CIVIL LAW PROPERTY

2004 - 2005
Julien Morissette
INTRODUCTION.....................................................................................................................................................5
PART ONE – Introduction to the Civil Law of Property..........................................................................................6
Chapter I – Historical Background to Civil Law Property...................................................................................6
Chapter II – Theory of Patrimony.........................................................................................................................6
Section 1 – Origin of theory..............................................................................................................................6
Section 2 – Definition of patrimony..................................................................................................................6
Section 3 – Role of the theory in the civil law tradition...................................................................................8
Section 4 – Classification of subjective rights based on the concept of patrimony..........................................9
A. Patrimonial rights..............................................................................................................................9
B. Extra-patrimonial rights..................................................................................................................10
C. How to distinguish both types of rights..........................................................................................12
D. Cases...............................................................................................................................................13
Torrito c. Fondation Lise T. pour le respect…........................................................................................13
Malo c. Laoun.........................................................................................................................................13
Laprairie Shopping Centre Ltd. (Syndic de) c. Pearl.............................................................................14
E. Extra-patrimoniality of family relationships...................................................................................14
PART TWO – Classification of Property (or Patrimonial Rights) and of Things...................................................15
Chapter I - Distinction Between Real Rights, Personal Rights, Intellectual Rights...........................................15
Section 1 – Real rights (jus in re)....................................................................................................................15
Section 2 – Personal rights or ‘droits de créances’ (jus in personam)............................................................15
Ouimet c. Guilbaut..................................................................................................................................16
Section 3 – Comparison between the real right and the personal right...........................................................17
A. Both are patrimonial rights (property)............................................................................................17
B. 2 faces of a personal right: property for the creditor, obligation for the debtor..............................17
C. Real rights: determined, specific and present object.......................................................................17
D. Personal rights.................................................................................................................................17
E. Movable and immovable character.................................................................................................17
F. Opposability of real rights and inopposability of personal rights...................................................17
G. Principle and accessory real rights on immovables........................................................................18
H. Option of abandonment (“faculté d’abandon”)...............................................................................20
Section 4 – Other species of property: Intellectual property...........................................................................20
Diffusion YFB Inc. c. Les Disques Gamma (Québec) Ltée.....................................................................21
SOQUIA c. Libman.................................................................................................................................21
Section 5 – Observations on the use of legal terminology..............................................................................22
Chapter II - Distinction Between Immovables and Movables............................................................................22
Section 1 – Origin and evolution of classification..........................................................................................22
Section 2 – Classification of the CCQ, comparison between codes...............................................................22
A. Immovables.....................................................................................................................................23
900 CCQ..................................................................................................................................................23
Bélair c. Ste-Rose (Ville de)....................................................................................................................24
Cablevision (Montréal) Inc. c. Sous-min. du Revenu de la Prov. de Québec.........................................24
901, 903 CCQ..........................................................................................................................................24
Nadeau c. Rousseau................................................................................................................................25
Horn Elevator Limited c. Domaine d’Iberville Limitée..........................................................................26
How would Nadeau c. Rousseau and Horn Elevator be decided today?................................................26
Construtek G. B. Inc. c. Laforge.............................................................................................................26
Axor Construction Canada Ltée c. 3099-2200 Québec Inc....................................................................27
What is the interest of characterizing objects under 901 OR 903?.........................................................27
Some additional points............................................................................................................................27
B. Movables.........................................................................................................................................28
C. Cantin’s characterization method: movable or immovable.............................................................28
Section 3 - Relevance of classification today.................................................................................................29
Chapter III - Other classifications.......................................................................................................................29
Section 1 – Capital and fruit or income..........................................................................................................29
Section 2 – Fungible and consumable things..................................................................................................30
2

A. Fungibility.......................................................................................................................................30
B. Consumability.................................................................................................................................31
C. Application of these notions............................................................................................................31
Section 3 – Things susceptible of appropriation or things in commerce, res nullius, res communes.............31
A. Things in commerce or susceptible of appropriation......................................................................31
B. Res nullius.......................................................................................................................................32
C. Res communis..................................................................................................................................32
Section 4 – Legal characterization of water....................................................................................................33
Morin c. Morin........................................................................................................................................34
PART THREE – Property in Relation with Persons (Subjects of Rights in Land).................................................35
Chapter I - Private Ownership of Land and its Origin........................................................................................35
Section 1 – The Seigneurial system and its abolition......................................................................................35
Section 2 – Permanent consequences of abolition of tenure system for real rights structuring in Quebec....36
Section 3 – Private ownership of land (or private domain); multiple sources; content of title.......................37
A. Rights of private owners on underground resources.......................................................................37
B. Diverse origins of property in Quebec and influence on riparian rights.........................................38
Québec (P.G.) c. Houde...........................................................................................................................38
Québec (P.G.) c. Auger............................................................................................................................38
Section 4 – State ownership of land (or public domain): Province and municipalities..................................39
A. Crown corporations.........................................................................................................................39
Construction D.R.M. Inc. c. Bâtiments Kalad’art Inc............................................................................39
PART FOUR – The Right of Ownership.................................................................................................................41
Chapter I - Concept of Ownership in Quebec and the Civil Law Tradition.......................................................41
Section 1 – The “paramount” real right..........................................................................................................41
Section 2 – Attributes of ownership................................................................................................................42
Section 3 – Characteristics of ownership........................................................................................................42
Section 4 – Conclusion on the right of ownership.........................................................................................44
Chapter II - Restrictions in the Exercise of the Right of Ownership..................................................................44
Section 1 – Relations between neighbours: abnormal inconvenience vs. abuse of right and encroachment. 44
Lessard c. Bernard..................................................................................................................................45
Gourdeau c. Letellier de St-Just..............................................................................................................45
Barrette c. Ciment du St-Laurent............................................................................................................46
A. Who is the neighbour?....................................................................................................................46
B. Future damages...............................................................................................................................47
C. Inconveniences vs. bad faith and abuse of right.............................................................................47
D. Possibility to request only an injunction.........................................................................................47
E. The State can be a neighbour..........................................................................................................47
Section 2 – Other codal restrictions................................................................................................................47
A. CCQ 991..........................................................................................................................................47
B. CCQ 990, 1467................................................................................................................................47
C. CCQ 953 and its exceptions............................................................................................................48
D. Relevance of Patault’s text (p. 21)..................................................................................................48
E. Establishing property lines..............................................................................................................48
Thémens c. Royer....................................................................................................................................49
F. Additional CCQ restrictions............................................................................................................49
Section 3 – Expropriation and other instances of non-consensual acquisition...............................................49
Sula c. Cité de Duvernay.........................................................................................................................50
Section 4 – Statutory limitations of public interest (outside the CCQ)...........................................................50
Chapter II - Acquisition of the Right of Ownership............................................................................................50
Section 1 - Possession and acquisitive prescription........................................................................................50
A. Definition and requirements for effective possession.....................................................................51
Codal provisions......................................................................................................................................51
Contrasting possession and other notions...............................................................................................52
Posssession and appearence of title.........................................................................................................53
Qualities of Possession............................................................................................................................53
B. Legal effects of juridical possession...............................................................................................53
Acquisitive prescription (usucapio)........................................................................................................55
Sivret c. Giroux........................................................................................................................................55
Section 3 - Occupation....................................................................................................................................56
Boivin c. P.G. Québec.............................................................................................................................56
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Section 4 - Accession......................................................................................................................................57
Location Fortier Inc. c. Pacheco............................................................................................................57
A. Landowner’s right of the space above.............................................................................................57
Lacroix c. R.............................................................................................................................................58
B. Presumption of single ownership....................................................................................................58
C. Mode of acquisition.........................................................................................................................58
D. Limits and boundaries.....................................................................................................................59
E. Construction encroaching on neighbour’s land...............................................................................60
Thémens c. Royer....................................................................................................................................60
PART FIVE – Modalities of Ownership or Special Modes of Ownership.............................................................61
Chapter I - Indivision or Undivided Co-ownership............................................................................................61
Section 1 - Legal analysis of indivision..........................................................................................................61
A. Nature of title of indivision.............................................................................................................62
Régime complémentaire de retraite de la S.T.C.U.M. c. Bandera Investment Company........................62
Harel c. 2760-1699 Québec inc..............................................................................................................63
B. Exercise of a right of indivision......................................................................................................64
C. Administration of the object of indivision......................................................................................65
Section 2 - Indivision agreement or contract: content and effects..................................................................66
Section 3 - Partitition or end of indivision......................................................................................................66
A. Action for partition..........................................................................................................................66
Chapter II – Permanent co-ownership of an immovable....................................................................................67
Section 1 - Common walls or other works of division....................................................................................67
Zambito-Orazio c. Meneghini.................................................................................................................68
Groleau c. Société immobilière du patrimoine architectural de Montréal.............................................68
Section 2 - Common immovable accessory....................................................................................................68
Michon c. Leduc......................................................................................................................................69
Section 3 - Divided co-ownership of an immovable (condominium).............................................................69
A. The establishment of an immovable in divided co-ownership........................................................69
B. Structure and nature of co-owner’s rights.......................................................................................70
C. Destination of an immovable: content and role..............................................................................73
Talbot c. Guay.........................................................................................................................................74
Syndicat des copropriétaires de Trillium Court Condominium c. Ouellette...........................................74
Bergeron c. Martin..................................................................................................................................75
Kilzi c. Syndicat des co-propriétaires du 10,400 boul. L’Acadie............................................................75
Valid and invalid clauses.........................................................................................................................75
Wilson v. Syndicat des copropriétaires du condominium Le Champlain................................................75
D. A few issues related to destination..................................................................................................76
E. Functioning and duration of the co-ownership...............................................................................78
F. Right to periodical enjoyment or time-sharing (multipropriété).....................................................79
Chapter III - Superficies......................................................................................................................................79
Section 1 – Legal regime of superficies..........................................................................................................79
Morin c. Grégoire...................................................................................................................................80
Section 2 – Right of superficies or superficiary ownership: modality or dismemberment?...........................81
Stone-Consolidated c. Pierre Desjardins Gestion inc.............................................................................82
PART SIX – Dismemberments of Ownership.........................................................................................................84
Chapter I - Usufruct and other similar personal servitudes.................................................................................84
Section 1 - Content or nature of the right of the usufructuary........................................................................84
Larocque c. Beauchamps........................................................................................................................86
Section 2 - Legal regime of usufruct...............................................................................................................86
Other real right of enjoyment:.................................................................................................................87
Banque nationale du Canada c. Gravel..................................................................................................88
Chapter II - Emphyteusis....................................................................................................................................88
Section 1 - Nature of an emphyteutic right.....................................................................................................88
Section 2 - Requirements for its constitution, comparison with usufruct and superficies..............................89
Alta Mura Construction inc. c. Société des parcs de sciences naturelles du Québec.............................90
H.L.P., Société en commandite c. Beauport (Ville de)............................................................................90
Sunlife Assurance Co. of Canada c. 137578 Canada inc.......................................................................91
Chapter III - Real servitudes...............................................................................................................................91
Section 1 - Definition, characteristics and constitution of a real servitude.....................................................91
Section 2 - Nature of the charge which may constitute a real servitude.........................................................92
4

Épiciers unis Métro-Richelieu c. Standard Life Assurance Co...............................................................93

Cadieux c. Hinse.....................................................................................................................................94
Section 3 - Legal regime and extinction.........................................................................................................94
Whitworth c. Martin................................................................................................................................95
Auger c. Grenier......................................................................................................................................96
Chapter IV - Is there a Numerus Clausus of Real Rights?..................................................................................96
Duchaine c. Matamajaw Salmon Club Ltd.............................................................................................97
Matamajaw Salmon Club Ltd. v. Duchaine............................................................................................97
P.G. Québec c. Club Appalaches inc.......................................................................................................98
Chapter IV.1 - The Notion of Real Obligation....................................................................................................99
Chapter V - Registration of Immovable Real Rights..........................................................................................99
APPENDIX 1: RIGHTS IN LAND OF NATIVE PEOPLES...............................................................................100
Section 1 – Historical relationship between Euro-Canadians and Aboriginals.................................................100
Section 2 – Land rights in the Indian Act..........................................................................................................101
A. Collective land rights....................................................................................................................101
B. Consequences of collective rights.................................................................................................101
C. Rights of individual possession.....................................................................................................102
Section 3 – Land rights in the Constitution.......................................................................................................102
Section 4 – Treaty rights...................................................................................................................................103
Section 5 – Conclusion......................................................................................................................................103
Section 6 – Cantin’s comments on Leclair’s lecture.........................................................................................103
APPENDIX 2: CANTIN’S MOVABLE-IMMOVABLE CHARACTERIZATION METHOD..........................105
APPENDIX 2: THE QUEBEC CIVIL LAW TRUST..........................................................................................106
Royal Trust Co. v. Tucker [1982] SCC p. 511......................................................................................106
Crown Trust Co. v. Oscar Higher et al [1975] SCC p. 520.................................................................106
Bank of Nova Scotia v. Thibault [2003] SCC p. 534............................................................................106
Section 1 – Introduction....................................................................................................................................107
Section 2 – Creation of the CCQ trust..............................................................................................................107
Section 3 – Definition of the Quebec trust........................................................................................................108
Section 4 – Requirements for the constitution of a trust...................................................................................109
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September 1

INTRODUCTION
Droit: body of law, not only legislation (doctrine, jurisprudence, principles...).
Lois: acts, legislation.
Droit civil is much wider than the CCQ.

Civil Law tradition: Comes from the Romans. Roman law originally applied to the citizens
of Rome, hence ‘civil’. Medieval property law was altered by the re-discovery of Roman law,
most of old Germanic laws based on tenure were evacuated.

The CCQ belongs to the French civilian tradition vs. the German tradition. Evolved from
French colonial laws.

Civil Law Property: Property is an “owned object or concept” (≠possession). Relates to rights,
specifically the right of ownership (droit de propriété).

Droit objectif: body of law.

Droit subjectif: rights of physical persons and moral persons (corporations).

Property = bien ; Ownership = propriété. Property is NOT propriété.

6

September 8
PART ONE – Introduction to the Civil Law of Property
Chapter I – Historical Background to Civil Law Property

Roman law is an important source for the civilian tradition. It disappeared in the 5th C. as
law enforced by a State, but its writings were rediscovered in the 11th C. in Northern Italy.
Roman and Justinian writings started to influence customary (ancient) law. Customary law
was transformed.

The feudal definition of property disappeared, was replaced by the Roman one.

Patault (important part before p. 118 of text): The State and philosophical ideas also had an
influence, as well as the emergence of capitalism.

Chapter II – Theory of Patrimony

In CVL, patrimoine = patrimony. This is a legal construct, which serves a structuring
purpose:
1. Leads to a theory which classifies a person’s different rights (“droits subjectifs”).
2. Embodies an economic reality: a person’s property (rights in the patrimony) is used as
collateral for her debts.

The notion of person in law is also a construct. In nature, there are human beings, not
persons. ‘Person’ is a concept, especially for moral persons.

Section 1 – Origin of theory

In Roman law: patrimonium was a related but different notion. Relatively recent theory
(Aubry & Rau, p. 25). Concept that is more general than the law of property (Ghestin &
Goubeaux, p. 28).

The theory originated in Germany. The first scholar to formulate it: Zacharie (1810).
Borrowed by Aubry & Rau in France around 1850, it spread to all CVL jurisdictions. Not
really new: formalization of previously accepted ideas.

Section 2 – Definition of patrimony

Definitions of patrimony: Aubry & Rau (first sentence p. 25), Ghestin & Goubeaux
(¶196-7, p. 28-9) and Baudoin & Jobin (p. 38).

1. Every human being possesses juridical personality and has the full enjoyment of
civil rights.

2. Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent
provided by law.
 7

302. Every legal person has a patrimony which may, to the extent provided by law, be
divided or appropriated to a purpose. It also has the extra-patrimonial rights and
obligations flowing from its nature.

Closest CCQ art. to a definition of patrimony:

2644. The property of a debtor is charged with the performance of his obligations and
is the common pledge of his creditors.

Patrimony is a legal / juridical universality that is a grouping of rights and charges,

present or future, in which the rights are charged with (or guarantee) the performance of the
obligations:

1. Represents an economic reality: assets (rights) and liabilities (obligations).

2. Abstract concept, with an abstract content. Rights (on physical and non-physical
objects) are in the patrimony, not the objects of the rights. Ex.: a house is not in
one’s patrimony, what is in it is the right of ownership in the house. Paying a debt:
transfering a right to money. The right of a creditor is also in a patrimony. Includes
intellectual property (ex. patents, copyrights).

3. Unavoidable link between rights and obligations (2644-6) which has a legal, not a
contractual source. The law allows creditors to seize property, except what is
unseizable (p. 74, CCP) because of some legal argument. Some subjective rights are
not in the patrimony and therefore escape seizure.

Patrimonial rights = property = biens.

There is only one juridical universality in civil law: the patrimony.

153. Full age or the age of majority is 18 years.

On attaining full age, a person ceases to be a minor and has the full exercise of all his
civil rights.

154. In no case may the capacity of a person of full age be limited except by express
provision of law or by a judgment ordering the institution of protective supervision.

303. Legal persons have capacity to exercise all their rights, and the provisions of this
Code respecting the exercise of civil rights by natural persons are applicable to them,
adapted as required.

They have no incapacities other than those which may result from their nature or from
an express provision of law.

Incapacity for physical or moral persons has its source in law, not in contracts. Only
exceptions to patrimonial flux: death or insolvency. Insolvency, however, will block its
evolution, in the time needed to settle the bankruptcy.
8

A homeless person owning nothing and without debts, or a month-old child still have a
patrimony because they retain the right to acquire rights or obligations. Patrimony is the
container as well as the content.

In our context, legal universality = patrimony. But the words universality and patrimony
also have other uses in the CCQ. In some cases, patrimony = group of rights (without
liability), such as family patrimony. CCQ:

414. Marriage entails the establishment of a family patrimony consisting of certain

property of the spouses regardless of which of them holds a right of ownership in that
property.

Also de facto universality (universalité de faits), ex. unincorporated businesses, whose assets
are not distinguishable from the entrepreneur’s.

Section 3 – Role of the theory in the civil law tradition

Three consequences of patrimony (Aubry & Rau, p. 26):

1. Les personnes physiques ou morales peuvent seules avoir un patrimoine.
2. Une personne a un patrimoine même si elle ne possède aucun bien (2, 302).
3. Une personne ne peut avoir qu’un seul patrimoine (unity, indivisibility, 2644 and
following). This is the basis for credit.

But patrimony can be “divided” in some way:

2. Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent
provided by law.

Some property has different rules attached to it, but the patrimony is not truly divided.
Ex.: patrimony within a marriage. Not an important exception to unity and indivisibility of
patrimony (idea of a sub-group of assets).

General CCQ rule: There must be a physical or legal person having a patrimony. The
two concepts cannot be divided.

Exception: “patrimony by appropriation” (patrimoine d’affectation), group of properties

and liabilities attached to them. This is how the trust was introduced in Quebec law.

CCQ definition of the trust:

1260. A trust results from an act whereby a person, the settlor, transfers property from
his patrimony to another patrimony constituted by him which he appropriates to a
particular purpose and which a trustee undertakes, by his acceptance, to hold and
administer.

1261. The trust patrimony, consisting of the property transferred in trust, constitutes a
patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or
beneficiary and in which none of them has any real right.
 9

Trust: only case of patrimony by appropriation so far in Quebec law. It is a separate legal
universality. The legislator has chosen not to make a trust a legal person. Import from
common law (CCLC 981 and following). Previously, the trustee had the property but as a
fiduciary. This caused problems: powerful characterization, beneficiaries of trusts had little
leverage. So another solution was legislated, without a person at the head of a patrimony. This
is ackward. Cantin’s article: the trust is not a person, but it is a “sujet de droits”.

All trusts are treated the same way, whatever their purpose (personal trust, social trust,
asset protection...). The trustee is an administrator of property, similar to a child’s guardian.

1278. A trustee has the control and the exclusive administration of the trust patrimony,
and the titles relating to the property of which it is composed are drawn up in his
name; he has the exercise of all the rights pertaining to the patrimony and may take
any proper measure to secure its appropriation.

A trustee acts as the administrator of the property of others charged with full
administration.

A trust’s debts are not to be balanced by the beneficiary’s or the trustee’s assets. Limited
liability similar to that of a company.

Section 4 – Classification of subjective rights based on the concept of patrimony

There is a different legal regime for rights in and out of the patrimony.

September 15

A. Patrimonial rights

Property (patrimonial right) is:

1. Transmissible (alienable) inter vivos (contract of sale or gift) or mortis causa (succession,
testament).

2. Seizable if obligations are not fulfilled (although some property is unseizable).

2648. The movable property of the debtor which furnishes his main residence, used
by and necessary for the life of the household, may be exempted from seizure to the
extent fixed by the Code of Civil Procedure, except where such movables are seized
for sums owed on the price.

The same rule applies to instruments of work needed for the personal exercise of a
professional activity, except where such movables are seized by a creditor holding a
hypothec thereon.

2649. A stipulation of unseizability is without effect, unless it is made in an act by

gratuitous title and is temporary and justified by a serious and legitimate interest.
Nevertheless, the property remains liable to seizure to the extent provided in the Code
of Civil Procedure.
10

It may be set up against third persons only if it is published in the appropriate register.

Exception, inalienable property:

1212. No restriction on the exercise of the right to dispose of property may be

stipulated, except by gift or will.

A stipulation of inalienability is made in writing at the time of transfer of ownership of

the property or a dismembered right of ownership in it to a person or to a trust.

The stipulation of inalienability is valid only if it is temporary and justified by a

serious and legitimate interest. Nevertheless, it may be valid for the duration of a
substitution or trust.

Conditions may be imposed when property is given for free or by will, but even such clauses
may be struck down in some circumstances. There is also some property extinguished with
death (ex. some usufructs).

3. Extinguishible by non-use or prescription, if the right is not exercized, it disappears

eventually (except for the right of ownership).

Content of patrimonial rights:

See CCQ books IV and V. There are some public order rules, but few relative to those in place
for extra-patrimonial rights.

2632. No transaction may be made with respect to the status or capacity of persons or
to other matters of public order.

2639. Disputes over the status and capacity of persons, family matters or other
matters of public order may not be submitted to arbitration.

An arbitration agreement may not be opposed on the ground that the rules applicable
to settlement of the dispute are in the nature of rules of public order.

Patrimonial rights are acquired and belong to persons and trusts.

B. Extra-patrimonial rights

Extra-patrimonial rights are extinguished with the person (“droits innés” in Aubry &
Rau, ex. most Charter rights). They are intransmissible, unseizable and unextinguishable
by non-use.

Content of extra-patrimonial rights:

The 1st and 2nd books of the CCQ (person, family) deal mostly with extra-patrimonial rights.
The effect of any contract in this regard is heavily restricted (almost no transfer possible).
Some contracts are unenforceable because they are against public order, even if they
occur in practice. Ex.:
 11

541. Any agreement whereby a woman undertakes to procreate or carry a child for
another person is absolutely null.

1. CCQ: Integrity of the person

Every person is inviolable and there is a limit to consent to infringement of this value.
Contracts on encroachment are only valid if they are compatible with dignity and public order.

3. Every person is the holder of personality rights, such as the right to life, the right to
the inviolability and integrity of his person, and the right to the respect of his name,
reputation and privacy.

These rights are inalienable.

9. In the exercise of civil rights, derogations may be made from those rules of this
Code which supplement intention, but not from those of public order.

Respect extends to the human body after death (42-49), which is not viewed as property. A
person’s right over her body is not, alive or dead, a right of ownership. (see p. 46)

The list of art. 3 is not exhaustive. Resembles the Quebec Charter rights, which are all extra-
patrimonial:

[CCQ preliminary provision] The Civil Code of Québec, in harmony with the
Charter of human rights and freedoms and the general principles of law, governs
persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit
or object of its provisions, lays down the jus commune, expressly or by implication. In
these matters, the Code is the foundation of all other laws, although other laws may
complement the Code or make exceptions to it.

9. In the exercise of civil rights, derogations may be made from those rules [note:
typically in a contract] of this Code which supplement intention, but not from those of
public order.

10. Every person is inviolable and is entitled to the integrity of his person.

Except in cases provided for by law, no one may interfere with his person without his
free and enlightened consent.

And following (to art. 31).

24. Consent to care not required by a person's state of health, to the alienation of a
part of a person's body, or to an experiment shall be given in writing.

It may be withdrawn at any time, even verbally.

25. The alienation by a person of a part or product of his body shall be gratuitous; it
may not be repeated if it involves a risk to his health.
12

An experiment may not give rise to any financial reward other than the payment of an
indemnity as compensation for the loss and inconvenience suffered.

Ex., Cour de cassation gruesome case: is an implanted artificial limb seizable by a surgeon for
non-payment? No, because it is now part of a human body.

The protection of a person is barely a century old. The CC no longer has jail sentences
(previously “contrainte par corps”). A labour contract only creates obligations, it does not
transfer rights:

2085. A contract of employment is a contract by which a person, the employee,

undertakes for a limited period to do work for remuneration, according to the
instructions and under the direction or control of another person, the employer.

2094. One of the parties may, for a serious reason, unilaterally resiliate the contract of
employment without prior notice.

2. Political rights: citizenship, right to vote... (Quebec Charter 21; Canadian Charter 2, 3)

3. Social values (family...).

4. Right to privacy and reputation:

35. Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person unless
authorized by law.

Extra-patrimonial rights are innate and only belong to persons. There are fewer extra-
patrimonial rights for moral persons, but some exist: reputation, freedom of expression.

C. How to distinguish both types of rights

Ghestin, p.35; Baudouin & Jobin, p. 38: “évaluation en argent” is the criteria to distinguish
the 2 categories of rights (monetary value of property vs. non-monetary value of extra-
patrimonial rights). This criteria is strongly challenged: some parts, have acquired an
economic value. This criteria worked 100 years ago, but no longer.

Other possible criteria: subjective rights that enshrine societal values (respect of human
being, citizenship, democracy, family) are the extra-patrimonial rights.
 13

D. Cases

Torrito c. Fondation Lise T. pour le respect… (1995), p. 64

Facts Lise Torrito (mineure), qui était lourdement handicapée et recevait des soins des
intimés, est décédée. La Fondation s’est servi de son nom, son histoire et son image 
des fins de promotion. Les parents demandent une injonction interlocutoire car ils
n’ont jamais donné leur autorisation, en invoquant leur droit à la vie privée et celui de
leur fille.
Question La Fondation avait-elle le droit de se servir de l’image de Lise Torrito?
References arts. 35-41, 653 CcQ; arts. 2-5 Charte des droits et libertés de la personne.
Ruling Juge Barbeau, Cour supérieure: NON. Injonction interlocutoire accordée.
Ratio La succession de l’enfant a le droit de contrôler son image au nom du respect de la
vie privée (art. 5 Cdlp). La Fondation aurait dû demander l’autorisation des parents
(pour prendre les photos et les diffuser); le dommage moral est considérable.
Quoique les droits extrapatrimoniaux s’éteignent  la mort (625 CcQ), les droits
d’action sont transmis aux héritiers (droit  la réparation). La bonne foi ou l’intérêt
public ne sont pas des excuses valides.
Note Case settled out of court. Cantin: “Renunciation to a right is never presumed.”

A succession may sue for privacy infringement in certain cases:

625. The heirs are seised, by the death of the deceased or by the event which gives
effect to the legacy, of the patrimony of the deceased, subject to the provisions on the
liquidation of successions.

The heirs are not, unless by way of exception provided for in this Book, bound by the
obligations of the deceased to a greater extent than the value of the property they
receive, and they retain their right to demand payment of their claims from the
succession.

The heirs are seised of the rights of action of the deceased against any person or that
person's representatives, for breach of his personality rights.

September 27

Malo c. Laoun (2003), p. 67

Facts Linda Malo accepte que le fabriquant Silhouette utilise sa photo dans sa campagne de
publicité. Plusieurs années plus tard, Laoun met une annonce dans un annuaire en
réutilisant la photo sans redemander son consentement. Malo réclame des dommages.
Gagné pi.
Question Est-ce que Laoun avait le droit d’utiliser l’image de Malo  ses fins?
References arts. 3 al. 2, 35, 36, 1440, 1611, 2130, 2158, 2160 CcQ; art. 13 Charte des droits et
libertés de la personne.
Ruling Juges Rothman, Dussault, Delisle, appel: NON, dommages accordés  Malo.
14

Ratio Le droit  l’image ou à la vie privée est incessible (3 al. 2 CcQ), une image est
intransmissible. Un contrat n’a d’effets qu’entre parties contractantes (1440 CcQ).
Les dommages pour “usurpation d’identité artistique” sont indistincts des autres
dommages extrapatrimoniaux. La bonne foi ou le droit d’auteur sur la photo d’une
personne ne permettent pas n’importe quelle diffusion. L’interprétation d’une
renonciation de droit doit être étroite.
Important CCQ articles:

35. Every person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person unless
authorized by law.

36. (...) 5) using his name, image, likeness or voice for a purpose other than the
legitimate information of the public.

Characterization of the contract in Laoun: not a transfer of the right of ownership or of the
right to privacy, resembles a contract for services.

Laprairie Shopping Centre Ltd. (Syndic de) c. Pearl (1998), p. 56

Facts L’avocat de Pearl s’est objecté  une question du syndic en invoquant le privilège de
confidentialité. Le syndic veut renoncer  la confidentialité au nom de la société en
faillite sans son consentement, Pearl argumente que c’est impossible car le pouvoir du
syndic ne s’étendrait pas aux droits attachés  la personne en faillite.
Question Le syndic peut-il renoncer au privilge de confidentialité au nom de la personne en
faillite OU ce privilge est-il patrimonial?
Ruling Juge Robert, appel: NON, sauf que...
Ratio “Le droit au secret professionnel étant un droit de nature personnelle et
extrapatrimoniale, il ne peut tre dévolu au syndic...”. MAIS: certains sujets ne sont pas
couverts par le secret professionnel, Pearl peut tre interrogés sur ceux-l. Pearl doit
démontrer qu’une communication était effectivement couverte par le secret.

E. Extra-patrimoniality of family relationships

There are reciprocal rights to / obligations of assistance between close family members.
See Quebec Charter 39-48; CCQ 32-34 and 585-596:

585. Married or civil union spouses, and relatives in the direct line in the first degree,
owe each other support.

Generally, these rights and obligations are fulfilled voluntarily within the family. Is a right to
alimony patrimonial or extra-patrimonial? Ghestin, p. 37 (text p. 206): example used by
those who reject the patrimonial / extra-patrimonial division. Although the money enters
the patrimony, the right to claim alimony is not transferable (except sometimes at death for a
short period, CCQ 684) and extra-patrimonial. Such a right is unseizable (although a creditor
being owed alimony can seize the debtor’s own alimony from someone else) and
inextinguishable if not claimed for a time.
 15

September 29

PART TWO – Classification of Property (or Patrimonial Rights)

and of Things
Chapter I - Distinction Between Real Rights, Personal Rights, Intellectual
Rights

A patrimony includes both rights / property and obligations, which are linked (CCQ
2644 and following; Carbonnier, p. 92). This distinction is not explicit in the CCQ.

Section 1 – Real rights (jus in re)

Res (latin) = thing, hence ‘real’ right.

Cantin’s definition: A real right has a thing as its object and establishes a direct and
immediate link between the titulary of the right and the thing. Ex.: right of ownership, “le
droit réel par excellence”. See also Baudouin & Jobin (p. 99). Mostly in CCQ book IV.

Cantin: The object of a real right is a material thing. See also Carbonnier (p. 93). This
idea has been debated in the 20th C. (patents, copyrights...), see Baudouin & Jobin (p. 99).

In a real right, there are 2 components: titulary of the right (person or trust), object. Their
legal relationship has no intermediary. Ex.: don’t have to ask anyone to fix up your house.
Even in the case of dismemberments of ownership, there is no intermediary (p. 573).

When there are substantial dismemberments of ownership (ex. being an usufructuary, CCQ
1120; Carbonnier, p. 92), only part of the real right belongs to someone else, both persons
have direct rights toward the thing.

A real right implies both benefits from the object and right to control its management.
The titulary of a real right may not be prevented from exercising his right, except in case of
legal incapacity.

1124. The usufructuary has the use and enjoyment of the property subject to usufruct;
he takes the property in the condition in which he finds it.

Usufruct also bears on all accessories and on everything that is naturally united to or
incorporated with the immovable by accession.

1135. The usufructuary may transfer his right or lease a property included in the
usufruct.

Section 2 – Personal rights or ‘droits de créances’ (jus in personam)

Cantin’s definition: The personal right describes the legal relationship between two
subjects; one, the creditor, is thereby able to obtain from the other, the debtor, the
performance of a service or the execution of a prestation. Mostly CCQ book V.
16

For ex., a lessee has a right to a property through its owner, who must provide enjoyment of
the property (make repairs...). Therefore the relationship is jus ad rem: lessee  owner 
object. Exchanges of services usually fall within personal rights.

In CVL, “obligation” is a synonym of “debt”, but money is not necessarily involved.

Prestation: to do something, abstain from doing something or, rarely, transferring ownership
(dare). Lease, employment, service, etc., even civil liability: sources of personal rights
relationships. CCQ 1373.

Non-opposability of personal rights: in a personal right relationship, the service can only be
obtained from the debtor. No one else is bound.

October 4

Ouimet c. Guilbaut (1972), p. 108

Facts Une promesse de vente d’un terrain a été signée par les parties. Cinq ans plus tard
(1969), Ouimet poursuit Guilbault pour pouvoir acheter et recevoir le titre de
propriété. Entre temps, le terrain a été exproprié.
Question Le droit personnel contenu dans la promesse a-t-il été éteint par l’expropriation?
References arts. 1200, 1202 CcBC.
Ruling Juge Monet, Cour supérieure: NON, dommages accordés  Ouimet.
Ratio Le silence de Ouimet ne met pas fin  son droit, ni le fait qu’il n’a rien payé en
échange de la promesse. La force majeure (expropriation) a rendu la passation du
titre (droit réel) impossible, mais n’a pas éteint l’obligation (p. 865/111) contenue
dans le droit personnel. L’action en passation de titre était justifiée.
Note Important distinction if the debtor becomes insolvent: a real right that has been
transferred is opposable to creditors, whereas a personal right probably isn’t.

Contracts of sale are defined at CCQ 1708:

1708. Sale is a contract by which a person, the seller, transfers ownership of property
to another person, the buyer, for a price in money which the latter obligates himself to
pay.

A dismemberment of the right of ownership, or any other right held by the person,
may also be transferred by sale.

Contracts of gift are defined at 1806: identical but no payment.

Action in execution of title, a “personal action”, different from a petitory action in which
someone who has acquired a real right tries to get it recognized, a “real action”. The
difference between these two actions is stark if the debtor becomes insolvent: if ownership has
been transferred, the land can’t be seized, whereas if the debtor still owns it, it is probably
seizable.
 17

Personal rights mostly have a contractual source, but it can also be extra-contractual.

Section 3 – Comparison between the real right and the personal right

Personal rights are those within the patrimony (not “rights of the person” of the Quebec
Charter or “personal servitudes” which are real rights (p. 573)), “droits de créance”.

A. Both are patrimonial rights (property)

B. 2 faces of a personal right: property for the creditor, obligation for the debtor

C. Real rights: determined, specific and present object

Object of a real right: specific, determined, on some tangible thing. Real rights do not
directly create obligations which burden someone else. Ex.: a usufruct does not burden the
bare owner, it is a direct relationship between usufructuary and property. Insolvency of the
owner will not affect the usufructuary, only bare ownership may be seized.

D. Personal rights

Object of a personal right: may be undetermined at the time of the contract and still binding
on the debtor; provided it is determinable by the term of the contract. CCQ 1373-4, 1453-5, 9.
Examples:
- A contract of sale for a house to be built (vente sur plan) is not per se a contract of
sale, but a promise to transfer the rights on the house when it is built. Such a personal
right contract is risky: the buyer is only a creditor, problematic if the builder becomes
insolvent.
- % of rental revenue from an immovable (land, vs. car which is movable) going to an
outside administrator, which may vary.

In theory, real rights are limited in number (énumération limitative, numerus clausus),
whereas personal rights are not. Cantin: Actually, there is no closed list for real rights, see
CCQ 1119.

E. Movable and immovable character

A real right may be movable or immovable. The characterization is done according to the
object. Personal rights to a prestation have nothing to do with mobility, but the law
traditionally defines them as movable.

F. Opposability of real rights and inopposability of personal rights

A real right is opposable, a personal right is not. A prestation can only be obtained from
a debtor. A real right is a relationship with an object, it is hence opposable to everyone.
However, personal rights must be respected, a person standing in the way of a debtor fulfilling
her obligation is at fault.
To an usufructuary (real right), the fact that the owner of the land becomes insolvent is
irrelevant. Her right remains opposable to any owner. Ex.: an owner has granted a right of
passage to someone on her land. If it is a real right of servitude, insolvency of the owner will
not affect the right. If it is a personal right (agreement with the owner), passer-by  owner 
18

land, therefore the owner is bound and if he becomes insolvent and/or sells the land the new
owner is not. It is often at issues in courts whether a contract granting a servitude creates a
real or personal right. Real rights on immovables must normally be publicized and
registered to be opposable. See CCQ 1454-5, 2934-8.

G. Principle and accessory real rights on immovables

Scenario:

- 3 parcels of land: #99 | #100 | #101

- A buys lot #100 from X in 1980.
- B owns the neighbouring lot #101 and has a servitude of view (real right) on that lot,
acquired from X in 1975.
- C acquires an usufruct on the land from A in 1985.
- D, owner of lot #101, acquires a servitude of passage from A in 1990.

When A buys the land, B keeps his registered servitude of view. C also obtains it. But D’s
right is not opposable to C as long as the usufruct lasts, since it has been granted by A after
the usufruct. Had it been granted by C, it would just have been opposable during the usufruct.
The date of registration of a right decides which one has priority.

A can dismember his ownership in any way as long as there is no conflict between some new
right and a previously granted one (ex. B’s servitude and D’s right of passage).

- E is a creditor of A, having provided money for purchase of X’s land by A, who obtained a
hypothec (guarantee) on the immovable lot #100. This transaction was registered in 1980, the
same day as the purchase.
- F is also a creditor of A since 1985, having sold a car to A.
- G is also a creditor of A since 1990.
- H is also a creditor of A since 2002, credit card company.

2003: A becomes insolvent. Until the date of insolvency, all creditors can theoretically obtain
the prestation by A and cannot prevent him from forming new relationships that involve
legitimate obligations (freedom of contract). From then on, A cannot form new obligations.

October 6

Since E-H are ordinary creditors, their rights are unopposable to third parties. If A becomes
insolvent in 2003, E-H will have to be paid out of proceeds of sale of A’s property, relative to
the share of their claim. Dates are irrelevant.

2646. Creditors may institute judicial proceedings to cause the property of their
debtor to be seized and sold.

If the creditors rank equally, the price is distributed proportionately to their claims,
unless some of them have a legal cause of preference.

B-D have direct real rights and are not affected by the bankruptcy. All ordinary creditors
(personal right) can’t touch others’ real rights, regardless of debt age.
 19

E’s hypothecary situation is different. He is not an ordinary creditor, notwithstanding the

moment the hypothec was contracted (no difference had it been in 1990).

2647. Prior claims [priorités] and hypothecs are the legal causes of preference.

Assume the sale of the immovable land nets $200,000. F still had a claim for $75,000. He is
going to be preferred to the extent of his claim. The remaining $125,000 will be shared
equally between the others, in proportion to what they are owed. Say they are creditors to the
tune of $50,000 each, then they will each receive $125,000/150,000/3. If the sale of the land
does not cover the hypothecary debt, the hypothecary creditor becomes an ordinary
creditor for the balance.

A hypothec is an accessory real right, not a personal right:

2660. A hypothec is a real right on a movable or immovable property made liable for
the performance of an obligation. It confers on the creditor the right to follow the
property into whosever hands it may be, to take possession of it or to take it in
payment, or to sell it or cause it to be sold and, in that case, to have a preference upon
the proceeds of the sale ranking as determined in this Code.

2661. A hypothec is merely an accessory right, and subsists only as long as the
obligation whose performance it secures continues to exist.

2733. A hypothec does not divest the grantor or the person in possession, who
continue to enjoy their rights over the charged property and may dispose of it, subject
to the rights of the hypothecary creditor.

Cantin: In reality, the hypothecary creditor has a personal right. The accessory real right
is only linked to the monetary claim. He also has a right to follow: in the example, he can
oppose his right to the usufructuary or the holder of a servitude of passage who got their rights
after the hypothec was contracted - the usufructuary would loose his right, unless she
purchases it again (would have been aware of this due to hypothec registration). But the
holder of the servitude of view (B) can oppose his right to the creditor. If there is more than
one hypothec, they will rank according to the date of publicity.

Patrimony of A, owner Patrimony of E, hypothecary creditor

Obligations Property Obligations Property
Claim of E Ownership of lot Claim against A
(A: debtor) #100, charged with (E: creditor)
hyp. in favour of E

The hypothec only applies in case of insolvency. Otherwise, the hypothecary creditor has
no right to the land, the debtor has all ownership rights. E has no separate right to the land in
his patrimony, just to the prestation of being repaid.

Droit de suite: a hypothec is attached to the land and follows it, it does not disappear with the
land’s sale but is usually paid off at that time.
20

Droit de préférence: a hypothecary creditor has preferential treatment in case of insolvency.

In the case of successions, the debts of the deceased are paid with the assets of the
deceased. Heirs are usually not responsible for any remaining debt.

H. Option of abandonment (“faculté d’abandon”)

Feature of principal real rights, but not of personal rights. The titulary of a real right may
abandon his right on his own without anyone else’s consent. See CCQ 934. If it is the
abandonment of a dismembered right (ex. usufruct), the owner regains it without the operation
being seen as a transfer. See for usufruct 1169, servitude 1185, emphytheusis 1208 al. 6.

This option does not exist in the case of personal rights, which involve contracts. The
remittance of an obligation requires unanimous consent: to release a debtor from a debt
(remise de dette) the debtor must agree. CCQ 1687 and following.

October 13

Section 4 – Other species of property: Intellectual property

Cantin’s definition: Intellectual right describes a relationship between a person or a

subject and a creation or product of the intellectual activity of that subject. It allows to
draw economic benefit from that creation. See also Ghestin (p. 121).

The object of an intellectual right is produced by a person and immaterial, abstract: idea,
design, invention, process, brand-name, image, expertise, goodwill... This object should no be
confused with the support (Ghestin: buying a book does not grant a copyright).

An author’s rights have patrimonial and extra-patrimonial aspects (moral rights, droits
d’auteur, see Gendreau p. 131). These rights are considered extra-patrimonial. Particular to
CVL, the CML copyright tradition recognizes no moral rights.

In Canada, copyrights, patents and trademarks are governed by federal statutes (p. 137
and following). Canadian copyright statutes are based in the CML tradition and did not, until
recently, provide moral rights (now some like paternity). Section 13.3 (p. 138): if the author
is an employee, the copyright belongs to the employer if the work is produced in the
context of employment. This does not exist in the CVL approach, in which the right belongs
necessarily to the creator, a physical person.

Except for moral rights, a copyright is property. But which type of property? Provincial
law plays a suppletive role when federal legislation has no answers:
- Doesn’t fit very well in real rights (there is a direct link between author and creation, but it
is not a material object) or personal rights (not in this category: relation between two
subjects);
- Need a new category: intellectual rights (Ghestin’s position is the best: they don’t have to
fit in the 2 above categories, still a relatively new area).

Terms such as “propriété artistique” or “propriété littéraire” are misnomers:

 21

458. Les droits de propriété intellectuelle et industrielle sont propres, mais sont acquêts tous
les fruits et revenus qui en proviennent et qui sont perçus ou échus au cours du régime.

458. Intellectual and industrial property rights are private property, but all fruits and income
arising from them and collected or fallen due during the regime are acquests.

And also 909, 1612.

In English, the term ‘property’ is used, not ‘ownership’, which shows the need for reform.

Diffusion YFB Inc. c. Les Disques Gamma (Québec) Ltée. (1999), p. 135

Facts Le musicien Éric Lapointe est en faillite. Les deux parties prétendent avoir le droit 
ses oeuvres. La partie gagnante aura des droits envers les oeuvres non liquidés par la
faillite parce que ces droits ont été transférés.
Question Un auteur peut-il céder  un tiers des droits sur une oeuvre non encore créée?
References art. 1374 CcQ.
Ruling Juge Gomery, Cour supérieure: OUI.
Ratio Faute de rgles spécifiques, la convention en droit civil est d’utiliser le droit des
obligations. Or l’art. 1374 permet le transfert d’un droit personnel futur défini.
Note - If art. 1453 CcQ was used, the answer would be the opposite: a real right must have
an object. So the characterization of intellectual property is not indifferent.
- This relationship is not between a creditor and a debtor (Lapointe has no obligation
to compose, but if he does...)
- The right appears, the contract has effect, as soon as the object is created: different
from the personal rights regime with an obligation to do, which is not completely
applied. Perhaps a new legal regime is emerging.

1374. The prestation may relate to any property, even future property, provided that
the property is determinate as to kind and determinable as to quantity.

SOQUIA c. Libman (1998), p. 61

A unlisted/private business’s financial statements are confidential (p. 62) and extra-
patrimonial. The legal person has a right to privacy. Cantin questions this
characterization: is it confidential because it is extra-patrimonial?

The extra-patrimonial rights of legal persons can be deduced from the code but they are
unclear. This is more a question of unfair competition here, not one of extra-patrimonial
rights.
22

October 18 & 20

Section 5 – Observations on the use of legal terminology

Important conventions:

- Right (droit subjectif): general term which covers any subjective right which a person may
exercize. Includes personality and property rights, extra-patrimonial and patrimonial rights.

- Property (bien): includes real, personal and intellectual rights. Should NOT be translated as
“propriété” (ownership, one specie of property).

- Ownership (droit de propriété): most important principal real right. Right on a material
object only, does not include intellectual “property”.

- Personal right (droit personnel / de créance): debtor-creditor relationship. Right which

permits a creditor to obtain a prestation from his debtor. Different from personality rights,
which are extra-patrimonial. Also different from personal servitude (dismembered real right).

- Thing: material object which is the subject of a principal real right. In the CCQ, ‘chose’ has
often been replaced by ‘bien’, which is often inappropriate.

Chapter II - Distinction Between Immovables and Movables

CCQ Book IV of CCQ, 899 and following; p. 145 and following.

Section 1 – Origin and evolution of classification

Personal rights are deemed immovable due to the feudal regime which was land-based. Many
personal relationships common today (service contracts) were relatively uncommon.

Gradually, the evolution was caused by some movable objects acquiring value (books,
jewellery). Those movables were actually declared as being immovable by law, to fall under
the same legal regime.

Since the Catholic Church forbade interest payments, another regime was created for
monetary obligations (personal rights). To circumvent that notion, rents and annuities were
developed. These obligations were also declared immovable by law.

Section 2 – Classification of the CCQ, comparison between codes

This last distinction was kept in the CN (p. 145) and used in the CCLC (p. 146). This was also
carried through in the CCQ.

The CCQ applies a simplified distinction of movables and immovables (8 arts. instead of
14). The sub-categories in the CCLC are no longer explicitly mentioned.
 23

A. Immovables

900 CCQ

900. Land, and any constructions and works of a permanent nature located thereon
and anything forming an integral part thereof, are immovables.

Plants and minerals, as long as they are not separated or extracted from the land, are
also immovables. Fruits and other products of the soil may be considered to be
movables, however, when they are the object of an act of alienation.

Land is logically in the immovable category. Construction has replaced “building” in the
CCLC (art. 376), which codified jurisprudence on the word “building”. (Bélair, p. 151;
Cablevision, p. 161) Building had been interpreted as any structure, not only a dwelling or
industrial/commercial/institutional building.

Al. 2: allows a crop to be harvested to be considered a movable if sold before harvest. This is
effective for parties to the contract, but their effect towards a third party is less clear.

Same objects immovable as those that were immovable ‘by nature’ in CCLC 376-8.

Hidden criterion: actual immobility of the construction. The former category of

immovable by ‘nature’ included land and buildings that were in fact immovable (attached to
the ground). This is hinted to in CCQ 900. Can also be backed out by using a contrario:

905. Things which can be moved either by themselves or by an extrinsic force are
movables.

House being moved or pre-fabricated/mobile one:

- The criteria is not only permanency (now CCQ 900 §1).
- The criteria is observation (notwithstanding weight). The court simply has to be
convinced an object is so attached it is immovable (question of fact).
- Cablevision: immovability may be gained by attachment to an immovable structure
(indirect attachment to the soil).
- Different owners of the soil and of the construction is irrelevant.

The criteria of damage with movement is ineffective. In Laprise c. Morin, the court
decided that the time when a house was being moved should be forgotten. Merely resting on
the ground does not confer immovable status. Installation in a way that factually negates
mobility (ex. constructing a basement) does.

Ambiguity of CCQ 900 on proof: what has to be permanent? The duration of attachment
to the ground does not matter. However, if the attachment to the ground is merely transient
(ex. travelling circus), then the good is not immovable. Horizontal (water, power…) or
vertical attachment can be used, but jurisprudence is unsettled on their respective value.
Cantin: “I doubt it, probably not sufficient for a mobile home under the CCQ, although it
may be for municipal taxation purposes.”

Plants and minerals are also immovables. (ex. crops, CCQ 900 §2)
24

Bélair c. Ste-Rose (Ville de) (1922), p. 151

Facts Bélair owned a toll bridge between two towns. Ste-Rose wanted to charge
property tax on the half of the bridge within the community. Property tax is
owed on all immovable property. Appellant refused to pay, arguing that the
bridge was not an immovable within the meaning of article 5730 R.S.Q.
Issue(s) Was the bridge an immovable, and therefore taxable?
References s. 5730 of the Cities and Towns Act: “The Council may impose and levy
annually on every immovable in the municipality, a tax not exceeding two per
cent of the real value as shewn on the valuation roll.”
CCLC, a. 376: Lands and buildings (“bâtiments”) are immovable by their
nature.
Holding Anglin , Mignault, Idington, Duff, Brodeur, SCC: YES. Appeal denied.
Ratio The bridge is a building in the broad sense of a construction, or a “structure”. A
viaduct is a building; a paved, cobble-stone street is not. Therefore it is
immovable.
Mignault: The bridge must be either a movable or an immovable, and it is
certainly not a movable, therefore it is an immovable.
Comments Bélair does own the bridge, despite the fact that he only has a servitude over the
riverbed to which the bridge is attached.

Cablevision (Montréal) Inc. c. Sous-min. du Revenu de la Prov. de Québec (1978), p. 160

Facts Government claimed sales tax on the purchase price of a cable network (only
applies to movables): 2 antennas, one anchored to the ground and the other on
the roof of an immovable, plus wires, cables, etc. The appellant rents Hydro-
Quebec and Bell poles.
Issue(s) Is a cable distribution network attached to other networks that are immovable by
nature movable or immovable?
References CCBC, a. 374 and following; Retail Sales Act
Holding Beetz, Ritchie, Pigeon, Dickson, de Grandpré, CSC: The network is immovable
by nature. Appeal allowed.
Ratio Cannot be immovable by destination because land to which they are attached
belongs to others. This consideration does not affect classification of immovable
by nature. A construction that adheres to the land (or other immovable) is
immovable, even if it is not fixed for permanency. The antennas are vertically
attached to the ground, and the wires are horizontally attached to the antennas,
so the whole network is immovable.
Comments Cantin says this case pushes to outer limits our idea of a building.

901, 903 CCQ

CCQ 901 explains “integral part thereof” in 900. But there is a question as to what falls
under 901 and what falls under 903. Immovable by ‘destination’ may be reflected in 903.

901. Movables incorporated with an immovable that lose their individuality and
ensure the utility of the immovable form an integral part of the immovable.

902. Integral parts of an immovable that are temporarily detached therefrom retain
their immovable character if they are destined to be put back.
 25

903. Movables which are permanently physically attached or joined to an immovable

without losing their individuality and without being incorporated with the immovable
are immovables for as long as they remain there.

This distinction has not really been clarified. What is that structure is unclear: can anything
be characterized as part of a construction?

In CCQ 903, reminiscent of ‘immobilization by destination’ (see also Law on Civil Code
48), there are at least two positive requirements:
1. Physical attachment / junction to an immovable, which need not be incorporation or
imply a loss of individuality. But it must have a permanent character.
2. The object must ensure the utility of the immovable (a. 48).

For objects which are not materials (Nadeau c. Rousseau: furnace; Horn Elevator), but
which have a strong association with the building, their purpose is used by courts, but this
is not a very clear criteria. This question was never fully settled under the CCLC. CCLC 379
and 380 contained the ‘immovable by destination’ category, removed from the CCQ (now all
links must be physical).

Decorative objects (ex. chandelier or inlaid painting): are those immovables? Courts have
generally said no.

If an object is an immovable within a building, it cannot be seized separately. See CCQ

901 in context of:

956. The owner of an immovable becomes the owner by accession of the

constructions, works or plantations he has made with materials which do not belong to
him, but he is bound to pay the value, at the time they were incorporated, of the
materials used.

The previous owner of the materials has no right to remove them nor any obligation to
take them back.

No stipulation in a contract can prevent this result (which was attempted in Nadeau).

Temporary dismantlement does not grant immovable status (CCQ 902).

Much of the new CCQ wording has yet to be applied and interpreted by the courts.
“Attached” may be weaker than “incorporated”. Very difficult to establish which objects are
immovable under 901 and which under 903: the loss of individuality requirement is not very
useful beyond bricks and mortar (windows?).

Nadeau c. Rousseau (1927), p. 53

Facts Rousseau sold two furnaces to Nadeau, to be paid in instalments. Agreement

was that Rousseau would remain owner of furnaces until they were paid for in
full. The building was “vendu par décret” before furnaces were paid for.
Furnaces not fully paid for, claimed by Rousseau.
Issue(s) Is the furnace incorporated?
References CCLC a. 376 and following.
Holding Juges Allard, Rivard, Létourneau, Cour du BR: YES. Furnaces are incorporated,
26

becoming immovable by nature, the supplier loses his rights to them.

Ratio - “Un meuble devient immeuble par nature, s’il est attaché à un immeuble de
telle sorte qu’elle en fasse véritablement partie intégrante, qu’il soit
indispensable à l’existence même de l’immeuble, et que l’immeuble ne soit pas
complet sans lui.” (p. 153)
- “Le vendeur de matériaux destinés à former partie intégrante d’un immeuble
ne peut stipuler que ces matériaux garderont leur caractère de meubles et qu’il
en retiendra la propriété jusqu’à parfait paiement. Le moyen de protéger sa
créance est de recourir au privilège du fournisseur de matériaux. ” (p. 153)
Comments - Mobility and immobility determined by law, not by what the suppliers and
proprietors agree on in a contract.
- Immobilization by destination is only possible when the movable and the
immovable belong to the same person.
- Object becomes immovable by nature if it is integrally attached, and if the
immovable would not be complete without it.

Horn Elevator Limited c. Domaine d’Iberville Limitée (1970), p. 155

Facts The Domaine had paid off just over half the price of the elevators before
bankruptcy. Contract stated that appellant retained ownership of elevators until
they were fully paid off. Horn tried to seize the elevators, but the Cour
supérieure declared them to be immovable and unseizable.
Issue(s) Are the elevators and component parts immovable by nature?
References CCLC a. 375-378 and 2268.
Holding Juges Rinfret, Owen, Rivard, Cour d’appel: YES. Appeal denied.
Ratio The building would be as incomplete without elevators as it would be without
windows, which are just as easily removed. It is not normal to build a 15-storey
building without an elevator system.
Comments This case brings the purpose of the accessories into the argument. Do we
consider these objects as being of the same nature as the construction, part of
the it? What about decorative objects? These issues are mostly raised in
buildings that house people.

How would Nadeau c. Rousseau and Horn Elevator be decided today?

The furnace and the elevator are useful to the building, therefore immovables.
Nadeau: The heating pipes are incorporated, the furnace is at least attached under 903.
Horn: Clearer incorporation for the elevator, probably immovable under art. 901.

Construtek G. B. Inc. c. Laforge (1998), p. 171

Facts Divorce. Husband owned Construtek contracting company. Laforge (wife) left
with major kitchen appliances, countertop, furniture attached to walls in child’s
room, curtains, blinds, chandeliers and light fixtures. Construtek is claiming
their value on the basis that they are immovable by destination.
Issue(s) Are the above items immovable by destination?
References CCQ a. 901, 903, plus s. 48 of Loi sur l’application de la réforme du Code civil.
(casebook p. 149)
Holding Juge de Pokomandy, Cour du Québec: Only chandeliers and light fixtures are
immovable by destination, Laforge must compensate Construtek for their value.
Ratio The objects in question were for utility of occupant (meubles meublants), not
for utility of construction (except for lights: a house without lighting is
incomplete).
 27

Comments - Changes the criterion for differentiation between 901 and 903: not fixture, but
utility to construction.
- Such an object would have remained movable if charged with a movable
hypothec.
- Cantin: The judge’s conclusion may be mistaken. If the lights are immovable
under 903, Laforge should have been made to return them (did not own them),
not pay their value.

Axor Construction Canada Ltée c. 3099-2200 Québec Inc (2002), p. 175

Facts 3099 supplied and installed boards in a skating arena. They are anchored but
removable. 3099 took out a legal hypothec on the building. Axor asked the Cour
supérieure to cancel the hypothec, unsuccessfully.
Issue(s) Are removable boards in skating rink immovable?
References CCQ 901, 903, 905, 2724 ; s. 48 of Loi sur l’application de la réforme du Code
civil. (casebook p. 149)
Holding Juges Rochon, Rothman (majority), Cour d’appel: YES, appeal denied.
Juge Vallerand (dissent): NO.
Ratio Dissent: Only parties having participated in construction or renovation of an
immovable can have a legal hypothec (s. 2724), but the respondents’ contract
says equipment suppliers. Also, s. 48 says that movables used for business
purposes remain movables.
Majority: Immovable. All conditions of 903 are met. Also, 903 must be
considered in terms of s. 48: look at utility for the building, an arena without
boards is incomplete.
Comments No discussion of 901 and 903, does not further our understanding.

What is the interest of characterizing objects under 901 OR 903?

For a movable fully integrated into an immovable (901), the immovable characterization
is definitive and permanent unless the construction itself is destroyed. See:

956. The owner of an immovable becomes the owner by accession of the

constructions, works or plantations he has made with materials which do not belong to
him, but he is bound to pay the value, at the time they were incorporated, of the
materials used.

The previous owner of the materials has no right to remove them nor any obligation to
take them back.

Under 903, the object is merely presumed immovable because of its attachment. But this
presumption can be rebutted: if Nadeau c. Rousseau’s furnace had been characterized under
903, it could have been seized (same result for a movable hypothec, see CCP, p. 115).

Some additional points

904. Real rights in immovables, as well as actions to assert such rights or to obtain
possession of immovables, are immovables.

This is not new, more or less brings back CCLC 381. There are immovable objects and
immovable real rights.
28

It is possible to characterize objects as immovable by determination of the law:

907. All other property, if not qualified by law, is movable.

CCP 667: revenue of a seized immovable is deemed immovable and distributed as such,
even though this is against the characterization of fruit once they are picked. See also:

2695. Hypothecs on the present and future rents produced by an immovable and
hypothecs on the indemnities paid under the insurance contracts covering the rents are
considered to be immovable hypothecs.

Such hypothecs are published in the land register.

3 categories of immovables: objects, real rights and determined by law.

B. Movables

What is not characterized somehow as immovable is movable.

905. Things which can be moved either by themselves or by an extrinsic force are
movables.

906. Waves or energy harnessed and put to use by man, whether their source is
movable or immovable, are deemed corporeal movables.

907. All other property, if not qualified by law, is movable.

Real rights are immovable, but personal rights and intellectual property are movables.

C. Cantin’s characterization method: movable or immovable

4 steps:

1. Start from land, which was in the former “immovable by nature” category.

2. Move up: most buildings are immovable, because they are solidly attached to land.

3. 901 deals which parts which are not truly distinct from the whole: building
materials, and, to a lesser extent, windows, stair cases.

4. When it is really doubtful to what extent something is “constitutif” of an

immovable, that is when 903 is used.

In all cases, this characterization is not arbitrary, it must stem from the CCQ, but there is no
clear jurisprudence.
 29

October 25 & 27

Section 3 - Relevance of classification today

Helps to have a manageable number of legal regimes applying to things. It is no longer

useful to say a personal right is movable. It IS significant for real rights on material objects
(ex. registry for immovables, not for most movables).

Chapter III - Other classifications

Section 1 – Capital and fruit or income

908. Property, according to its relation to other property, is divided into capital, and
fruits and revenues.

909. Property that produces fruits and revenues, property appropriated for the service
or operation of an enterprise, shares of the capital stock or common shares of a legal
person or partnership, the reinvestment of the fruits and revenues, the price for any
disposal of capital or its reinvestment, and expropriation or insurance indemnities in
replacement of capital, are capital.

Capital also includes rights of intellectual or industrial property except sums derived
therefrom without alienation of the rights, bonds and other loan certificates payable in
cash and rights the exercise of which tends to increase the capital, such as the right to
subscribe to securities of a legal person, limited partnership or trust.

910. Fruits and revenues are that which is produced by property without any alteration
to its substance or that which is derived from the use of capital. They also include
rights the exercise of which tends to increase the fruits and revenues of the property.

Fruits comprise things spontaneously produced by property or produced by the

cultivation or working of land, and the produce or increase of animals.

Revenues comprise sums of money yielded by property, such as rents, interest and
dividends, except those representing the distribution of capital of a legal person; they
also comprise sums received by reason of the resiliation or renewal of a lease or of
prepayment, or sums allotted or collected in similar circumstances.

Resembles distinctions used for taxation purposes, but no perfect equivalent.

Capital: substance of the object.

Fruit: what is produced by the object without substantial reduction of the substance (CCQ
910 says “any” but Cantin thinks it’s too strong).

The notion of capital relates to any type of property, including intellectual. Dividends are
often viewed as income, but may in some cases be distribution of capital (company that sold
assets...). Some specific rules in the case of usufruct of securities (CCQ 1131 and following).
30

Characterization may change over time: income may become capital (CCQ 900 al. 1).
The way some assets are used may also influence their characterization: milking makes
cattle capital, slaughtering makes the young income.

These rules are suppletive. There may also be different characterization in contracts or
successions, as long as there is no prejudice to third parties.

Difference between “fruit” and “income”:

- Fruit is a natural, agricultural fruit.
- Income is a sum of money received (interest, dividend, rental income).
Important notably in leases, usufruct and trusts.

An usufructuary has to preserve substance of a property (CCQ 1139-1141) unless the

activity is already established, in which case this is seen as an income activity which the
usufructuary can continue (some exceptions for logging).

The distinction between capital and income is most important when only a right of use or to
the fruit is granted: usufruct, emphyteusis.

The last sentence of par. 1 CCQ 910 probably relates to securities:

1134. Voting rights attached to shares or to other securities, to an undivided share, to a

fraction of a property held in co-ownership or to any other property belong to the
usufructuary.

However, any vote having the effect of altering the substance of the principal property,
such as the capital stock or property held in co-ownership, or of changing the
destination of the property or terminating the legal person, enterprise or group
concerned belongs to the bare owner.

The distribution of the exercise of the voting rights may not be set up against third
persons; it is discussed only between the usufructuary and the bare owner.

Section 2 – Fungible and consumable things

Fungible as opposed to non-fungible, consumable as opposed to non-consumable (p. 178).

These notions are linked to real rights.

A. Fungibility

A thing is fungible when it is interchangeable with another thing of the same specie. This
concerns a personal right on an indeterminate object, only to one of a kind.

An indeterminate material object is not a subject of a real right because the thing has to
be identified for it to be the subject of a real right (ex. car constructed but not assigned to a
specific owner becomes non-fungible when transferred). See CCQ 1453 (2).
 31

B. Consumability

A thing is consumable if it disappears on first use (food, fuel, money). Different from a
thing that gradually deteriorates with use (important in usufruct).

It is almost impossible to have a usufruct (or loan) of a consumable object, the usufructuary,
will be seen as the owner of the object with an obligation to render a similar object or its value
to the bare owner at the end (quasi-usufruct, CCQ 1127): the bare owner will be a creditor
with a personal right.

C. Application of these notions

Mostly in the context of usufruct.

1127. The usufructuary may dispose, as though he were its owner, of all the property
under his usufruct which cannot be used without being consumed, subject to the
obligation of returning similar property in the same quantity and of the same quality at
the end of the usufruct.

Where the usufructuary is unable to return similar property he shall pay the value
thereof in cash.

1128. The usufructuary may dispose, as a prudent and diligent administrator, of

property which, though not consumable, rapidly deteriorates with use.

In the case described in the first paragraph, the usufructuary shall, at the end of the
usufruct, return the value of the property at the time he disposed of it.

These characterizations can be artificially attributed through contracts or successions:

- Can be useful for securities or bonds which can be seen as fungible (by destination),
instead of non-fungible, which facilitates good management by an usufructuary.
- A thing can also be declared a consumable or non-consumable in a contract (ex. giving
usufruct of a bottle of wine for ‘show only’  “non-consumable by destination”).

Section 3 – Things susceptible of appropriation or things in commerce, res nullius,

res communes

2876. That which is not an object of commerce, not transferable or not susceptible of
appropriation by reason of its nature or appropriation may not be prescribed.

Two notions: things not in commerce; that which is not susceptible of appropriation.

A. Things in commerce or susceptible of appropriation

Object of a contract of sale, will... Juridical commerce: Concerns things which are alienable
(property vs. inalienable extra-patrimonial rights, body parts). Although, exceptionally, some
property is not alienable, through law (ex. Cultural Property Act) or a contract / will.
32

1212. No restriction on the exercise of the right to dispose of property may be

stipulated, except by gift or will.

A stipulation of inalienability is made in writing at the time of transfer of ownership of

the property or a dismembered right of ownership in it to a person or to a trust.

The stipulation of inalienability is valid only if it is temporary and justified by a

serious and legitimate interest. Nevertheless, it may be valid for the duration of a
substitution or trust.

The idea that property is not transferable is not seen favourably: property not in commerce is
an exception. An untransferable usufruct means a right is extinguished (ex., by death) more
than untransferability.

B. Res nullius

“Thing of no one” or “chose sans maître”, that may be the object of ownership.

914. Certain other things, being without an owner, are not the object of any right, but
may nevertheless be appropriated by occupation if the person taking them does so with
the intention of becoming their owner.

934. Things without an owner are things belonging to no one, such as animals in the
wild, or formerly in captivity but returned to the wild, and aquatic fauna, and things
abandoned by their owner.

Movables of slight value or in a very deteriorated condition that are left in a public
place, including a public road or a vehicle used for public transportation, are deemed
abandoned things.

Two possible situations:

- Wild animals or fish, products from the sea, which have never had an owner.
- Things abandoned by their owner, such as a treasure (CCQ 938).

Res nullius are mostly movables, if they are immovables, they are owned by the State
(province in Canada):

918. Parts of the territory not owned by natural persons or legal persons nor
transferred to a trust patrimony belong to the State and form part of its domain. The
State is presumed to have the original titles to such property.

Abandoned movables are “up for grabs” by occupation (CCQ 916, procedure: 939 and
following). Time is required for ownership to be transferred (acquisitive prescription).

C. Res communis

Things which are not susceptible of appropriation. They may not be owned by anyone,
including the State. These are common things, not common property (“bien commun” is a
misnomer).
 33

913. Certain things may not be appropriated; their use, common to all, is governed by
general laws and, in certain respects, by this Code.

However, water and air not intended for public utility may be appropriated if collected
and placed in receptacles.

No one may use such a thing in a way that prevents use by others. The State has the power
to organize the use of the common thing (environmental law). Traditionally, air and water
are considered common things, but not land.

Section 4 – Legal characterization of water

Fresh water is addressed here. Shouldn’t confuse water, its watercourse and the banks if
the watercourse. A watercourse can be used for many purposes:

919. The beds of navigable and floatable lakes and watercourses are property of the
State up to the high-water line. (...)

920. Any person may travel on watercourses and lakes provided he gains legal access
to them, does not encroach on the rights of the riparian owners, does not set foot on
the banks and observes the conditions of use of the water.

CCQ 913 does mention water. What are the consequences of its characterization as res
communis? The right is limited to the right to use within certain boundaries.

The rule for surface water:

981. A riparian owner may, for his needs, make use of a lake, the headwaters of a
watercourse or any other watercourse bordering or crossing his land. As the water
leaves his land, he shall direct it, not substantially changed in quality or quantity, into
its regular course.

No riparian owner may by his use of the water prevent other riparian owners from
exercising the same right.

The State owns the bed of rivers, but not the water. Water is actually res communis in any
type of watercourse (see Morin).

Water completely enclosed in one’s land has slightly different conditions attached:

980. An owner who has a spring on his land may use it and dispose of it.

He may, for his needs, use water from the lakes and ponds that are entirely on his land
taking care to preserve their quality.

Is spring water res communis? Some have argued CCQ 980 recognizes ownership of the
water. But spring water is included in CCQ 982: all water has the same status. This lends
credence to the idea that water from any source is res communis... (p. 179)
34

The exception is bottled water or compressed air (CCQ 913)... Unclear: what is water or
air “not intended for public utility”? Whether governmental permits have a legal basis is
dubious.

What is certain:
- Water flowing above ground is a res communis (CCQ 981). Riparian owners can use it,
but only as long as there is no prejudice to others: recreational use (regardless of who owns
the bed, Morin c. Morin) Aqueduct fees pay for cleaning and carrying, not for water itself.
- The State has a power (no duty in CCQ) to preserve air, but is not its owner. So far, it is
harder to claim ownership of air, so questions surrounding water are often inapplicable.
- A body of stagnant water enclosed in one’s land is still res communis. No distinction on
the origin of water. But there must be legal access to the common thing (CCQ 920).

What is uncertain:
- Ownership of spring water, CCQ 980 is a point of disagreement. Cantin: no ownership.
The plot thickens with CCQ 913 (2): how far does the right of catchment go?
- Ownership of underground water. CCQ 951 makes this even more complicated,
insinuating the State may own underground water. But a spring comes from the ground...
- Municipality or individuals can apply for a permit of catchment of water for bottling and
sale (“commercial water”). This is not related to ownership of underground water, but to
ownership of the land. So the drafters probably envisaged ownership of water.

November 1 & 3

Spring and ground water have never come up in a case.

The explanation of the Minister on CCQ 913 (p. 181) is inconclusive. The exception
appears to destroy the general rule.

Morin c. Morin (1998), p. 180

Facts J-C Morin (demandeur appelant) a créé un lac artificiel sur son terrain, puis Marc
Morin (défendeur intimé) a acheté un terrain riverain. J-C prétend être propriétaire
exclusif du lac et veut empêcher Marc de l’utiliser  des fins de circulation,
récréatives ou sportives. Perdu en pi (eau non susceptible d’appropriation).
Question Existe-t-il un droit d’utiliser un lac mitoyen de sa propriété même lorsque quelqu’un
d’autre est propriétaire du lit?
References arts. 913, 920, 981 CCQ.
Ruling Juges Lebel, Mailhot, Fish, Cour d’appel: OUI, sauf pour la pêche.
Ratio Aucune preuve que J-C a gardé une lisière de terrain autour du lac. En vertu des arts.
913 (eau est un bien commun), 920 et 981 (droit commun d’utilisation), Marc peut se
servir du lac, que celui-ci soit navigable ou non (non-navigable ici). Le seul droit
exclusif de J-C est le droit de pêche, car c’est un droit réel accessoire  son droit de
propriété sur le lit du lac.
Note Water is a res communis. Settled that there is a right to travel on it as long as there is
legal access (920). But this does not settle the question of water use.
 35

PART THREE – Property in Relation with Persons (Subjects of

Rights in Land)
918. Parts of the territory not owned by natural persons or legal persons nor
transferred to a trust patrimony belong to the State and form part of its domain. The
State is presumed to have the original titles to such property.

The person can be a physical, private or public legal person. The State here is the
provincial State, according to the Constitution.

Chapter I - Private Ownership of Land and its Origin

Section 1 – The Seigneurial system and its abolition

In the early 17th C. (1st: Louis Hébert, 1607, Québec City), land started being granted
according to the seigneurial tenure system of the Coutume de Paris.

Marler, 3 types of titles:

1. Grant “en seigneurie” with 3 levels of title:

- Fief suzerain or eminent domain (Crown);
- Direct domain (Seigneur);
- Useful domain (domaine utile, Censitaire).

2. Grant “en censive” without the seigneurs (2 levels), fewer grants.

3. Grant “en franc alleu”, a few small grants in ownership. Outside the seigneurial
system, such a title reserved nothing for the Crown, unlike the other titles.

After 1760, the English Crown simply replaced the French Crown. Soon, land was given
outside the seigneurial system, in free and common soccage, similar to the franc alleu.

In the feudal system, the seigneurs and censitaires did not really have ownership titles.
They had rights of use taken away if some obligations were not respected (p. 192).

Seigneurs’ obligations: pay respect to the Crown and sometimes pay an annual due, plus
some obligations towards the censitaires (land transfer to them, providing a mill).

Censitaires’ 5 types of obligations: use the seigneur’s mill, the seigneur could pre-empt title
transfer by purchasing, tax payable to seigneur on title transfer, jours de corvée, annual rent.
When land was given en censive: only an annual rent paid by the Crown to the censitaires.

This system lasted until the mid-19th C., when there was enough pressure to abolish it:
- First, there was a voluntary process of conversion of seigneurial tenure to full
ownership.
- Seigneurial Act of 1854 (p. 196) led to compulsory tenure transformation into franc
alleu ownership. The seigneurs became full owners of what was not sub-granted (their
domain). The parts that had been granted to censitaires became their full ownership.
36

The Crown renounced the “eminent domain”, any real rights. This also affected the
grants en censive.

How former feudal relationships were addressed (¶27, Marler):

1. The Crown renounced any rights to rents in exchange for the benefits of the censitaires’
casual obligations (use the mill, corvée...).
2. To solve the issue of dues (cense et rente) owed to the seigneurs: the censitaires’ obligations
were evaluated as a capital sum and liquidated with an annuity or interest payment going to
the seigneurs and the possibility to end the obligation by paying the capital (redeemable rent).
The censitaires practically became debtors and were given at most 99 years to pay the capital.
Inflation made this burden relatively easy to bare. The rents were guaranteed by hypothec, so
in case of non-payment, seizure, sale, etc. This rarely occurred, as the rents were small. The
complete liquidation of all obligations occurred in 1935, with the government helping
some tenants (municipal taxes used to recover loans).

The abolition of the seigneurial tenure removed the possibility of having several owners of
land.

There was no superimposition of a new system, unlike what mostly happened in COL: the
tenure system was abolished in Scotland on Nov. 28, 2004!

Roman-type ownership had always had some recognition in the seigneurial system (Patault),
so the French Revolution and the law of 1854 in Quebec is only the final victory of Roman
law.

Section 2 – Permanent consequences of abolition of tenure system for real rights

structuring in Quebec
There are now only full owners: persons or the State. But there are 3 additional
consequences, see Seigneurial Act, s. 30 and 59:

- Prohibition for anyone (State included) to recreate, a system of tenure directly or

indirectly. Consequences on the real servitude: cannot be primarly an obligation to do, but a
relationship between two pieces of land.

- Prohibition of perpetual rents (rent: similar to a loan, CCQ 2367). Maximum 100 years:

2376. The duration of payment of any annuity, whether or not it is a life annuity, is in
all cases limited or reduced to 100 years after the annuity is constituted even if the
contract provides for a longer duration or constitutes a successive annuity.

Perpetual leases are also prohibited (also limited to 100 years, CCQ 1880), notwithstanding:

1851 al. 2. The term of a lease is fixed or indeterminate.

“No personal right can be perpetual.” - Cantin

- Ownership is the ultimate, perpetual title over an object. Full title rests with the owner, it
is incommutable. See CCLC 406 and:
 37

947. Ownership is the right to use, enjoy and dispose of property fully and freely,
subject to the limits and conditions for doing so determined by law.

Ownership may be in various modes and dismemberments.

The Crown may expropriate to gain rights to land, but not invoke the eminent domain. There
may be some powers to confiscate (ex. proceeds of crime), but through specific statutes.

We only have one type of ownership. Dismembered rights are lesser rights, not full
rights of ownership.

Section 3 – Private ownership of land (or private domain); multiple sources; content
of title

Marler distinguishes 5 sources of private ownership of land:

- Commuted seigneurial titles;
- Grants en franc alleu or free and common soccage;
- Various land-grant statutes.
In all of these cases, persons have the same right of ownership.

How can land be granted now: see p. 205, for grants of State owned agricultural land
(ownership or lesser rights) (south of 50th parallel); p. 102 (north). The forest and mining acts
only provide for dismemberments of ownership (p. 106-7).

A. Rights of private owners on underground resources

951. Ownership of the soil carries with it ownership of what is above and what is
below the surface.

The owner may make such constructions, works or plantations above or below the
surface as he sees fit; he is bound to respect, among other things, the rights of the State
in mines, sheets of water and underground streams.

Before the first provincial mining act (1880), everything under land was granted except
gold and silver. Now the State reserves everything and only provides some exceptions.
The State can grant mining rights to someone else than the surface’s owner and the Mining
Act 235 gives the holder of mining rights to expropriate the owner of the surface for her own
purposes, to pursue her activities.

In 1982, the province passed legislation (p. 212-3) which eliminated all distinctions. “I
have reservations about acts that revoke rights of ownership, which the State may not do,
because the Crown does not have any remaining rights on the land and thus no basis of action.
It should have to confiscate or expropriate. Yet this is expropriation without compensation,
which is forbidden (CCQ 952).” - Cantin

A provision in the 1982 statute provides tha the former owner of rights gets 5% of the annual
income of their exploitation. Cantin: This is much lower than the value of what was taken.
38

B. Diverse origins of property in Quebec and influence on riparian rights

Based on provincial statute since 1884. Before that: seigneurial grants, franc alleu, common
soccage... The way land was granted makes no difference in the rights in land, but can make a
difference as to the physical extent of land which borders water (riparian rights).

First test: If a watercourse is navigable and floatable, ownership goes to the high
watermark (Houde), except when seigneurial grants explicitly gave more (Auger).

Second test: This is also the situation of all grants by non-floatable water made after Feb.
19, 1918. The ones made before include land to the middle of the watercourse (or all of it if
the owner is the same on both sides).

This is important do determine some rights: fishing rights, construction on the bed, sand
collection... The riparian owner also has a right to use the water (CCQ 981). The waterbed is
distinct from the water, which is a res communis.

Québec (P.G.) c. Houde (1998), p. 199

Facts Houde claims to have exclusive fishing rights in the section of the Rivière Petit-
Saguenay in front of his property. Right upheld by Cour supérieure.
Government claims that river is navigable and floatable at high tide.
Issue(s) Is river navigable and floatable?
Are there public fishing rights in tidal waters?
References CCLC a. 400; CCQ a. 919.
Holding Juge Rousseau-Houle, Cour d’appel: River is tidal, but non-navigable. There are
no public fishing rights in non-navigable waters, even if they are tidal.
Ratio Commercial navigation is practically impossible. Navigability is a question of
fact to be decided by the court on a case-by-case basis.
Comments - Navigability means commercial navigability. Canadian caselaw seems to
have made navigability and floatability inseparable conditions.
- There are some residual differences depending on when the title was obtained.

The date of the grant and the character of the watercourse must be taken into account to
determine what was granted: navigable and floatable or not? It must be decided whether
this was the case when the grant was made.

Québec (P.G.) c. Auger (1995), p. 215

Facts Auger claims that he owns the bed to the low water mark, not just to the high
water mark (HWM). Previous owners were Jesuits (Seminary of Quebec), and
he claims that they had been given an express grant of the bank in 1687. Ville de
Laval claims that there is no valid title. The Rivière des Prairies is navigable.
Issue(s) Does Auger’s land extend to the low water mark?
References CCLC s. 400, 2084 ; CCP s. 96; Seigneurial Act (1854) s. 5 para 7.
Holding Juges Otis, Deschamps (majority), Cour d’appel: YES. Rothman (dissent): NO.
Ratio Dissent: insufficient evidence of title.
Majority: the word “grèves” in the 1687 concession to include the bed to the
LWM. Title in the “cadastre abrégé” does not confer rights, only confirms them.
The absence of title there is not enough to deny its existence.
Comments See CCQ 919. If watercourse is navigable, the bed is public to the HWM,
unless there was a grant under seigneurial tenure.
 39

Section 4 – State ownership of land (or public domain): Province and municipalities

The public domain includes (CCQ 299-300):

1. Domain of the State.
2. Domain of public legal persons (Crown corporations).
3. Domain of municipalities.

As a point of departure, their ownership can be seen as being the same as for private persons,
see CCQ 915-9, which make no distinction. But this does not exclude some specific rules
applicable to the public domain, in private law. “Crown prerogatives”: State land is
unprescriptible, unseizable and cannot be the subject of a hypothec:

916. Property is acquired by contract, succession, occupation, prescription, accession

or any other mode provided by law.

No one may appropriate property of the State for himself by occupation, prescription
or accession except property the State has acquired by succession, vacancy or
confiscation, so long as it has not been mingled with its other property. Nor may
anyone acquire for himself property of legal persons established in the public interest
that is appropriated to public utility.

A. Crown corporations

Statutes give the specific legal regime applicable to a public entity, ex. Hydro Québec,
Caisse de dépôts. These statutes are often very ambiguous. This is partly due to a bijural
mix of public (common) and private (civil) law.

Ex.: Art. 1 of the Hydro Québec statute designates it a joint-stock company, which makes it a
legal person (CCQ 2188 (2)). But the State owns all shares, and HQ is a “mandatory” of the
State. This “mandatory” business makes little sense: as a mandatory, one is not a legal person
with a patrimony. Another art. says the property belongs to the State, but some obligations
may be contracted on HQ property, which is contradictory. The company binds itself under its
own name, but how is it a mandatory then? The company has “power to possess” property,
which makes little sense in civil law, because it=s already in CCQ 302-3. There is also
impresciptibility, but which does not apply in some cases...

Construction D.R.M. Inc. c. Bâtiments Kalad’art Inc. (2000), p. 220

Facts DRM had a K with Rimouski to build a salt warehouse. Kalad’art was not paid
for material it supplied to DRM (bankrupt), so registered a legal hypothec on the
warehouse. Respondent claims hypothec is invalid because immovable is for
public utility and unseizable. Cour supérieure agreed.
Issue(s) Is the immovable seizable?
References CCQ s. 916 (can’t appropriate property of a public legal person for public
utility), 2668, 2726; Loi sur les cités et les villes s. 591-604.
Holding Juges Mailhot, Rousseau-Houle, Biron, Cour d’appel: NO, appeal denied.
Ratio The municipality is a public legal person, and the warehouse is for public utility.
Therefore, legal hypothecs by suppliers of materials are invalid.
Comments - s. 916 differentiates between public municipal domain (for public utility) and
private municipal domain (still seizable). The suppliers had no legal
relationship with municipality, only with contractors. This leaves suppliers with
40

no protection when supplies are placed within public domain. Cantin: The
judgment is unsatisfactory, since it does not take opportunity to fix this problem.
(CCQ 2726 and following normally protect suppliers of building materials
through a legal hypothec on the building.)
- Ad hoc decision, the criterion remains unclear. Cantin’s solution: grant a direct
recourse against the municipality in this case, which would allow to get rid of
this public-private domain uncertainty.
 41

November 8 & 10

PART FOUR – The Right of Ownership

Chapter I - Concept of Ownership in Quebec and the Civil Law Tradition

947. Ownership is the right to use, enjoy and dispose of property fully and freely,
subject to the limits and conditions for doing so determined by law.

Ownership may be in various modes and dismemberments.

Section 1 – The “paramount” real right

Ownership of immovables as gone through much change. But for movable objects, there has
been little evolution since Roman law. In all cases, there is only one type of ownership,
with no competing titles. See Patault, pp. 15-18; Portalis, p. 237 (apology of ownership).

Ownership is the most important real right and others are structured in relation with it
(chart p. 573).

In law, ownership or propriété is limited to the real right of ownership (between a person
and an object). See Ghestin, p. 86, 121; Carbonnier, p. 92.

Changes in the CCQ (p. 233)

CCLC (reproduced CN verbatim) CCQ
“plus absolu” “fully and freely”
“thing” “property”
“dispose” “use, enjoy and dispose”

Relevance of change from thing (chose) to property (bien):

- Some argue that now any property may be the subject of a right of ownership (Normand).
This argument rests on the definition of the hypothec (CCQ 2660-1), which can be on any
property of the debtor. But if property is the right bearing on any object, the distinction
between real and personal right disappears.
- Cantin’s opinion: “This reasoning is flawed. It is based on an incomplete understanding.
And a hypothec has nothing to do with principal real rights (only gives a priority in case of
liquidation), so little reason to qualify it as an accessory real right. This has nothing to do with
the right of ownership. Such a change is major, so if it were the case, it should be mentioned
in the Commentaires du Ministre or elsewhere in the CCQ, which is not the case, see p. 235.”
“Property” in CCQ 2644 does not have the same meaning as in 947.
- Real rights are now mentioned explicitly in the CCQ, which could lead to conclude that the
paramount structuring feature of CVL property has been altered. Formerly a hypothec could
only be charged on an immovable; the patrimonial rights which are immovable are... real
rights. So in reality there is probably no change.

Cantin’s definition of ownership / propriété: full right on material object.

Some French scholars are proposing a new definition of patrimonial rights, were real
and personal rights distinctions tend to disappear (p. 98). These ideas have not been
42

recognized as operative in positive law: this may have influenced the drafters of CCQ 947
(Ministère de la justice, the CCRO, which had suggested “thing”).

Section 2 – Attributes of ownership

There are 3 attributes of ownership (CCQ 947):

- Use (usus), any usage is in this category. This also includes physical control by the owner.
The owner may choose to use the object or not (faculté or option).

- Enjoy (fructus), the owner gets the fruit or rental income (to have a lessee is an enjoyment).
Right to administer the thing, which can only be withdrawn due to:
1. Legal incapacity (CCQ 153-4).
2. Dismemberment (ex. usufruct).
3. Insolvency which brings in a trustee in bankruptcy.
The owner may choose to enjoy the object or not (faculté or option) and has no obligation to
account to anyone on this point (unless there are specific legal dispositions to the contrary).

- Dispose (abusus), the right to transfer the title or charge it with a hypothec (this applies to
any patrimonial right). Also a second more specific meaning: the owner may act in a way that
diminishes the value of the object or destroys it (material act of disposition), ex. logging,
mining, changing use... Normally does not extend to dismembered rights.

There are no limits to a title of ownership, unless real rights where granted:

948. Ownership of property gives a right to what it produces and to what is united to
it, naturally or artificially, from the time of union. This right is called a right of
accession.

949. The fruits and revenues of property belong to the owner, who bears the costs he
incurred to produce them.

The owner can take advantage of his right or not: no obligation of action, unlike in the
seigneurial system. For dismembered rights, there is a defined content (ex. usufruct: right to
use and enjoy, while preserving the substance).

Section 3 – Characteristics of ownership

The CCLC used the words “most absolute”, now CCQ 947 uses “fully” and “freely”. In the
CCLC, “most absolute” had been interpreted as meaning “no restrictions”, even though the
drafters probably had in mind was the effects of the French Revolution: the new ownership is
an unencumbered title, the owner having replaced the King or Church with their absolute
power (ownership is defined in France as a fundamental right). This historical has been lost
(p. 236), so the change in phrasing was probably a good idea. But there is not much
significant change as to the nature and understanding of the right of ownership.

Characteristics of ownership (Patault):

- Individual right, the owner not being required to exercize his right in the benefit of anyone
else. This is more generally the recognition of private property, but this applies in a more
 43

apparent fashion to ownership, especially of immovables. However, there are now some
obligations to take into account interests of the family (CCQ 401 and following).

Debate among French legal writers (Josserand, early 20th C.): some defended a “fonction
sociale du droit de propriété”. This would make the action of an owner open to contestation.
Almost a socialist concept of property, which had very little practical legal effect. Yet,
maybe this idea influenced the CCRO drafters: “within the limit of [as defined by] law” (p.
234), but this was not adopted because it would have been a major alteration.

- Exclusive right, which is newly recognized in the CCQ:

953. The owner of property has a right to revendicate it against the possessor or the
person detaining it without right, and may object to any encroachment or to any use
not authorized by him or by law.

The owner is not legally obliged to give access to others, even previously tolerated
encroachment can be stopped at any time:

1181. A servitude is established by contract, by will, by destination of proprietor or by

the effect of law.

It may not be established without title, and possession, even immemorial, is

insufficient for this purpose.

However, the law allows encroachment in some cases, ex.: for immovables, see CCQ 987
and following [right of passage for repairs], 997-1001 [right of passage for land with no
public access]. But any legal exception must be explicit.

- Perpetual right, perpetuity can be understood in several ways. As it applies to the right of
ownership, perpetuity means this right is not extinguished by the normal legal causes of
extinction of other patrimonial rights, such as non-use, improper use, revocation, extinctive
prescription (CCQ 2921, although not explicit in the CCQ, it is in CVL, p. 248-250; usufruct
extinction rules at CCQ 1162 do not apply). It only disappears if its object totally
disappears (normally a movable).

Acquisitive prescription is a means of transferring the right of ownership, so there is no

contradiction. Not using something does not deprive of a right, but this opens the door to
another user who may eventually acquire the right of ownership.

Even in the case of abandonment, the right of ownership is not extinguished. For an
immovable, it is transferred (to the State, CCQ 936), not abandoned. A movable will become a
res nullius, which can be acquired through possession (not extinguished, just pending).

It is not possible to envisage a temporary right of ownership, which would terminate at

some time (usually in a contract). Closer to usufruct, when it ends, there is no transfer, the
bare owner simply regains his full title.

One does not have a right of ownership, strictly speaking, on a copyright, since it is not
perpetual and does not apply to a non-material thing. Better to use being a “titulary” of
such a right, whether it is patrimonial or not.
44

Section 4 – Conclusion on the right of ownership

In practice ownership may not be full due to some dismemberment or legislative limitations.
Such limits are imposed from outside the concept of ownership.

Usufruct, emphytheusis, etc. are so important that they are not perpetual, otherwise they
would destroy the right of ownership. A real servitude is in a sense perpetual (indefinite
duration, no specific term), but can be extinguished not unlike usufruct, CCQ 1191.

The person claiming a limitation to ownership has the burden of proof.

November 17

Chapter II - Restrictions in the Exercise of the Right of Ownership

The limits and conditions to ownership are mostly in the CCQ. In the CCLC, most of the
restrictions were found under legal and natural ‘servitudes’ (p. 576). This is no longer the
case, they are now in Chap. III “Special rules on the ownership of immovables”.

Section 1 – Relations between neighbours: abnormal inconvenience vs. abuse of

right and encroachment

Shouldn’t confuse normal inconveniences, abuse of right and encroachment. The starting
point is the right of each neighbour: they have equal rights, use, enjoy, dispose. New article
(codification of a previous rule):

976. Neighbours shall suffer the normal neighbourhood annoyances that are not
beyond the limit of tolerance they owe each other, according to the nature or location
of their land or local custom.

Establishes a certain level of tolerance of neighbourly annoyances. Ex.:

- In the country, one piece of land is unoccupied neighbouring ours. Eventually, the neighbour
decides to use the land. Construction causes some transient inconveniences (digging, blasting,
noise, dust), which must be tolerated, normal inconvenience. Some teenagers start using
motorcycles at night on the neighbour’s land. That’s probably beyond normal inconveniences.
- In the city, many buildings have common walls. Even if they are thick, a bit of noise will go
through. Should be tolerated. Say the teenager next door learns the trumpet or practices
playing drums in the middle of the night, it should not be tolerated.

Each case is a question of fact. 2 possible remedies to abnormal annoyances:

- Court injunction to lower the inconvenience down to the norm or stop it. See CCP, p. 263:
permanent injunction and interlocutory (temporary) injunction.
- Damages to compensate for the inconveniences.

Some argument on application of 976: what sort of evidence can be used, what can be argued?
- Is it a defence on the part of the defendant to argue legality (municipal regulations,
environmental laws, etc.)? NO.
- Is legitimity of the activity (less polluting, creates employment...) a defence? NO.
- Is the fact that no one else is complaining a defence? Maybe, if other persons are in the
same situation, can prove the “local custom”.
 45

- Is there a link between 976 and civil liability fault (CCQ 1457)? NO.
- Are acquired rights a defence? NO.

CCQ 947, 950 and 976 have to be related. Inconveniences have to be accepted unless they
are beyond a certain threshold.

976 does not involve proof of fault. It only requires excessive inconvenience. Absence of
fault is no excuse (Lessard). This is an exception to the normal civil liability system. The
jurisprudence is almost settled on this subject, although some writers still disagree. Not
needing to establish fault increases chance of success for the plaintiff.

Only possible defence: the annoyance is not excessive.

Lessard c. Bernard (1996), p. 264

Facts Bernard a construit un système de chauffage au bois sur son terrain, voisin de celui
de Lessard. Les odeurs sont nauséabondes et, même enfermée 10 mois par an, la
famille de Lessard est incommodée par la fumée. Bernard plaide que le systme est
conforme  la réglementation municipale. Lessard réclame une injonction
permanente et des dommages.
Question (1) L’art. 976 crée-t-il un régime de responsabilité objective, sans égard  la faute, en
matière de troubles de voisinage?
(2) Les inconvénients reprochés sont-ils “anormaux”?
References CCQ 976.
Ruling Juge Alain, Cour supérieure: (1) OUI; (2) OUI. Dommages et injonctions accordés.
Ratio (1) La faute n’est pas pertinente, il faut seulement tenir compte du niveau
d’inconvénients. L’autorisation de la municipalité ne change rien.
(2) Les inconvénients sont anormaux, donc la Cour peut agir.
Note One of the first cases under the CCQ. 976 is a codification of previous jurisprudence
on neighbourhood annoyances. Can be related to CCQ 950.

Gourdeau c. Letellier de St-Just (2002), p. 267

Facts 1923: l’auteur (précédent propriétaire du titre) de Letellier construit une maison
unifamiliale. 1940: l’auteur de Gourdeau construit un édifice de 3 étages sur le terrain
voisin, qui va jusqu’ la ligne de démarcation, avec deux alcôves en retrait contenant
des fenêtres avec vues sur la maison (v. 993 CCQ). 1941: l’auteur de Letellier
construit des murs de 25 pieds sur son terrain, devant les alcôves. Le tout,
légalement. 1997: Letellier empêche Gourdeau de démolir les murs et entame une
action pour obtenir une injonction permanente  cette fin. Gourdeau réclame la
propriété des murs par prescription acquisitive (30 ans). En pi, Gourdeau n’est pas
reconnu propriétaire (pas de possession utile  la prescription) et ne peut donc pas
démolir le mur.
Question (1) L’application de l’art. 976 est-elle assujettie  la démonstration d’une faute?
(2) L’inconvénient est-il anormal?
References CCQ 976, 1457.
46

Ruling Juges Thibault, Dussault (majorité), Cour d’appel: (1) NON; (2) OUI, mais le mur
sera démoli aux frais de Gourdeau. Beauregard (dissident): (2) NON.
Ratio (1) Le recours n’est pas basé sur la faute, mais sur le caractère anormal des
inconvénients. C’est une règle constitutive de droit réel
(2) Majorité: Pas de prescription acquisitive, mais il y a abus de droit de propriété et
inconvénient anormal. Letellier a le droit de protéger son intimité (ou de construire
un bâtiment identique), mais le moyen utilisé est excessif.
Dissidence: “Le fait que [Letellier et al.] pourraient être plus charitables et généreux
ne fait pas qu’ils abusent de leur droit.” (p. 272, 3e col.)
Note - All judges agreed to correct the line between the two lots, as there was a bit of
mutual encroachment.
- There are two mutually irreconcilable rights: Both owners have a right to build and
protect privacy.
- Cantin: “There is no right to light here, there is no servitude of view over the
house. A servitude of non-construction (non ædificandi) would have been required.
The fact that the apartment building owner will have to pay for the demolition is sign
of a problem. I think the dissent is right. Abuse of right normally implies fault, so
the majority is mistaken.” - “Not as convincing as Lessard. It isn’t clear what the
excessive annoyance is. The Court practically created a servitude of non
ædificandi in favour of the apartment building, which it had no right to do.”

November 22

Barrette c. Ciment du St-Laurent (2003), p. 273

Facts Beauport, 1955-1997: la cimenterie cause du bruit et des dommages (particules de

ciment)  un grand nombre de personnes. Elles intentent un recours collectif en
dommage, mais sans injonction car la cimenterie a fermé ses portes.
Question La compagnie est-elle responsable même si on n’a pas pu prouver une faute?
References CCQ 976; Gourdeau c. Letellier de St-Just (2002), Cour d’appel; Lessard c. Bernard
(1996), Cour supérieure.
Ruling Juge Dutil, Cour supérieure: OUI.
Ratio - “En matière de trouble de voisinage, le législateur a choisi le régime de
responsabilité sans faute, qui favorise plutôt la mesure des inconvénients subis. Dans
le cas présent (...) des inconvénients anormaux excédant les limites de la tolérance
ont été subis.” (p. 274)
- Respecting environmental norms or creating employment is no excuse, and there is
no acquired right to cause annoyances.
- “Neighbour” in CCQ 976 relates to any occupant, owner or lessee. Any person
suffering this type of annoyance is a “neighbour”.

A. Who is the neighbour?

Possible claimants under 976: physical neighbours who are owners, other titularies of real
rights who can be injured (usufructuaries, holders of emphyteutic rights). The lessees also
have similar rights according to jurisprudence, but Cantin is unconvinced: it’s a real action
based on the right of ownership of the immovable, not based on an obligation: the lessee
 47

should force owner/lessor to take action, who must guarantee peaceful enjoyment of the
property (CCQ 1854), possibly by withholding rent.

Unclear if an injunction in favour of an usufructuary would carry over to the bare

owner after the usufruct is extinguished. To ensure that it does, the bare owner should
probably be included in the action.

B. Future damages

An injunction would prevent future damages from occurring. So there is no possibility of

obtaining future damages, as this is some kind of expropriation: right to keep disturbing
against money. There is always the possibility to come back to ask for further damages.

C. Inconveniences vs. bad faith and abuse of right

Recourses on 976 are distinct from those on bad faith / abuse of right. CCQ 6-7 (p. 262-3)
are based on civil liability (CCQ 1457), nothing to do with 976.

If suing under, don’t need to use CCQ 6-7: harder to win in all cases.

D. Possibility to request only an injunction

It is possible to ask only for an injunction in the context of neighbourhood

inconveniences, without damages. Sometimes sufficient, especially given the cost of
establishing damages. No cases yet where only an injunction was requested. Linked perhaps
because both recourses are normally joined.

E. The State can be a neighbour

But there may be no recourse for noise from a road (similar to noise from boats on a lake)
based on 976.

Section 2 – Other codal restrictions

A. CCQ 991

991. Where the owner of land erects a construction or works or makes a plantation on
his land, he may not disturb the neighbouring land or undermine the constructions,
works or plantations situated on it.

Codified Katz c. Reitz (1978, p. 278), problem of a common wall being ruined due to lack of
care by contractors. CCQ 976 did not exist, but there was some jurisprudence trying to escape
the notion of fault. Here, there was clearly no fault, but there was compensation. CCQ 991 is
the extreme case of neighbourhood inconvenience, a special case of 976.

B. CCQ 990, 1467

990. The owner of land shall do any repair or demolition work needed to prevent the
collapse of a construction or works situated on his land that is in danger of falling onto
the neighbouring land, including a public road.
48

Also a new codifying article. This art. does not relate to 976: not a neighbourhood annoyance,
only a risk. Not a special case of 976: preventative measure to limit risk due to lack of
maintenance of immovable. Not a question of fault (owner normally not obliged to maintain).
See also CCQ 950.

1467. The owner of an immovable, without prejudice to his liability as custodian, is

liable to reparation for injury caused by its ruin, even partial, where this has resulted
from lack of repair or from a defect of construction.

This art. is somewhat linked to 990, but it is in the civil liability section: if there is damage,
the owner will have to compensate. Strict liability, so there is no question of fault.

November 24

C. CCQ 953 and its exceptions

One does not have to tolerate encroachment or trespassing (CCQ 953, not to be confused
with 976 annoyances), except when allowed by law:
- 983: Fruit from a tree on one’s property may be recovered on another’s land.
- 987-8: Access for maintenance of a building close to the dividing line.
- 989: An animal’s owner may recover it one someone else’s land.
- 997-1001: Enclosed land (fond enclavé), without adequate access to a public road. A right of
way must be granted to the owner, but it will only last as long as needed.
- 985: A tree’s branches or roots may have to be trimmed on request of the neighbour by the
owner, which may necessitate encroachment to perform.
- 986: Right to sunshine (découvert) for land that is used for agricultural purposes.

D. Relevance of Patault’s text (p. 21)

In Roman law, the right of ownership was so powerful that there could be no
accommodation: there had to be a margin between properties. But some exceptions
developed, under the name of servitudes (was in CCLC, still in CN). The CCQ speaks of
limitations of ownership of immovables. Many rules come from a mix of Roman law and
the tenure system, which accepted limitations with its multiple titles.

E. Establishing property lines

“Bornage” procedure helps to avoid encroachment: establishment of a formal dividing

line by a procedure in CCQ 978 and CCP (p. 284). A neighbour may force the other to accept
to an establishment of the division line. This procedure cannot be replaced by an agreement
between neighbours. Much land is not “borne” in the Province, partly because it was believed
at one time that an agreement between neighbours was sufficient.

A surveyor’s evaluation is placed in the land registry, good for ever after, for future
owners. The cost of such a procedure, done according to the Land Surveying Act, is shared.

CCQ 998 is new. It is unclear what it purports to do.

 49

Thémens c. Royer (1937), p. 280

Facts Montréal, 1932: Royer apprend que Themens a construit un bâtiment empiétant
substantiellement sur son terrain en 1918, il n’avait pas vérifié les limites de son
terrain. Il le poursuit pour que la partie empiétant soit démolie. Gagné en pi.
Question Le propriétaire du terrain a-t-il droit  la démolition partielle du bâtiment?
Ruling Juges St-Jacques, Dorion, Hall, Bond, Bernier, Cour du BR: OUI.
Ratio La bonne foi n’est pas est une défense, car le bornage du terrain aurait facilement
évité le problème. La démolition peut être ordonnée car l’empiétement est majeur.

F. Additional CCQ restrictions

- 979: When 2 properties are on a slope, lower land must suffer the natural flow of water.
- 980-1: Water may be used, as long as it is in a responsible manner.
- 983: Rain water and snow must fall on owner’s land.
- 990: Obligation to prevent ruin of a construction from causing injury. No obligation to
maintain, but if danger to neighbours or those on public roads, something must be done.
- 993 et seq.: Can’t have an opening on a wall that allows to view at less than 1.5 metres from
neighbouring property.
- 1002: Obligation to share cost of a fence between property (if it is exactly on the division
line). This obligation, like many others, can be modified by municipal regulations.

All restrictions only apply to land owned by different people, not to land owned by the same
person but leased to different people.

Section 3 – Expropriation and other instances of non-consensual acquisition

Expropriation is the ultimate encroachment right of ownership: forcible transfer of the

title (usually of the right of ownership, sometimes of a dismembered real right) to whoever
has the power to expropriate, as stated by express legislation.

Strict rules to prevent abuses of this power: Quebec Charter 6 entrenches protection from
uncompensated expropriation. Portalis highlighted (p. 240-2) that this power did not rest on
the State’s eminent domain but on an obligation to provide for what is in the general interest.

Bodies that can expropriate: federal and provincial governments, municipalities, school
boards, universities, hospitals and some private legal persons (that provide public services, ex.
Bell Canada).

CCQ 952 includes 4 requirements to proceed to an expropriation:

1. Have the power to expropriate by law.
2. Must carry expropriation for public utility (debatable idea: evolves with time).
3. Just indemnity be paid (market value of land expropriated).
4. Indemnity paid prior to transfer of the title (70% of municipal evaluation of the land
paid before transfer if dispute on amount, rest later after a court decision, but the title
is still transferred).
50

A res communis cannot be expropriated (ex. water, not to be confused with a river bed), as
it belongs to no one. Can’t transfer ownership of something you don’t own.

Sula c. Cité de Duvernay (1970), p. 286

Facts The municipality changed the zoning of Sula’s 3 lots from residential to park,
leaving him with no more right to use them than the general public. No
compensation. The Cour supérieure refused to cancel the zoning change.
Issue(s) Is the zoning change legal?
References CCLC s. 407; s. 406 of the Loi des cités et des villes; s. 50 of old CCP.
Holding Cour d’appel: NO, appeal allowed.
Ratio Tremblay J.: This is an expropriation in disguise, since it completely prevents
the owner from using his property.
Rinfret, J.: Discriminatory, since no other lot was rezoned; equivalent to fraud.
Comments It is only acceptable for the municipality to limit, for public ends, an owner’s
use of his/her immovables.

Section 4 – Statutory limitations of public interest (outside the CCQ)

Municipal regulations are a major source of rules applied to land, which should always be
checked.

Provincial statutes:
- Cultural property Act (ref. p. 288), especially s. 30. It includes an obligation to maintain,
which is very rare (compensated by lower municipal taxes).
- Preservation of agricultural land Act (ref. p. 288), passed in 1978 to constrain speculation
and urban sprawl. Only options: agriculture, forest or no exploitation. Sub-division is
forbidden, limited rights of construction. Some derogations can be granted by the
Commission de protection du territoire agricole. Mostly for territory south of the 49th parallel.

November 29

Chapter II - Acquisition of the Right of Ownership

916. Property is acquired by contract, succession, occupation, prescription, accession

or any other mode provided by law.

No one may appropriate property of the State for himself by occupation, prescription
or accession except property the State has acquired by succession, vacancy or
confiscation, so long as it has not been mingled with its other property. Nor may
anyone acquire for himself property of legal persons established in the public interest
that is appropriated to public utility.

It says property, but it should say patrimonial right, although some modes specifically
relate to property and real rights, ex. occupation and accession.

Section 1 - Possession and acquisitive prescription

Acquisitive prescription is one of the effects of possession. Acquisitive prescription is often

referred to as usucapio.
 51

Possession corresponds to the exercize of a real right (not a personal right or IP [very hard
to prove corpus for a non-material object]), be it on a movable or an immovable.

A. Definition and requirements for effective possession

Same notion of possession in Québec and French law. Beyond Carbonnier (p. 290) and
Mazeaud, Marler is also useful (see reference p. 10, ¶41 and following). The CCQ changed
little except for the delay of acquisitive prescription.

Codal provisions

921-33: Conditions for possession to be effective.

957-64: Compensation that needs to be paid to a possessor obliged to give back to the owner.
2910-20: Time frame of acquisitive prescription.

The legal notion of possession, which has legal effects, is much narrower than the common
language use.

911.1 A person, alone or with others, may hold a right of ownership or other real right
in a property, or have possession of the property.

Definition:

921. Possession is the exercise in fact, by a person himself or by another person

having detention of the property, of a real right, with the intention of acting as the
holder of that right.

The intention is presumed. Where it is lacking, there is merely detention.

Possession is not a right as it is a situation of fact.

Possession requires:
1. Exercise in fact (corpus).
2. Intention to act as the holder of the real right (animus).

Corpus: Material component. The possessor is exercizing in fact a real right, has control over
the object as an owner. How one proves possession: control over it, taking care of it,
exploiting it, using it, abusing it... or juridical acts of possession: ex. leasing the immovable,
paying taxes, insuring, granting a servitude... These acts must not be isolated, there must be
some frequency:

924. Merely facultative acts or acts of sufferance do not found possession.

Normally these acts are accomplished by the possessor, but they can be accomplished by
someone else (ex. lessee).

Animus: Intentional component, . Must intend to act as titulary of the right (Cantin
prefers titulary to ‘holder’), according to what this right is. Three cases:
- In most cases, the possessor is also the owner.
52

- The possessor thinks she has the real right, but doesn’t. It may be because the title on
which the right is based is invalid (ex. inherited because of a revoked will).
- The possessor wants to acquire the right, even if he knows he doesn’t have it (ex.:
thief, squatter).

Animus is always difficult to prove. That is why the law provides a rebuttable presumption
of animus, but not of corpus. It is possible to counter the presumption by bringing forth
another reason for the corpus (explaining control otherwise, ex. lease). Where animus is
lacking, it is a situation of detention.

If someone is a lessee, tutor, etc., can’t pretend to be something else:

923. A person having begun to detain property on behalf of another or with

acknowledgement of a superior domain is presumed to continue to detain it in that
quality unless inversion of title is proved on the basis of unequivocal facts.

This person is merely a détenteur, destroys the presumption of animus. Ex. of inversion: a
person holding a personal right of habitation from a will can advise formally the owner that
she now considers this to be a real right of habitation (opposable). This person would go from
being a détenteur to being a possessor (see Mazeaud, p. 297).

A usufructuary performs acts of corpus, which seem to grant him the status of possessor in
terms of the right of ownership. But, in fact, with respect to (bare) ownership, this person is
only a détenteur and can’t claim to have acted as the owner. There is no presumption of
animus domini.

Contrasting possession and other notions

Possession vs. ownership

Possession Ownership
Situation of fact Right
Must act (corpus) Does not have to act

929. A possessor in continuous possession for more than a year has a right of action
against any person who disturbs his possession or dispossesses him in order to put an
end to the disturbance or be put back into possession.

Possession also can’t be claimed without a year of action or more than a year after
dispossession (2923 (2)). Once possession is established, the debate will be on the right.

Can be an owner without being a possessor and vice-versa.

January 5, 2005

Possession vs. detention

 53

Ex. of a detentor is the lessee, who only has a personal right. It is not in corpus that the
distinction lies, it is in animus: detention implies no animus.

Possession vs. administration of the property of another

Ex.: tutor administrating the property of a minor. The tutor does not have the title to the
property she is administrating. It is a legal situation as well as ownership.

Posssession and appearence of title

‘Appearence of title’: person who appears to have a title of ownership but doesn’t due to the
invalidity of the title. Laws give effects to appearance: if the appearance has as a
consequence to create a legitimate obligation, that obligation may be deemed valid and a third
party in good faith protected (ex. purchase valid even if to detriment of real owner, happens in
successions with discovery of a new will).

Qualities of Possession

These qualities are defined in terms of defect of possession at 922:

- Peaceful: not violent. Possessor is not obliged to defend her exercise of corpus.
- Continuous: uninterrupted. The possessor must actively exercise the corpus. 925.2 must be
read together with 929: requirement of a year (or not to have been dispossessed for more than
a year). 925.2: possession is continuous even if its exercise is temporarily prevented or
interrupted.
- Public: not clandestine. Openly exercising the corpus so that it can be noticed by others.
- Unequivocal: not unequivocal if uncertain. The situation must be clear (often a problem in
family relationships: several people inhabit a household, then everyone’s possession is
equivocal).

Thieves do not benefit from possession:

927. No thief, receiver of stolen goods or defrauder may invoke the effects of
possession, but his successors by whatever title may do so if they were unaware of the
defect.

How to establish the presence of the qualities:

1. Possessor establishes corpus.
2. Law presumes animus.
3. If animus is not contradicted, qualities are presumed.

B. Legal effects of juridical possession

Defined at 921. Sometimes you have to be in good faith to claim certain effects:

932. A possessor is in good faith if, when his possession begins, he is justified in
believing he holds the real right he is exercising. His good faith ceases from the time
his lack of title or the defects of his possession or title are notified to him by a civil
proceeding.
54

Good faith comes only from an apparent title (defective will or contract, etc.) and no
knowledge of the defect.

5 groups of effects may flow from useful possession:

1. The acquisition of fruit or revenue produced during possession:

931. A possessor in good faith need not render account of the fruits and revenues of
the property, and he bears the costs he incurred to produce them.

A possessor in bad faith shall, after compensating for the costs, return the fruits and
revenues from the time he began to be in bad faith.

2. Indemnification:

933. A possessor may be reimbursed or indemnified according to the rules in the

chapter on accession for the constructions, plantations and works he has made.

According to 957-963 CCQ, good faith and bad fatih are important as well as the nature of the
expenses: were they necessary expenses or optional?

3. Possessory actions:

929. A possessor in continous possession for more than a year has a right of action
against any person who disturbs his possession or dispossess him in order to put an
end to the disturbance or be put back into possession.

Two types of action:

- To obtain the cessation of disturbance (action on disturbance / en complainte).
- To recuperate possession if it has been lost by the possessor if it has been lost for
more than a year (action réintégrante).

Good and bad faith play no role in the action. A possessor may exercise these rights even
against the true owner. The law doesn't allow the owner to take action into her own hands:
must recover possession through the judicial process. These actions can also be exercised
with regards to dismemberments of ownership (usufruct in particular).

4. Presumption of title which derives from possession:

928. A possessor is presumed to hold the real right he is exercising. A person

contesting that presumption has the burden of proving his own right and, as the case
may be, that the possessor has no title, a defective title, or defective possession.

Justifies giving legal effects to possession: It is much easier for an owner to bring evidence of
possession than it is to bring title when the title is not available (especially for movables).

5. Acquisition of the real right exercised:

930. Possession vests the possessor with the real right he is exercising if he complies
with the rules on prescription.
 55

Exception: a real servitude cannot be acquired through prescription (2910-20). A real

servitude must be established through title.

Requirements for acquisition of an immovable real right: 5 qualities of possession + time

(10 years of useful possession) and here you do not need to show good faith. If the right being
acquired by prescription is the right of ownership of an immovable you need a judgment
recognizing this acquisition (2918).

For a movable: 3 years (2919), unless it is acquired by judicial authority in which case, the
title is acquired immediately by the act of acquisition.

January 12

CCLC CCQ
2192 921
2193 922
417 - 418 958 - 962
412 932
-- 953
-- 992
CCP
770 929
771 953
772 --

Acquisitive prescription (usucapio)

Conditions of usucapio:
- Juridical possession (921).
- Qualities of possession (922).
- Time (930, 2910-7; 10 years is the general delay, 3 years for movables except if
acquired through a judicial process (2919)).
Never works for a real servitude.

Sivret c. Giroux (1997), p. 298

Facts Sivret est propriétaire d’un terrain sur lequel Giroux a construit un chalet. Ils se
séparent et Sivret empche Giroux d’y avoir accs. Il poursuit pour obtenir l’accs,
gagné en pi.
Question La possession de Giroux est-elle équivoque au sens de l’art. 2193?
References arts. 2192-3 CcBC, arts. 770-2 Code de procédure (1965)
56

Ruling Juges Chamberland, Fish et Nuss, Cour d’appel: OUI, appel accueilli.
Ratio - “Ou bien on est possesseur, ou bien on ne l’est pas.” (Chamberland, p. 300, 2 e col.).
La preuve n’a pas démontré sans équivoque des actions possessoires de Giroux, bien
qu’il ait respecté le délai d’un an et eu l’animus requis. La possession de Sivret n’est
pas moins équivoque mais ses qualité de défenderesse et de propriétaire du terrain
font qu’elle a uniquement  prouver le caractre équivoque de la possession de
Giroux.
- Sivret benefitted from the presumption of accession (955 CCQ).

Section 3 - Occupation

Cantin’s definition: Occupation is a mode of acquisition of ownership of a res nullius, of an

object which belongs to no one (914 and 934). Remember that res nullius  res communis.

It leads to the acquisition of the right of ownership, not a lesser real right (Tremblay c.
Boivin). In theory, it applies only to movables because the law says that the State immediately
acquires a vacant immovable.

Ex.: game and wild fish (934), things abandoned by their owner (934(2)-935). If someone
trespasses (933) to hunt or fish, the land owner has no right to the game or fish. It is not a fruit
of the land, but a res nullius acquired through occupation, not accession.

The treasure (938), is a hybrid of res nullius and fruit of the land (not logical according to
Cantin).

934. Things without an owner are things belonging to no one, such as animals in the
wild, or formerly in captivity but returned to the wild, and aquatic fauna, and things
abandoned by their owner.

Movables of slight value or in a very deteriorated condition that are left in a public
place, including a public road or a vehicle used for public transportation, are deemed
abandoned things.

935. A movable without an owner belongs to the person who appropriates it for
himself by occupation.

An abandoned movable, if no one appropriates it for himself, belongs to the

municipality that collects it in its territory, or to the State.

938. Treasure belongs to the finder if he finds it on his own land; if it is found on the
land of another, 1/2 belongs to the owner of the land and 1/2 to the finder, unless the
finder was acting for the owner.

A lost or forgotten (but not stolen, 927) thing is subject to acquisitive prescription (939-946),
unless of slight value (934) in which case occupation applies (presumed abandoned).

Boivin c. P.G. Québec (2000), p. 303

Facts Several people went diving in a lake on public land and found gold bars. No
 57

owner was found. The AG claimed half of their value under 938 CCQ (treasure),
won pi.
Issue Were the gold bars occupied?
References art. 586 CCLC; arts. 935, 938 CCQ.
Holding Pidgeon, Rochette, Letarte JJ., Court of Appeal: YES.
Ratio Not a treasure, so the State has no claim. Boivin and the others occupied the
gold bars.
Comments - Some contradiction at §35-6: no presumption of abandonment for things of
value. In reality, possession is used with prescription of ownership by 10 years
(as no title so not in good faith).
- Did not use the technical meaning of abandonment, so occupation cannot
apply. In order to have occupation work, the thing has to belong to no one. In
this case, there was obviously an owner at one time and, for lack of evidence,
there still is.
- The real question is one of proof.

Section 4 - Accession

Accessorium sequitur principale, the accessory follows the principal, summarizes the
working of accession: the owner of the principal object acquires ownership of the accessory
object.

Mentioned in 916, 948, 954 et seq.

948. Ownership of property gives a right to what it produces and to what is united to
it, naturally or artificially, from the time of union. This right is called a right of
accession.

Accession applied to movables: see 971-5 and Location Fortier.

Location Fortier Inc. c. Pacheco (1997), p. 316

Facts Fortier rented a truck to Pacheco, who altered it to make it suitable for towing,
then stopped making payments.
Issue(s) Does the plaintiff own the truck?
Does the plaintiff own by accession the additions made to the truck?
References arts. 971-975, 1619 CCQ.
Holding Dubois J., Superior Court: YES.
Ratio 972-974 do not apply here, only 971 and 975. The plaintiff must pay $6000
(without interest if within 60 days), and the indemnity set out in 1619.
Comments 971. Where movables belonging to several owners have been intermingled or
united in such a way as to be no longer separable without deterioration or
without excessive labour and cost, the new thing belongs to the owner having
contributed most to its creation by the value of the original thing or by his work.

For immovables:
- Natural, 965-970 (very common, will not deal with it).
- Artificial, includes several topics.

A. Landowner’s right of the space above

58

951. Ownership of the soil carries with it ownership of what is above and what is
below the surface.

The air itself is not owned: res communis (913). But the owner of the land has the right to
full enjoyment of the land and stopping any encroachment not allowed by law (953).
Encroachment may be on the ground or above (ex. balcony). Specific application:

985. If branches or roots extend over or upon an owner's land from the neighbouring
land and seriously obstruct its use, the owner may request his neighbour to cut them
and, if he refuses, compel him to do so.

Same rule for buildings. The owner may build, plant, occupy, the space above the land. Any
encroachment not allowed by law may be stopped unless there is expropriation, see Lacroix.

Municipal law may restrict the height of buildings, so this always has to be checked. Failing
such restriction of height, there is no a priori limit in height: the sky is the limit.

Lacroix c. R. (1953), p. 311

Facts Lacroix owns agricultural land near Dorval airport. State has an (easement) over
his land.
Issue(s) (1) Can one claim compensation for a flightway over his land?
(2) Is statutory permission granted to create such a nuisance?
Holding Fournier J.: (1) YES; (2) NO.
Ratio (1) People will have to move over land to maintain lighting system. Crops will
be affected and there is a limit to height of buildings. Total compensation is
$306.39, of which some is for easement, and $150 is for injurious affection of
remaining land.
(2) Not the case here, so an action in nuisance may have worked.
Comments - Normally, planes fly too high to encroach on the right of ownership. Just next
to an airport that it is possible to encroach on people’s rights. Owner is deprived
of building because of the air traffic.
- Owner may build and plant on land and exclusively occupy the space above
the land with plantations or constructions embedded in the ground. If somebody
else occupies the space, the owner can stop it, unless there is expropriation, or
a limitation that is brought by the right of the owner to occupy the land.
- Court calls this an easement, although that is CML, not CVL. Should be
identified either as a real servitude or a right of superficies.

B. Presumption of single ownership

955. Constructions, works or plantations on an immovable are presumed to have been

made by the owner of the immovable at his own expense and to belong to him.

A normal presumption, carried over from the CCLC. But this presumption may be
displaced with a title contrary to it. The best ex.: right of superficies, in which owner of
construction/plantations is different than owner of land (who granted that right, unless it was
acquired by expropriation or acquisitive prescription).

C. Mode of acquisition

The owner of the land will acquire a construction by accession:

 59

956. The owner of an immovable becomes the owner by accession of the

constructions, works or plantations he has made with materials which do not belong to
him, but he is bound to pay the value, at the time they were incorporated, of the
materials used.

The previous owner of the materials has no right to remove them nor any obligation to
take them back.

957. The owner of an immovable acquires by accession ownership of the

constructions, works or plantations made on his immovable by a possessor, whether
the disbursements were necessary, useful or for amenities. [and following]

956 must be read with 901. The application of 956 cannot be prevented by a contract. In 957,
the owner acquires constructions made by a possessor, but may have to pay an indemnity
depending on the nature of construction and good/bad faith.

D. Limits and boundaries

977. The limits of land are determined by the titles, the cadastral plan and the
boundary lines of the land, and by any other useful indication or document, if need be.

978. Every owner may compel his neighbour to have the boundaries between their
contiguous lands determined in order to fix the boundary markers, set displaced or
missing boundary markers back in place, verify ancient boundary markers or rectify
the dividing line between their properties.

Failing agreement between them, the owner shall first make a demand to his
neighbour to consent to having the boundaries determined and to agree upon the
choice of a land surveyor to carry out the necessary operations according to the rules
in the Code of Civil Procedure.

The minutes of the determination of the boundaries shall be entered in the land
register.

See also CCP, p. 284 casebook. It is a pre-requisite to enjoyment that land limits be clearly
established, normally through “bornage”, which may be done at the request of any one
neighbour. Ten years of possession beyond the limit causes acquisition, which will require
changing the dividing line. Also necessary to sub-divide land.

A land surveyor can have an adjudicative role: calls witnesses to determine where the line
is... Then decides were the line is and markers are driven into the ground. It is an infraction to
remove markers. If all owners agree, this is done out of court by a land surveyor. If there is
any dispute, the process moves to the Superior Court. An action in bornage is a real action.

Once all is done, minutes of the procedure must be deposited in the land register. It will be
valid indefinitely thereafter. Bornage becomes opposable to any subsequent challenges.

In reality, most land, especially in the country, has not been borné properly, mostly due to the
cost involved.
60

E. Construction encroaching on neighbour’s land

992 is new, “I don’t like it, it should have not been included.” - Cantin

992. Where an owner has, in good faith, built beyond the limits of his land on a parcel
of land belonging to another, he shall, as the owner of the land he has encroached upon
elects, acquire the parcel by paying him its value, or pay him compensation for the
temporary loss of use of the parcel.

If the encroachment is a considerable one, causes serious damage or is made in bad

faith, the owner of the land encroached upon may compel the builder to acquire his
immovable and to pay him its value, or to remove the constructions and to restore the
place to its former condition.

Say a construction encroaches on a neighbouring lot. The owner being encroached upon has
full enjoyment (947) and the right for any encroachment to be stopped (953). So if the
construction cannot be removed, tantamount to expropriation without permission of
952.

Thémens c. Royer (1937), p. 280 [SUMMARY P. 47]

Encroachment of 6 feet on a 25 feet wide lot. Royer pleaded good faith and offered to buy the
property. Thémens won, as there was no title (not even a defective one), so no possession in
good faith. And it was not an improvement which brought value. So the order was to demolish
the construction. This was the law until the CCQ.

Under certain aspects, the old law is reinforced, ex. 953 vs. encroachment and expropriation.
But with 992, would Thémens be decided differently? The 1st par. looks wide open to
encroachment, but the 2nd par. has a limiting effect. So Thémens would probably be decided
the same way, due to considerable encroachment and bad faith of Royer (no bornage or
‘gentlemen’s agreement’ to that effect). Also, what is good faith here? Does it require a title
(good faith of 932 requires a title)? If so, good faith is impossible => not technical good
faith in 992, more the meaning of 2805: error made unknowingly.

The criteria for encroachment to be tolerated by law:

- Good faith;
- Neither considerable nor the cause of serious damage.
The Superior Court held that they are alternative conditions (correct according to Cantin).

January 19

Could the encroaching be considered as possession? There is corpus and a presumption of

animus. So if there are 10 years of possession, can claim that land was acquired in this way.
This case may have been decided differently on that basis. And there is a presumption that
possession is public and unequivocal, which is probably the case here.
 61

PART FIVE – Modalities of Ownership or Special Modes of

Ownership
These details were announced in the definition of ownership:

947. Ownership is the right to use, enjoy and dispose of property fully and freely,
subject to the limits and conditions for doing so determined by law.

Ownership may be in various modes and dismemberments.

See also 1003. The words “mode of ownership” were not in the CCLC. Cantin: it is
impossible to give a single definition which will take into account the 2 situations
included in CCQ title 3 (indivision, right of superficies):

- Indivision is substantial modification to the legal regime of ownership: several

persons are owning the same thing at the same time. So the right of ownership is not
exclusive, which warrants the modification.

- There are no modifications with the right of superficies. What is modified is the
presumption of single ownership of land and building, which is rebutted.

Chapter I - Indivision or Undivided Co-ownership

Undivided co-ownership and indivision are used interchangeably: at least 2 persons who are
undivided as to the right. But we are NOT necessarily dealing with the right of ownership.

Indivision may apply to any patrimonial right: ownership, dismembered real right,
personal right (ex. joint creditors), co-owned copyright. So “undivided co-ownership” is
misleading, although indivision often exists for ownership of an immovable.

Cantin’s definition: Legal regime to organize the ownership of several titularies of the same
patrimonial right.

Section 1 - Legal analysis of indivision

1009. Ownership has two principal special modes, co-ownership and superficies.

1010. Co-ownership is ownership of the same property, jointly and at the same time,
by several persons each of whom is privately vested with a share of the right of
ownership.

Co-ownership is called undivided where the right of ownership is not accompanied

with a physical division of the property.

It is called divided where the right of ownership is apportioned among the co-owners
in fractions, each comprising a physically divided private portion and a share of the
common portions.
62

These articles are new. In the CCLC, the only provisions were those at p. 325. In practice,
there were no rules. Indivision was seen as undesirable: no proper maintenance, conflicts
between co-owners, incompatible with exclusive characteristic of ownership... The only
former rule was the right to ask for partition. Indivision is now viewed in a more positive
light.

Indivision has to do with plurality of interests in the same object: may be compared with
shareholders, partners, members of a coop, trust, condominium...

Sources of indivision vary, but the regime is basically the same:

1012. Indivision arises from a contract, succession or judgment or by operation of

law.

Common when people buy immovables jointly (contract), there are several heirs (succession),
marriage or civil union (presumption of indivision, see 460, 487, which applies depending on
the presence or absence of a pre-marital contract).

A. Nature of title of indivision

The nature of the right of undivided co-owners (“indivisaires” or co-titularies is better, not
connotation of ownership) cannot be characterized a priori. The nature of the right depends
on the title which is shared by the indivisaires. See the Bandera case, where this was
recognized.

Régime complémentaire de retraite de la S.T.C.U.M. c. Bandera Investment Company

(1997), p. 335

Facts Le RCRSTCUM a fourni de l’argent  l’auteur de Bandera  des fins de placement

hypothécaire. Lorsque la Banque Nationale du Canada a voulu vendre la créance 
Bandera, le RCRSTCUM a tenté de la racheter au mme prix en vertu du droit de
préemption de l’art. 1022 CcQ, et poursuit  cette fin Bandera pour se faire
reconnaître propriétaire indivis de sa part de la créance.
Question Le RCRSTCUM est-il propriétaire indivis de la créance hypothécaire?
References arts. 1015-24, 1518 CcQ
Ruling Juge Bishop, Cour supérieure: NON.
Ratio L’indivision peut exister entre plusieurs personnes détenant conjointement un droit
patrimonial, auquel cas tout remboursement serait divisé au pro rata (art. 1518).
Dans ce cas-ci, la créance a été divisée par une entente en deux parties indépendantes
et non liées, donc le RCRSTCUM et Bandera sont des créanciers conjoints, pas des
indivisaires. L’art. 1022 ne s’applique pas et le RCRSTCUM n’a pas de droit de
préemption.
Note “It is the right of ownership, not the object, that is shared.” (p. 338, 2e col.)

Each titulary has a portion of the right, not a portion of the object of the right. If this
were the case, there would be no indivision. The law gives a presumption of equal shares in
case of uncertainty:
 63

1015.1 The shares of undivided co-owners are presumed equal.

Each undivided co-owner has the rights and obligations of an exclusive owner as
regards his share. Thus, each may alienate or hypothecate his share and his creditors
may seize it.

This article does not exclude any situation of indivision, even if “ownership” is used. Seizure,
etc. will only affect the share in question and not primarily the other co-owners. There are
however some limits:

1022. Any undivided co-owner, within 60 days of learning that a third person has, by
onerous title, acquired the share of an undivided co-owner, may exclude him from the
indivision by reimbursing him for the transfer price and the expenses he has paid. This
right may be exercised only within one year from the acquisition of the share.

The right of redemption may not be exercised where the co-owners have stipulated
pre-emptive rights in the indivision agreement and where such rights, if they are rights
in an immovable, have been published.

1023. An undivided co-owner having caused his address to be registered at the

registry office may, within 60 days of being notified of the intention of a creditor to
sell the share of an undivided co-owner or to take it in payment of an obligation, be
subrogated to the rights of the creditor by paying him the debt of the undivided co-
owner, with costs.
An undivided co-owner not having caused his address to be registered has no right of
redemption against a creditor or the successors of the creditor.

The indivisaire may freely dispose of their portion of the right: give, transmit, hypothecate,
sell, within these limits.

Sometimes the right of redemption (to sell share) is replaced with a right of preemption
of the other indivisaires. When the share of a co-owner is seized and is to be sold by court
(1023), another co-owner can pay the debt and acquire the share. See Harel case, which
established that 1022 and 1023 are not mutually exclusive.

Harel c. 2760-1699 Québec inc. (2000), p. 342

Facts Harel et son mari étaient propriétaires indivis d’une maison. Le mari ayant des
difficultés financires, un créancier a procédé  une vente en justice de sa part, ce que
Harel a appris seulement aprs les faits. Elle poursuit le créancier pour obtenir un
droit de préemption en vertu de l’art. 1022 CcQ.
Question Harel a-t-elle un droit de préemption?
References arts. 1022-3 CcQ
Ruling Juge Le Bel, Cour supérieure: OUI.
Ratio Les arts. 1022 et 1023 ne sont pas mutuellement exclusifs. L’art. 1023 donne certains
droits aux indivisaires n’étant pas en difficulté avant une saisie, mais celle-ci ou une
vente éventuelle n’affectent pas leurs droits de préemption subséquents en vertu de
l’art. 1022.
64

B. Exercise of a right of indivision

1016. Each undivided co-owner may make use of the undivided property provided he
does not affect its destination or the rights of the other co-owners.

If one of the co-owners has exclusive use and enjoyment of the property, he is liable
for compensation.

Each co-owner has a right to use the object, notwithstanding the “size” of his share. If
one has the exclusive right of the object, she normally pays an indemnity to the other
indivisaires.

Fruit and costs are divided proportionally to the size of each share. The rule for fruit and
revenue is odd however:

1018. The fruits and revenues of the undivided property accrue to the indivision,
where there is no provisional partition and where no other agreement exists with
respect to their periodic distribution. They also accrue to the indivision if they are not
claimed within three years from their due date.

It treats the co-owners as creditors of the revenue, not as owners. Misconception of

indivision as a separate entity: this would be a proper rule for a partnership. The income
should be shared in the same proportions as indivision shares are distributed, the indivisaires
are immediately owners.

Cantin: “Somewhat inconsistent with equal use and enjoyment (sort of taking fruit in kind)
but we live with it. At least there is compensation in case of exclusive use and enjoyment.”

Accession is also dealt with:

1017. The right of accession operates to the benefit of all the undivided co-owners
proportionately to their shares in the indivision. Nevertheless, where a co-owner holds
a right of exclusive use or enjoyment of a portion of the undivided property, he also
has exclusive use or enjoyment of property joined or incorporated with that portion.

Costs are shared in proportion:

1019. The undivided co-owners are liable proportionately to their shares for the costs
of administration and the other common charges related to the undivided property.

1020. Each undivided co-owner is entitled to be reimbursed for necessary

disbursements he has made to preserve the undivided property. For other authorized
disbursements, he is entitled, at partition, to compensation equal to the increase in
value given to the property.

Conversely, each undivided co-owner is accountable for any loss which by his doing
decreases the value of the undivided property.
 65

C. Administration of the object of indivision

Two possibilities: joint administration by the indivisaire, or they appoint a manager.

Joint administration by the indivisaires:

1025. Undivided co-owners of property administer it jointly.

1026. Administrative decisions are taken by a majority in number and shares of the
undivided co-owners.

Decisions in view of alienating or partitioning the undivided property, charging it with

a real right, changing its destination or making substantial alterations to it require
unanimous approval.

Double majority for administrative decisions, unanimity for alienation or other

important decisions.

Naming of a manager by the indivisaires:

1027. The undivided co-owners may appoint one of their number or another person as
manager and entrust him with the administration of the undivided property.

The court may designate the manager on the motion of one of the undivided co-
owners and determine his responsibilities where a majority in number and shares of
the undivided co-owners cannot agree on whom to appoint, or where it is impossible
to appoint or replace the manager.

Then the manager will be able to act alone for administrative decisions, with the status of
administrator of the property of another:

1029. The manager acts alone with respect to the undivided property as administrator
of the property of others charged with simple administration.

1309. An administrator shall act with prudence and diligence.

He shall also act honestly and faithfully in the best interest of the beneficiary or of the
object pursued.

See 1301-5 on administration of the property of another. Whatever falls in the 2 nd par. of 1026
will have to be decided unanimously by the co-owners, irrespective of whether there is a
manager.

Cantin: “Similar obligations in law as an administrator of a company. But this may not be
reality currently.” The main difference is a company has a patrimony that it owns,
whereas an ‘indivision’ is not a legal person and has no patrimony. So the interest of the
shareholder  indivision.
66

Do the co-owners need to be unanimous to chose to have a manager and to choose the
manager? According to Cantin, a double-majority is probably needed. Otherwise, a court may
rule on the issue (1027 par. 2).

Section 2 - Indivision agreement or contract: content and effects

There can be a contract of indivision between the indivisaires (the drafters had immovables
in mind). See notably:

1013. The undivided co-owners may agree, in writing, to postpone partition of a

property on expiry of the provided period of indivision.

Such an agreement may not exceed 30 years, but is renewable. An agreement

exceeding 30 years is reduced to that term.

1014. Indivision by agreement in respect of an immovable shall be published if it is to

be set up against third persons. In particular, publication mentions the expected length
of indivision, the identification of the shares of the co-owners and, where applicable,
the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment
of a portion of the undivided property.

Such a contract may provide for the duration of indivision, max. 30 years. 1014 mentions
part of the content of such a contract for ex.:
- Identify indivisaires’ share (rebuts presumption).
- Duration of indivision (must be specified to a precise length).
- Nomination/tasks of a manager (to modify 1026, 1301-5)
- Replacing right of redemption with right of preemption (1022)
- Renouncing right of redemption or preemption (Cantin’s view, not unanimous)
- Exclusive use/enjoyment and correlative compensation.
- Splitting use of immovable, distribution of fruit and revenue.

A later purchaser of a share is bound by the agreement (exception to privity of contracts

- 1440, if registered):

1014. Indivision by agreement in respect of an immovable shall be published if it is to

be set up against third persons. [...]

This is a “real obligation”, obligation which relates to a real right and binds the holder of the
real right. The real obligation is transmitted with the real right.

Will any provision in an indivision agreement acquire a real effect? This question is
unsettled. Cantin: these restrictions must have something to do, some relationship with
indivision. This can be inferred from the enumeration of 1014. Obviously, parties want as
many obligations as possible, especially in case sale by court occurs and the purchaser can be
anyone.

Section 3 - Partitition or end of indivision

A. Action for partition

 67

1030. No one is bound to remain in indivision; partition may be demanded at any time
unless it has been postponed by agreement, a testamentary disposition, a judgment, or
operation of law, or unless it has become impossible because the property has been
appropriated to a durable purpose.

Same principle as CCLC, but there are many more exceptions (beyond contract of indivision),
see 1031,2, etc. Very technical, we will not cover the details.

January 26

Chapter II – Permanent co-ownership of an immovable

Situations where the indivision is permanent and the right to request partition (1030)
does not apply. Three possibilities where this can happen.

Section 1 - Common walls or other works of division

1002. Any owner of land may fence it, at his own expense, with walls, ditches, hedges
or any other kind of fence.

He may also require his neighbour to make 1/2 of or share the cost of making a fence
which is suited to the situation and use made of the premises, on the dividing line to
divide his land from his neighbour's land.

1003. A fence on the dividing line is presumed to be common. Similarly, a wall

supporting buildings on either side is presumed to be common up to the point of
disjunction.

There is a presumption that whatever work (fence, wall, ditch, plantation...) divides two
lots is undivided (mitoyenneté). There is the possibility of obliging a neighbour to contribute
to a division work. Such an indivision is permanent, unless the work is removed with
agreement of both owners. Cost of maintenance is shared, normally 50/50, except in special
circumstances.

The CCLC (art. 520) had an obligation to build a wall (18" thick, 9" on each side, 9' tall), now
the obligation is lighter: building a work similar to a fence. Always have to check municipal
by-laws as well.

Specific rules apply when that division work is a wall (usually between two houses):

- A wall established on one side of the division line can see the owner of the other side
acquire co-ownership in order to rest a building on it. Form of private expropriation:

1004. Any owner may cause a private wall directly adjacent to the dividing line to be
rendered common by reimbursing the owner of the wall for 1/2 of the cost of the
section rendered common and, where applicable, 1/2 of the value of the ground used.
The cost of the wall is estimated on the date on which it was rendered common, and
account is taken of its state.

The idea is to save on land needed for construction.

68

- Cost of maintenance of a common wall is shared. But this obligation may be escaped by
renouncing to make use of the wall, abandoning the right (other neighbour becomes full
owner of wall and land underneath):

1006. The maintenance, repair and rebuilding of a common wall are at the expense of
each owner in proportion to his right.

An owner who does not use the common wall may renounce his right and thereby be
relieved of his obligation to share the expenses by producing a notice to that effect at
the registry office and transmitting a copy of the notice to the other owners without
delay. The notice entails renunciation of the right to make use of the wall.

Two cases dealing with mitoyenneté (Zambito-Orazio c. Meneghini; Groleau c. SIPAM): is

abandonment a liberation of not only future but also past cost? The cases have opposite
conclusion, even if they rely on the same authorities. This issue is not settled. Cantin: “I
don’t know what to think of this. Maybe there should be a distinction between major capital
costs and maintenance.”

Zambito-Orazio c. Meneghini (1999) p. 345

Facts Z-O wanted to make repairs to a shared wall, and requested that M. pay half. M.
abandoned its right to the wall. The first court decided that the abandonment did
not relieve M. of costs retroactively and forced M. to pay half of the repairs
already undertaken, M. appealed.
Issue(s) Is the effect of abandonment of a common wall retroactive?
References arts. 512-3 CCLC.
Holding Dussault, Nuss, Philippon JJ., Court of Appeal: YES.
Ratio “ … l’abandon du droit de mitoyenneté a eu pour effet de libérer les appelants
de leur obligation de contribuer à la réparation du mur. ” (p. 346)

Groleau c. Société immobilière du patrimoine architectural de Montréal (1999) p. 349

Facts A wall common to both parties collapsed. The city (of which SIPAM is a
branch) abandoned the wall then forced Groleau to pay for the repairs.
Issue(s) Is the effect of abandonment of a common wall retroactive?
References arts. 1005-6 CCQ.
Holding Mailloux J., Cour du Québec: NO.
Ratio Another “branch” of the city was in a position to enforce expensive
maintenance. To force the maintenance then renounce its own responsibility at
the last minute is clearly in bad faith. So SIPAM is liable for half the cost of
repairs.

Section 2 - Common immovable accessory

Immovable thing that several land owners have jointly established for the service of
their land. See Marler, p. 352. Traditional exception to the usual rule: permanent indivision,
none of the indivisaires may request partition individually, all of them would have to agree.

1030. No one is bound to remain in indivision; partition may be demanded at any time
unless it has been postponed by agreement, a testamentary disposition, a judgment, or
 69

operation of law, or unless it has become impossible because the property has been
appropriated to a durable purpose.

The legal regime of mitoyenneté is applied to this situation with necessary adjustments.
Abandonment to the benefit of the other owners is possible.

Michon c. Leduc (1890), p. 352

Issue(s) Is it possible to force the partition of an aqueduct shared by several owners?

References 1499 CCLC.
Holding Dorion, Tessier, Baby, Bossé, Doherty JJ., Cour du BR: NO.
Ratio By its nature, the co-ownership must be permanent.
Comments It could be abandoned, and that abandonment would benefit the others. The
abandoner would have to stop using the object.

Section 3 - Divided co-ownership of an immovable (condominium)

See 1038 et seq.. This arrangement has always been possible, see Marler, p. 352. Pre-1969,
there was 521 CCLC that dealt rudimentarily with this situation (repealed in 1969). The
immediate origin of broader condominium regulation dates to 1969 additions to the CCLC
(co-ownership of an immovable by declaration, inspired by 1965 French legislation on
copropriété): 441.b CCLC et seq..

Involves primarily the subdivision of a building in a matter similar to the subdivision of

land: once it is divided, each part can be dealt with independently for sale, taxation,
hypothecs... In a condominium, the construction is sub-divided. Done by land surveyors.
Each part will receive a separate cadastral number and from here on in each part will be
viewed as owned independently.

A. The establishment of an immovable in divided co-ownership

High level of formalism in procedure to establish such a regime for an immovable, not
usual in Civil Law. Steps to establish a divided co-ownership:

1. Declaration of co-ownership in notarial form (exclusive competence of notaries):

1059. A declaration of co-ownership, and any amendments made to the constituting

act of co-ownership or the description of the fractions, shall be in the form of a
notarial act en minute.

- The declaration must contain certain key elements:

1052. A declaration of co-ownership comprises the act constituting the co-ownership

[1053], the by-laws [1054] of the immovable and a description of the fractions [1055].

- The declaration must be signed by all that have a principal real right or a
hypothec on the immovable at the time of declaration:

1059.2 The declaration shall be signed by all the owners of the immovable, by the
emphyteutic lessee or the superficiary, if any, and by all the creditors holding
hypothecs on the immovable; amendments are signed by the syndicate.
70

2. The declaration must be published. It is publicity which creates the co-ownership:

1038. Divided co-ownership of an immovable is established by publication of a

declaration under which ownership of the immovable is divided into fractions
belonging to one or several persons.

Co-ownership starts with registration, which is unusual. Usually, it only publicizes a decision.

3. The establishment of a condominium requires separate immatriculation, subdivision of

each part before it can be established. This means that the construction must be present or at
least sufficiently advanced so that a land surveyor can precisely divide the immovable (1055,
3041). A declaration of co-ownership can’t be made on a building yet to be built.

A buyer of a part of a condominium to be built is only a creditor of an obligation to receive a

share of the share at a later date. No right of ownership is created. The CCQ newly provides
some protection for the sale of residential immovables (1785 et seq.): law of obligations, not
of real rights.

Effects of a declaration:

1. The declaration establishes a permanent status for the immovable. Anyone coming in
(buyer, creditor...) is bound by it. These obligations have the status of real obligations:

1062. The declaration of co-ownership binds the co-owners, their successors and the
persons who signed it, and produces its effects towards them from the time of its
registration.

The lessee or any other occupants is also bound (1057).

2. Creation of a legal person (new feature):

1039. Upon the publication of the declaration of co-ownership, the co-owners as a

body constitute a legal person, the objects of which are to preserve the immovable, to
maintain and manage the common portions, to protect the rights appurtenant to the
immovable or the co-ownership and to take all measures of common interest.

The legal person is called a syndicate.

B. Structure and nature of co-owner’s rights

Legally speaking, a condominium is a particular arrangement constructed on the right of

ownership, which is the point of departure. A right in a condo is an immovable real right.

The right of each co-owner is identified as a “fraction”, which represents all interests of a co-
owner in the immovable.

1010.3 It [co-ownership] is called divided where the right of ownership is apportioned

among the co-owners in fractions, each comprising a physically divided private
portion and a share of the common portions.
 71

1038 and 1010(3): the ownership of an immovable is divided in fractions. Each fraction
has 2 components: private portion and common portion.

Each co-owner has an exclusive right to a physically specific part of the immovable called the
private portion (1042) and an undivided right to a share of the common portion (1043-6,
also identified by the land surveyor, normal indivision applies even if for the exclusive use of
one co-owner, 1043(2)). The private portions are not co-owned. Each share of the
construction will have a distinct, corporeal identity. Each portion of the immovable will be
identifiable and may be the subject of real rights independently, structured around the right of
ownership.

1038. Divided co-ownership of an immovable is established by publication of a

declaration under which ownership of the immovable is divided into fractions
belonging to one or several persons.

1042. Those portions of the buildings and land that are the property [propriété, should
say ownership] of a specific co-owner and that are for his use alone are called the
private portions.

1043. Those portions of the buildings and land that are owned by all the co-owners
and serve for their common use are called the common portions.

Some of these portions may nevertheless serve for the use of only one or several of the
co-owners. The rules regarding the common portions apply to these common portions
for restricted use.

1046. Each co-owner has an undivided right of ownership in the common portions.
His share of the common portions is proportionate to the relative value of his fraction.

1044. The following are presumed to be common portions: the ground, yards,
verandas or balconies, parks and gardens, access ways, stairways and elevators,
passageways and halls, common service areas, parking and storage areas, basements,
foundations and main walls of buildings, and common equipment and apparatus, such
as the central heating and air-conditioning systems and the piping and wiring,
including what crosses private portions.

Windows are often also identified as common portions. To identify all of this, construction
must be fairly advanced.

February 2

The legislative objective was to facilitate access to ownership to the greatest number. This is
the best / strongest title available, which maintains property value.

The two portions may not be dissociated (1048; 1076 only applies to later acquisitions by
the syndicate). The right in one automatically entails right in the other. Also impossible to
claim a share of a common portion without being an co-owner of the immovable. For ex., a
promoter cannot lease left-over parking spaces (actual case), they will become undividedly
72

co-owned by the co-owners. Different for a co-owner’s lessee who is deemed to be a co-
owner for those ends (1065: a co-owner who leases must notify the syndicate).

Balconies are presumed to be common portions (1044) although they are very often
affected to exclusive use, depending on the construction.

Each co-owner is taxed independently. Hypothecs also do not affect other co-owners.

The way to find out what is common and what is private is to look at the declaration of
co-ownership (which has 3 parts, 1052):

1055. A description of the fractions contains the cadastral description of the private
portions and common portions of the immovable.

Technical details:
- When a land surveyor divides, each private portion gets a separate lot number, the basis for
identifying each fraction.
- All private portions may be specifically identifiable (1053).
- Several common portions may receive the same number, although those reserved for
exclusive use may be more appropriately identified by specific numbering.
- 1044 contains a presumption of all parts which are normally common: only an indicative
list, but quite commonly used.
- If there is any doubt, what is in dispute is a common portion, as private portions are
specifically identified.
- Indivision between two adjacent fractions (don’t know why this ‘intermediate’ regime is
needed, but probably has to do with the cost of repairs):
1045. Partitions or walls that are not part of the foundations and main walls of a
building but which separate a private portion from a common portion or from another
private portion are presumed common [mitoyen].

The evaluation of the fraction is contained in the ‘constituting’ act part of the declaration:

1041. The relative value of each of the fractions of a divided co-ownership with
reference to the value of all the fractions together is determined in consideration of the
nature, destination, dimensions and location of the private portion of each fraction, but
not of its use [utilisation].

The relative value is specified in the declaration.

This is not a dollar value but a relative value, established by comparison with other
fractions (not linked to the market dollar value). It is based on the value of the private portion
of the fraction. There appears to be some conflict in 1041 between ‘destination’ (which
was not in CCLC, “don’t know what it means”) and ‘use’. This evaluation goes in the
declaration and is permanent once established. The only way to modify the evaluation is to
contest it within 5 years (1068).

Role of the evaluation (mostly voting rights and cost-sharing):

- Relative value determines abstract share in common portions (1046).
- Relative value determines the voting rights of the co-owners (1090).
 73

- Relative value determines contribution to expenses of the co-ownership and to the

contingency fund (1064), with the exception of common portions for restrictive use (those
with a right to use must bear the cost).
- Provides a method to divide any hypothec existent before the declaration.
- If ever the co-ownership is ended (agreement, destruction, expropriation...), any indemnity
will divided between co-owners accordingly.

C. Destination of an immovable: content and role

In the condominium context, the ownership regime is modified in 2 ways:

- Distinction between private (exclusive ownership, 1042, see Wilson case) and common
portion (indivision, common ownership, ‘residuary category’).
- There are particular and more onerous restrictions on the rights of co-owners (1066:
obligation to provide access for repairs; give notice to syndicate if fraction leased; third part
of declaration contains specific rules of enjoyment).

The restrictions on and obligations of co-owners are not limitless (same text as 441o
CCLC):

1056. No declaration of co-ownership may impose any restriction on the rights of the
co-owners except restrictions justified by the destination, characteristics or location of
the immovable.

The declaration, constitutive act (1053) must contain the destination of the condo, which
has a double role:
- Control restrictions and obligations imposed on co-owners.
- Control use and enjoyment of individual co-owners.

Destination is the basis to solve conflicts between co-owners. One can contest a restriction
as unjustified given destination, but goes both ways, as the collectivity or syndicate can also
use it against a co-owner not abiding the declaration.

Because of its control feature, it is very difficult to change, requires almost unanimity:

1098. Decisions on the following matters require a majority vote of 3/4 of the co-
owners representing 90 % of the voting rights of all the co-owners:

1) to change the destination of the immovable; ...

1102. Any decision of the syndicate which, contrary to the declaration of co-
ownership, imposes on a co-owner a change in the relative value of his fraction, a
change of destination of his private portion or a change in the use he may make of it is
without effect.

The law does not define precisely what ‘destination’ is, but it gives a hint:

1053.1 A constituting act of co-ownership defines the destination of the immovable,

of the exclusive parts and of the common parts.
74

Courts have accepted that French legislation be used to interpret “destination”, as it is the
origin of this law. There is

- Explicit content of the notion of destination (global affectation of the immovable:

residential, commercial, industrial, mixed if private portions have different destinations, also
must be stated for common portions: where to park, if dogs can be allowed in garden, i.e.
bylaws...). Limitations are imposed by the declaration, not by the administrator who only sees
to compliance. It is easier to modify bylaws than other parts of the declaration (1096).

- Implicit content given notably by 1056: why did co-owners buy? This is not completely
subjective. As in French law, includes factors such as area, quality of construction, degree of
luxury... May be taken into consideration for contributions of the co-owners to repairs.

Obligations contained in a declaration have the status of real obligations: binding on

whoever purchases a fraction.

The notion of destination provides a mechanism to objectively control whether obligations on

co-owners are reasonable. One would expect more restrictions pertaining to the common
portions than to the private portions.

All cases deal with the application of destination...

Talbot c. Guay (1992), p. 358

Facts Guay put up awning over his balcony in a condominium complex. A co-owner is
seeking an injunction to have it removed to restore his view of the river.
Issue(s) Is the injunction to have the awning removed justified?
References art. 441o CCLC.
Holding Gendreau, Brossard, Moisan JJ., Court of Appeal: YES, but injunction modified
so that only a portion of the awning to be removed.
Ratio Clearly stated in s.10.14 of co-ownership agreement that no one may obstruct
the view of another co-owner over the river.
Comments This involves a restriction with respect to a private portion of the
immovable. Not explicit destination, but implicit; the view of the river likely
affected the evaluation of the fractions.

Syndicat des copropriétaires de Trillium Court Condominium c. Ouellette (1998), p. 354

Facts Ouellette enlarged her balcony without the approval of the other co-owners,
who are requesting an injunction to have it demolished.
Issue(s) (1) Did Ouellette violate her co-ownership agreement?
(2) Is the damage serious and irreparable enough to justify the granting of an
injunction?
References art. 1080 CCQ.
Holding Chabot J., Superiour Court: (1) YES; (2) YES.
Ratio (1) Balcony is “partie commune à usage restreint”, limited common portion.
(2) Administrators have lost control over the ability to regulate the property.
Comments Exterior aspect is part of the characteristic of the immovable; can prohibit
construction on those parts.
 75

Bergeron c. Martin (1997), p. 359

Facts One owner in a co-owned triplex is running a daycare centre (in conformity
with municipal regulations) with nine children, and is taking up the entire back
courtyard with playground installations. Neighbours want an injunction.
Issue(s) Is the injunction to have the daycare services stopped justified?
References arts. 1044, 1053, 1056, 1063, 1080 CCQ.
Holding Julien J., Superior Court: YES.
Ratio Residential building; professions are excluded. The annoyances are major, not
minor. Daycare centre is a business, even in a residence.
Comments Daycare incompatible with residential destination.

Kilzi c. Syndicat des co-propriétaires du 10,400 boul. L’Acadie (2001), p. 364

Facts Kilzi, whose family owns eight units, is trying to get an injunction to cancel a
bylaw adopted by co-owners, prohibiting rental of units to legal persons or
short-term rental agreements, and prohibiting ownership of more than three
units.
Issue(s) Is the bylaw valid?
References arts. 1052-4, 1056-7, 1063, 1065, 1070, 1096, 1098, 1101-3 CCQ.
Holding Otis, Forget, Rochon JJ., Court of Appeal: PARTLY. The intended use of the
building justifies the prohibition of short-term rentals, but the restrictions on the
number of units that can be purchased and prohibiting rentals to legal persons
are invalid.
Ratio Easy to see the problem with having lessees in a condo. Rapid turnover, and
lesser concern on the part of the lessee to keep the immovable in good state. The
only acceptable restriction was to make the lease a minimum of one year.

Valid and invalid clauses

In a mixed commercial-residential building, it would be justifiable, in the fractions with

commercial destination, to exclude certain commercial activities if the exclusion is justified
by nuisances (noise, odour...). Sometimes, such a restriction can be a non-competition
clause in disguise, which is against public order and usually struck down.

There is jurisprudence relative to the prohibition of any or some lucrative activity in a

purely residential immovable. Then there will need to be an evaluation of the specific
situation. Restrictive covenants (new owner must be accepted) are forbidden.

Wilson v. Syndicat des copropriétaires du condominium Le Champlain (1996), p. 371

Facts Co-owners voted to modify co-ownership agreement to prohibit most types of

pets in the exclusive parts of the building. Plaintiffs are seeking to have the
decision cancelled.
Issue(s) Is the provision prohibiting pets valid?
References arts. 1052, 1054, 1056 CCQ.
Holding Marcelin J., Superior Court: NO.
Ratio The rule has no relation to residential nature of property, and the old regulations
were not the subject of complaint for 13 years. However, the initial restriction in
the declaration prohibiting animals causing neighbourhood annoyances is
acceptable.
Comments Confirms that private portions are subject to exclusive ownership.
76

Condos for ‘older adults’ may have trouble having their ‘no kids’ rules upheld: Quebec
Charter, etc. Some restrictions may be acceptable given the characteristics, but there is a limit
as to how broad they can be before they are deemed discriminatory.

February 9

There has been some uncertainty as to how to understand destination of an immovable.

It seems that courts are now disposed to give it a wide content, i.e. not only what is
explicitly stated (residential or commercial or industrial, rules for common portions) but also
implicit content with objective factors (ex. quality, luxury of the building) and subjective
ones, objectively assessed (location, view, neighbourhood, relevant for a purchaser).

D. A few issues related to destination

1. If the syndicate seeks to enforce the declaration against a recalcitrant co-owner, does
it have to show ‘serious and irreparable prejudice’?

This appears to be warranted by:

1080.1 Where the refusal of a co-owner to comply with the declaration of co-
ownership causes serious and irreparable prejudice to the syndicate or to one of the co-
owners, either of them may apply to the court for an injunction ordering the co-owner
to comply with the declaration.

This is apparently very difficult requirement. In Bergeron and Ouellette, the court found a
prejudice and did not question the adjectives, and granted an injunction. Cantin: “My view is
that there is no such requirement, notwithstanding what the code says. It is a new disposition
and it is misguided.” The aim of the condo regime is to prevent disputes between co-owners
and ensure the authority of the syndicate and enforcing the declaration. A relation can be
made with the regime of ownership / real rights: 953 (infringement), 976 (annoyance), 1015
(indivision, other owners may not prevent use). Generally speaking, there is no
requirement of “serious and irreparable prejudice”. All of these rules are not meant to
prevent or compensate damages, but to organize the exercise of real rights.

This standard is only found in art. 752 CPC (p. 263) to obtain an interlocutory injunction.
Such a level of proof should not be required to enforce a declaration of co-ownership.
However, this level is appropriate for the 2nd par. of 1080, which allows an expropriation
or forced sale:

1080.2 If the co-owner violates the injunction or refuses to obey it, the court may, in
addition to the other penalties it may impose, order the sale of the co-owner's fraction,
in accordance with the provisions of the Code of Civil Procedure regarding the sale of
the property of others.

The same should apply to the termination of a lease at 1079. Cantin: “Judges have a tendency
to read 1080 ‘selectively’ to exclude ‘serious and irreparable prejudice’.”
 77

2. Can a new co-owner claim not to be bound by the declaration because she has not
been notified of its content?

Especially an issue in Bergeron. Obligations that stem from the declaration are real
obligations and will bind anyone dealing with the immovable, provided they are
registered.

There is a presumption that real obligations are known. See:

2941. Publication of rights allows them to be set up against third persons, establishes
their rank and, where the law so provides, gives them effect.

Rights produce their effects between the parties even before publication, unless the
law expressly provides otherwise.

Similarly in indivision:

1014. Indivision by agreement in respect of an immovable shall be published if it is to

be set up against third persons. In particular, publication mentions the expected length
of indivision, the identification of the shares of the co-owners and, where applicable,
the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment
of a portion of the undivided property.

For servitudes:

1182. Servitudes are not affected by the transfer of ownership of the servient or
dominant land. They remain attached to the immovables through changes of
ownership, subject to the provisions relating to the publication of rights.

3. If the contested activity is not permitted by the declaration, is it relevant to plea that it
is in the general interest or that municipal/provincial regulations allows it?

Also came up in Bergeron. This is irrelevant in the condo context, with a reasoning similar
to 976’s, where external considerations do not resolve the issue.

4. What if one co-owner complains but the others don’t?

Also came up in Bergeron. This is irrelevant in the condo context, with a reasoning similar
to 976’s, where the fact that some people are not bothered does not resolve the issue. Specific
condo rules do not preclude from invoking 976.

5. Importance of the legal framework chosen by the legislator.

It is a special arrangement for the ownership of an immovable. Co-owners are owners, with a
right of ownership. The role of 1066 is to be assessed in this context. Any restriction has to be
justified by the destination of the immovable.

Conversely, see Wilson (p. 377): “droit de propriété fort différent du droit du locataire”.
The legislator could have structured the condo (still available contractually) in such a way that
a legal person buys the immovable (and not around ownership), with the occupants being
78

shareholders, a share giving the right to occupy the apartment. In this case, shareholders have
rights similar to those of lessees: personal right. This can have substantial consequences:
creates debtor-creditor relationships. The owner, in this case, would be able to decide the
content of the enjoyment which he provides. This opens the door on more restrictions on
exercise of rights: only public order and the Quebec Charter would apply. Also, since 976 is
according to Cantin is a real action, it could not be invoked in this case and abuse of right
would have to be invoked instead (6, 7, 1457).This highlights the distinction between real
and personal rights.

Whereas, in a co-ownership, the restrictions are only justified by the destination. By

itself, the right of ownership does not contain restrictions. Normally, restrictions on common
portions are more important than on private portions.

E. Functioning and duration of the co-ownership

There is a new management model in the CCQ, with a new structure:

1039. Upon the publication of the declaration of co-ownership, the co-owners as a

body constitute a legal person, the objects of which are to preserve the immovable, to
maintain and manage the common portions, to protect the rights appurtenant to the
immovable or the co-ownership and to take all measures of common interest.

The legal person is called a syndicate.

The legal person does not need to be incorporated separately, but the general regime of legal
persons (298-364) applies except where not applicable.

The organs of the syndicate:

- General meeting of the co-owners, which occurs at least once a year. Makes
decisions as provided for by 1087-1103.
- Board of directors (1084). Carries on the decisions of the assembly, administers the
immovable, oversees the application of a declaration.
- Manager (in large condos) which may have current administration delegated by the
board of directors, with the rules being those of administration of the property of
another (1085-6).

It is wrong to say the syndicate or manager impose restrictions. They only enforce
restrictions found in the declaration.

The syndicate, as a legal person, has a patrimony. Its content is defined at 1070-83.

The syndicate does not own the immovable. It does own general maintenance equipment,
reserve / contingency fund, maintenance fund, relevant papers, insurance indemnities,
damages for latent defects, immovable it purchased with general assembly authorization
(1076: the syndicate can purchase a fraction, but a common portion cannot be separated, has
to do with something outside the condo that was purchased and made a ‘common portion’
without modifying the declaration).

Some wording problems have to do with ideas borrowed from legislation (ex. ‘trustee’ in
1075 probably comes from Ontario legislation) structured differently.
 79

Obligations of the syndicate are defined at 1067, 1077-8. There are also obligations
resulting from the declaration or decisions of the general assembly. Costs of lawsuits are seen
as costs of the co-ownerships.

Duration of co-ownership:

Indefinite duration, a case of permanent indivision. It can be terminated by a decision of

the general assembly, with 3/4 of co-owners representing 90% of the votes (1108-9). It can
also be terminated by total loss of the immovable. The issue of reconstruction is dealt with
at 1075, during which time the indemnity cannot be touched. There can also be termination
by expropriation. Money will be distributed on the basis of the relative value of the fractions.

F. Right to periodical enjoyment or time-sharing (multipropriété)

Use and enjoyment of an immovable is shared by co-owners on some periodic basis

(weekly, monthly...), see 1058.2, 1098.3, 2974. There is a possibility that a condo’s fraction is
in indivision between several co-owners, which may decide on a periodic enjoyment, but this
may be validly forbidden by the declaration. In order to do it, the declaration must provide
for it explicitly:

1058. Unless express provision is made therefor in the act constituting the co-
ownership, no fraction may be held by several persons each having a right of
enjoyment periodically and successively in the fraction, nor may a fraction be
alienated for that purpose.

Where the act makes provision for a periodical and successive right of enjoyment by
holders, it indicates the number of fractions that may be held in this way, the
occupancy periods, the maximum number of persons who may hold these fractions,
and the rights and obligations of these occupants.

Time sharing is possible otherwise outside the context of divided co-ownership: contracts
can be used, but within the context of real rights, simple indivision can be used with an
agreement signed by the indivisaires, registered, which provides who can use what when.
Must also include the length of indivision (1013), otherwise anyone can ask for partition.
Such an agreement will be opposable. A promoter cannot do it on her own, unlike setting
up a condo.

Chapter III - Superficies

Section 1 – Legal regime of superficies

Definition at 1011, provisions at 1110-1118. This is new, there were no specific articles in
the CCLC, although there was an indirect reference as to the rebuttable presumption of
ownership or accession to constructions on land. Marler’s text shows that superficies
already existed.

1011. Superficies is ownership of the constructions, works or plantations situated on

an immovable belonging to another person, the owner of the subsoil.
80

The owner of the construction (or plantation) is the superficiary / superficiaire, the
owner of the land the owner of the subsoil / tréfoncier. In French, the land is referred to as
the tréfonds.

The right of superficies prevents the owner of the subsoil from taking advantage of the
presumption of single ownership (951, 955, 957) and accession.

Superficies is an immovable real right, which is opposable to a third party once registered.

Cantin prefers “right of superficies / droit de superficie”, the old designations, as opposed
to “superficies / propriété superficiaire”. Morin c. Grégoire is a famous case in this area,
shows how this situation was understood under the CCLC. Superficies is both with the
modalities and the dismemberments at p. 573.

Definition of superficies:

1110. Superficies results from division of the object of the right of ownership of an
immovable, transfer of the right of accession or renunciation of the benefit of
accession.

- First part means that the owner of the land is no longer presumed to own
everything that is above and below. Allows sale of building and not of the land (but
the building can stay on the land) or vice versa, with nothing to be removed by either
party.
- “Renunciation” part is illustrated by Morin c. Grégoire: permitting a building to be
built without obtaining ownership (“transfer of the right of accession” is erroneous,
accession is not a right, it is a mode of acquisition of ownership). May mean that
there is the transfer of a dismemberment in the soil to allow construction. So the
‘right’ of accession is not transferred, just paralyzed for the duration of superficies.
This can occur before there is any construction: real right in the immovable which can
be protected by registration.

In Morin c. Grégoire, Mayrand J. held that the right of superficies lasts as long as the building
if there is no explicit term. There may be a term or perpertuity (probably for something not
impeding use of the land, ex. electric post). If nothing happens at the end, accession works to
the favour of the tréfoncier.

Morin c. Grégoire (1967), p. 381

Facts Grégoire built a house on his brother-in-law’s (Morin) land with verbal
permission. Grégoire argued that he possessed in good faith, and that he had a
right to be indemnified. Morin claims ownership of the house.
Issue(s) Does Grégoire have a real right in the land?
References art. 776 CCLC [registration of gift contracts].
Holding Mayrand J., Superior Court: YES, possession of a right of superficies.
Ratio - Difference between tolerance and permission. Morin implicitly gave defendant
a right of superficies, which will last as long as the buildings last.
- The right was given to the defendant to use and build on the land, which the
judge determined to be a right of superficies. The plaintiff therefore renounced
his right to acquire the construction by accession.
Comments - The presumption that owner of soil owns all that is above and below is
 81

rebuttable, in this case Grégoire had a right of ownership on the building

combined with the immovable real right of superficies on the tréfonds.
- Under the CCLC, we used to see superficies as a dismembered real right. The
CCQ put it under modalities but this did not change much (see p. 573).
- Creative judgment for dealing with natural obligations (effective contract).
- Illustration of what is now 1110 CCQ: renunciation of the benefit of accession

February 16

Section 2 – Right of superficies or superficiary ownership: modality or

dismemberment?

Is it possible to have superficies without a construction or plantation? One or two real

rights involved? Is it equivalent to a right of ownership in a construction or plantation, just
like the tréfoncier has a right of ownership on the land? We must also account for the land
used by the superficiary. Cantin: looking at construction / plantation is insufficient.

Is the regime created by the CCQ adequate? Is it a codification of what was previously
deemed the right of superficies (droit de superficie)? See #132-3 Marler extract:
superficies is a dismemberment of ownership (separate immovable real right, see Morin c.
Grégoire) of the land (which may be temporary or permanent), which prevents the owner
from invoking 953 to expel the superficiary.

The French term “propriété superficiaire”, used in the CCQ, is problematic because it
can be seen as a recognition that there is a separate and temporary right of ownership.
Especially because it is placed with the modes of ownership in the CCQ, before the
dismemberments.

With superficies, the land under the construction / plantation is deemed to be charged
with a (real, because not qualified) servitude, unless there is a specific agreement. Whereas
in Morin c. Grégoire, Mayrand J. was of the opinion that it was a personal servitude (real
right of enjoyment of someone else’s land). Normally, a real servitude is established
between dominant and serviant land. So the characterization appears erroneous.

There is also a problem at 1113 => Ownership must always be perpetual. Very apparent in
the French version of the article:

1113. La propriété superficiaire peut être perpétuelle, mais un terme peut être fixé par
la convention qui établit la modalité superficiaire.

1116 also has a similar problem:

1116.1 At the termination of superficies, the subsoil owner acquires by accession

ownership of the constructions, works or plantations by paying their value to the
superficiary.

At the end of the term, the right to use the land ends (see 1111), to keep the construction on
someone else’s land. Ownership obviously doesn’t end as the tréfoncier must actually
purchase the construction. So ownership of the construction is not extinguished, it is
transferred. Only the right in the soil is temporary. Propriété superficiaire is not an instance
of temporary ownership, but a temporary dismemberment on ownership of the land
82

Cantin: It’s as though there were only two rights of ownership in superficies (what 1011
suggests). Yet, one cannot avoid the right of the superficiary in the land. There are
important inconsistencies in this part of the CCQ... Propriété superficiaire is not an example
of ‘temporary’ ownership: either the superficiary or the tréfoncier must acquire both rights at
the end (or the building must be removed).

3 things involved in superficies according to Cantin:

1. Ownership of the land;
2. Ownership of the construction;
3. Right of enjoyment of the land by the superficiary (not a real servitude).
This allows superficies to exist without the presence of any construction, which is
implicitly forbidden by the CCQ. The right to a construction or plantation should be
separate from the right to use the land: that way, the right to use the land can be
published and protected before anything is built. In fact, Hydro Québec, municipalities,
etc. use superficies to build infrastructure on private land, even though they may call it
‘servitudes’.

Cantin: if the superficiary abandons the right in the land, the tréfoncier gets it and then
there is accession. So abandoning the ownership of the construction would probably not
benefit the State.

The Stone Consolidated case illustrates the possibility of granting a right of superficies
without there being a construction (Forest Act, p. 384).

Stone-Consolidated c. Pierre Desjardins Gestion inc. (1998), p. 386

Facts Stone-C obtained governmental permission to build a garage on public land. A

contractor did the construction, using subcontractors (including the defendant)
and defaulted. The defendant published a legal hypothec on the building to get
paid. Stone-C sued claiming that there could be no charges on public land.
Issue(s) Can the respondent publish a legal hypothec against the property?
References Forest Act.
Holding Dutil J., Superior Court: YES.
Ratio Stone-C has a superficies over the public land, and has a right of ownership to
its garage separate from the right on public land, which means a hypothec could
be registered on it.
Comments Illustrates the right of granting the right of superficies without an existing
construction. Authorization to construct a garage (the garage does not yet exist).
Transfer of a real right in the land (right of superficies).

Can a superficiary be a possessor? In Morin c. Grégoire, this is the way Grégoire, presented
himself. But the judge said there was more: right of superficies. The issue is still open:

921.1 Possession is the exercise in fact, by a person himself or by another person

having detention of the property, of a real right, with the intention of acting as the
holder of that right.

This article is open: can be a possessor as an owner, a usufructuary and a superficiary

(923). This may turn out to be useful if for some reason the title by which superficies was
thought to be acquired is invalid. This could not be done with a real servitude, which must
 83

be acquired by title. Conversely, non-use of superficies for 10 years (i.e. no building) would
extinguish it, by extinctive prescription (2922, though not mentioned at 1114). This is the
converse effect of being able to be a possessor. If a building is present but not used, there is
no extinctive prescription, but someone else may acquire ownership through possession:
acquisitive prescription.
84

March 2

PART SIX – Dismemberments of Ownership

Patault’s text shows well how modern law re-adopted the Roman notion of exclusive
ownership, over multi-layered feudal tenure. This also included the idea of
dismemberments: jus in re aliena. By the 18th C., the difference between real and personal
rights was developed, as it did not exist in Roman law.

Dismemberment necessarily means that two people have a real right on the same object
at the same time. This should not be confused with indivision, co-ownership: not a
dismemberment, sharing the same right. The content of the owner’s right is going to be
amputated of some benefit enjoyed by the titulary of the dismemberment.

A dismemberment may be more or less extensive. To determine its nature, one must look at
the title and, if necessary, the CCQ. Intrinsically, the content of the right of ownership is
not limited. Inversely, the content of a dismemberment is always limited.

Unlike the CCLC, the CCQ now expressly acknowledges the notion of dismemberment:
911, 947, 1119. Cantin doesn’t like the absence of an equivalent to CCLC 405, which
gave the structure of principal real rights. 911 CCQ is not quite as rich: the structure of the
real right is lost.

A dismemberment is a real right, which benefits its titulary directly, without regards to the
owner. Very different from the personal right were the titulary of a personal right is a
creditor of the owner, see lease vs. usufruct: 1851 and 1120.

The concept of real servitude is strictly defined as different from the real right of
enjoyment (personal servitude): real right in someone else’s land attached to ownership of
dominant land, primarily a relationship between 2 immovables. See p. 573 and 1177. If the
requirements of a real servitude are not met in a contract or title, one may claim a personal
servitude, which is also a real right.

Chapter I - Usufruct and other similar personal servitudes

Section 1 - Content or nature of the right of the usufructuary

Definition of the usufruct:

1120. Usufruct is the right of use and enjoyment, for a certain time, of property owned
by another as one's own, subject to the obligation of preserving its substance.

Nominate real right of enjoyment or personal servitude. According to Cantin, ‘property’

should be replaced by ‘thing’ or ‘object’, which is more general. May be on a movable or
immovable. The usufruct itself is a movable or immovable right, depending on the
characterization of its object.

Usufruct is not very often used or established. But it is important in 2 matters:

- Materially speaking, as it is a very extensive right. While it lasts, the bare owner hardly has
any benefit from his right of ownership.
 85

- Important juridically, it gives the legal regime which applies to other real rights of
enjoyment which are not codified or established by title. The rules of usufruct are used in
that case the droit commun of personal servitudes.

Not all dismemberments are nominate: the CCQ deals with some of them, but this does not
foreclose any other possibilities, according to Cantin (though this is an open question).

The scope of usufruct is described starting at 1124. It starts as the definition of ownership:

1124. The usufructuary has the use and enjoyment of the property subject to usufruct;
he takes the property in the condition in which he finds it.

Usufruct also bears on all accessories and on everything that is naturally united to or
incorporated with the immovable by accession.

The usufructuary has the complete and exclusive material use of the object, but she is
obliged to preserve its substance (1120) or destination, i.e. the use which was the use of the
previous owner. The usufructuary also obtains usufruct anything incorporated by
accession. The usufructuary manages the object and may grant a lease on it: expressly
allowed by 1135.

The bare owner may be barred from any interference:

1125. The usufructuary may require the bare owner to cease any act which prevents
him from fully exercising his right.

The bare owner's alienation of his right does not affect the right of the usufructuary.

Beyond usus, there is also a right to fructus:

1126. The usufructuary appropriates the fruits and revenues produced by the property.

Trees and minerals are normally considered as substance, but may become fruit in certain
circumstances (1139-1141). The usufructuary may however perform agriculture and
sylviculture (1140). Descriptions of use and fruit are at 909-10 and 1129-30 for usufruct.

The usufructuary may transfer his right:

1135. The usufructuary may transfer his right or lease a property included in the
usufruct.

Even without this article, it is transferable as it is property / a patrimonial right.

Sometimes, a text is necessary (see for ex. 1134), but not in this case. The usufructuary selling
her right of usufruct does not affect the position of the bare owner (1136). Same if the
usufruct is subject to a hypothec and it is seized. The converse is also true: if the bare owner
sells, the usufructuary’s position does not change (1125).

Usufruct is by essence a temporary right. It may not be perpetual (1120). Default rule:
usufruct is a life right (for a moral person, the suppletive duration is 30 years). The
86

maximum duration is 100 years, after which it is extinguished (1123). Patault remarks that a
perpetual usufruct would be undistinguishable from ownership and destroy it.

When the term of the usufruct ends, it is extinguished. It may also be extinguished by non-
use (exctinctive prescription), forfeiture (if usufructuary abuses the property, 1168) or
abandonment (1169-70).

Larocque c. Beauchamps (1975), p. 401

Facts Larocque a obtenu la nue-propriété d’un bâtiment en paiement d’une dette après la
constitution d’un usufruit en faveur de Beauchamps par leur auteur conjoint. Elle
poursuit pour être déclarée propriétaire et obtenir le déguerpissement de
Beauchamps.
Question Est-ce que l’immeuble est sujet  un usufruit opposable  la créance?
Ruling Juge Bergeron, Cour supérieure: OUI.
Ratio Larocque est déjà propriétaire du bâtiment de par un autre jugement, mais ce droit est
limité par l’usufruit de Beauchamps car celui-ci a été constitué avant la date du prêt
et est toujours valide car non affecté par la saisie. Faute d’avoir un terme spécifié,
l’usufruit durera pour la vie de Beauchamps.

Section 2 - Legal regime of usufruct

Obligations of the usufructuary:

- Make an inventory at the beginning (not important for us).
- Preserve the substance (1120).
- Remain within the extent of his title.
- Abstain from acts which diminish the value of the object, with some exceptions (trees,
minerals).
- If necessary, maintain the object (1151-3), but not proceed to major repairs unless
problem comes from the lack of maintenance (must only inform bare owner of their
necessity). However, unlike what happens in the lease, the bare owner does not have
the obligation to do major repairs either (1137 and 1153 must be conciliated). Liability
for damages due to disrepair is unsettled1.
- Pay charges on the land (municipal taxes, etc., 1154).
- Exposed to forfeiture if does not maintain the substance.

1
Complex question: one would have to consider arts. 950, 990, 1466, 1467, 1457, 1151-3,
1160, 1154, 1158, 1156, 1167. See Cantin’s work (referred to at p. 398, §97-99). 990 should
be especially considered, in conjunction with 1457:

990. The owner of land shall do any repair or demolition work needed to prevent the
collapse of a construction or works situated on his land that is in danger of falling onto
the neighbouring land, including a public road.

The question is whether liability would be based on fault or not. This would in turn probably
influence the way damages would be split between the bare-owner and the usufructuary.
 87

These obligations are real obligations and are transferred with the usufruct. There is not
much compensation for any construction made by the usufructuary (1137-8), but he may
remove it at the end of usufruct.

Usufruct on a consumable object (Cantin, p. 404) creates an incompatibility: impossible to

preserve the substance, because the object disappears as soon as it is used. But usufruct on
consumables sometimes exists (ex. usufruct on an entire estate), on money, food, fuel, etc.
Since Roman law, the solution has been quasi-usufruct:

1127. The usufructuary may dispose, as though he were its owner, of all the property
under his usufruct which cannot be used without being consumed, subject to the
obligation of returning similar property in the same quantity and of the same quality at
the end of the usufruct.

Where the usufructuary is unable to return similar property he shall pay the value
thereof in cash.

Cantin doesn’t like the wording. It does not describe what happens in quasi-usufruct, because
the usufructuary acquires ownership of the consumable object with an obligation of
restitution.

Quasi-usufruct does not concern objects which gradually deteriorate (car, furniture).
These are provided for:

1128. The usufructuary may dispose, as a prudent and diligent administrator, of

property which, though not consumable, rapidly deteriorates with use.

In the case described in the first paragraph, the usufructuary shall, at the end of the
usufruct, return the value of the property at the time he disposed of it.

Cantin doesn’t like the novelty of this new article, as it is incompatible with 1167:

1167. At the end of the usufruct, the usufructuary returns the property subject to the
usufruct to the bare owner in the condition in which it is at that time.

It is not in the interest of the usufructuary to sell in this case!

Usufruct on a non-corporeal object (shares, bonds, claims, intellectual rights): this is rare,
as it is usually over an immovable object. Furthermore, a real right is normally on a corporeal
object. So the nature of the usufruct has to be adapted: it is no longer a real right in this
case. A personal right granted in usufruct does not become a real right. The benefits are
divided between ‘bare owner’ and usufructuary (ex. interests, dividends, IP revenue). For ex.,
usufruct on a claim that becomes due will give the usufructuary a consumable object and then
it is a situation of quasi-usufruct.

A usufructuary can only sell securities with the consent of the bare owner. This is not
ideal, but we won’t go into the details.

Other real right of enjoyment:

88

Use (not the one provided in a servitude or usufruct, 1172-6). Sort of a variant of usufruct. It
does not necessarily grant all use and fruit of object.

1172. A right of use is the right to enjoy the property of another for a time and to take
the fruits and revenues thereof, to the extent of the needs of the user and the persons
living with him or his dependants.

The law provides that it is not transferable (usually family, 1173): exception for a
patrimonial right. Usufruct remains the suppletive regime. See the Gravel case.

Banque nationale du Canada c. Gravel (1975), p. 405

Facts Benoit-Beaudry vend un immeuble  Gravel mais l’acte de vente lui concède un droit
d’habitation  vie et prévoit que Gravel va payer les charges. Gravel devient
insolvable et la Banque nationale saisit le bâtiment pour le vendre. Benoit-Beaudry
présente une requête en opposabilité.
Question Le droit d’habitation est-il un droit réel opposable?
References arts. 491-2, 496CcBC.
Ruling Juge Deschênes, Cour supérieure: OUI.
Ratio La vente peut avoir lieu mais sous condition du respect du droit d’habitation,
validement conféré par l’acte de vente. C’est un droit réel opposable et une obligation
réelle transmise  la Banque. Il est possible de déroger  la règle selon laquelle les
charges sont normalement payées par le bénéficiaire du démembrement (obligation
réelle).
Note This case was decided under the CCLC, which distinguished use and habitation.
Now, the right of habitation is just use of a dwelling.

March 9

Chapter II - Emphyteusis

The titulary of this right is the emphytéote / emphyteutic lessee, the person who granted it
nu-propriétaire / bare-owner. Cantin doesn’t like “lessee” because it’s a real right, she
prefers “emphytéote”.

567 CCLC had the vocabulary of personal rights: bail emphytéotique, bailleur, etc. The new
vocabulary is more consistent with real rights.

Section 1 - Nature of an emphyteutic right

Emphyteusis has a long and confusing history: Greece, Rome, later incorporated in the Feudal
tenure system…

French codifiers believed emphyteusis was incompatible with full, absolute, perpetual
ownership after feudal tenure. It was incorporated in the Code rural but is still not in the
CN. The Canadian codifiers did include it, however, initially with personal right
 89

vocabulary. The CCQ has clarified the real rights position of emphyteusis, but not fully:
“lessee”, “resiliation” instead of extinguishment, etc.

There was a debate under the CCLC as to whether the emphytéote was a temporary
owner under the emphyteusis contract, since she had substantial obligations and restrictions
on the enjoyment of the right. The situation was ambiguous: temporary ownership, debtor-
creditor relationship? This should be settled by the CCQ, see 1119: defined as a
dismemberment and thus a real right.

Emphyteusis is an immovable real right because it is necessarily a right on an

immovable. Like usufruct, it is necessarily temporary:

1197. The term of the emphyteusis shall be stipulated in the constituting act and be
not less than 10 nor more than 100 years. If it is longer, it is reduced to 100 years.

Historically, emphyteusis was used on agricultural land which the emphytéote was obliged to
develop. Today, it is a mean of financing land development in a commercial context, when
the owner of the land does not wish to develop and the developer is not in a position to
purchase the land (ex. Place Ville-Marie).

Section 2 - Requirements for its constitution, comparison with usufruct and

superficies

Emphyteusis must be published in the land register for opposability. The emphytéote is
granted a real right of use and enjoyment of the immovable:

1195. Emphyteusis is the right which, for a certain time, grants a person the full
benefit and enjoyment of an immovable owned by another provided he does not
endanger its existence and undertakes to make constructions, works or plantations
thereon that durably increase its value.

Emphyteusis is established by contract or by will.

567 CCLC was contradictory: “céder” but the person who acquires the right is treated as a
lessee. But the new wording does not necessarily settle the nature of the right because a
dismemberment may also be cédé. “Sale does not necessarily imply transfer of the right of
ownership. All patrimonial rights / property are transferrable.” - Cantin

There can be an annual rent, but it is not required for establishing emphyteusis (1207), unlike
the requirement of 567 CCLC.

Benefits for the emphytéote: use and enjoyment of the immovable (like a usufructuary) for
at least 10 years.

Obligations of the emphytéote: increase the value of the immovable. This is what
distinguishes usufruct from emphyteusis (maintenance, major repairs and investment in the
immovable are required). The obligations are specified in a contract, which is usually
extremely detailed. The emphytéote will benefit from this right while the right lasts.
90

Benefit for the bare-owner: recuperates everything at the end of the right without
compensation to the emphytéote..

Emphyteusis lasts between 10 and 100 years. If the contract fails to mention the duration, it
is not obvious what it would be, unlike usufruct (life). A court would have to decide, but this
is unlikely given that these contracts are normally carefully drafted. The word “shall” in 1197
normally involves absolute nullity, but this is probably too drastic.

Difference with usufruct (often gratuitous): Granting of a emphyteusis is necessarily an

onerous contract, because there is an obligation to invest even without an annual rent
(which was formerly symbolic, used to have the emphytéote recognize the superior domain
and not invoke possession). It cannot be simply extended, there has to be a new contract with
new obligations. Unclear how it could be done by will (1195(2)).

Difference with superficies: At the extinction of emphyteusis, the bare-owner’s right is fully
reconstituted, and it includes the building (unlike the tréfoncier), without any compensation to
the emphytéote. Compare 1209-10 with 1116-8

Alta Mura Construction inc. c. Société des parcs de sciences naturelles du Québec (2003),
p. 416

Facts La Société détient une emphytéose sur une terre de la Couronne, accordée
gratuitement mais  titre non-aliénable. Alta Mura a effectué des travaux sur le
bâtiment et a inscrit une hypothèque légale. La Société a réclamé que l’hypothèque
soit radiée parce que tout immeuble appartenant  l’État est insaisissable. Gagné pi.
Question Le droit d’emphytéose sur une terre de la Couronne est-il saisissable?
References arts. 1212, 1215, 1381 CcQ.
Ruling Juges Pelletier, Morin, Beauregard, Cour d’appel: OUI.
Ratio - La clause d’inaliénabilité est une obligation de ne pas faire et ne confère aucun
attribut d’insaisissabilité  l’emphytéose.
- Même s’il s’agissait vraiment d’une clause d’inaliénabilité, elle n’est pas opposable
 Alta Mura car il ne s’agit pas d’un contrat  titre gratuit (donation, testament).
Note This was an occasion for the Court of Appeal to decide that emphyteusis is
always onerous, even within a will (legacy with a charge). The disappearance of the
CCLC’s mandatory annual rent does not change this. Therefore, this right is seizable.

H.L.P., Société en commandite c. Beauport (Ville de) (2000), p. 421

Facts HLP a acquis d’un tiers une emphytéose sur un immeuble, avec les droits afférents
sur un édifice. La ville réclame des droits de mutation immobilière (sur le transfert du
droit de propriété) sur l’édifice en prétendant que le bailleur a renoncé au droit
d’accession et que HLP détient une propriété superficiaire sur l’édifice, qui
s’éteindrait  la fin de l’emphytéose.
Question Existe-t-il un droit de propriété superficiaire  l’intérieur de l’emphytéose?
References arts. 956, 1110, 1195, 1200 CcQ.
 91

Ruling Juges LeBel, Michaud, Denis, Cour d’appel: NON.

Ratio L’emphytéose constitue un démembrement du droit de propriété. Dès la construction
d’un édifice, le bailleur en acquiert la propriété résiduelle et ne renonce pas 
l’accession. Il n’y a pas de droit de propriété sur l’édifice distinct de l’emphytéose et
donc pas de propriété superficiaire (thèse de Frenette). Il n’y a donc pas eu passation
d’un droit de propriété.

Sunlife Assurance Co. of Canada c. 137578 Canada inc. (2000), p. 424

Facts 137578 a cédé une emphytéose et l’emphytéote a construit un immeuble avec le prêt
de Sunlife, qui a plus tard pris l’édifice en paiement. Ensuite, 137578 a réclamé le
paiement de la rente emphytéotique  Sunlife qui a refusé, alléguant que la prise en
paiement ne conférait aucun droit  137578. Sunlife a perdu en pi.
Question La rente emphytéotique est-elle une obligation réelle, opposable  un ayant cause?
References arts. 1199, 1200 CcQ.
Ruling Juges Rochette, Baudouin, Rousseau-Houle, Cour d’appel: OUI.
Ratio Le transfert de l’emphytéose était assujetti aux droits du bailleur. En recevant
l’emphytéose (‘propriété de l’édifice’) de son débiteur, Sunlife n’est plus créancire
et a acquis tous ses droits et obligations, dont celui de payer la rente.
Note “Par sa nature mme, le droit réel est opposable  tous.” (Baudouin, p. 428)

March 16

Chapter III - Real servitudes

One can return to Patault (p. 18-9) and the abolition of seigneurial tenure (p. 196-7). A real
servitude is one of the dismemberments of ownership (1119), see chart p. 567.

Section 1 - Definition, characteristics and constitution of a real servitude

Definition:

1177.1 A servitude is a charge imposed on an immovable, the servient land, in favour

of another immovable, the dominant land, belonging to a different owner.

It is a real right which becomes part of the titles of ownership of the affected immovables,
to the benefit of the dominant land and the detriment of the servient land. This servitude
is transferred with the right of ownership of the dominant land. The burden is also transferred
with ownership of the servient land.

Compare to usufruct:

1120. Usufruct is the right of use and enjoyment, for a certain time, of property owned
by another as one's own, subject to the obligation of preserving its substance.
92

Very different: real right given to a person, whereas a real servitude is a relationship
between two immovables.

Requirements for a real servitudes:

- Charge that links the 2 immovables, makes one the servient land (reduces its value) and
the other the dominant land (increases its value).
- Unlike what 1177 says, one of the immovables may be a construction (does not need to be
land).
- The 2 immovables must be owned by different owners. One cannot have a servitude on
one’s own land (even with 2 separate lots).
- There may be real servitudes in divided co-ownership, although this characterization is
usually wrong (an arrangement between co-owners is not a real servitude).
- The dominant and servient lands do not necessarily have to be contiguous, but they should
be close enough to make the link credible.
- The servitude must benefit the immovable directly, irrespective of ownership.

A real servitude is necessarily an immovable real right, like emphyteusis. It must be

registered to be opposable as a real obligation to future owners:

1182. Servitudes are not affected by the transfer of ownership of the servient or
dominant land. They remain attached to the immovables through changes of
ownership, subject to the provisions relating to the publication of rights.

It is no longer clear in the CCQ what the subdivision of real rights is, servitudes being one
category (405 CCLC, p. 395). But the subdivision between real and personal servitude still
operates.

The charge of a real servitude must be seen as objectively benefiting the dominant land.
Different from the personal servitude, a right given directly to a person on someone else’s
land (no requirement that the person owning it own an immovable).

The charge which constitutes the real servitude cannot be severed from ownership of the
dominant and servient lands, although it is sometimes attempted with contracts (which lead
rather to personal rights or personal servitudes).

A real servitude is normally a perpetual dismemberment, unless a term is specified (1191).

There is no disposition in the CCQ directly dealing with its length (the fall back of life that
comes from usufruct cannot be used: no ‘life’ of an immovable). But it is not perpetual as
ownership, rather indefinite: it can be extinguished by extinctive prescription. The
justification for this is that the real servitude is an accessory to ownership of the dominant
land, which allows indefinite duration.

Division of the dominant land normally leads to the real servitude being granted to all parts.
However, division of the dominant or servient land must not lead to a situation that is worse
for either immovable (1187-8).

Section 2 - Nature of the charge which may constitute a real servitude

The mechanism of the real servitude is very attractive for the dominant land, because it is
attached to the servient land as a permanent feature. But not anything can be a charge.
 93

1177.2 Under the charge the owner of the servient land is required to tolerate certain
acts of use by the owner of the dominant land or himself abstain from exercising
certain rights inherent in ownership.

2 possibilities:
- Tolerate acts of use (‘positive’ servitude, English version at p. 573 is wrong).
- Abstain from doing something which would normally be possible (‘negative’ servitude). See
p. 573 and 1179 (many more examples in the CCLC).

Real servitudes are often established at the time of subdivision of a piece of land. They
often have to do with limitations to the general regime of ownership of immovables, ex.
servitudes of view which modify the regime of distances that must be observed between
immovables or access to enclosed land. There is no limited lists of these charges, but an
obligation may not be imposed directly on the owner of the servient land through a real
servitude (doesn’t fall under 1177): very important limitation as to what charge may be a
real servitude. Also, a real servitude cannot be primarily an obligation to do: relation
between 2 pieces of land, tenure was abolished (see art. 59 of the Seignorial Act, 1854).

The owner of the dominant land is normally obliged to preserve the servitude:

1184. The owner of the dominant land may, at his own expense, take the measures or
make all the works necessary for the exercise and preservation of the servitude unless
otherwise stipulated in the act establishing the servitude.

Here, there is indirectly an obligation to do, which is acceptable in law:

1178. An obligation to perform an act may be attached to a servitude and imposed on

the owner of the servient land. The obligation is an accessory to the servitude and can
only be stipulated for the service or exploitation of the immovable.

1185. The owner of the servient land, charged by the title with making the necessary
works for the exercise and preservation of the servitude, may free himself of the
charge by abandoning the entire servient land or any part of it sufficient for the
exercise of the servitude to the owner of the dominant land.

Like for other real rights, there is a possibility of abandonment, which does not exist within
personal rights. If there is abandonment of the servient land, it reverts to the owner of the
dominant land (not the State, 1185).

It is not sufficient for parties to call the right a “real servitude” for there to be one. It
must correspond to its requirements. There is an implicit requirement that it be primarily for
the benefit of the dominant land, not for the owner of the dominant land.

Épiciers unis Métro-Richelieu c. Standard Life Assurance Co. (2000), p. 449

Facts Standard Life a repris un centre commercial hypothéqué et a présenté une requête en
inopposabilité d’une “servitude” réelle de non-concurrence accordée par Centre
commercial Victoriaville Ltée  Métro. Gagné en pi.
94

Question Une clause de non-concurrence peut-elle être imposée par une servitude réelle?
References 499, 552 CcBC; 1177, 1191, 1440 CcQ; Auger c. Grenier (1985), Cour d’appel.
Ruling Juges Robert, Forget, Rochette, Cour d’appel: NON.
Ratio Une servitude réelle, normalement perpétuelle, ne peut être créée qu’au bénéfice d’un
fonds, pas au bénéfice de son propriétaire. Or, ici, l’absence de concurrence ne
bénéficie en rien le fonds, même si c’est une obligation passive. Il s’agit donc d’une
obligation personnelle, inopposable  Standard Life  cause de l’effet relatif des
contrats (1440 CcQ).
Note Cantin: “La clause de non-concurrence n’est jamais susceptible de constituer une
servitude personnelle.” (p. 457)

Cadieux c. Hinse (1989), p. 440

Facts En 1972, Cadieux et l’auteur de Hinse ont créé une “servitude” de préférence d’achat
sur leurs terrains par acte notarié. En 1976, l’auteur de Hinse a loué son terrain pour
99 ans. Cadieux prétend que c’est une vente déguisée et réclame de pouvoir acheter
le terrain.
Question Est-ce qu’un droit de préférence d’achat peut constituer une servitude réelle?
References art. 499 CcBC; Auger c. Grenier (1985), Cour d’appel.
Ruling Juge Steinberg, Cour supérieure: NON.
Ratio Selon Cantin (p. 442) et d’autres, un pacte de préférence ne peut constituer une
servitude réelle, car il bénéficie au propriétaire du fonds et non au fonds lui-même.
C’est donc un droit personnel, mais comme le terrain n’a pas été vendu, celui-ci ne
peut pas être exercé. Ce n’est pas parce qu’on utilise le mot “servitude réelle” que
celle-ci existe effectivement.
Note - En cas de doute, on doit refuser l’existence d’une servitude réelle.
- More recent jurisprudence also has refused the status of real servitude to
restrictive covenants.

Section 3 - Legal regime and extinction

Beyond substance, a title is required. Here, “title” means some kind of juridical act:

1181. A servitude is established by contract, by will, by destination of proprietor or by

the effect of law.

It may not be established without title, and possession, even immemorial, is

insufficient for this purpose.

Acquisitive prescription doesn’t apply to real servitudes. The title must also be valid (like
for divided co-ownership). This is a requirement for the existence of a real servitude, not just
useful for evidence or registration.

Explanation of 1181:
 95

- “Destination of proprietor” is explained by Marler at no. 303. Useful when land is severed
(possibly after having been reunited) and only part is sold, but there is still a requirement of
having something in writing (usually a previous title). These are always difficult cases in
practice, no one is perfectly clear on this question.
- “By the effect of law” is new to the CCQ. How can the law be a title? Maybe through
expropriation, but Cantin’s theory is that it completes 1111 (right of superficiary to use the
land, not a real servitude according to her: hard to say that right to use the land benefits the
construction. Cantin thinks it’s more of a personal servitude, real right of enjoyment.).

March 23

The owner of the dominant land must do the maintenance required for the exercize of
the servitude, although this task can be shifted to the owner of the servient land, if it’s
stated in the contract. This obligation is seen as accessory to the primary charge. This is a real
obligation, part of the title (p. 464-465).

Registration is not a condition for the validity of a real servitude. It is only required for
its opposability.

Whitworth c. Martin (1995), p. 433

Facts Martin est propriétaire d’un terrain enclavé et a accédé  son terrain en traversant
d’autres terrains privés pendant au moins 40 ans. Whitworth est une nouvelle
propriétaire et veut lui bloquer l’accès. Martin demande des dommages et qu’on lui
accorde une servitude réelle sur le terrain de Whitworth. Gagné en pi.
Question Le terrain est-il grevé d’une servitude réelle?
References arts. 997, 1181, 1193, 2917 CcQ [CCLC applied to the case].
Ruling Juges Baudouin, Robert, Biron, Cour d’appel: OUI.
Ratio Martin a droit  un droit de passage car son terrain est enclavé (997 CcQ). L’assiette
de la servitude a été acquise sur le terrain de Whitworth par prescription (1193 CcQ)
et elle débouche sur une voie publique au sens de 997 CcQ (car pour usage publique,
même si sur un terrain privé). Il a aussi droit  des dommages pour les inconvénients.
Note - Cantin: Not entirely satisfactory that the court uses the rules of real servitudes for
enclosed land. It probably does not make a difference here, where it may make a
difference is whether the right of way is permanent (1001 CCQ but unextinguishible
otherwise vs. perpetual real servitude), so there could be an impact on the way in
which the issue of enclosed land is settled. The decision is correct but the link
between real servitude and enclosed land is doubtful.
- A real servitude may not be acquired through possession, prescription and time,
only with a title. However, real servitudes are extinguished by non-use for 10 years.
The meaning of 1193 is not clear: deals with the mode of exercize (assiette for a
servitude of passage). The title may specify where the passage is granted, but if this
mode / assiette is not followed and can be prescribed by 10 years. This is the rule the
court applies.
96

How a court interprets a contract to determine whether it established a real servitude:

The real servitude is acknowledged as being perpetual by law, and titles rarely provide for a
duration. It permanently dismembers the right of ownership of the servient land. Courts are
very hesitant in concluding to the existence of a real: see Auger c. Grenier. If possible, they
will choose lesser characterizations: real right of enjoyment, personal right...

Auger c. Grenier (1985), p. 436

Facts Auger a vendu un terrain  Grenier, avec une clause dans l’acte de vente créant une
‘servitude réelle’ restreignant les activités et les aménagements possibles. Plus tard,
Grenier désire aménager un camping et dépose une requête pour faire établir qu’il
s’agit d’une obligation personnelle. Perdu en pi.
Question La restriction des activités et des aménagements est-elle une servitude réelle?
Ruling Juges Paré, L’Heureux-Dubé, Chouinard, Cour d’appel: NON.
Ratio L’existence d’une servitude ne se présume pas et une servitude réelle doit bénéficier 
un fonds, non pas  une personne. L’acte de vente est équivoque et certaines des
obligations ne bénéficient qu’aux personnes (ex. restriction des activités). Il s’agit
donc d’obligations personnelles.
Note Courts are very hesitant in concluding to the existence of a (usually perpetual) real
servitude; in case of ambiguity they will opt for freedom of the title of ownership.

Chapter IV - Is there a Numerus Clausus of Real Rights?

Numerus clausus: closed and limited number. This question is raised in all civilian
jurisdictions: can innominate real rights be recognized, that are not dealt with in statutes or
the CC?

Civil law is constructed around the notion of unitary ownership: there is a single concept of
ownership in the law. In the law of property, ownership is a real right on a material object
and gives all benefits of it to its owner.

Smaller real rights are dismemberments of ownership (property / patrimonial rights and by
definition transferrable), less than ownership:

1119. Usufruct, use, servitude and emphyteusis are dismemberments of the right of
ownership and are real rights.

Can any dismemberment be created in a contract? This is the major issue... CCLC 405 (p.
395) gave a structure of possible real rights: ownership, real right of enjoyment, (real)
servitude. A real right created contractually has to fit within this structure.

Are there limitations to the creation of real servitudes? There is no definitive list, only
1177 must be fulfilled. 1179 says “such as” which suggests there is undefined number.

Are there limitations to the creation of real rights of enjoyment? This question came to
court in the landmark Matamajaw case. See also Banque nationale du Canada c. Gravel on
habitation with modifications.
 97

Duchaine c. Matamajaw Salmon Club Ltd. (1919), p. 470

Facts Blais a cédé les droits de pêche attachés  la part du lit de la rivière (non navigable,
terrain cédé avant 1918, 919 CcQ) Matapédia dont il est propriétaire  Stephen.
Celui-ci vend sont droit au club, qui veut se faire reconnaître un droit réel perpétuel.
Gagné en pi et en appel.
Question Le droit de pêche est-il un droit réel perpétuel?
References art. 479 CcBC; profit  prendre (notion de common law).
Ruling Juges Anglin, Brodeur, Mignault (majorité), CSC: NON; Idington, Cassels
(dissidence): OUI.
Ratio Dissidence: Le droit accordé est semblable au profit  prendre de common law. Il
s’agit d’un droit réel d’usage perpétuel et transmissible.
Majorité: Le profit  prendre n’existe pas en droit civil. Le droit accordé est en fait un
droit d’usufruit transmissible, mais limité  la vie de Stephen (viager) en vertu de 479
CcBC.
Note - Co-ownership was used by the Superior Court and the Court of Appeal, but it is not
what the contract said.
- It is surprising that Mignault characterized this very limited fishing right as usufruct
which is normally much more extensive (may be explained by his claim of a
numerus clausus of real rights, see p. 100, Droit civil canadien).
- The reasoning of the SCC may be criticized: would there be something basically
contrary in civil law to the possibility of granting a perpetual fishing right? Fish are
res nullius, not a fruit of the land (can’t take it away from someone fishing illegally
on my land). So it’s wrong to say the fish belong to the land where they are caught
through accession.
-

Matamajaw Salmon Club Ltd. v. Duchaine [1921] 2 A.C. 426, p. 480

Facts Idem.
Question Is the right to fish a perpetual real right?
References art. 479 CCLC; profit  prendre (common law); Duchaine c. Matamajaw Salmon
Club Ltd. (1919), SCC.
Ruling Viscount Haldane, PC: YES.
Ratio Agrees with Idington (SCC). The deed is silent on duration. A perpetual fishing right
was possible in feudal New France / Canada and still is. “...it is a right to a separable
subject or incident of property.” (p. 483) Therefore it is a perpetual and transferrable
fishing right.
Note - This judgement ignores the unitary roman conception of ownership. It reasons on
usufruct in the way it was conceived before the abolition of feudal tenure (very close
to common law property analysis).
- Cantin: “The PC admitted a ‘separate right’ of ownership under 408 CCLC (now
948 CCQ), which makes little sense in current law.”
- Cantin: “This decision does not change the Code and has little persuasive authority.
But this decision opens the possibility of admitting that the right to fish is a different
real right with a regime different to that of usufruct.”
98

In Matamajaw, the practical issues on the right to fish were (1) how long does it last? (2) is it
transferrable? Cantin agrees that it is a real right of enjoyment, the problem is which one? It
could have been a personal right, but this avenue was excluded because of the matter in which
the right was created: the right was transferred in return for another piece of land (Idington
uses this for interpretation), no obligations were created. This excluded the possibility of a
lease. But, could it be ownership? No, because of unitary ownership. A real servitude? Not
impossible, but not present in the title. A right of enjoyment? Seems to be the case.

March 30

“I personally think that both courts decided it could be a personal servitude. But it is not a
usufruct, but a ‘smaller’ real right of enjoyment of the land for limited use.” - Cantin

The Club Appalaches cases agreed with the existence of inominate real rights of
enjoyment which are transferrable and not perpetual (life if nothing is said as usufruct,
which is the suppletive regime). Is it possible for it to be perpetual? In Matamajaw, the
SCC excluded perpetuity due to construction of the CCLC article and also for policy reasons
(usufruct is very extensive - if perpetual, it destroys ownership). It is now specifically said
that usufruct is temporary. But is the policy reason convincing in Matamajaw? No, it’s a very
limited right, as it does not impair the right of the owner in any substantial manner. But this
has to be stipulated clearly in the contract, otherwise the usufruct’s suppletive rule applies. “It
resembles a real servitude, which may be perpetual, so where’s the problem?” - Cantin

P.G. Québec c. Club Appalaches inc. (1998 CS, 1999 CA), p. 485, 493

Facts Garneau, auteur du Club, a vendu le terrain  un tiers en se réservant un droit de

chasse et pêche. Il a ensuite cédé ces droits au Club. Le terrain a été exproprié et le
gouvernement prétend que l’expropriation a purgé toute charge ou droit réel sur le
terrain.
Question Est-ce que le droit de pêche et de chasse est un droit réel innomé?
References Duchaine c. Matamajaw Salmon Club Ltd. (1919), CSC; arts. 911, 1119 CcQ.
Ruling Juge Landry, Cour supérieure: OUI.
Juges Letarte, Beauregard, Brossard, Cour d’appel: OUI.
Ratio Le législateur ne s’est jamais opposé  la création de droits réels innommés. L’acte de
vente a créé un droit réel, démembrement du droit de propriété perpétuel. Le
gouvernement n’a pas exproprié ce droit et le Club en est donc toujours propriétaire.
Note - The condition of a direct relation between a person and a thing is met, so a real right
is possible.
- Perpetual here means indefinite, extinctive prescription may apply.
- This is a limited right to use, not the use as defined at 1172 CCQ, which is basically
a specific usufruct based on need (also temporary and not transferrable).

In Cadieux c. Hinse, a right of first refusal was not accepted as a real right. Similar story
in Standard Life: non-competition clause is primarily a right between people. It was a right
against the owner, not on a material object.
 99

Chapter IV.1 - The Notion of Real Obligation

p. 464-5 on real obligations / obligations prompter rem. Obligations stipulated within a

proper grant of the real right, not between two people directly. An ex. is the obligation for
the owner of the servient land to maintain a real servitude for the ‘dominant’ owner. This
obligation is passed on to any owner of the servient land.

A real obligation is always attached to a real right. Sort of an accessory real/personal right
(different from a hypothec). There must be some kind of real creditor who is also the titulary
of the real right (ex. the owner of the dominant land) and real debtor who has to perform.
Real obligations are meant to facilitate the exercise of the real right.

These may also exist within co-ownership, between co-owners. For ex., a real obligation to
maintain within a registered contract of undivided co-ownership.

Chapter V - Registration of Immovable Real Rights

The difference of real rights relative to personal rights is that they are opposable. On an
immovable object, opposability / opposabilité depends on registration:

2938.1 The acquisition, creation, recognition, modification, transmission or extinction

of an immovable real right requires publication.

Publication is done in the local land register or cadastral plan (3026). The requirement of
publicity is of public order and may not be changed by contract.

2936. Any renunciation or restriction of the right to publish a right which shall or may
be published, as well as any penal clause relating thereto, is without effect.

2941. Publication of rights allows them to be set up against third persons, establishes
their rank and, where the law so provides, gives them effect.

Registration is not a requirement of validity, but of opposability. The major exception to

this is divided co-ownership, created by registration. “Third persons” in 2941 can be sellers of
the immovable, to which the real right is opposable through registration before the
transaction.

There is also a presumption of knowledge of rights which are registered.

100

November 15

APPENDIX 1: RIGHTS IN LAND OF NATIVE PEOPLES

Conference by Jean Leclair (U. de M.)

Much ambiguity in this area: assimilationist Indian Act, emancipatory Constitution. Many
norms developed at different times coexist.

Section 1 – Historical relationship between Euro-Canadians and

Aboriginals

Indians, inuit, métis. About 3% of the Canadian population, mostly in the West. 50% in urban
areas, 60% of registered indians on the reserves. Very poor overall. 630 bands, 2,400 reserves,
60-80 nations (Erasmus-Dussault Commission), 50 languages, different ways of life.

Euro-Canadians have traditionally held double language: recognizing sovereignty and

denying any specific legal existence. Until the end of the War of 1812, international law
doctrine that aboriginals had no right to land acquired by Europeans (terra nullius, land
without masters and first discovery [appropriation par geste symbolique] doctrines). Not
civilized as Grotius would define it: little agriculture... And yet many peace & friendship
treaties were signed because the aboriginals were valuable allies.

The Royal Proclamation of 1763 has this tension. Nations... but under the protection of the
sovereign. Includes a procedure for the Crown to acquire aboriginal land (which is the only
one that can do it: to protect aboriginals and the Crown).

The War of 1812 is the last one with Indians as military and commercial allies. This collapses
(no more fur trade). This is when the “Indian problem” appears. The doctrine of assimilation
starts to appear in legislation. First law to create reserves: 1850-1 by the Province of Canada.
Many things have not changed since. Federally, the Act on Savages was adopted in 1876.

Aboriginals were to be isolated, christianized, converted to agriculture. It was thought this

would be temporary due to assimilation. Failed, but aboriginal governance and way of life
were destroyed. The treaties were no longer peace & frienship, they acquired land in exchange
for reserves. The treaties were paradoxical: assimilation, but treaties signed with... nations!

Common law oscillated between the two, at least in the US (Marshall, USSC, 1832: presumed
sovereignty for aboriginals). In Canada, the JCCP held in 1888 that the aboriginal right on the
land was only usufruct dependent on the good will of the sovereign. Little more was said until
1997.

Confederation considered aboriginals as legislative objects, not subjects (s. 91(24)).

Aboriginals are a federal object, but property and civil rights are provincial. And the
provinces own most of the public domain. During the 20 th C., the Federal government took
draconian measures to assimilate the aboriginals. This started to change in the 1970's.

In Canada, Chrétien’s 1969 White Paper triggered resistance, because it suggested equality
(small l liberalism) and abrogation of the Indian Act. The aboriginals were isolated by it, but
this had preserved some of their culture. In 1973, Calder case: the SCC held that aboriginal
 101

titles do not stem from recognition, but from being on the territory prior to Europeans.
Negotiations with aboriginals started.

In 1982, under pressure of the NDP and the aboriginals, s. 35 enshrined aboriginal rights in
the Constitution.

Section 2 – Land rights in the Indian Act

Collective rights for the band. Individual rights to members on parcels of the reserve. These
are sui generis rights (the SCC uses this expression often).

A. Collective land rights

These are the reserves (p. 225 casebook). The band is the relevant juridical entity, most of
which have a historical existence (some do not have a reserve, though). These were created by
French, English, Federal Crowns.

The whole structure is to preserve the collective rights of the band, which supersede those of
the individual. Access to the reserve denied to non-members, land non-seizable, inalienable
except to the Crown (with a complicated process). Negative economic consequences today.

Distinct from the common law vision of property. Also a spiritual bond. This gives rise to the
Crown’s fiduciary duty to the aboriginals. Until the 1970’s, it was deemed to be only a
political duty.

The holder of the underlying title to the land is the Provincial or the Federal Crown. Not a
problem when the federal government has the underlying title, no problem. But when it’s the
province, there must be arrangements. Complex: state proprietor, legislator, federal...

Land cannot be granted to a non-member, except using specific legal techniques (designation,
permit). Hard to infringe on this principle. And there is no prescription, no acquiring of land
through squatter’s rights.

Note: Restricted definition of who is a registered indian. Many were disenfranchised.

Question of blood quantum. Since 1985, one must also conform to band requirements to
reside on the reserve.

It’s very hard for non-aboriginal businesses to set up on reserves. Prevention of seizure of
anything (salary, land, movables... p. 226) also stifles credit from non-aboriginals and
economic development. The idea was to protect the land base, so creditors can only seize off
reserve. Can’t be aboriginal and be part of the capitalist society. In Williams (1992), Gonthier
describes this “choice”: caught between a rock and a hard place.

B. Consequences of collective rights

Land cannot be granted to a non-member, except using specific legal techniques (designation,
permit). Hard to infringe on this principle. And there is no prescription, no acquiring of land
through squatter’s rights.
102

Note: Restricted definition of who is a registered indian. Many were disenfranchised.

Question of blood quantum. Since 1985, one must also conform to band requirements to
reside on the reserve.

It’s very hard for non-aboriginal businesses to set up on reserves. Prevention of seizure of
anything (salary, land, movables... p. 226) also stifles credit from non-aboriginals and
economic development. The idea was to protect the land base, so creditors can only seize off
reserve. Can’t be aboriginal and be part of the capitalist society. In Williams (1992), Gonthier
describes this “choice”: caught between a rock and a hard place.

C. Rights of individual possession

No individual possession of land (s. 20, Indian Act), unless the band council and Minister
agree, and the person buying has a right to live on reserve. Once again a sui generis system.
No incentive to improve the immovables on a reserve: can only sell to another poor person.

According to s. 50(2), a heir of land must be a member of the band with a right to reside.

Complex questions: what are the suppletive private law rules when the Indian Act is silent?
Perhaps the droit commun of the provinces, but the aboriginals are normally not subject to it
when it comes to property (touches federal specificity and s. 88 does not apply to land rights).
This dominoes to questions of divorce, for ex., because the spouse that leaves (usually the
women) has no rights.

Section 3 – Land rights in the Constitution

Section 35 of the 1982 Constitutional Act recognizes specific aboriginal nations with inherent,
undelegated rights. But the SCC has not defined aboriginal rights in terms of “prior
sovereignty” but rather on “prior occupation”. This led the court to emphasize cultural
distinctiveness rather than political existence as nations.

Aboriginal identity is fossilized (SCC: Van der Peet) to what it was before the arrival of
Europeans. The word “nation” is not used. Only activities integral to a particular nation’s
culture are constitutionalized. This creates a very difficult problem of evidence, given the oral
traditions, which were not meant as statement of historical facts. Anthropologists also laugh
when reading this: the accessory is seen as the main thing which is protected (distinct society
activities protected only when French activities prior to Conquest: maple syrup??). But the
courts are in a very difficult position: they don’t feel they have the legitimacy to recognize a
third order of government.

In Delgamuukw, the SCC tried to define the content of aboriginal titles. Right to land, not a
bundle of rights limited to pre-contact practices. Different from Van der Peet. Hard to
demonstrate exclusive control of land prior to the Crown exercising its prerogative. But if it
established, aboriginals are not confined to pre-contact practices. But the cultural
distinctiveness test is not dead: activities that reduce the special rapport with the land are not
allowed (ex. cut down forest used for food-gathering).

An aboriginal title still has sui generis properties. The land and rights attached are not
seizable, except to the Crown. Also right to use and occupy, not fee simple. Collective, not
individual titles. Also spiritual bond.
 103

But some reserves are not
aboriginal titles are on the
there are great similarities
money is not appropriate
underlying title.
on ancestral lands, since they were granted on statute. But the
ancestral lands. In Ossoyuz (2002), the SCC majority ruled that
between reserve land rights and aboriginal titles. Furthermore,
compensation for expropriation: new land not a reserve, no

Section 4 – Treaty rights

Best way out. Allows to get out of these sui generis problems. Grants definite property to
reserves. Ex. James Bay Agreement, different categories of land: a bit is given on fee simple
(full property right, alienable, etc., ex. Innuazi), more have fishing and hunting rights granted
(ex. Nitassinane). But alienated land remains under the sovereignty of aboriginals. And all this
land is not presumed to be a reserve under 91(24) and the Indian Act.

Section 5 – Conclusion

The First Nations’ Land Management Act allows some property to be transformed in fee
simple, but this has not been used much. Incomplete however: land can be alienated to the
Crown.

Aboriginal land rights are today not that liberal. Hard to demonstrate and subject to the
“Sparrow Gladstone limitation test”: the government can still pursue reasonable objectives,
which may override aboriginal rights.

November 17
Section 6 – Cantin’s comments on Leclair’s lecture

Many pitfalls come from the division of powers. There are additional problems arising in
Quebec, were private law is civilian. Most of the law applicable to natives arises from SCC
jurisprudence and other provinces (mostly in Western Canada).

The solutions articulated by the SCC are created in the common law context, must be
translated in civilian terms. The Federal Government is the trustee for the natives, so has the
title. In 1899, the JCPC characterized the native rights as usufruct, this concept did not exist in
common law. It is different from usufruct in civil law (personal right, inalienable...).

The Indian Act also was drafted with a common law perspective. Few reserves in Quebec
predate the Act, few of them correspond to art. 1’s definition (1880). Many of them were
originally pieces of seigneurial land tracts, ‘reserved’ for the natives.

The path which flows from the James Bay Convention is now being used to settle other
claims in Quebec and the rest of Canada (ex. Innu / Montagnais, similar, won’t have to
renounce rights). The Convention arose of HQ development projects, the Crees got an
injunction for their rights to be considered.

Also Convention of the NE of Quebec (Naskapis) and one with the Inuit (in all cases, north of
the 49th parallel). The Indian Act never applied to the Inuit, but they were part of the
settlement. There is a distinction between 3 categories of land, with different rights
recognized:
104

(1) ownership recognized in favour of a non-profit land holding corporation whose members
are the natives, self-regulated;
(2) ownership of the Provincial Crown, but exclusive right of hunting, fishing, trapping in
favour of the corporation (dismemberment), which establishes the rules for the members
[provincial legislation does not apply, except for endangered species];
(3) claim on the balance of the territory is extinguished and acceptance of HQ developments,
natives have the same rights as other citizens, except to capture some species and create
‘pourvoiries’.

The interplay between our tradition and theirs is interesting. For ex., when land is owned by a
moral person, everyone else must keep out. But within the community, there can be a sui
generis system of management. Likewise for category 2 land.

The land-holding corporation cannot sell to anyone except to the Province. The feature of
inalienability remains.
 105

November 29

APPENDIX 2: CANTIN’S MOVABLE-IMMOVABLE

CHARACTERIZATION METHOD
According to Cantin, the courts have not created a clear methodology on how to use arts. 901
and 903. Her suggestion:

1. Start from land, which was in the former “immovable by nature” category.

2. Move up: most buildings are immovable, because they are solidly attached to land.

3. Art. 901 basically deals which parts which are not truly distinct from the whole: building
materials, and, to a lesser extent, windows, stair cases.

4. When it is really doubtful to what extent something is “constitutif” of an immovable, that is

when art. 903 is used.

In all cases, this characterization is not arbitrary, it must stem from the CCQ. But what is
important is the method, not the results, as it may be possible to reasonably disagree.
106

APPENDIX 2: THE QUEBEC CIVIL LAW TRUST

Royal Trust Co. v. Tucker [1982] SCC p. 511
Facts A trust set up with unborn children as primary beneficiaries, and sister as
secondary beneficiaries.
Issue(s) Is it possible to have a trust in favour of beneficiaries who did not exist at the
time that the deed of trust was made?
Who is the owner of the property while the trust lasts?
Holding Beetz: Such a trust is valid.
Ratio The Anglo-American-style trust has been accepted in QC CVL, and a decision
must be made in keeping with the purpose of the legislation. Public order and
the law do not prohibit it.
Agrees with Mignault that the owner of the property is the trustee for the
duration of the trust, since that would allow unborn beneficiaries to be assigned.
Assumes that ownership cannot remain in suspense.
Comments Courts have rejected possibility of dual ownership. The remaining possibilities
are a) beneficiary is owner; b) trustee is owner, c) the trust is quasi-personified
as an institution, which becomes the owner of the trust, d) the trust is a
patrimony assigned to a purpose, or e) trustee’s powers are a dismemberment of
ownership.

Crown Trust Co. v. Oscar Higher et al [1975] SCC p. 520

Facts Trust deed having as object the purchase of a shopping centre made in 1962.
Respondents paid a subscription to appellant and were to receive monthly
dividends. Five years later, the mortgage creditor requested reimbursement of
the balance of the mortgage and the project collapsed.
Issue(s) Are the CCQ articles dealing with trusts applicable?
Holding No.
Ratio The defendant did not use the money in accordance with the terms of the
contract. He is therefore liable for damages under 1065 CCLC. He cannot be
relieved of all personal liability under art. 981i CCLC because it is impossible to
create a trust relating to commerce, business and investment (although it is
possible in CML provinces). In QC, will and gifts only.

Bank of Nova Scotia v. Thibault [2003] SCC p. 534

Issue(s) Is a trust constituted by establishing an RRSP?
References 1256, 1260 CCQ
Holding No. The Plan does not have the characteristics of a trust.
Ratio Three requirements to constitute a trust: property must be transferred from an
individual to another patrimony by appropriation, particular purpose, trustee
must accept property.
a) There is no transfer of property before the point when assets are liquidated on
the maturity date of the plan.
b) The purpose of RRSP proceeds is to provide a retirement income, which does
not occur until the maturity date either.
c) Bank’s role under RRSP plan is limited to maintaining assets and carrying out
owner’s instructions, which is different from role of trustee. Once trustee
accepts, settlor loses all control and administration. The holder of the assets of
the RRSP plan is a trustee in name only.
The concept of patrimony by appropriation loses all meaning if the settlor
retains control over he assets.
 107

Section 1 – Introduction
This is not an institution native to civil law, at least in the English understanding of it (p. 509).
The trust in common law involves division between administration of property and economic
benefit of property. The trustee has legal title, the beneficiary equitable title. This distinction
does not exist in civil law.

This technique was invented in common law for management purposes and providing for long
devolution of property in the family. In civil law, one can create a legal person (management)
to do this, or look at substitution or usufruct (devolution). But one cannot do both at once.

The 1866 CCLC did not include anything on trusts, as it was completely absent in French law.
But British immigration to Quebec in the 19th C. lead to the extra-legal use of the trust (mostly
in wills), even though the PC confirmed there was no trust in Quebec. This lead to the first
legislation on this topic, in 1879. This was specific legislation, outside the Code, although
little is known of its adoption. In 1888, within a revision of statutes, it was incorporated in the
CCLC as arts. 981a et seq. (p. 521-2). These dispositions did not define the fiducie, mostly
dealt with its creation.

It was left to courts to define the statuses of beneficiaries and trustees. After some debate, the
SCC made some key decisions in Corrin v. Davis (1933, ref. in) and Tucker (1982, p. 511).
The SCC described the trustee’s right as sui generis property / propriété fiduciaire, the
beneficiary was viewed as a creditor (fairly close to common law). This part of the analysis
was correct, according to Beetz (Cantin hates it). This was seen as the only solution possible,
trust companies were pleased (hard to control the management except through abuse of right).

The great difficulty with this characterization (981a et seq. CCLC) was that the trust was an
act of transfer of property but that the trustee received as a depositary or administrator (981b).
So some kind of incompatibility. This was forgotten in Tucker. Also, the trustee can be
replaced, may not waste property (no abusus), may be dismissed, may not be transmitted by
will, may be remunerated, has obligations to do and has no personal liability for acts of the
trust [all incompatible with property]. So there is a big gap between the characterization of
owner and his rights and obligations. Since civil law puts much emphasis on characterization,
from which legal regime flows (or suppletive rules), it is unsatisfactory. The rules of
ownership do not really work (frees the trustee from duties, that is what happened in
jurisprudence). The other possibility is to have no suppletive law (sui generis) which supposes
going to English law, but jurists were not really trained for this.

Section 2 – Creation of the CCQ trust

It was necessary to give trusts a proper basis, so they could function with the rest of civil law.
There was also a feeling that they should be applicable beyond gifts and wills.

Some people were of the view that title should remain with the trustee (practitioners mostly).
Another possibilities were to use the fiducia of Roman law (contract of alienation of property
with a pact joint to it by which the acquirer promised to use the property in a way dictated by
the vendor and to hand it back to the vendor or another person at a certain time). It was widely
used at one time, but the pact had no effect on third parties, so it was a fragile promise. It
actually disappeared from Roman law in the favour of other institutions (hypothec, etc.).
108

Some people have suggested using this in Continental Europe. This was not chosen in
Quebec.

It would also have been possible to consider the trust as a legal person with the trustee as an
administrator. Another possibility was the patrimoine d’affectation / patrimony by
appropriation, which was finally selected. A legal person was not chosen for a practical,
policy reason: for common lawyers, trust and legal personality and mutually exclusive. In
common law, a trust may be created without any formalities, whereas legal persons have a
heavy procedural burden.

Section 3 – Definition of the Quebec trust

We must go back to the theory of patrimony. The point of departure is not 1260 CCQ but 2
CCQ:

2. Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent
provided by law.

Cantin doesn’t like the second paragraph. It mentions at the same time division of patrimony
and patrimony by appropriation. This has lead to many people confusing the two. ‘Division’ is
a reference to the debate on the nature of the patrimony (indivisible in classical theory:
Zacharie, Aubry & Rau). Some people discussed the possibility of dividing a person’s
patrimony, with different regimes applicable to different things (this means more sub-groups
of assets within the patrimony than a division of it). The part of the paragraph after the coma
applies to both division and appropriation. It recognizes the existence of the patrimony by
appropriation. So one can no longer defend that a patrimony is attached to a person. This link
of classical theory is still the general rule but is no longer necessarily true in Quebec. “This
(situation of this novelty in civil law) has not been much discussed so far, except by myself.” -
Cantin

Extracts at p. 32 (Ghestin, n. 202-3) and 564 and give an idea of what the French understand
as patrimoine d’affectation. It is quite different from our patrimony by appropriation and
looks more a division of patrimony (de facto as opposed to juridical universality). According
to Cantin, the type of patrimony by appropriation we have in Quebec exists nowhere else in
the civilian world.
Patrimony means a juridical universality, with property, obligations and a link between them.
See 2 and 2644 CCQ.

2644. The property of a debtor is charged with the performance of his obligations and
is the common pledge of his creditors.

Patrimony is the only juridical universality. That is the characterization of the trust: property,
obligations and a link between them. Everyone involved with the trust will have limited
liability that will not reach beyond the trust (and vice versa: creditors of trustee or beneficiary
have no right to trust). This integration has not been made very well: “drafters still did not
understand that the trustee does not have ownership and were uncomfortable with the lack of
a person, for ex. contracts are supposed to be between two ‘persons’.” This is why Cantin
defends the distinction between person and subject of rights. Note: The beneficiary has a
 109

personal right towards the trust, which is property and may be seized by creditors of the
beneficiary.

Section 4 – Requirements for the constitution of a trust

Found in Chap. 2, Nature of the trust. No distinction is made on the type of trust, they are
general requirements for all Quebec trusts. 5 requirements (1260-2, 1264-5 CCQ):
- Settlor (constituant);
- Juridical act of transfer (acte translatif, 1260-1 CCQ);
- Property;
- Purpose (affectation);
- Trustee.
No beneficiary is required for the constitution of a trust.

1260. A trust results from an act whereby a person, the settlor, transfers property from
his patrimony to another patrimony constituted by him which he appropriates to a
particular purpose and which a trustee undertakes, by his acceptance, to hold and
administer.

1261. The trust patrimony, consisting of the property transferred in trust, constitutes a
patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or
beneficiary and in which none of them has any real right.

1262. A trust is established by contract, whether by onerous title or gratuitously, by

will, or, in certain cases, by operation of law. Where authorized by law, it may also be
established by judgment.

Settlor:
Is normally a human or moral person (or law or a judgement under 1262 CCQ, but the results
are the same).

Juridical act of transfer:

Unlike in common law, a trust cannot be created unilaterally (where settlor decides that he is
the trustee). A contract is required in civil law (except the will, unilateral, which only has
effect at death). The arrangement provided by the CCQ is that the trustee will accept the
property and it is the acceptance that enables the creation of the trust. It is possible to do it by
gratuitous contract (see also 1806 CCQ) or onerous title (1262 CCQ). In this last case, has to
be by a contract that transfers property (broad: could be a sale or exhange, but usually an
inominate contract, these are still being developed by practitioners). Usual formalities for
these contracts apply (especially for gifts). Such an act of transfer also creates a new
patrimonial entity: broad effects.

Property:
Does it need to be present property, or can the settlor bind himself to transfer future property?
There is some debate and there are practical applications, but Cantin believes it has to be
present property (which may include a present definitive right to property in the future, only
not a ‘possible’ right in the future). Otherwise, it would at best be a pre-contract to create a
trust. Furthermore, a promise to give has no legal effect whatsoever in Quebec law. For once,
property used in the right way: patrimonial right (real, personal, intellectual, see 2644 CCQ).
Is it possible to start a business trust with $1? Done in common law (with further payments
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later, not necessarily by settlor), but Cantin doesn’t think that should be imported (hard to give
a purpose to $1!). Also unclear if dismemberments or bare-ownership can be used (what’s the
advantage of doing this, i.e. having both usufruct and trust).

Purpose:
Found in 1260 CCQ. The question is which purpose? Some people think that any purpose will
do, not Cantin’s opinion (to the extent provided by law, 2 CCQ). According to her, it’s 1266 et
seq. that give the acceptable purposes. 3 kinds: personal purposes, private or social utility. A
problem with the CCQ is that there is no link between purpose and constituting act (see
Cantin’s article, p. 525).

The personal purposes means for the purpose of the beneficiary, not of the settlor. This is what
was permitted by the CCLC (gift, will).

Social utility (see 1256-9, 1270 CCQ) is a foundation, for a charitable purpose as would be
said in common law. Here, there are no direct beneficiaries. Created by gift or will (258
CCQ).

Private utility / purpose, includes the onerous business trust, set up for profit. Such a contract
has no particular requirements.

Trustee:
The CCQ has definitely set aside the idea of a sui generis property right, settled by 1261
CCQ. Further, the trustee is characterized at 1278 as the administrator of the property of
another, which provides suppletive law. The trustee is the other party to the contract creating
the trust (1264): accepts transfer, binds himself to realize purpose, creating the patrimony
simultaneously. For a trust by will, the acceptance is retroactive to the date of death. This is a
power, not a right. The trustee may not gain personal benefit from administration but the
general rule is that there is remuneration. Assets of the trust have to be kept separate, account
annually of the patrimony’s content.

With the dispositions on administration of the property of another (which apply beyond
trustees: tutors, administrators notably in co-ownership...), there is much better control of the
trustee’s act. The extent of the powers of the trustee are determined by 1278 CCQ, which
refers to 1306-7 CCQ. As a general rule, the powers are the widest available. But the trustee
has to answer to the beneficiary. There also now is a provision (1287 et seq.) for supervision
of a trustee.

1306. A person charged with full administration shall preserve the property and make
it productive, increase the patrimony or appropriate it to a purpose, where the interest
of the beneficiary or the pursuit of the purpose of the trust requires it.

1307. An administrator may, to perform his obligations, alienate the property by onerous title,
charge it with a real right or change its destination and perform any other necessary or useful
act, including any form of investment.