumption of equality of undivided co-owners.

For example…

For example, it has been held that the fact that one of the parties pays for the purchase of a piece of land alone does not allow him, in the absence of an agreement to that effect, to claim more than half of the purchase price (Hubert v. Coburn 2009 QCCS 5028).

Furthermore, the amount you originally invested – if you do not mention any express stipulation in the deed of purchase – may be considered a gift for which you cannot claim reimbursement. In such cases, only the value of the property will be shared equally (W.F. v. Y.R. 2010 QCCS).

It should be noted that the equality of the parties’ shares does not always mean an equal sharing of the proceeds of the sale: the parties must first be reimbursed for their contribution to the administrative costs and other expenses they have incurred for the undivided property. If you have not provided for the distribution of current expenses, the co-owner who has not contributed will be required to pay his share, i.e. half of the expenses. A request to this effect may be made in court (Lemelin v. Allard, 2010).

The courts are clear and repeat themselves

Moreover, you may file an appeal for unjust enrichment: the courts are clear and repeat themselves: love is not a justification for enriching a patrimony at the expense of your own! (2020, QCCA 1587; 2021 QCCS 794).
The presumption of equality can always be overturned if evidence is provided of a contrary intention on the part of the parties, either by analyzing the acquisition documents, i.e. the notarized purchase contract, or simply by their conduct (Leblanc v. Leblanc 2013 QCCS 1718).
Finally, it should be noted that a protective order is the appropriate procedural vehicle to freeze the money until a judgment is rendered on the issue of unjust enrichment and partition. The sums can then be kept by the notary, in his trust account, in order to limit losses and preserve your rights (Canada Ltd. v. Godin 2020 QCCS 1778).

NOTE: This article does not constitute legal advice or opinion. It is used only to inform readers about certain aspects of real estate law.