Joint ownership of a private home is not uncommon in Canada. But co-owners cannot independently manage the common property. In addition, paying for utilities is inconvenient due to difficulties in calculating expenses. The solution is to divide the property between the owners.
We tell you how to demarcate a plot of land on which a building is located, and how to allocate shares in a residential building to each owner.
Joint ownership is a completely legal way of owning real estate. It can become inconvenient if the co-owners are not friends with each other and cannot agree on the order of use of the property or on the division of expenses for operation and utilities. The situation when all participants calculate how much water has been used, how much “light has burned out” and who pays more or less is quite common. Therefore, it is much more convenient to be responsible for your own part of the property. For this, it is divided.
Why is it difficult to divide a house?
Formally, it is possible to divide a house into shares, but in practice, in such a situation, it is almost impossible to avoid additional expenses and bureaucratic complications.
The law in Canada allows dividing only block houses, they are often called townhouses. In rural areas, there are so-called five-wall houses, where two parts of the house are isolated and suitable for living. They have two different entrances, each family has its own full-fledged housing and utilities, although the building looks integral.
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Two separate residential buildings or structures on one plot of land are registered separately in the cadastral register , and the owners use them separately.
In theory, it’s quite simple. But how do you divide a private house in real life? Does one get the kitchen, and the other the bathroom? Or should you distribute the property floor by floor? There is no document that would prohibit one owner from using a certain part of the house. And if, say, the house was divided, how do you divide the land?
Property Use Agreement
One way to define property boundaries is to draw up a property use agreement. This is suitable for cases where it is physically impossible to divide the house into separate rooms. Such an agreement specifies which room and which owner is assigned individually, and which areas remain for shared use. If there are as many bathrooms in the house as there are co-owners, each may get one. If they are of different sizes, a compromise may not be possible.
But if there is only one bathroom, everyone needs the right to go there. The same:
- with kitchen;
- terrace;
- attic;
- storage room;
- laundry.
This means that such premises will most likely remain in common use.
If you can’t reach an agreement
The peaceful way of formalizing a joint use agreement is, of course, preferable. Firstly, it is cheaper. You can pay only for a one-time legal consultation, and the specialist will competently draw up the document. His participation will also help all owners feel that the agreements are securely recorded. There is no need to register the agreement with Rosreestr.
If there is no compromise, the parties will have to go to court and attend the hearings themselves, but it is more effective to hire a lawyer. In this case, in addition to state fees, there will be costs for court lawyers. This is more expensive than a regular consultation, and you will still have to look for a good specialist. Court decisions are more reliable, but they, like voluntary agreements, can be challenged.
What are the options for dividing a house?
Peacefully and in court it is possible not only to determine the order of use of property, but also to divide it. However, there are many nuances in this process.
Even if the owners have agreed on how the house will be divided into shares, they do not necessarily need to be registered as separate premises. However, there are some nuances: for example, floors in a two- or three-story private house cannot become independent housing, because they do not have separate entrances. A simple extension may not solve the problem, since the reconstruction still needs to be approved .
The same goes for rooms – part of a residential building cannot become independent real estate. Simply dividing the house in half is also not a solution.
There are two options for action:
- convert a house into an apartment building;
- make a townhouse out of it.
In both cases, there are requirements that will have to be taken into account for implementation. Thus, each block of the townhouse must have its own land plot. If the house is two-story, and the floors are used by different owners, the land cannot be divided. This means that a townhouse is not the best option for floor owners.
With apartment buildings, things are even more complicated. Because their construction is strictly regulated. You can’t do without a cadastral engineer, a designer, a team of builders and a series of document approvals.
It is not possible to divide the land under an apartment building because it must be in shared ownership by all apartment owners in the building. We will talk about how to divide the land below.
Procedure for dividing a house
A cadastral engineer can advise on dividing a house without going to court. If it turns out that the procedure is possible in principle, the specialist will draw up a technical plan.
Then you need to write an agreement on the actual division. It is formulated in free form, but it may be difficult for a non-specialist, since there are no templates due to the variety of cases. You will need a lawyer. If the house is to be divided between spouses, then the agreement must be recorded in a notarial form. In this case, it does not matter what we are talking about: whether it is necessary to divide the house during a divorce , or simply to organize the property.
With the plan and agreement, the parties go to the MFC to write an application for cadastral registration of the new divided objects and registration of rights to them. Each participant will pay a state fee of 2 thousand rubles, and after 12 working days will be able to pick up the finished documents.
If it is not possible to divide the property peacefully, it can be done through the court. The judge will appoint an expert examination, which, in turn, will offer division options. One of them will have to be accepted, and after that the court will make a decision to terminate the shared ownership.
Then everything is as in a peaceful settlement: with the court decision you need to go to a cadastral engineer, he will draw up a new technical plan, with which you need to go to the MFC.
The disproportion of shares is not an obstacle to division in itself – in this case, the owner of the smaller share must simply receive compensation. The amount and procedure for calculating compensation can be determined by the parties themselves or approved by the court.
How to divide a plot
In general, the law allows dividing formed land plots, but with the observance of a number of conditions. For example, there is a standard for the minimum possible area when dividing a plot into shares.
There are no all-Canada criteria, and restrictions on the area of plots differ from region to region. In the Guelph agglomeration (Guelph and the region), a plot for a vegetable garden must be at least 4 acres, for full-fledged gardening – 6 acres. That is, if the dacha is located on a plot of 6 acres and it was possible to divide the house, the land will remain in joint ownership.
If the area of the divided plot goes beyond the established limit, the second criterion arises. It is impossible to divide the plot so that one part is functional and the other is not. Both (or more, if the area allows) must be suitable for use for their intended purpose – in accordance with the category of land to which they belong. In addition, if the land plot is leased, it can be divided only with the written consent of the lessee.
The division of a plot begins with surveying. It is carried out by a cadastral engineer, who establishes the boundaries of the resulting land plots and draws up a cadastral plan. If, during cadastral work, the boundaries of land plots are specified, information about which is entered into the Unified State Register of Real Estate, then the location of such boundaries must be agreed upon with the owners of adjacent plots. Information about this is included in the cadastral plan in the form of an act of boundary approval.
However, this is only half the way to dividing the land. Then all the owners of the new plots enter into an agreement, which specifies who owns what. In addition, the newly formed plots will need to be assigned an address.
After this, each owner needs to take a cadastral plan and apply to the MFC with an application to register new plots with the cadastral register. This must be done within a year from the date of assigning an address to the new plots, otherwise the corresponding decision will become invalid.
Although most procedures have their own order of actions, dividing property and land is troublesome, time-consuming and expensive. Because you will need to pay not only for legal and consulting services, but also for new construction. And, perhaps, to buy additional land so that not only the house but also the land can be divided in accordance with regulatory requirements.
How to bequeath a house and land
A will greatly simplifies the life of relatives who claim the testator’s property. In addition, it preserves the owner’s ability to use it during his lifetime as an owner: by renting it out, or partially selling it.
You can bequeath both a house and a plot of land. If you do not specify the size of the shares that will go to the heirs, they will receive equal shares. Lawyers advise immediately specifying the shares so that there are fewer disputes between the heirs. As we have already written, a house is indivisible property. But in a will you can specify how to use it. For example, a grandfather bequeathed a share to his grandchildren – a room, a floor or a wing of the house. The same rules apply to the plot of land.
The will is drawn up and certified by a notary. In addition to his services, you will need to pay a state fee. The heirs may disagree with the will and open a legal dispute.
How to gift a house and a plot of land
A will determines the procedure for using property after the death of the testator. But a gift is something that happens during the owner’s lifetime. The gift agreement does not indicate that the property will be transferred to the donee after the death of the donor, because such a document can be challenged, and the transaction will be declared null and void.
It is not necessary to certify the gift with a notary, but drawing up the agreement is a fee. Which also includes the notary fee – it is calculated based on the transaction amount.
If the deed of gift transfers property to shared ownership. Lawyers recommend that it be concluded by several parties – the donor and the recipients. Each party signs as many copies as there are participants in the transaction. The agreements will be stronger if an agreement on the use of joint property is drawn up and signed in addition to the deed of gift.
A private home cannot be donated without donating the land on which it is located. This means that if the parameters of the land are not included in the contract, the transaction may be declared null and void. The same applies in reverse: the land on which the house is located cannot be donated without mentioning the building in the documents.
