Dissolving Condominium, Private Takings, and the Nature of Property

Abstract

Condominium enables the subdivision of buildings into multiple private titles. It does so by combining individual titles with an undivided share of common property, a right to participate in governing the property, and an obligation to contribute to its maintenance. The dissolution of condominium breaks apart this package of rights and responsibilities, and results in the termination of the individual titles. Some common law jurisdictions require the unanimous consent of title holders to dissolve condominium, others permit it with a supermajority vote. All jurisdictions allow for non-consensual dissolution, and thus the termination of titles without consent, with a court order.

This paper reviews dissolution rules and reform efforts in several common law jurisdictions and then uses the condominium legislation and case law from British Columbia to argue that non-consensual dissolution of condominium, whether by supermajority vote or court order, should be understood as private takings. However, the purpose of this characterization is not to advocate for a unanimity or a supermajority rule. Instead, this paper uses the takings literature to reveal that the legislative choice between dissolution rules, and the judicial choice between ordering or declining to order the dissolution of condominium, is also a choice between different conceptions of property and of what property is for. Finally, the paper argues that the growing prevalence of condominium as a form of ownership, and its capacity to reflect broader tensions in ownership regimes between individual and community, suggest that the nature of property within condominium is increasingly important in constructing the nature of property in land.

Keywords: property, takings, expropriation, land, condominium, strata title, ownership, British Columbia, Canada

JEL Classification: K11