Special nuances of arbitration in co-ownership disputes in Quebec
Arbitration in the context of undivided co-ownership (indivision) in Quebec presents particular challenges arising from the absence of a comprehensive statutory framework equivalent to that governing divided co-ownership under the Civil Code of Québec. Unlike condominiums, where by-laws, declarations of co-ownership, and mandatory internal dispute-resolution clauses are common and often required, undivided co-owners generally rely on an indivision agreement — if one exists — to structure their rights and obligations. As a result, the decision to use arbitration, the scope of the arbitrator’s jurisdiction, and the enforceability of any award depend primarily on the content and validity of the indivision agreement.
A significant nuance lies in the consensual nature of arbitration. For undivided co-owners, the arbitration clause must be explicit and accepted by all indivision holders, as no co-owner can unilaterally impose arbitration on the others. This contrasts sharply with divided co-ownership regimes, where owners are automatically bound by a pre-existing framework. In indivision, the absence of unanimous consent may prevent the use of arbitration even in disputes where it would be beneficial — such as disagreements over the administration of the property, expenditures, repairs, or the use and enjoyment of common portions.
Another important consideration concerns the arbitrability of disputes. While many issues between undivided co-owners are contractual or administrative and thus arbitrable, certain remedies particular to indivision — such as applications for partition, forced sale, or judicial authorization to act on behalf of another co-owner — fall within the exclusive jurisdiction of the Superior Court. This limitation requires careful drafting of arbitration clauses to avoid including matters that cannot legally be submitted to arbitration. It also affects strategy, as parties may need to pursue hybrid paths combining arbitration for certain issues and court proceedings for others.
Procedure also has distinct implications in indivision disputes. Arbitration can offer confidentiality, expertise, and faster resolution, which are attractive for co-owners who share a long-term relationship and a single piece of property. However, the procedural flexibility of arbitration requires clear agreement on key points such as appointment of the arbitrator, interim measures, cost allocation, and the treatment of urgent matters.
Finally, enforcement of arbitral awards in the indivision context requires particular attention. Because the administration of property held in indivision generally requires decisions taken by the majority of shares, while certain acts require unanimity, an arbitral award may intersect with statutory rules governing indivision. Courts will enforce arbitral awards provided they do not contradict mandatory provisions of the Civil Code of Québec. Thus, arbitration is a powerful but carefully bounded tool in undivided co-ownership disputes — effective when properly structured, but limited by Québec public order and the inherent characteristics of indivision.
This text is provided for legal information purposes only. If you have a specific question regarding your personal situation, please contact a lawyer.
Allen Madelin Avocats offers arbitration both in person and via videoconference. For more information, please contact us by telephone: 1 514 904 4017 or by e-mail: [email protected].
