REAL vs. PERSONAL PROPERTY
To understand condominium, two fundamental
concepts must be considered:
1) what it means to "own" anything, particularly real estate, and
2) how sole-person ownership differs from the undivided, multiple-owner forms.
Canada enjoys the legal heritage of the two major European approaches to administering civilian affairs. Yet, in both the English common law or Roman civil law systems, ownership concepts are basically the same.
From the uncoded, common law perspective, Black's Law Dictionary offers these meanings:
* The right of one or more persons to possess and use a thing to the exclusion of others.
* The exclusive right of possession, title, enjoyment, and disposal; involving the right to control, handle and dispose.
Correspondingly, Quebec's Civil Code defines propriété as:
"the right of enjoying and disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulation".
In synthesis, ownership is the right of persons to possess, use, enjoy, cultivate, profit from, and consume economic goods; and to dispose of part or all of these rights at will to the extent permitted by law.
All things susceptible to ownership are divided into two broad categories — movable (personal property or chattels) and immovable (real estate).
With a few minor exceptions, we have little problem recognizing the features that distinguish personal property from real property.
Personal property is transportable, and easily kept from the hands, sight or awareness of others. Possessing obvious boundaries, chattels (a synonym, derived from Old French for "cattle") are subject to loss, theft, and destruction. They are generally reproducible or replaceable, and may have passing usefulness and little transferable value.
In contrast, each tract of land is, and will remain, unlike all others. Its location is unique and immovable, and also considered indestructible. Earth may be removed from the surface, but the tract position remains constant.
The use and enjoyment rights of real property attach to every molecule of soil and permeate every point in the column of airspace defined by the land-tract boundaries — whether occupied by matter or not.
This pervasive quality of land ownership permits segmenting the whole domain into either freehold or leasehold condominium titles. Each comprises two precisely defined components — one is exclusive (the unit), the other shared (the common property proportion).