Me Alicia D'Alessandro
Alicia D’Alessandro focuses her practice on family law, particularly child custody, divorce, support and filiation. Thorough and caring, she supports her clients with a human, structured approach tailored to their circumstances.
View profileBook an appointmentCo-ownership can be like a marriage: it often starts with great plans, but can sometimes take an unexpected turn when there is disagreement. Separation, refusal to pay expenses, blocking the sale of the home… conflicts between former spouses can quickly become a real headache.
Do you co-own a property with another person and have questions about your rights and obligations? Are you in a dispute and looking for a solution? This article is here to help!
“I’m moving out, so I’m not paying anymore!”
After a breakup, it is common for one of the former spouses to quickly move out of the home they co-own with their former spouse.
Contrary to what you might think, moving out of the home does not give you the right to stop paying for it! It is important to understand that anyone who owns property remains its owner for as long as there is no change in ownership (sale, gift, etc.).
So even if a former spouse no longer lives in the home, they are still a co-owner and, as such, remain bound by the obligations that come with it. The co-owner must therefore keep paying the costs of the home (mortgage, home insurance, taxes, etc.), keep maintaining it, and so on.
However, the co-owners may agree that only one of them will pay all the costs.
Caution! Even if there is a verbal or written agreement about the costs, you are still a co-owner of the property, as mentioned above.
My spouse has stopped paying their share: what can I do?
Co-owning a home comes with various obligations, including paying the costs and charges related to it. Despite a separation or a conflict, former spouses must continue to share and pay the expenses related to the home (mortgage, school and municipal taxes, home insurance, etc.).
If one of the co-owners refuses to pay their share of the expenses, the other can pay all the expenses in their place and ask to be reimbursed. However, if the other co-owner has limited means or is insolvent, the co-owner may not get the reimbursement they were hoping for. You should therefore be careful when it comes to paying the other person’s share of the mortgage or municipal taxes. Reimbursement cannot be guaranteed!
One possible solution is to send your former spouse a formal notice (demand letter) to pay their share of the costs of the home. To do this, a formal notice can be drafted and sent to them. A formal notice is often used as a last attempt to resolve a dispute before going to court.
Do not hesitate to contact our lawyers to have a formal notice drafted that is tailored to your situation. A formal notice drafted and signed by a lawyer is often taken more seriously than a letter you write yourself.
If you cannot reach an agreement with your former spouse, you can seek reimbursement through legal proceedings. At the end of these proceedings, a judge could order them to repay the amounts they owe you.
We invite you to contact one of our lawyers in Québec City or Lévis to get a legal opinion on the right solution for your situation.
When neither of you can keep the home
Sometimes, neither co-owner would be able to pay the costs of the property alone if they were to buy out the other’s share of the home.
In this case, they have no choice but to put the home up for sale. Until the home is sold, they remain bound by the obligations that come with ownership. This means that the co-owners must, among other things, continue to pay the expenses of the home until the sale is finalized.
I want to sell the home, but my former spouse refuses. What can I do?
Before putting the home up for sale or buying out your former spouse’s share, it is a good idea to check the deed of sale of the property. The deed of sale sometimes contains various provisions that the co-owners must comply with.
Many deeds of sale contain a section called “Agreement of indivision” (undivided co-ownership agreement). An agreement of indivision is, in a way, a second contract within the contract of sale.
An agreement of indivision usually contains a right of first refusal (right of pre-emption). This right requires a co-owner who wants to sell the property to first offer their half to the other co-owner. So you cannot simply put up a “FOR SALE” sign in front of a home you co-own with another person.
Among other things, the agreement of indivision may set out legal and financial consequences if the co-owners do not comply with it. For example, it may provide for the payment of a sum of money if the agreement of indivision is not respected. It may also set out certain steps to take before starting legal proceedings (for example, sending a letter by registered mail giving the other co-owner the opportunity to buy the property).
The right to force partition. No one is bound to remain in indivision.
As a co-owner of the home, each person has the right to put the home up for sale and, in doing so, leave indivision .
This is the right to force the “partition” of a property. It is a fundamental principle of property law. This right means that no co-owner can be forced to remain in a co-ownership situation indefinitely. If a co-owner wants to end the indivision, they can apply for partition of the property, even if the other co-owners object.
When we talk about “applying for partition of the property,” this means selling the property or buying out part of it.
If partition of the property is requested from the other co-owner and they refuse, you can go to court. An originating application for partition of co-owned property or an application to end indivision can be filed with the court. Our lawyers can advise you and draft these legal proceedings for you. If you are currently in a dispute with your former spouse over real estate you own together, do not hesitate to contact them.
Until the property is sold, only one of the two co-owners lives there… can there be compensation?
Under the Civil Code of Québec, if a co-owner leaves the property and cannot enjoy their right of ownership, the person who stays in the home may be required to pay them rental compensation.
The compensation is calculated based on the rental value of the share of the property that the absent co-owner is deprived of. It is meant to compensate the person who left for the loss of enjoyment of their property, while recognizing the occupying co-owner’s right to stay in the home.
For example, you could compare the rents of similar apartments with the share of the property the co-owner is deprived of. This helps establish an appropriate rental value.
Caution! The courts sometimes find that a co-owner is not entitled to rental compensation if they have not continued to pay the costs and charges related to the co-owned property after leaving it.
Lost profits because the property was put up for sale late: can there be compensation?
To obtain compensation, you must prove:
- A fault
- An injury
- A causal link between the fault and the injury
It could therefore be difficult to obtain compensation simply because the property was put on the market late. However, it could be easier if you were in discussions with a potential buyer who could not buy the property because one of the co-owners refused.
Every situation is unique and must be analyzed individually. It can be difficult to prove the alleged fault and/or injury in court. That is why our lawyers can equip you and give you legal advice suited to your personal situation.
Contact our family lawyers
In conclusion, co-ownership situations can quickly become complicated, especially in cases of disagreement, separation or divorce. It is essential to know your rights and obligations to avoid costly conflicts between co-owners and financial losses.
Do not hesitate to contact our family lawyers to get legal services tailored to your situation. In particular, our lawyers can:
- Analyze your situation and your agreement of indivision;
- Give a legal opinion on your rights and obligations as a co-owner;
- Draft a formal notice, if your former spouse fails to meet their obligations regarding the property or if you disagree about selling the property;
- Draft your originating application, to claim, among other things:
- Partition of the property (either through its sale to a third party or through a buyout by one of the former spouses);
- Reimbursement of your former spouse’s share of the property costs;
- Rental compensation for your former spouse’s exclusive use of the property;
- If you instead need to contest an application filed by a co-owner, draft your defence;
- Develop a strategy and prepare your arguments for a meeting or a trial;
- Prepare your evidence for a court hearing;
- By selecting the documents and other evidence needed to convince the court of your position;
- Represent you in court in a dispute;
- Negotiate an amicable agreement to resolve the dispute.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
