View cases - Stewart McKelvey

- 90 -emergency routes will be compromised. In this situation, freedom of religion imposeslimits on the exercise of the rights of all the co-owners.167 The restrictions preserve not only the co-owners’ rights under s. 6 of theQuebec Charter, but also their rights under the Civil Code of Québec, which, togetherwith the Charter, provides the framework for the right of ownership in Quebec. The trialjudge reviewed the relevant articles of the Code and concluded that the restrictions in the2004 SCC 47 (CanLII)declaration of co-ownership were valid under art. 1056 C.C.Q., which provides that “[n]odeclaration of co-ownership may impose any restriction on the rights of the co-ownersexcept restrictions justified by the destination, characteristics or location of theimmovable.” He wrote the following (at p. 1899):[TRANSLATION] The legislature has restated the classic triptych of theright of ownership: the right to use, enjoy and dispose of property freely(art. 947 C.C.Q.). It has also stated that ownership may be in variousmodes. Co-ownership of an immovable is one of the “special modes ofownership” (art. 1009 C.C.Q.). Co-ownership is itself defined as “ownershipof the same property, jointly and at the same time, by several persons”(art. 1010 C.C.Q.). Co-owners may dispose of their fractions, but their useand enjoyment of both the private and common portions thereof must beconsistent with the by-laws of the immovable and must not “impair therights of the other co-owners or the destination of the immovable” (art. 1063C.C.Q.).168 Regarding the destination of the immovable, the trial judge reviewed thedeclaration of co-ownership and made the following observation (at p. 1901):[TRANSLATION] The quality of the materials used, the layout of thedwelling units, the detailed architecture and the harmony of the exterior arethe elements that give this property its appearance of luxury andcomfort. . . .What potential buyers are presented with is not just a luxurious andprestigious property, but a “lifestyle” . . . .