Droit des Biens – Fall 2009/Winter 2010
Professor: Pierre-Emmanuel Moyse
Summary: Michael Shortt
Where you will learn: that the patrimony is like a bagel (and human rights are the hole);
that watching ShamWow! commercials is a legitimate use of class time; that
partnerships may or may not have a patrimony, depending on the judge’s doctrinal
sympathies; and that by coming to class 10 minutes late, you will still arrive before the Professor.
Note: I’ve reorganized the syllabus in ways which make more sense to me.
All the content is still there – it’s just not presented in the same order or using
the same divisions as PEM’s syllabus. I think this way is more logical.
Also, a lot of the cases seem to be illustrations rather than precedent-setting
judgements, so not every case has a ratio.
CHAPTER 1: FOUNDATIONS OF QUÉBEC’S DROIT DES
BIENS (DDB)
Section 1.1: Philosophy of DDB
Section 1.2: History of DDB in Québec
Section 1.3: Mixed Systems, Transystemia and DDB
CHAPTER 2: THE PATRIMONY
Section 2.1: Introduction
2.1.1 Origins, Functions and Justification
Section 2.2: Effects of the Patrimony
2.2.1 With Respect to Juridical Personality
Section 2.3 Extrapatrimonial Rights, Personality Rights and
Droit à l’Image
CHAPTER 3: FUNDAMENTALS OF DDB
Section 3.1: Les Biens et les Choses
3.1.1 Les Biens, les Choses et les Droits
3.1.2 Res Communis, Res Derelictae, Treasure,
Res Nullius
3.1.3 Property in relation to other legal notions
Section 3.2: Categories of DDB
3.2.1 Real and Personal Rights
3.2.2 Movables and Immovables
3.2.3 Other Categorizations
CHAPTER 4: PROPERTY
Section 4.1: The Institution of Private Property
4.1.1 History
4.1.2 Theory
Section 4.2: Components/Characteristics of Property
4.2.1 Characteristics of Property Rights
4.2.2 Components of Property
Section 4.3: The Limits of Property Rights
4.3.1 Expropriation & Domaine Supérieure
4.3.2 Encroachments & Accession Reimbursement
4.3.3 Abus de Droit and Neighbourhood Disturbances
4.3.4 Right of Passage
CHAPTER 5: ACQUSITION OF PROPERTY
Section 5.1: Introduction
Section 5.2: Possession/Detention/Occupation
Section 5.3: Prescription
Section 5.4: Accession
CHAPTER 6: MODALITIES OF PROPERTY
Section 6.1: Undivided Co-ownership and Indivision
6.1.1 Nature/Creation
6.1.2 Administation
6.1.3 Forced Indivision (Permanent Co-ownership)
Section 6.2: Divided Co-Ownership
6.2.1 Nature/Creation
6.2.2 Administation
6.2.3 Destination of Co-Ownership
6.2.4 Multiproperty/Time-Sharing
Section 6.3: Superficie
CHAPTER 7: DISMEMBERMENTS OF PROPERTY
Section 7.1: Servitude
Section 7.2: Usufruct
Section 7.3: Emphyteusis
Section 7.4: Use
CHAPTER 8:DDB - EXTREME!
Section 8.1: Numerus Clausus
Section 8.2: Intellectual Property
Section 8.3: Indian Title
CHAPTER 1: FOUNDATIONS OF QUÉBEC’S
DROIT DES BIENS (DDB)
Section 1.1: Philosophy of DDB
Discours sur la propriété (Portalis) [C2.19]: “Quand on jette les yeux sur ce qui se passe dans le monde, on est frappé de voir que les
divers peuples connus prospèrent biens moins en raison de la fertilité naturelle du sol qui les nourrit, qu’en raison de la sagesse des
maximes qui les gouvernent. D’immense contrées dans lesquelles la nature semble, d’une main libérale, répandre tous ses bienfaits
sont condamnées à la stérilité… parce que les propriétés n’y sont point assurées.” [C1.149]
Some of the legal categories essential to DDB are summarized below (modified from Dorian Needham’s summary):
Droit des Biens
Exercise of Rights
Exercise of Powers [not studied]
Real Rights
Personal
Rights
Ownership (Property)
Modalities
Administration of
Accessory
Patrimony of Affectation
Possession
Another’s Property
Real
Dismemberments
(Prescription)
Rights
Real
Personal
Servitude Servitudes
Section 1.2: History of DDB in Québec
Prof Moyse really, really, really likes history in general and the history of property law in particular. So being able to drop a few
historical references on your exams is probably a good idea. That said, I’m not sure how relevant all of this stuff is. Droit Civil seems
far less constrained by its own history than Common Law.
i) Québec’s Seignieurial (Feudal) System
All land in Québec was originally held by the French Crown (hence the CCQ’s presumption of residual public ownership in
immovables). Land in New France was originally granted to private companies in the hope that they would populate and clearcut their
concessions by bringing in censitaires. Very little development occurred, since the fur trade was more profitable and did not require
settlement. Les Coutumes de Paris were proclaimed the droit commun of Québec, supplemented by royal decrees.
Arrêts Marly of 1711 were an investigation in to the under-development of the province. The requirement of clearing and settling land
was strictly enforced and many land grants were revoked because their holders were not energetically fulfilling their duties. The feudal
system became more firmly entrenched and the population began to grow.
Three of the most common types of land grants in Québec were: en fief ou seigneurie (standard unit of feudal land tenure from the
King to a Lord, which is then populated by censitaires. Includes all feudal duties/fees/obligations), en frac aleu routurier (closest to
absolute private property, equivalent to English land holdings. No feudal dues of any kind. Very few such grants were made), en
franche aumône (grant to religious order; includes obligation of providing religious education/services).
Some of the more important feudal obligations were:
Cens: Annual poll tax payed by each censitaire.
Rentes: A number of different small payments, either money or in kind (like a chicken for the lord at Christmas).
Lods et ventes: A tax on land transfer, either by inheritance or sale, assessed at 1/6 to 1/4 the land’s value.
Droit de retrait: If the censitaire wanted to sell his land, he had to offer it to the seignieur first, who had the option to buy it
before any third party.
Corvée: The censitaires owed their lords 6 days of free labour a year.
Banalités: The censitaire had to use the lord’s mill to grind his grain.
ii) Abolition of the Seignieurial System
The seignieurial system was abolished in 1854 by the Government of the Province of Canada, since it stood in the way of commercial
and agricultural expansion (particularly the droit de retraite and lods et vents). The value of feudal dues and obligations was estimated
by a special tribunal, and this value was consolidated in to a single monetary rent. All land was now held franc aleu routurier.
Censitaires were allowed to purchase the land they were now renting for a fee equivalent to the value of their rent. In 1935, the
remaining seignieurs were bought out by municipalities and townships (cantons) using money from a special fund.
iii) Codification
Motives for codification: Need to end polyjuridical confusion by acknowledging supremacy of Civil Law, desire to facilitate economic
expansion and trade, desire to reinforce conservative social values, desire to emphasize juridical bilingualism.
The codification process began in 1857 and was completed in 1866, the year before confederation. Both English and French jurists
took part in the codification, so that some parts of the code were written in English, then translated, while others were written in
French, then translated. By contrast, the 1994 CCQ was written entirely in French, then translated in to English! The 1857 CCQ was
translated well, the current version was translated quite poorly and even 15 years later retains many translation errors in English.
Section 1.3: Mixed Systems, Transystemia and DDB
“A mixed system is one in which the law in force is derived from more than one legal tradition or legal family” (Tetley) Although
Québec has a distinct legal culture embodied in the Code and draws heavily on the jurisprudence and doctrine of France, English
influences are pervasive: the concept of the trust (fiducie) is a patrimony without a single person to hold it; the law of partnerships is
completely different from France; incorporation follows English rules; judicial procedure is almost wholly English; etc. Québec is thus
a mixed system, even with respect to the civil law of property. That said, the English influence in property law is always at the
margins, and the fundamental principles remain overwhelmingly Civilian.
CHAPTER 2: THE PATRIMONY
Section 2.1: Introduction
2.1.1 Origins, Functions and Justification
i) Introduction
The patrimony is the basic organizing concept of Civilian property law. It is a legal category containing all of a person’s present and
future debts and obligations of a monetary (economic) nature.
a2 Every person has a patrimony. // The patrimony may be divided or appropriated to a purpose, but only to the extent provided by
law.
a2644 The property of the debtor is charged with the performance of his obligations and is the common pledge of his creditors.
a2645 Any person under a personal obligation charges, for its performance, all his property, movable and immovable, present and
future, except property which is exempt from seizure or property which is the object of a division of patrimony permitted by law.//
However, the debtor may agree with his creditor to be bound to fulfill his obligation only from the property they designate.
Traité de droit civil : Introduction générale (J. Ghestin): “Le patrimoine est un ensemble de droits et de charges, actuels et futures,
dans lequel les droits répondent des charges… traduit juridiquement, la formule vise l’ensemble de droits que la personne considérée
pourrait transférer à autrui contre argent.”
ii) Patrimonial Metaphors
Prof Moyse: It’s like a bagel. Your patrimonial rights are the dough – you can eat them if you want [usus, abusus, fructus,
etc]. Extrapatrimonial rights are the hole – you can’t eat them [inalienable, intransmissible].
Prof Jukier: It’s like an invisible bag that holds all of your legal rights.
Videogames: It’s like the inventory screen of your character – an empty space you fill with stuff. And it follows you
everywhere.
iii) Classical Doctrine of Patrimony: Théorie de la Personnalité (Subjective Patrimony)
This approach should be called “subject-centered patrimony”, since it is puts exactly one legal person (either a natural person or a
corporation) at the centre of every patrimony. This is the model used in Québec for the most part, with a few exceptions (like trusts,
which allow for a patrimony defined by its purpose, rather than its rights-holder).
Cours de droit civil français d’après la méthod de Zachariae (Aubry and Rau): Aubry and Rau proposed that the patrimony was an
inherent consequence of legal personality: “the idea of patrimony is deduced logically from the idea of personality… The patrimony is
the projection (emanation) of personality and the expression of the juridical capacity with which a person is invested.” Several
conclusions follow immediately from their theory:
1) Everyone has a patrimony (although it can be empty, or contain only debts).
2) Only legal persons can have a patrimony.
3) Patrimonies are indivisible/a person can have only one patrimony.
4) Patrimonies are intransmissible (but not their contents!) while the subject is alive.
However, the theory leads to practical difficulties, such as personal liability for professional debts and the difficulty of classifying
certain rights as either patrimonial or extrapatrimonial. Plus there are often de facto divisions within the patrimony (some goods
cannot be seized or may be inherited with conditions of inalienability attached).
iii) Alternative Doctrines of Patrimony: Le patrimoine d’affectation (Objective Patrimony)
This approach should be called the “objective-centered patrimony”, since it puts objectives/purposes at the centre of each patrimony.
Rather than organize patrimonies around legal or natural persons, this theory uses the destination or intended purpose of property as an
organizing criteria. The absolute version of the theory allows for patrimonies without subjects (foundations/trusts) while limited
versions allow one person to have multiple patrimonies (one for personal purposes, one for work/commercial purposes, one for
philanthropy, etc.). This theory has had limited appeal due to its complexity, and the ability of one-member moral persons to solve the
biggest problem of the classical theory. Québec makes some concessions to this theory, largely due to the influence of English law.
a915 Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose (“une affectation”). [Emphasis added]
Section 2.2: Effects of the Patrimony
2.2.1 With Respect to Juridical Personality
i) Legislation and Code Articles
a298 Legal persons are endowed with juridical personality.// Legal persons are established in the public interest or for a private
interest.
a299 Creation requirements for legal persons.
a301 Legal persons have full enjoyment of civil rights.
a302 Every legal person has a patrimony which may, to the extent provided by law, be divided or appropriated to a purpose. It also has
extrapatrimonial rights and obligations flowing from its nature.
a303 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.
a2186+ Partnerships.
Patrimony implies complete juridical personality, unless the law withdraws certain rights or obligations (i.e. minors).
ii) Doctrine
Nature of the Québec Partnership (Wilhelmson): “Partnership has characteristics of both organized indivision [see section 6.1.1] and
the corporation.” Many authors have concluded that partnerships have an imperfect or “restrained” moral personality, but W thinks
this is needlessly complicated. He argues that partnerships have a patrimony, since ambiguities in the Code are generally interpreted in
favour of the distinct patrimony (partners cannot sell undivided shares in property held by the partnership to third parties). However,
partnerships still lack many aspects of moral personality: they cannot sue in their own name (changed with CCQ) and contracts
between partner and the partnership are of uncertain status. Thus partnerships may have a patrimony but no moral personality. [The
debate surrounding article 1899 (pp.1001-1002) is a great example of civilian interpretation of ambiguous articles in the Code using
the organization of the code and other articles to illuminate them – Mike]
iii) Jurisprudence
Tremblay c. Daigle: Viable foetuses can inherit property, since the patrimony includes future property in its definition. Some, but not
all, rights of a foetus are protected due to the theory of the patrimony. Thus once born the foetus inherits the future property it was
owed. This is more a function of protecting the future interests of the child that the foetus will become than it is a recognition of the
rights of the foetus. Thus foetuses do not have juridical personality, nor any extrapatrimonial rights (such as a right to life).
a617 codifies the ruling in Daigle.
Québec (Ville de) c. Allard [1996] CA [C1.67]
Facts: A group friends formed a partnership and bought an immovable in the name of their partnership. Two of the friends sold their
share in the immovable to Allard. At the notary, they declared that the transaction was a sale of their shares the partnership, with the
transfer of the immovable being merely a side-effect of the share transaction. They declare the value of the shares sold to be $100,000.
The municipality disagreed and imposed a droit de mutation (transfer of ownership tax) based on the sale of an immovable worth
$981,000.
Judicial History: The trial judge ruled that partnerships have patrimonies and hence no transfer of ownership occurred, only a transfer
of shares. Hence no tax.
Issue: Do partnerships have a patrimony distinct from that of their partners?
Holding: No.
Reasoning: Majority: They first show why it is possible for the issue to go either way, then makes their case.
Context: Historically, civil law treated partnerships as a form of co-property with the addition of a partnership contract which binds
the partners together. In Québec, most authors and jurists grant juridical personality to partnerships, but often qualify it as incomplete.
However, most of these cases depend on a single precedent or outdated French doctrine and they would have been decided similarly
regardless of whether partnerships had patrimonies or not (they are thus obiter, not ratio). Thus the question remains open.
Arguments Against: The CCQ lists only corporations and human beings as having juridical personality in what is intended to be an
exhaustive list of legal actors. Partnerships can act in many cases as de facto legal persons (Signing cheques, opening bank accounts,
etc.) but this can be seen as “legal shorthand” for a joint action by the partners. Lastly, a2188 grants legal personality to joint-stock
partnerships, which implies that other partnerships do not have legal personality, and thus no patrimony either. Hence “An
unincorporated association formed by a group of individuals has some but not all the attributes of a juridical personality: it has no
patrimony.”
Dissent: The CCBC can be interpreted as implying that societies have a patrimony: a.1899 begins “Les biens de la société…”, while
a.115 of the CCP states that seizure against a partnership applies “que sur les biens de la société.” If we apply to these words their
standard meanings, then partnerships have a patrimony.
Ratio: Partnerships do not have a patrimony (kinda).
Comment: According to Moyse, the ratio is NOT that partnerships have patrimonies in Québec. That question is still open, since there
are no binding precedents in Droit Civil. That said, it nudges the balance of opinion towards “no” since it’s a Court of Appeals
judgement.
Laprairie Shopping Centre (Synic de) c. Pearl [1998] RJQ [C1.102]
Facts: Before it went bankrupt, L made a number of suspiciously large payments to Pearl, its attorney. After the syndic took control of
L’s assets, it attempted to interrogate P on the nature of his relationship with L. P claimed this information was protected by attorneyclient privilege, while the syndic claims that it represents L’s juridical personality and can have L renounce its right to attorney-client
privilege.
Issue: (1) Does the trustee continue the bankrupt party’s juridical personality, thus inheriting control over its extrapatrimonial rights?
Holding: No.
Reasoning: The syndic exists to protect the patrimonial (economic) obligations of the bankrupt party to its creditors; thus the only
rights transferred to the syndic are patrimonial rights. “Le droit au secret professionel étant un droit de nature personnelle et
extrapatrimoniale, il ne peut être dévolu au syndic lors de la faillite. Le syndic ne peut donc renoncer sans le consentement du failli.”
Ratio: Extrapatrimonial rights cannot be transferred or extinguished without the consent of the holder.
Section 2.3 Extra-patrimonial Rights Personality Rights and Droit à l’Image
The category of extrapatrimonial rights includes all rights possessed by a person which cannot be sold or transferred in exchange for
money. They are “biens innés” that cannot be transferred (incessibles), sold (hors commerce), prescribed (imprescriptibles), seized
(insaissisables), or left to one’s heirs (intransmissibles). Extrapatrimonial rights can be renounced. Examples of extrapatrimonial
rights include personality rights (see below), family rights, public rights such as voting, and the rights guaranteed by the Canadian and
Québec Charters.
The distinction between patrimonial and extra-patrimonial rights has been blurred in many ways. Sports figures, models and
celebrities may renounce their droit à l’image in return for cash payments, and the law itself patrimonializes extrapatrimonial rights
every time is assigns cash damages for their violation (Beaudouin & Jobin, Les Obligations: CB1.94). And even certain patrimonial
rights are restricted in their transmissibility, alienability or seizability (see CCQ a1212, 2648-59, CPC a552-553).
Personality rights includes all rights conferred by juridical personality (“leur objet est le sujet du droit qui les possède”). They include
droit à la vie, à l’integrité physique, à l’honneur. They would not include family rights, since the subject is another legal person, not
the self. They also would not include public/Charter rights, since those rights concern the individual’s relation with the state.
i) Code Articles and Legislation
a3 “Every person is the holder of personality rights, such as the right to life, the right to inviolability and integrity of his person, and
the right to the respect of his name, reputation and privacy.// These rights are inalienable.” [Note that this list is not exhaustive - Mike]
a35-41 specification of privacy and reputation rights
a302 extrapatrimonial rights legal persons
a1610 Cannot transfer damages resulting from the violation of personality rights, except to heirs after death.
ii) Jurisprudence
Torrito c. Fondation Lise T. [1995] RDF 429 [C1.110]
Facts: The Foundation used the name, picture and video footage of T’s deceased child as part of a publicity campaign to raise funds
and awareness for severely handicapped children. This was done without the authorization of the parents. T, on behalf of their child,
demand that the Foundation be prevented from using the child’s name and likeness, citing Lise T.’s right to privacy. The Foundation
claims that there was no damage to the child, and that their work is in the public interest.
Issue: Did the right to privacy of Lise Torrito pass to her parents after her death?
Holding: Yes.
Reasoning: The succession of the child passed to the parents by virtue of a.653, and the succession included those rights guaranteed
by a.35, including the right to privacy. The right to decline publicity is clearly part of the right to privacy. The Foundation’s goals may
be in the public interest, but the way in which it acted here was not, as there is no excuse for not obtaining the permission of the
parents. Furthermore, they could have achieved the same goal by other means. Thus they violated Lise’s right to privacy.
Comment: At the time, article 35 read “No one may invade the privacy of a person without the consent of the person or his heirs
unless authorized by law.” Italicized text has since been removed. See also a625(3) and a1610, which allow heirs sue for breach of
personality rights if the breach occurred prior to the holder’s death.
Société Québécoise d’initiatives Agro-alimentaires c. Libman [1998] CAI 463 [C1.107]
Facts: L, a member of the National Assembly, wanted access to the financial records of Socomer, a now-bankrupt and privately held
business. SOQUIA refused to provide this information, citing Socomer’s (extrapatrimonial) right to privacy.
Issue: (1) Does a moral person have an extrapatrimonial right to privacy? (2) If so, is this right extinguished when it ceases operation?
Holding: (1) Yes (2) No.
Reasoning: The end of Socomer’s commercial activities did not remove the objectively confidential nature of the financial records it
provided to SOQUIA. The confidentiality of these records is protected not only by a.302 and a.35-36 of the CCQ, but also by a.301’s
guarantee of civil rights for moral persons, since this allows a.5 of the Charte Québecoise (see below) to apply. Thus the records are
protected under Socomer’s right to privacy.
Ratio: Moral persons have extrapatrimonial rights (including the right to privacy) that are not invalidated by cession of their
activities.
Comment: Article 5 of the Charte Québecoise reads: “Tout personne a droit au respect de sa vie privée.”
Aubry c. Éditions Vice-Versa inc. [1998] 1 SCR 591 [WebCT]
Facts: ÉV-V published, in a magazine dedicated to the arts, a photo of A sitting in a public place. A was 17 years old and the
photograph was taken without her consent. She claims that publication of the photograph infringes her right to privacy and brought
suit against ÉV-V for damages.
Issue: (1) Was Aubry’s right to privacy or right to her image infringed by the publication of the photo? (2) If yes, are there
extenuating circumstances which would justify this infringement?
Holding: (1) Yes (2) Circumstances can justify publication without consent, but they do not in this case.
Reasoning: Majority: “In our view, the right to one’s image, which has an extrapatrimonial and a patrimonial aspect, is an element of
the right to privacy under s.5 of the Quebec Charter.” [para.51] Publication of A’s image without consent constitutes fault. Invoking
freedom of expression is not enough to excuse the fault. There are no extenuating circumstances that would reduce her right to
privacy: Aubry was neither engaged in a public activity when the photo was taken, nor is she a person of notoriety. Nor was she an
incidental figure in the background of a photo. Compensation was given for patrimonial damages (money she should have been paid
to renounce her droit à l’image so that her photo could be published) and extrapatrimonial damages (invasion of privacy).
Dissent (Lamer): Distinguishes droit à l’image from right to privacy and declares them separate; concludes that there is no evidence of
prejudice, so the appeal should be allowed.
Dissent (Major): There is no evidence of prejudice; the appeal should be allowed.
Ratio: Droit à l’image is an element of the right to privacy and is protected by the CCQ. It has both patrimonial and extra-patrimonial
aspects.
Laoun c. Malo [2003] RJQ [C1.113]
Facts: M worked as a model for Silhouette, which produced advertising posters using her image. L was given copies of these ads by
Silhouete to display in his store. L had a copy of the ad published in a telephone directory without obtaining M’s consent. M sued L
for using her image without consent. L claimed that M transferred her rights to Silhouette and could no longer sue.
Issue: (1) Can a person transfer their droit à l’image? (2) What damages can result from unauthorized use of a person’s likeness?
Holding: (1) No. (2) Patrimonial/economic damages (both actual loss and lost future profits) and extrapatrimonial moral damages.
Trial judge erred in allowing “usurpation de l’identité artistique” as a category of damages.
Reasoning: L’s arguments fail on three points. First, M’s contract with S did not include a clause allowing publication or re-use of her
likeness by third parties other than the use included in the contract (in-store posters). Second, the contract between M and S cannot
have legal effects on third parties (a.1440). Thirdly, a.3 prohibits the transfer of the right to privacy, which includes droit à l’image.
Thus he has used M’s image illegally and owes damages.
Ratio: Droit à l’image is not transferable, only renounceable; such renunciations occur by contract and are interpreted strictly.
Comment: Several rights are in play at once here – droit à l’image (Malo); droit à la vie privée (Malo); droit d’auteur (Silhouette) and
droit de propriété (Laoun) all applying to the same object.
CHAPTER 3: FUNDAMENTALS OF DDB
Section 3.1: Les Biens et les Choses
Moyse: “La loi est une cathédrale des concepts qui n’a pas toujours un écho en la réalité.”
3.1.1 Les Biens, les choses et les droits
Biens (property) are all those choses (things) which appear to the eyes of the law.
Le droit des biens (Caron & Lécuyer): “Les biens sont les droits… Il n’y a pas de biens sans maître, pas de droit sans titulaire.”
Essai d’une présentation nouvelle des biens incorporels (Savatier) [C1.141]: “… il n’est.. d’autres biens que les droits. Tout droit,
même sur une chose concrète, étant incorporel, il n’existe donc que des biens incorporels.”
3.1.2 Res Communis, Res Derelictae (Trésor), Res Nullius
i) Code Articles
a934 Definition of things without an owner, presumption of abandonment.
a935 A movable without an owner [an abandoned movable] 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… or the State.
a936 Immovables without owners belong to the State. Limits to prescription/accession of State property.
a938 Treasure belongs to the finder if he finds it on his own land; if it is found on the land of another, one half belongs to the owner of
the land and one-half to the finder, unless the finder was acting for the owner.
a939 A movable that is lost or that is forgotten in the hands of a third party continues to belong to the owner.// The movable may not
be acquired by occupation, but it may be prescribed by the person who detains it…
a940-946 Details of disposing of found movables.
a2910-2917 Acquisitive prescription.
a2921-2933 Extinctive prescription.
CCBC article 586 defined treasure as “toute chose cachée ou enfouie sur laquelle personne ne peut justifier sa propriété et qui est
découverte par l'effet du hasard.”
ii) Doctrine
Le Droit des biens (Pierre-Claude Lafond) (cited in Mallette): “Il faut se garder de confondre les biens abandonnés par leur
propriétaire des biens perdus ou volés. Dans le premier cas, les biens n’ont pas de maître tandis que, dans le cas d’une perte ou d’un
vol, leur propriétaire n’en a plus la possession mais en conserve la propriété.”
Le Vocabulaire juridique (Gérard Cornu) (cited in Boivin): Treasure is: “Chose cachée ou enfouie (ex. pièces d'or, bijoux, etc.),
découverte par le seul effet du hasard, sur laquelle personne ne peut justifier de sa propriété ou dont la propriété est attribuée en tout
ou en partie, suivant la distinction de la loi, à celui qui le trouve.”
Droit Civil: Les Biens 11e ed. (Jean Charbonnier) (cited in Banque Laurentienne): “Le titulaire d’un droit reel peut, en principe,
l’abandonner par volonté unilatérale… : il est seul; cela ne dépend que de lui.” Abandonment is thus a unilateral act which causes the
right/object to disappear from the owner’s patrimony. It is inherent in the right of abusus.
iii) Jurisprudence
Boivin c. PGQ [1997] RJQ (CS)[WebCT]
Facts: The plaintiffs found a series of gold bars on the bed of a lake. They claim property over the ingots, and also over all other gold
bars discovered on the lakebed, arguing that the treasure forms a whole, and that their discovery incited others to commence treasurehunting on the lakebed in the first place. PGQ argues that it is half-owner of the bars, as the lakebed belongs to the State. Several third
parties also found gold bars in the lake. They intervened in the case, claiming that their gold bars were neither part of the original
treasure, nor a treasure at all, since they were abandoned movables.
Issue: (1) Are the gold bars legally “treasure”, abandoned movables or lost/forgotten movables? (2) If treasure, are they one treasure,
or multiple treasures? (3) Do the plaintiffs have claims on the interveners’ gold bars?
Holding: (1) Treasure (2) Multiple treasures (3) No.
Reasoning: The judge reviews the doctrinal treatment of treasure (see above). Next he asks whether a reasonable man would throw
(abandon) several gold bars valued at $16,000 each in to a lake with the intention to extinguish his rights over them. He responds no,
thus they cannot be abandoned movables. Equally clearly they are not lost or forgotten. He concludes that they are treasure, adding
“Why this occurred we may never know; is there ever treasure without mystery?” Examining both the serial numbers of the ingots and
their physical locations, he rules that they are not part of the same treasure. Claims on the third parties’ treasure are rejected out of
hand. The bars are half the property of the finders, half the property of the state.
Boivin c. PGQ [2000] RJQ (CA) [C2.82]
Facts: As above.
Issue: (1) Are the gold bars legally “treasure”, abandoned movables or los/forgotten movables? (2) If treasure, are they one treasure,
or multiple treasures? (3) Do the plaintiffs have claims on the interveners’ gold bars?
Holding: (1) Abandoned (2) N/A (3) No.
Reasoning: The judges first state that inferences drawn from uncontested facts are matters of law, and thus the classification of the
bars as treasure is an appropriate subject for intervention by the Court of Appeals. Returning to the CCBC definition of treasure, they
highlight the importance of no one being able to justify their rights over the treasure. This requires knowledge of the intentions of the
person who put the gold bars in the lake. Did he wish to get rid of the bars, or merely hide them for later recovery? The judges believe
that the bars were permanently abandoned. They note that it would be very difficult to recover the bars and SQ would probably get
involved, since the lake was government property. Thus it is implausible that the bars were hidden for later recovery. In any case, “le
silence de son propriétaire ou de ses ayants droit est eloquent” – the fact that no owner has come forward despite intense media
coverage shows intent to abandon.
Ratio: (1) To classify something as treasure, it must be shown that no one has any rights to it after analyzing the context of its
discovery (2) “La conclusion à tirer des indices de faits non contestées est une question de droit."
Carl Malette c. Surêté de Québec [1994] [C2.86]
Facts: Mallete discovered $20,000 by the side of the road. He declared his discovery to a SDQ post and deposited the money there.
After one year SDQ was unable to locate the owner of the money and Mallette tried to claim it.
Issue: (1) What property regime applies to the found money? (2) What rights does Mallette have by virtue of this regime?
Holding: The money is a lost or forgotten movable. Maleltte may take possession but not ownership of the money immediately.
Reasoning: The money is clearly not a thing without an owner according to 934(1) or an abandoned movable by 934(2). Mallette does
not gain the inference of abandonment of 934(2) and has failed to prove abandonment by other means. Thus the money is lost or
forgotten and the regime of 939 applies. The judge states that Mallette cannot be considered a good faith possessor and he faces a 10
year prescription period. Malette has, however, fulfilled the legal requirements to take possession of the money from SDQ.
Banque Laurentienne c. 200 Landsdowne [1995] [WebCT]
Facts: BL acquired 8 condo units and 20 parking spaces. After selling the condos, it still had 5 unused parking spaces. The sales
contract for the condos specified that the bank would not sell or transfer these parking spaces to anyone who did not own one of the
condos. It tried to sell them to the condo association for a nominal sum of $1 without success and has no use for the spaces, yet pays
taxes on them. It seeks authorization to abandon the spaces and have its deed erased from the property register.
Issue: (1) Can BL abandon the parking spaces without the consent of the condo syndicate? (2) If yes, does this constitute an abuse of
rights?
Holding: (1) Yes (2) No.
Reasoning: (1) The right of abandon is a unilateral act which causes a real right to disappear from the holder’s patrimony. There is
thus no reason for BL to require the consent of the condo syndicate or any other party, since there is not a transfer, but rather an
extinction of a right (the State automatically takes ownership of abandoned immovables). Abandonment removes any real
charges/propter rem obligations on the immovable from the patrimony of the abandoner, although the holders of real charges (like a
hypothec) can still enforce them over any subsequent owner. Abandonment does not extinguish personal obligations, but any new
extracontractual liability stops at the moment of abandonment. (2) This is not an abuse of rights because BL has no use for the parking
spots given that it does not own any of the condos. Furthermore, the offer of the spots for the sum of $1 seriously undermines the
condo syndicate’s arguments about bad faith.
3.1.3 Property in relation to other legal notions
i) The Human Body
Le Droit des Personnes Physiques (Deleury and Goubau) [C1.95]: “Porter atteinte au corps humain, c’est porter atteinte à la
personne même… en effet ce que le droit consacre avant tout chose, c’est la dignité qui participe de l’essence même de la personne.”
[pr.86-87] DC typically associates the body with the juridical person, and since a person cannot be a thing, the body cannot be a thing
either. D&G caution against blindly accepting this formulation, since pushed to the extreme it would prevent all commerce involving
corporal exertion, including labour contracts. [pr.89] With the development of modern medical science (and modern morality), human
beings/their bodies are both subjects and objects of the law. [pr.90]
a10 - Every person is inviolable and is entitled to integrity of the person.// Except in cases provided by law, no one may interfere with
his person without his free and enlightened consent.
a11-25 deal with consent and medical care. Articles 19 and 25 deal with specifically with organ donation. a42-49 deal with the body
after death. a26-31 deal with psychiatric care.
ii) Things Not Susceptible to Appropriation and “Objets Hors Commerce”
DDB exists to permit and regulate economic activity. But some economic activities are not considered to be legitimate commercial
enterprises.
a913 “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.”
2876 Definition of objet hors commerce.
Gaius, §2 – §9, Second Commentary: “Things subject to divine dominion are exempt from private dominion.”
Justinian, II, 7: “Things sacred, religious, and holy belong to no one; for that which is subject to divine law is not the property of any
one.”
Fabrique de la Paroisse de L’Ange Gardien c. PGQ, [1980] C.S. [WebCT]
Facts: In somewhat suspicious circumstances, the abbot Gariépy transferred many valuable religious items to government museums
and private individuals in return for cash payments to the diocese. The defendant alleges that Gariépy had the authority to make such a
transfer from the patrimony of the Fabrique to that of the State. The Fabrique alleges that these items could not be alienated or made
the objects of exchange, since they were religious objects and demands their return. The state claims they were alienable and any
rights in them held by the Catholic Church were prescribed.
Issue: (1) Are the treasures of the Fabrique susceptible to alienation or prescription under the standard property regime?
Holding: No.
Reasoning: Religious objects are all objects with a religious purpose as declared by a competent religious authority. The Catholic
Church is the competent authority, and clearly considered them sacred. No evidence was presented to suggest that their ecclesiastical
nature was removed by the Church, and Abbot Gariépy was not competent to remove this distinction unilaterally. Thus they are sacred
objects not subject alienation or prescription.
Ratio: The category of “objets hors commerce” includes religious objects, in the sense of a2217 CCBC.
Comments: Below find article 2217 of the CCLC and the closest CCQ correspondent.
2217 CCBC.: Sacred things, so long as their destination has not been changed… cannot be acquired by prescription.
2876 CCQ: 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. [this is broader than 2217, since it also includes res communis and things like organs]
Section 3.2: Categories of DDB
3.2.1 Real and Personal Rights
i) Definitions
Personal rights are contracts and behave as such (so all the rules about obligations apply to them as well). They only exist between two
people, have no effects on third parties, etc. Real rights are a property-specific kind of right and are said to be attached to the property
itself. They are different from contracts in many ways, the most obvious being that they are opposable to all persons/third parties.
Private Law Dictionary and Bilingual Lexicon: Obligations [C1.125]:
Real Right: “Right of a patrimonial nature that is exercised directly on property… Within the category of real rights, a
distinction is generally made between principle real rights and accessory real rights. The accessory real right differs from the principal
real right in that the former constitutes security that is necessarily attached to a claim for which it guarantees performance.”
Personal Right: “Right of a patrimonial nature that permits its holder, the creditor, to claim the performance of a prestation
from another person, the debtor… a personal right is… an obligation.” Any rights over the property of the debtor apply to the entirety
of his patrimony, and not to specific objects. Personal rights are created via contract between two parties and have no effects on third
parties. Creditors by virtue of personal rights are known as créanciers chirographaires.
Droit Civil: Les Biens (Charbonnier) [C1.132]: Provides a classification of real rights. [The accessory real rights are out of date.
Under the 1994 CCQ the only accessory real right is the hypothec, which can be placed on either a movable or immovable. Gage
becomes a special category of movable hypothec and the special privileges were all converted in to the corresponding hypothecs by
the Dispositions Transitoires. – Mike]
Accessory Real Rights: Real rights designed solely to guarantee debts (hypothecs). They are indeed real rights, but to a second
degree, since they apply only to the monetary value of a good (a mortgage on a house merely allows you to seize it for sale, you can’t
actually do anything else with your accessory real right since it doesn’t apply to house directly). They have droit de suite and droit de
preference.
Propriété
Droits Réels Principaux
Démembrements de Prop.
- Usage
- Habitation
- Emphytéose
- Superficie
- Droit du preneur dans le
bail à construction
Droits Réels Accessoires
Sur les immeubles
Sur les meubles
- Hypothèque
- Gage
- Antichrèse
- Privilège/Priorité
- Privilège/Priorité
mobilière spécial
immobilier spécial
There’s also a good discussion of real and personal rights quoted in Cadieux c. Morin.
ii) Characteristics of Real and Personal Rights
Real rights have a “right to follow” (droit de suite – real rights follow the object over which they apply, regardless of changes in the
ownership/possession) and a “right of preference” (droit de preference – creditors holding real rights are paid first out of proceeds
from the sale of an object over which they have a real right). These characteristics are derived from real rights’ opposability to all
third parties. Real rights pass automatically by succession; many personal rights are extinguished on death.
Traité de droit civil (J. Ghestin) [C1.127]: “Ces expressions [dds et ddp] ne sont que la traduction concrète de l’opposabilité à tous du
droit réel. Elles conviennent davantage aux droits réels accessoires.”
Useful CCQ articles
Real rights: a904 (real rights in immovables), a912 (enforcement), a1453-1455 (transfer of real rights), a2660 (droit de preference),
a953 (droit de suite)
Personal rights: a2645, plus Book 6 (Obligations) esp a1371-1376, a1440.
Accessory real rights are defined at a2660-2661, a2773, a2778
Ouimet et Ouimet c. Guibault et autres, [1972] C.S. 859 [C1.172]
Facts: 1964 O signed a contract in which G promised to sell some land and G promised to buy. This is a contract including both a
promise to sell and a promise to buy. Essentially a bilateral options contract, so no sale has yet occurred.
1967 Government gives notice of expropriation towards the land in question to G.
1969 O try to initiate sales contract via action en passation de titre.
1970 Government expropriates land from G.
O are angry that G did not complete the sales contract before the land was expropriated. They ask to have their real rights in the land
transferred and also claim damages for breach of contract.
Issue: (1) What rights did the contract create? (2) Did expropriation extinguish these rights? (3) Do O have a right to damages?
Holding: (1) Personal (2) No (3) Yes – G must pay $10,700 in recognition of the rights O would have continued held even after
expropriation if the sale had gone through [listed in third-to-last paragraph].
Reasoning: Despite the five year gap, the plaintiffs had not renounced their rights to the promise of sale through silence and remain
the creditor of a personal right from Guibault. However, a promise of sale is not an actual sale contract; thus there was no transfer of
real rights. The government’s actions count as force majeur, since they made it impossible for G to fulfill the obligation to transfer real
rights. Hence the action pétitoire must fail. However, the personal rights involved in the sales contract (the promise to sell) remain
valid. The rights that the government left to G would have been held by O and O would have received monetary compensation for the
expropriated lands. Since a personal obligation cannot affect third parties (the government) and since specific performance is
impossible here, damages are assessed at the value of $10,700 dollars.
Comment: Under the CCBC, the purpose of an “action pétitoire” was to ensure judicial protection of property. The articles of the
CCP governing the “action pétitoire” were repealed by the Quebec National Assembly with the introduction of article 912 of the CCQ,
which provides that “the holder of a right of ownership or other real right may take legal action to have his right acknowledged.” Note
that real rights require a special “enforcement article” because the enforcement regime for contracts/personal rights does not apply to
real rights!
iii) Publication of Real Rights
a2934-2935 – Basics of registration
a2936 – Can’t renounce right to publish or punish someone for publishing.
a2938 – Requirement of registration
a2941-2944 – Effects of registration on opposability
a2945+ – Ranking of rights (in general, the oldest claim of each kind takes precedence. Some claims outrank others)
3.2.2 Movables and Immovables
i) Code Articles and Legislation
Civil Code of Lower Canada: Immobilization by…
Nature/incoporation: Includes land, buildings, and things integrated in to them.
Destination: As a903, but the same person had to own both the movable and the immovable.
Determination of the law: Part of exceptional clauses, like a blacksmith’s tools (part of the forge).
Civil Code of Québec (a899-a907): Immobilization by…
Immovables by nature (a900): The land and things attached to it (either buildings or plants/crops).
Integration (a901): Movable integrated in to immovable and loses its individuality.
Annexation/Attache/Réunion (a903+48 of Dispositions Transitoires): Things integrated in to an immovable and essential to the use of
the immovable even if there is no loss of individuality. The Code of Civil Procedure a571 confirms that movables immobilized under
article 903 can belong to people other than the owner of the immovable.
Determination of the law (a904+a906): Real rights in immovables are immovables. Waves and energy are movables.
Residual clause (a907): All else is movable.
Hypothecs (a2665): Movable vs. immovable depends on nature of property it is applied to.
Loi d’application de la réforme du Code civil (Dispositions Transitoires)
DT 48 – “Under article 903… only those movables referred to which ensure the utility of the immovable are to be considered as
immovables, and any movables which, in the immovable, are used for the operation of an enterprise or the pursuit of activities are to
remain movables.”
ii) Doctrine
Précis de droit des biens (Pierre-Claude Lafond) (quoted in Axor): 5 conditions necessary for immobilisation by attachment : 1) The
presence of an immovable; 2) The attachment or union of the movable to the immovable; 3) The movable must maintain its
individuality; 4) The link must be of perpetual duration (à demeure); 5) The function of the device must assure the usefulness of the
building. Interprets/expands on a903+a48 of the DT.
iii) Jurisprudence
Belair c. Ste.-Rose (Ville), [1922] SCR [C1.238]
Facts: Belair owned a bridge between the towns of Ste. Rose and Ste. Thérèse. The municipality levied a tax on immovables, which
Belair claimed did not apply to his bridge because it was not an immovable.
Issue: Was the bridge an “immovable” in the sense of a376 (“Lands and buildings [bâtiments] are immovables by their nature”) or
a377 (“Windmills and water-mills, built on piles and forming part of a building, are also immovable by their nature…”)?
Holding: Yes.
Reasoning: The case turns on the interpretation of the words “bâtiment” and “building” (since the English and French texts have equal
weight!). The word is interpreted by the Court to mean “structures” of any kind which are attached to the ground. The bridge is thus
immovable by nature (a376). Mignault: “La deuxième prétention de l’appelant est que le pont n’est pas un immeuble. Je me demande
quelle serait la nature de ce pont s’il n’est pas immeuble, car ce n’est certainement pas un meuble, et il faut qu’il soit ou meuble ou
immeuble.”
Comment: Note that the servitude on the river bed – the right to build a bridge resting on it – is itself an immovable, even though it’s
an incorporeal right (and hence normally movable) because rights relating to immovables are immovable.
Nadeau c. Rousseau, [1928] BR [C1.240]
Facts: R installed two furnaces and associated piping in a house owned by Proulx for $945. R and P signed a contract stating that the
furnaces would remain the property of R until P paid for them in full. P went bankrupt before paying off his debt to R, so his house
was seized and sold at auction, and bought by N [I think… (s)he’s never actually mentioned – Mike]. R claimed the furnaces were his
property and were held illegally by N. He sues N for the value of the furnaces.
Issue: Is the furnace movable or immovable?
Holding: Immovable, and thus it becomes part of N’s house. Thus R has no rights related to the furnace.
Reasoning: Both sides admit that the furnace has been physically integrated in to the house, and that removal would result in serious
damage to it and the house. This fact, combined with the necessity of heating in Canada, suggests that the furnaces were immobilized
by nature. But immobilization by nature means that they were effectively absorbed in to the immovable (the house) and thus disappear
as items in R’s patrimony. R’s contract cannot prevent the change in status of the furnaces, since DDB is not under the control of
individuals – it results from facts as determined by the Code. Thus he has no rights over the furnaces. The judge considers and rejects
immobilization by destination, pointing out that this works only if both movable and immovable have the same owner, which cannot
be the case here.
Ratio: (1) The property regime set out in the Code cannot be altered by contracts between private individuals (2) Immobilization
automatically triggers accession.
Comment: This case, and others like it, lead to the creation of codal articles protecting those who contribute materials to the
construction a good (a2724). Keep in mind that R needed a real right with a droit de suite to sue N instead of P.
Horn Elevator c. Domaine D’Iberville, [1972] CA [C1.242]
Facts: HE signed a contract with DDI’s contractor to install an elevator in a building owned by DDI. The sales agreement stated that
the elevators would remain property of HE until fully paid for. The contractor went bankrupt and HE attempted to seize the elevators
and associated machinery, including doors and push-buttons.
Issue: Are the elevators and related property immovable by nature?
Holding: Yes.
Reasoning: The elevators cannot be immovable by destination because they were not placed in the building by its owner, but rather by
the contractor. The judge surveys classical attempts to define immovables. [406-407] He concludes, by analogy to stairways (which in
doctrine are clearly immovables) that elevators are immovables as well. “Le bâtiment ne comporte pas seulement les foundations, les
murs, le toît et les planchers, mais tout ce qui est attaché, fixé de façon permanente à l’édifice, cohérent avec lui est nécessaire pour
que le bâtiment soit complet.” [408] Elevators clearly attached to the structure of the building, very necessary for skyscrapers and
removing them would involve the destruction of large parts of the building’s superstructure. [pp.408-409] The judge does not place
much importance on the last criteria, pointing out that doors can be removed without damage, but are legally part of the building.
Ratio: (1) The property regime set out in the Code cannot be altered by contracts between private individuals (2) Immobilization
automatically triggers accession; (3) Necessity of the movable object to the immovable is the most important criteria for
immobilization.
Cablevision c. Le sous-ministre du Revenu (QC), [1978] SCR 64 [C1.247]
Facts: Cablevision’s network extends from one ground-based antenna to another antenna bolted to a skyscraper. The wires and cables
which connect the antennas are carried by the Bell Canada/Hydro-Québec network of poles, ducts and conduits. The three distribution
systems are so closely intermingled that only an expert can tell them apart. Removing the wires is possible, but would damage them.
When CV was assessed a sales tax on movables, it asked a SC judge to declare the network immovable. He did so, but the CA
overturned this judgement except for the ground-based antenna. CV appealed to the SCC.
Issue: Is a cable distribution network attached to other networks immovable in whole or in part?
Holding: Immovable in its entirely.
Reasoning: The cables cannot be immovable by destination because the wires and antenna are owned by the appellant, but the poles
and the land they are built on belong to others. Thus the network can only be immovable by nature, if at all. The court distinguishes
between horizontal attachment (to the structures from which the network radiates – the antennas) and vertical attachment (to the
structures which physically support the network – the poles). Either is sufficient to render the network immovable, since: “The general
principle is that a construction that adheres to the land is immovable, even if it is not fixed with permanency…. The criterion for being
an immovable by nature is met when a structure that may be described as a building adheres to something that is immovable by nature,
whether land or a building.” The Hydro/Bell networks were previously declared immovable by the courts, thus the CV network is
immovable too. Disjoint ownership of the network from the poles and the antenna from the skyscraper is a legal, not physical,
characteristic and hence irrelevant.
Ratio: Any construction attached to the ground on a permanent basis, either directly or through another immovable, is immovable.
Construtek c. Laforge [1998] RDI 137[C1.256]
Facts: Laforge and Ghilain Bédard, owner of Construtek, split up. GB wins a court battle for possession of the house they co-owned,
which becomes property of CT (although L must be paid half its value). She orders L to leave immediately. L does so and takes the
curtains, blinds, chandeliers, light fixtures and major appliances with her. CT alleges that these goods were immovables by
destination and demands payment for her share of their value.
Issue: Are the appliances and furniture movables or immovables?
Holding: The appliances, curtains and shelving are movables, the lights are immovables. The defendant must reimburse the value of
the latter but not the former.
Reasoning: The appliances, curtains and blinds never lost their individuality, since they were easily removed by unplugging them or
unscrewing their attachments. They are also not necessary to the utility of the building. While they might have been immovable under
the CCBC, they are still movable under CCQ. The lights however are necessary to the use of the building and are physically integrated
in to it. Thus they are immovables. “Dès le moment où ils ont été installés, [les lumières] faisaient partie de l’immeuble puisqu’ils
servaient plus à son utilité qu’à la commodité des occupants.” (emphasis added)
Ratio: (1) In applying a903 to residential buildings, courts should ask whether a movable serves more to ensure the utility of the
building or the comfort of its occupants. (2) Mere attachment is not enough to trigger immobilization under the CCQ.
Axor Construction c. 3099-220 Québec Inc. [2002] RDI [C1.260]
Facts: 3099-220 provided rinkboards for an arena being built by Axor. It then published a legal hypothec that applied to the arena as a
whole, claiming that it had contributed to the construction or renovation of an immovable (the arena) under a2724. Axor went to
Superior Court to have this hypothec dismissed (radiation) and lost. Axor appeals, claiming the rinkboards were a movable separate
from the arena, thus 3099-220 has no right to claim a hypothec on the arena itself.
Issue: (1) Are the rinkboards movable or immovable? (2) Is the legal hypothec registered by the supplier of the rinkboads on the arena
valid?
Holding: (1) Immovable (2) The hypothec is valid.
Reasoning: Majority: The judges apply the five criteria outlined by Lafond: (1) Is there an immovable? Yes, Arena; (2) Attachment or
joining of movable to immovable? Yes by anchoring+bolting to floor; (3) Conservation of the individuality of movable? Yes, could be
removed; (4) Perpetual attachment? Yes – for an indefinite period of time, even if not necessarily forever (5) Movable assures the
utility of the immovable? Yes – without major work the arena would be useless without the bands. Thus the bands are immovable by
attachment. Thus the hypothec is valid.
With respect to the final criteria, the court applies a48 of the Transitional Provisions, and must distinguish between a movable
that is necessary to the utility of an immovable and one that merely contributes to a commercial enterprise: “Il suffit de poser la
question suivante; est-ce que l’immeuble serait complet sans ce meuble?” In the case of buildings with specialized functions, the
response is often self-evident.
Dissent: The rink boards were a piece of equipment supplied to the arena, which has nothing to do with construction, undermining the
application of a2724. Furthermore they are removable and contribute the business of running the arena, contrary to a903 of the CCQ
and a48 of the Transitional Provisions. Thus the bands are movables, thus the hypothec does not apply.
Ratio: In applying a903+a48 of DT to commercial buildings, courts should ask whether the building would lose a significant amount
of value/usefulness if the movable in question was not included in it.
Montréal c. 2313-1329 Québec Inc. (Rock Sanna Café Bistro) and 2086091 Québec. Inc. [2002] [C1.263]
Facts: RSCB went bankrupt and a wide variety of goods were seized from the restaurant as a result: appliances, furniture, etc. RSCB’s
owner vacated the premises and left all of the seized equipment behind, agreeing with his landlord to transfer the equipment along
with his lease to the next tenant. This transaction was confirmed (homologué) by a Superior Court judge. 2086091 Québec Inc.
became the next tenant of the property and opposes the city of Montreal’s seizure, claiming that the transfer of ownership removed
any right of seizure the city had against RSCB.
Issue: Are the goods movable (and hence subject to seizure) or immovable?
Holding: Movable.
Reasoning: Some objects, such as the chairs, tables, fire extinguisher, etc. are clearly movables. Others were somehow attached to the
building via metal screws or through the plumbing. The judge quotes Pierre-Claude Lafond’s five conditions for immobilization by
attachment (supra) and their application in Axor (supra). He finds that the attachment of the objects to the building was not
sufficiently permanent to fulfill condition 4 and that the building would retain its usefulness even if they were removed, so condition 5
fails as well. Thus they are movable.
Ellen c. Daines [2005] CanLII 31738 (C.S.) [WebCT]
Facts: Daines decides to sublet Ellen’s apartment and they sign a contract in which D promises to buy some furniture in the apartment
from E, including an air-conditioning unit, carpets, shelving, built-in desks and cabinets, etc. She promises to pay $15,000 for them.
After paying 6 instalments of $1,000, she asks E for proof of purchase of the furniture, so that she can re-sell it to the next person to
take over the apartment. E fails to provide almost all of the documents, so D halts payment. At this time the landlord informs her that
most of the furniture she purchased did not belong to E, since it became part of the apartment, which belongs to the landlord. E sues
for the remaining $6,000. D argues that the contract was invalid due to error.
Issue: (1) Who owned the furniture? (2) If the furniture does not belong to E, is D’s consent vitiated by error?
Holding: They were almost exclusively immovable and hence incorporated in to the apartment. Thus they could not be sold by E and
the contract is invalid. E must reimburse D for the $6,000.
Reasoning: Air conditioning is (poetically) justified as essential to the usefulness of apartment and given physical integration, it
becomes an immovable. [Pp. 50] Ditto doors. Almost all items attached in any way to the apartment are qualified as immovables by
attachment (except some shelving units). Thus there was nothing which E could sell to D that would justify a price of $15,000. Thus
there was an error as to the object of the contract. Thus the contract was invalid.
Comments: On consent and vitiation by error see 1400. Note that Ellen and Rock Sanna contradict each other. One sets strict limits on
the attachment conditions of 903, the other is far more permissive. But DC allows this kind of discrepancy, since there’s no precedent!
3.2.3 Other Categorizations
i) Consumable Property/Non-consumable (Durable) Property
Droit Civil: Les Biens (F. Terré and P. Simler): “Les choses consomptibles sont celles qui se consomment du seul fait que l’on s’en
sert selon leur destination.” Legally important because consumables cannot be the object of rights requiring them to be returned in
identical condition after use. Consumable things are subject to a special kind of usufruct, a quasi-usufruct (see Section 7.2.iv).
a1127 – Usufruct and consumables. a2314 – Loans and consumables.
ii) Fungible Property/Non-fungible (Unique) Property
Droit Civil: Les Biens (F. Terré and P. Simler): “Les choses fongibles, n’étant déterminées que par leur nombre, leur poids ou leur
mesure, peuvent être employées indifféremment les unes pour les autres dans un paiement… Ces choses sont envisagé dans leur genre
ou espèce et non dans leur identité.” Most goods will end up being fungible (money, cars, commodities, groceries, appliances, etc.).
Immovable property is rarely fungible. As long as the rights of third parties are respected, an individual’s will can influence whether a
given thing is considered fungible or not – a book bought because it belonged to an important person is transformed in to a nonfungible good if its owner considers this important.
iii) Corporeal and Incorporeal Things
a899 Allows for the existence of incorporeal goods.
a906 Waves and energy deemed corporeal movables.
a907 All other goods are movables. [Since incorporeal goods are never mentioned, they fall in this category and are movables - Mike]
Problèmes contemporains de la notion de biens (Batiffol) [C1.25]: Beginning with the classification of all things as either movable
or immovable implies physicality and a focus on the corporal thing rather than the rights attached to it. But many goods are
incorporeal (intellectual property, bank accounts, mortgages) and thus neither movable nor immovable. In fact, incorporeal property
has steadily grown in importance, yet our property laws remain based on notions of physicality. “la notion de beins s’éloigne de la
chose corporelle…”
iv) Capital and Fruits and Revenues
a908 Property, according to its relation to other property, is divided into capital, and fruits and revenues.
a909 Definition of capital // Definition of capital with respect to intellectual property rights.
a910 Definition of fruits and revenues.
a949 Fruits and revenues belong to the owner, who bears the cost incurred to produce them.
a1018 Fruits and revenues with respect to indivision.
a2287 Deposits/detention and fruits and revenues.
See also usufruct (a1120+), use (a1172+). C/F&R are mentioned in the section on debts/hypothecs, but I doubt we need to know that.
CHAPTER 4: PROPERTY
Section 4.1: As Institution
Caron: Property is the “figure emblématique de droit des biens.”
4.1.1 History
Roman law classified property as one branch of the law of things, the other being contract law. Roman law recognized two kinds of
property: individual and collective (property held by families, political groups, etc). Individual property was absolute; only one person
had dominium over a good. Property rights included the triad of usus, fructus and abusus. The right of ownership could be
dismembered and the dismemberments given to others.
Medieval law recognized multiple “owners” over the same object, each having different sets of rights. Thus no one truly “owned”
land, since each had rights only in certain “domains.” Ex: tenant owns right to use land and to most of the crops (domaine utile); lord
owns rights to the rest of the crops, to feudal privileges over tenants (corvée, banalité, etc), right to veto sale or transfer of land
(together these rights were known as domaine supérieure); king gets feudal services from lord (generally taxes and military service).
4.1.2 Theory
Justifications for private property can be divided in to two themes (taken from Lametti’s joint lecture):
i) Individual-Based Arguments
Locke: You own your body, and by mixing your labour with the natural world, you gain ownership over things. Problems:
appropriation without effort (by fencing off land should I gain ownership over it? What about land I clear from the forest?), difficulties
of mixing (If I mix what I own with what I do not own, why do I gain property rather than lose it?), difficulties of employment (why
do I gain property rights in the work of my employees?).
Hegel: Uses mixing of will, rather than labour. People have will, objects don’t. Thus by infusing our will in to objects, we gain
ownership over them.
Aquinas: Resources were given to Man by God (Donative theory) and we need to exploit them to survive (Adam and Eve condemned
“to survive by the sweat of their brow”)
Calvinists: If you are predestined to go to Heaven, your holiness will be reflected on Earth as well. Material success is God’s reward
to the faithful. Private property is necessary for this process.
Hegel+Radin: Personality helps us self-actualize/express our personality. Wedding rings, artwork, etc.
ii) Consequentialist/Efficiency-based Arguments
Aristotle: People take better care of that which is their own.
Utilitarians: Private property encourages people to work hard, save money and invest. This maximizes social utility.
Hardin: Private property allows us to avoid the “tragedy of the commons” which is an inevitable consequence of shared resources. If
we benefit privately from over exploiting a resource, but can spread the costs to others, we will destroy that which is held in common.
Ex: overfishing, pollution.
Coase: Well defined rights of private property, when combined with the assumption of zero transaction costs, eliminate externalities
and lead to economically efficient outcomes for society. The question of who holds property rights in the first place is less important
than the fact that someone (and only one person) holds them.
Section 4.2: Components and Characteristics of Property
a911 A person, alone or with others, may hold a right of ownership or other real right in a property, or have possession of a property.//
A person may also hold or administer the property of others or be trustee of property appropriated to a particular purpose.
a915 Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose. [all property has an owner – Mike]
4.2.1 Characteristics of Property Rights
a947 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.
The following characteristics describe the bundle of rights (usus, abusus, fructus) which make up property rights.
i) Absolute
CCQ speaks of property as “full,” (English a947 CCQ) or “complete” (French a497 CCQ) while older doctrine refers to it as
“absolute” (a406 CCLC both languages). Either way, property is the totality of DDB and all other real rights are carved out of it.
Moyse: “Le Code est malalaise avec la co-propriété.” It prefers absolute forms of property rights.
ii) Exclusive
Property is exclusive in the sense that it can be opposed to all third parties. Some real rights need to be published before they are
opposable. See section 3.2.1.iv, above, for information on publication.
a912 The holder of a right of ownership or other real right may take legal action to have his right acknowledged.
a953 The owner of property has a right to revendicate [sic] it against the possessor of the person detaining it without right, and may
object to any encroachment or to any use not authorized by law.
La notion de modalité de la propriété (S. Normand): “Le caractère exclusif de la propriété renvoie au droit, reconnu au propriétaire,
de bénéficier, sans partage, du monopole des avantages conférés par le bien.”
iii) Perpetual
Essai sur la durée des droits patrimoniaux (Cantin Cumyn) [C2.25]: The code contains articles specifying the duration of usufruct
and emphyteusis (a.1123 and a.1197), but not property itself. Ownership is the only real right that does not extinguish by non-use
(contrary to servitudes, a1191) “Seule la destruction totale de l’objet… anéantit le droit de propriété.” [pp.14]
4.2.2 Components of Property
i) Usus
Attribute of property that confers the right to use and enjoy the good. Does not allow the transformation of the good in important ways
(except for consumable goods, for which usus and abusus are inseparable).
ii) Fructus
Attribute of property that allows the owner to benefit from the fruits and revenues of the property.
a948 Ownership of property gives a right to what it produces and …
a 949 The fruits and revenues of property belong to the owner, who bears the costs he incurred to produce them.
a908-910 Further define the concept and rules for fruits and revenues.
iii) Abusus
The right to dispose of property, both physically and juridically. Can consume, damage, destroy or abandon it. Can sell it or give it
away. Can change it in important, irreversible ways.
The owner of property can never dismember his abusus – even the most extensive dismemberments (usufruct, emphyteutic lease)
leave abusus in the hands of the owner. In these cases he is called the “nu propriétaire” or “bare owner.”
iv) Accession (Vis Attractiva)
The attribute of property that allows an owner to gain ownership over everything that is attached to his property. Applies to both
movables and immovables. See Section 5.4: Accession (below) for more information. Moyse highlighted that the immobilization
regime contained in a900-907 interact with accession as a concept in complex and important ways. Neither of the two makes sense
without the other.
Section 4.3: The Limits of Property Rights
4.3.1 Expropriation and Domaine Supérieure
i) Code Articles and Legislation
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 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.
952 No owner of property may be compelled to transfer his ownership except by expropriation according to law for public utility and
in consideration of a just and prior indemnity.
916 Imprescriptibility of state property.
918 Residual state claim on immovables.
935 Residual state claim on movables
The state has ownership under the public domain of the beds of navigable rivers, of all mining rights across all private property and all
property held by the State, municipalities or crown corporations for public purposes. Destination of a good to public utility is an
objective consideration that is incorporated in to the good. The test is whether the good was acquired to contribute to public utility.
An Act Respecting the Lands in the Domain of the State [C1.166]: Sets out the requirements for managing and using public lands.
Cultural Property Act [CB2.67]: The act provides for the recognition or classification of movables and immovables as cultural
property and states in s.30 “Every classified cultural property must be kept in good condition.” This imposes a duty on owners of
historic items or property not imposed on normal property owners (thus restricting abusus and usus of the owner).
Mining Act [C1.302]: Rights in or over mineral substances form part of the domain of the State. Exceptions: sand, rock, gravel, other
building materials.
Constitution Act 1867, s.125: State property is immune from taxation (This clause exists to prevent different levels of government
from taxing each other!).
ii) Doctrine
Discours sur la propriété (Portalis) [C2.19]: “Au citoyen appartient la propriété et au souverain l’empire.” Public domain isn’t really
a domain in the feudal sense; there are no simultaneous property rights. Instead, it consists of the power to govern: to pass laws
influencing the use of property, to tax owners of property, and, in exceptional cases, to expropriate property for public utility.
iii) Jurisprudence
PGQ c. Houde [1998] RJQ [C1.289]
Facts: A surveyor’s plan in 1847 delimits precisely the banks of the Petit-Saguenay River as well as land used by Price, ancestor of
Houde. In 1852, Price acquires the land from the Crown and runs a sawmill. According to a plan prepared for the PGQ, a “fosse à
saumons” is found approximately 200 meters from the sawmill dock and 450 meters from the old federal dock downstream from the
sawmill. In these places, at low tide, the river is almost dry. In addition, at the date the letters patent were issued, there were several
islands downstream from the “fosse” which created an obstacle to navigation. However, the PGQ claims that this part of the river is
now navigable at high tide.
Issue: Who owns the riverbed (and with it, the salmon spawning ground)?
Holding: The riverbed and the fishing rights belong to Houde.
Reasoning: The navigability of a waterway is a question of fact, one which must be answered with reference to ordinary commercial
shipping (since recreational canoeing could go almost anywhere!). By these standards, the river was clearly non-navigable at the time
of the concession. This part of the river not being navigable, there are no public fishing rights – Québec law only recognizes public
domain to navigable waterways. Thus since fishing and riparian rights were not expressly excluded from the letters patent, they form
part of the concession according to the law of the time.
Ratio: Property rights granted under letters patent must be assessed using the conditions present at the time of the grant.
Construction D.R.M. Inc. c. Bâtiments Kalad’Art Inc., [2000] RJQ [WebCT]
Facts: The City of Rimouski contracted with DRM to build a salt storage depot. BKI provided the materials to DRM, but DRM
defaulted on the payments. BKI had registered a legal hypothec on the depot, but DRM claims that the building could not be the object
of a legal hypothec since it was intended for public utility.
Issue: Is the depot a “appropriated to public utility” in the sense of a916?
Holding: Yes.
Reasoning: The case involves the application of the theory of "dualité domainiale": property belonging to the municipality can be
divided in to two parts: one which is part of the public domain (may not be seized) and one which is private (seizable). a916 gives
effect to this difference. But a916 is based on a2220 of the CCBC, which differed between French and English
versions/interpretations.
French: “…possédés pour l’usage général et public…” Public in destination, but not necessarily in its direct use. Part of public
domain if essential to the functioning of the municipality. The test is the essential character of the thing. “C’est cette destination à
l’usage générale et public qu’il faut retenir et qui permet de le considérer comme faisant partie du domaine public de la municipalité.”
English: “…possessed for the general use of the public…” More restrictive - must be used directly by the public. The thing is part
of the public domain if it is at the disposition of the general public. However, case law based on this approach, like Montreal v HillClark-Francis, is seen as too restrictive and has been distinguished in the jurisprudence.
The depot is not essential in and of itself, but it is closely linked to an essential service (road clearing during winter). Hence by the
large sense given to public utility in the French interpretation, it is appropriated to public utility. No hypothec.
Ratio: Public utility should be interpreted in a large sense, one which will “fusionne les diverses interprétations données aux versions
française et anglaise de l’article 2220 CCBC. De même, … la théorie de l’accessoire devrait être appliquée au moment de définir si
un bien est affecté ou non à l’utilité publique.”
Sula c. Cité de Duvernay [1970] CA [C2.65]
Facts: D rezoned 3 undeveloped residential lots that S owned in to parks. S claimed that this effectively expropriated the lots, since he
could no longer develop them, nor could he control access to them. D claimed that since S remained owner of the lots, there was no
expropriation.
Issue: Did the rezoning constitute expropriation?
Holding: Yes.
Reasoning: Tremblay and Salvas: Since rezoning reduces S’s rights over the lots to the same level as any other person in the city, his
property has been effectively expropriated without compensation. This is beyond the power of the municipality, thus the rezoning is
illegal.
Rinfert (concurring): He says exactly the same thing as the majority… it isn’t clear why he bothered giving reasons.
Ratio: “Un règlement qui ne permet à un propriétaire aucun usage de son terrain n’est pas un règlement de zonage mais une
expropriation.”
Leiriao c. Val Belair (Ville de) [1991] SCR [WebCT]
Facts: The municipality attempted to purchase L’s land but he refused to sell. So they rezoned his property and then served him a
notice of expropriation to form a land reserve (réserve foncière). L contests the expropriation, claiming that the municipality does not
have the authority to expropriate property for the purpose of creating a land reserve. The CA majority defined a land reserve as a
collection of properties whose purpose is indeterminate at the time that the land is acquired (i.e. for future development) but land
reserves are not defined anywhere in legislation.
Judicial History: The trial judge ruled that the power to create a land reserve was an accessory power to the standard regime for
expropriation, thus the municipality had to provide additional justifications for the expropriation (specifically the final intended use of
the land reserve had to be for a recognized municipal/public purpose (fin municipal)). The absence of such justifications rendered the
expropriation illegal. The Court of Appeal majority held that the Cities and Towns Act created land reserves as a new municipal
purpose. Thus expropriation on the basis of creating a land reserve was sufficient.
Issue: Is expropriation for the purpose of creating a land reserve a municipal purpose?
Holding: Yes.
Reasoning: Majority (4 non-Québec judges!): The power to create land reserves is a recent addition to the powers of municipalities in
Québec, first being given to specific cities (like Montreal), and later extended to all municipalities by the CTA. If an additional
purpose is required to expropriate land reserves, there is no reason to include 29.4 in the CTA, since the land could be appropriated
under the ultimate purpose of the land reserve, rather than as a land reserve. Addressing the dissent, the majority notes that 1) the
Expropriation Act is a purely procedural statute and should not be construed as defining the substance of rights/powers and that 2)
abuse of power by municipalities can be dealt with via other channels.
Dissent (3 Québec judges!): Interpreting 29.4 as granting a new municipal purpose goes against the text of the article itself, and raises
further problems. First it removes the need to justify the expropriation (since land reserves do not need a determinate purpose), which
violates 407 CCBC and section 6 of the Québec Charter. The right to own property as a land reserve is merely an incidental purpose,
which requires a additional, deeper justification. Secondly, allowing land reserves as a municipal purpose would render section 40(2)
of the Expropriation Act useless, and the Expropriation Act is supposed to prevail over all other laws in this area. Lastly, expropriation
statutes in the Anglo-Canadian tradition are to be interpreted strictly. 29.4 does not clearly create a new power for municipalities and
thus should not be interpreted as so doing.
Ratio: The creation of land reserves is a municipal purpose.
Comments: Relevant legislation is below.
a407 CCBC “No one can be compelled to give up his property, except for public utility and in consideration of a just indemnity
previously paid.”
a6 Québec Charter: “Every person has the right to the peaceful enjoyment and free disposition of his property, except to the extent
provided by law.”
s. 29.4 Cities and Towns Act: “A corporation may own immovables for the purpose of a land reserve”
s. 40(2) Expropriation Act: Expropriation requires, among other things, “a precise statement of the purpose of the expropriation.”
CL – Arthurson v Canada (Attorney General) [2003] SCR [WebCT]
Facts: The government had never invested pension funds for veterans, nor paid interest on them; this resulted in lost income of up to
$1 billion. In 1990 the Department of Veterans Affairs began to invest the funds, and the DVA Act was amended to state that no
lawsuits could be made over lost interest prior to 1990. A started a class action, alleging that the loss of ability to sue amounts to
expropriation of the interest on their pensions (plus other constitutional arguments based on the Canadian Bill of Rights, which are
omitted).
Issue: (1) Is the DVA Act an uncompensated expropriation of veterans’ funds? (2) If yes, is this prohibited by the CBR?
Holding: (1) Yes (2) No.
Reasoning: The DVA Act clearly expropriates veterans’ monies. Yet the CBR protects only rights that were recognized as existing at
the time that the CBR was passed. Anglo-Canadian jurisprudence has always recognized that the legislature can expropriate property
without compensation, provided this intention is stated clearly and unambiguously. The amendment to the DVA Act was clear and
unambiguous. Thus the expropriation was perfectly legal. Thus there was no violation of a right existing in 1960.
Ratio: None really, this is straightforward application of the CBR. I have no idea why we’re reading it. Note that even though it’s a
common law case, the judge’s statements about expropriation are valid in Québec because public law is common law across Canada!
Comment: Here’s the relevant passage from the Bill of Rights “It is hereby recognized and declared that in Canada there have existed
and shall continue to exist without discrimination … the following human rights and fundamental freedoms, namely, // 1(a) the right
of the individual to life, liberty, security of the person and enjoyment of property, and the right not to be deprived thereof except by
due process of law.”
Gignac c. St Zenon, [2006] QCCS [WebCT]
Facts: SZ wants to expropriate a servitude on G’s land in order to connect their township to a network of 4x4, bike and snowmobile
trails. G argues that the expropriation is illegal because it is not in the public interest (des fins publiques).
Issue: Is the expropriation legal?
Holding: No (in its current form) but yes in a reduced form.
Reasoning: The court’s sole responsibility is to assess the legality of the act, not its wisdom or desirability. The court notes that there
is no evidence of bad faith or illegality amounting to fraud. However, the servitude is not really in the public interest, since it benefits
only snowmobilists and business owners in SZ who will profit from increased tourism. Thus the servitude envisaged by SZ is illegal.
However the Code Municipal does allow the establishment of bike paths. Thus a different kind of servitude can be expropriated.
Ratio: Public interest must include a very broad range of the public not just a few groups.
4.3.2 Encroachments and Accession Reimbursement
i) Legislation and Code Articles
a953 The owner of property has a right to revendicate it against the possessor of the person detaining it without right, and may object
to any encroachment or to any use not authorized by law.
a977 Determination of land boundaries.
a992 Good faith encroachment = must buy land or pay compensation for loss of use of land. If the encroachment is “considerable,”
causes serious damage or is in bad faith, then the encroacher may be compelled to purchase the entire immovable he encroached on or
to demolish the encroachment. Either way, it’s encroached owner’s choice (not the encroacher).
a957 The owner of an immovable acquires by accession… works or plantations made on his immovable.
a958 Reimbursement for necessary expenditures.
a959 Reimbursement for useful disbursements.
a960 If useful disbursements were large relative to value of immovable, owner can force the possessor to acquire it.
a961 Reimbursement for amenities.
a962-964 Accession and bad faith reimbursement.
CCP Articles 787-794 [CB2.63]: Deals with demarcating the boundaries of properties.
ii) Jurisprudence
Grondin c. Cloutier (cited in FEM): Les impenses "doivent être incorporés à l'immeuble". Elles sont "nécessaires" lorsqu'elles ont
pour but d'assurer la conservation de l'immeuble et "utiles" lorsque "non nécessaires mais qu'elles donnent une plus value."
Demers c. Hatch et autres [1996] RRA [C1.177]
Facts: D=surveyor, H=stable-builder, C=notary, R=owner of land.
H wants to buy land from R to build a stable. He asks C to draw up a deed. C hires D to give a technical description of the land. D
finds that the land is not as large as originally thought; the price is reduced and H starts building his stable. D then says the land is
even smaller than the first estimate – too small for the stable. H is forced to buy neighbouring land for $25,000 to complete his stable.
H sues for damages and wins, D appeals.
Issue: Was D professionally negligent?
Holding: Yes. D and C are jointly negligent.
Reasoning: The notary’s job is to verify the deed in question, and in this case, the exact size of the land was an essential element of
the contract of sale. Thus C had an obligation to inform H of the true size of the land. D committed a professional fault by not
correctly surveying the land. Thus the two of them are jointly responsible for the damages.
Comment: Moyse said this case was included so we could see how important surveying was in DDB. I suspect the real reason has to
do with his childhood dream of being a surveyor. It has no real ratio. I included it in encroachments, but it could probably go
elsewhere too.
Themens c. Royer, [1937] Cour du banc du Roi [C2.59]
Facts: T constructed a building which encroached by a distance of six feet along the border between his land and the lot of R’s sister
(sister was committed to an insane asylum; R brings suit in her name). Total encroachment= 950 square feet. Nothing happens for 15
years. Then a tenant of T tells R that the building is encroaching on his land, so R hires an engineer who verifies this fact. T makes
repeated offers to buy either the land that he encroached on, or the whole lot from R, who refuses and demands demolition of the
encroachment. T argues good faith encroachment, acquiescence by R, and claims immunity under a.417-418 of the CCBC. Superior
Court rules that there is encroachment and orders demolition. R appeals.
Issue: (1) Does T’s good faith encroachment allow him to force R to sell the land on which he encroached? (2) Did R implicitly
consent to the encroachment?
Holding: (1) No (2) No.
Reasoning: Property rights are absolute, and no one can be compelled to sell their land to another except in the interest of public
utility. Thus T’s first argument must be rejected, since it fatally undermines R’s right to her property, even if the encroachment was in
good faith. a.417-418 do not apply to this case because the building is not an improvement on R’s land – it benefits only T. The good
faith requirement should be interpreted narrowly as applying to possession of an immovable with an unknown defect as to its title. T’s
second argument must fail because R became aware of the encroachment only 14 years after it happened, thus there can hardly be 15
years of tacit acceptance if the encroachment was unknown to him.
Ratio: A property rights are absolute, and in the case of encroachment, even in good faith, the encroacher has a duty to completely
restore the owner’s property rights.
Comment: This was an extreme case, but since it was followed in the jurisprudence, CCQ articles overriding it were introduced.
Fiducie Enfants-Marier c. 2955-9754 Québec Inc. [2001] Chambre Civil [WebCT]
Facts: FEM sold a house to pay taxes. This house was acquired by 2955-9754, which held it for a year and paid money in taxes and
repairs (total value $16,500). FEM is exercising its right to reclaim ownership of the house under the Loi sur les cités et villes. FEM
initiated an action en passation de titre. 2955 challenges their exercise of this right on procedural grounds and, in the event that the
house is given to FEM, wants compensation for its expenditures.
Issue: (1) Can FEM purchase the house under the Loi sur les cités et villes? (2) Does 2955 have a right to be reimbursed for its
expenditures on the house?
Holding: (1) Yes (2) Yes.
Reasoning: The demand was made within the confines of the law. After examining doctrine on this issue, the judge concludes that
most of the expenditures on the house were either necessary maintenance or repairs that FEM would have made anyways. The taxes
are also a “necessary” expenditure.
Ratio: “i) Les impenses nécessaires sont des dépenses engagées pour réaliser des travaux d'immobilisation de nature permanente
(constructions, ouvrages ou plantations) ou des réparations qui sont indispensables à la conservation ou à l'amélioration de l'immeuble.
ii) Les impenses utiles sont des dépenses de même nature qui, sans être indispensables, sont avantageuses pour la conservation ou
l'amélioration de l'immeuble et lui donnent une plus-value.
iii) Les impenses d'agrément sont des dépenses engagées pour le plaisir du possesseur mais qui ne donnent pas de plus value à
l'immeuble.”
Inkel c. Lambert [2004] JCS [WebCT]
Facts: A survey reveals that I’s land is 4 acres smaller than she believed and that the pinetrees she had planted there are actually on
L’s plot of land. I claims the cost of the trees ($52,000) under a957-958 or $30,000 in unjust enrichment.
Issue: (1) Is I entitled to compensation under a957-958? (2) Under unjust enrichment?
Holding: (1) Yes (2) No.
Reasoning: (1) The pine trees belong to L by accession. Thus to apply a957 we ask a) was I possessor by good faith and b) were the
pinetrees necessary, useful or for amenities? Good faith: Inkel’s title was vague and verification at the registry would not have
clarified her rights. L’s deed was more precise, but not deposited until long after the trees were planted. Conclusion: good faith.
Character of expenditure: Clearly useful, since they increase the value of the good. Neither necessary nor for amenities. Thus I gets
compensation. (2) Unjust Enrichment only applies in the absence of all other remedy. a957-958 apply, hence no claim exists.
4.3.3 Abus de Droit and Neighbourhood Disturbances
i) Code Articles and Legislation
a6 Toute personne est tenue d'exercer ses droits civils selon les exigences de la bonne foi.
a7 Aucun droit ne peut être exercé en vue de nuire à autrui ou d'une manière excessive et déraisonnable, allant ainsi à l'encontre des
exigences de la bonne foi.
a976 Les voisins doivent accepter les inconvénients normaux du voisinage qui n'excèdent pas les limites de la tolérance qu'ils se
doivent, suivant la nature ou la situation de leurs fonds, ou suivant les usages locaux.
a1457 Toute personne a le devoir de respecter les règles de conduite qui, suivant les circonstances, les usages ou la loi, s'imposent à
elle, de manière à ne pas causer de préjudice à autrui. Elle est … responsable du préjudice qu'elle cause par cette faute à autrui et
tenue de réparer ce préjudice… Elle est aussi tenue, en certains cas, de réparer le préjudice causé à autrui par le … fait des biens
qu'elle a sous sa garde.
Commentaires de Ministre [C2.40]:
Article 6: This article was inspired by article 1134 of the Code Napoléon, which creates a generalized obligation of good faith in
exercising one’s civil rights. “Il precise que l’exercise des droits civil a lieu suivant les exigences de la bonne foi plutôt que de bonne
foi; cette règle est à la fois moins exigeante et plus facile d’appliquer.” [emphasis added – essentially, this says that you have to act as
if you’re in good faith, but the state won’t actually force you to be in good faith - Mike]
Article 7: This article consecrates the theory of the abuse of rights which is recognized by both doctrine and jurisprudence in Québec.
The abuse of rights can occur in two ways: intentional exercise of rights to harm others, or unreasonable/excessive exercise of rights,
even if the goal is not necessarily malicious. Abuse of rights should be separated from the norms of civil liability “Car l’abus n’est ni
une simple erreur ni une negligence.”
Article 976: This article creates an obligation of tolerance between neighbours, and implicitly provides penalties for going beyond
what is reasonably tolerable. It codifies doctrine and jurisprudence on nuisance via abuse of property rights.
ii) Doctrine
Pothier [quoted in Léo Pilon c. St-Janvier Golf and Country Club]: “Le voisinage oblige les voisins à user chacun de son héritage
de manière qu’il ne nuise pas à son voisin… Cette règle doit s’entendre en ce sens que, quelque liberté que chacun ait de faire ce que
bon lui semble sur son héritage, il n’y peut rien faire d’où il puisse parvenir quelque chose sur l’héritage voisin, qui lui soit nuisible.”
Carbonnier [slide]: “Les droits réels sont souvent pénétrés de rapports personnels : de l’exercice anormal du droit de propriété naît
une obligation personnelle de réparer le dommage causé aux voisins.”
A classic civilian dispute on this topic occurred between Ripert (more conservative/individualist - abuse of rights is a contradiction
and cannot exist) and Josserand (more radical/ communitarian - abuse of rights can and should exist).
iii) Jurisprudence
Neighbourhood Disturbances
Drysdale v. Douglas, 1896 26 SCR [WebCT]
Facts: Drysdale built a stable in a residential neighbourhood. Douglas subsequently purchased two houses near the stable. Despite the
stable being equipped with the best equipment to reduce noise and stench, Douglas’ houses suffered from extremely unpleasant
smells. This reduced Douglas’ quality of life and made it difficult for him to rent out the other house. Douglas was awarded $400 in
current damages and $4000 in future damages.
Issue: (1) Do the odours constitute a nuisance? (2) Do Drysdale’s precautionary measures excuse him of civil liability?
Holding: (1) Yes (2) No.
Reasoning: Majority (Tashereau): It is a point of fact that the odours seriously harmed the defendant. Likewise, it is a point of fact
that they exceeded the normal and inseparable annoyances of neighbourhood living. At this point the conclusion becomes obvious in
light of doctrine and jurisprudence: “Il a bien droit d’avoir un écurie sur son terrain, mais il n’a pas le droit d’en répandre les odeurs
dans les salons… de l’intimé ou d’en vicier l’air… de manière à l’incommoder gravement” without paying damages in compensation.
Strong (Concurring): Adds that English authorities recognize the importance of neighbourhood conditions/zoning when they assess
whether the use of property is reasonable. “The cause of action, if any, lies in the excess of the damage beyond what is considered
reasonable after taking in to account the circumstances of the time and place… and the relation of the adjoining properties to each
other.”
Gwynne (Dissenting): The appellant took all measures to prevent damage to his neighbours from the stable, thus if he is convicted of
nuisance it becomes de facto illegal to build a stable anywhere in Montreal. The appeal should be allowed.
Ratio: Injury exceeding what is normal and acceptable in neighbourly relations gives rise to civil liability, even if all reasonable
precautions are taken.
Comment: Notice that no mention is made of any CCQ articles!
Katz v. Reitz, 1973 CA [WebCT]
Facts: K started building a store next to R’s property. K hired several contractors (including Québec Foundations) to do the work. The
excavation of K’s building’s foundations began to undermine R’s home, which partially collapsed. R sues K and the contractors for
damages.
Judicial History: R settled with one contractor out of court. The Superior Court judge found that Québec Foundations committed a
fault in the process of excavation, and was responsible for the damage to R. He also found that the work undertaken by QF was
dangerous and thus created absolute liability by K for any harm caused to others. Hence K, Centretown (a corporation founded by K
that hired some of the contractors) and QF were condemned jointly and solidarily to pay all damages. QF accepted liability, but K
appeals.
Issue: (1) Was K responsible for the harm caused by his contractors? (2) If yes, on what basis?
Holding: (1) Yes (2) A form of no-fault liability.
Reasoning: It was clear that the excavation work could cause damage to R, so QF was at fault for not taking measures to prevent this.
Since K was not an architect, he could not personally determine whether QF was taking reasonable steps to prevent damage to R, thus
there was no fault in his supervision of QF. The construction work by QF cannot be qualified as so dangerous that it creates an
absolute duty on the party who causes it to be carried out. Thus the trial judge’s basis for liability must be rejected.
However, the judges use a wide interpretation of a406 of the CCBC to impose a no-fault obligation on K not to injure R: “Reitz
had the same rights [to enjoy his property absolutely and without interference] and… [the rights] of Katz… ceased where those of
Reitz began.” [my translation - Mike]
Ratio: (1) “L’exercice de droit de propriété, si absolu soit-il, comporte l’obligation de ne pas nuire à son voisin et de l’indemniser des
dommages que l’exercice de ce droit peut lui causer. Cette obligation existe, même en l’absence de faute, et résulte alors du droit du
voisin à l’intégrité de son bien et à la réparation du préjudice qu’il a subit.” [emphasis added]; (2) Continues jurisprudence on nofault liability for neighbourhood disturbances in Québec.
Comment: Article 406 of the CCBC reads “Ownership is the right of enjoying and of disposing of things in the most absolute manner,
provided that no use be made of them which is prohibited by law or by regulation.”
Léo Pilon c. St-Janvier Golf & Country Club, 1975 CS [C2.57]
Facts: P owns a farm adjacent to the SJGCC. Golf balls are occasionally hit on to his land and “[il] semble avoir pris un malin plaisir
à poursuivre en justice les défendeurs” over the course of the previous decade. Since 1963, P has not lived on his farm, nor worked
there as a farmer.
Issue: Do the golfballs constitute an interference with P’s property rights?
Holding: No.
Reasoning: Since P no longer works on his farm and, crucially, is absent during the golfing season, the damage which he claims is
imaginary. His subjective outrage is not sufficient to prove legal damages, nor to force the club to build a net along the border of their
properties. The judge qualifies his legal attacks on SJGCC as an abuse of rights.
Ratio: “Si le propriétaire possède le droit de jouir et de disposer de sa chose de la manière la plus absolue, ce droit est subordonné à la
reciprocité à l’égard de ses voisins, mais sans abus de part et d’autre.”
Lessard c. Bernard, 1996 RDI [C2.41]
Facts: B built a wood-burning heating system on his property. It produced immense amounts of smoke, despite his best efforts to
control this by building a higher chimney and despite the fact that it conformed to the legal technical standards. This smoke was so
dense that L’s family could not use their lawn, including a swimming pool, and had to keep their windows closed at all times. Even so,
the odour of the fumes seeped in to the house.
Issue: Does B’s heating system constitute an intolerable neighbourhood annoyance under 976?
Holding: Yes. Injunction imposed to prevent B from using the system and $5,000 in damages award to each of L’s family.
Reasoning: There is no need to consider fault, since 976 depends on the abnormal and excessive character of damages, rather than
how or why they came about. The smoke deprived L of the ability to enjoy their property in a clearly excessive manner. Thus 976
applies. Thus L has the right to an injunction and damages.
Ratio: (1) “Le droit de jouir de sa propriété s’arrête où celui du voisin commence.” (2) Again, 976 is a no-fault regime.
Gourdeau c. Letellier de St-Just, 2002 RJQ [C2.44]
Facts: In 1923, the ancestor of L built a one-family home on his land. In 1940, the ancestor of G built a 3-story apartment building
with balconies overlooking the property of L’s ancestor. In 1941, L’s ancestor builds a wall along the border of the properties that is as
high as the apartment building in order to protect his privacy. This wall was attached to G’s building for support with G’s agreement.
G now wants to demolish the walls.
Issue: (1) Did the wall constitute an intolerable annoyance under a976? (2) If yes, were G’s rights to invoke 976 prescribed by the 50
year gap between the wall’s construction and his request to demolish it?
Holding: (1) Yes (2) No.
Reasoning: Majority: Doctrinal writings on neighbourhood disturbances in Québec recognize three kinds of “nuisance”: A)
Intentional injury (exercice malveillant) of another via property rights; B) negligent or excessive use of property rights (exercise
maladroit ou anormal); C) “antisocial” exercise of rights, in which rights are exercised reasonably, but still lead to damage. Legally,
these three groups reduce to the question of fault vs. no-fault liability. Arguments for both sides are presented, but the judge decides in
favour of no-fault liability on the basis of a976’s location in the code, the Commentaires du Ministre, and Katz v Reitz.
Having established that a976 is a no-fault regime, the judge next asks if the wall constitutes an abnormal and intolerable
annoyance. It does since it completely blocks the balconies’ views, as well as air and light, and prevents maintenance work on the
building. The wall cannot be seen as a reasonable response to privacy concerns due to their height. Thus G has a right to demolish it.
His rights to do so are not prescribed, since by analogy to the creation of servitudes, tolerance alone does not constitute
prescription. Furthermore the théorie de dommage continu [para.53] suggests that prescription cannot run against the kind of damage
represented by the walls. At the same time, the long delay means that G has lost the right to force L to pay for the demolition. He can
demolish the wall but must bear all costs.
Dissent: L’s wall cannot be an abuse of rights, since if a 3-story apartment building was built on L’s property, G’s balconies would be
also be shaded and hard to repair, but there would be no question of invoking a976. So it is not fair to qualify the wall as an abuse of
rights. “Ce qui peut plus, peut moins.”
Ratio: (1) Further confirmation that 976 is a no fault regime. (2) Gives rules for prescription of rights under a976.
Ciment St-Laurent c. Barette, SCR 2008 [WebCT]
Facts: CSL opened a cement plant that annoyed nearby residents due to emission of dust, odour and noise. B brought a class action
against CSL for the inconveniences suffered from the operation of the plant.
Judicial History: Trial judge found no fault on the part of CSL, but stated that 976 created a no-fault nuisance regime and found CSL
liable on that ground. The Court of Appeal ruled that 976 gives rise to real rights, rather than personal ones and found CSL liable
under 1457 (CA was also inconsistent about the role of fault).
Issue: Is CSL liable for the nuisances suffered by B and C (and the rest of the class action group) and on what grounds?
Holding: CSL liable under article 976’s no-fault regime.
Reasoning: The Court first explains the application of fault-based (a1457) regime to troubles de voisinage, then rejects the propter
rem (real right) interpretation of a976 used by the Court of Appeals, then lays out its interpretation of a976 as a no-fault, personal
obligation.
a1457 imposes an obligation to act reasonably and within any legislative norms that apply to one’s immovable property. This
obligation imposes a duty of means and applies only if a fault is committed by one party. Although a1457 can apply to troubles de
voisinage, CSL did not commit any fault, and thus cannot be liable under a fault-based regime.
On the CA’s propter rem theory, the Court notes that 976 is activated by the inconvenience suffered by the victim. Hence it is
designed to protect people, not property, so it would be ridiculous to say that the right attaches to the immovable (real right) rather
than its occupant (personal right). The CA’s theory also raises a practical problem – if a976 gives real rights, this would prevent
recourse by tenants and occupiers. It would also make class action lawsuits virtually impossible. Finally, the CA’s theory was never
discussed by the minister or the CCQ’s drafting commission.
a976 is held to be a no-fault regime, based on its location in Book 4 (separate from fault-based civil liability), the Minister’s
comments that it was inspired by jurisprudence and the strange way in which it is written. Thus judicial notice must be given only to
results, rather than conduct – the only question of interest is whether the victim’s annoyances exceed what is reasonable given the
circumstances. In this case CSL is clearly causing abnormal inconveniences to its neighbours. Hence it is liable under a976.
Finally, the Court notes that the law establishing CSL was not precise enough to grant immunity to civil liability, that CSL
cannot claim prescription and that the term “neighbour” should be broadly defined. They also confirm the trial judge’s methods of
calculating damages.
Ratio: Two liability regimes exist in Québec to regulate les troubles de voisinage: one is the droit commun of fault-based liability,
either abuse of rights (a7) or violating norms of conduct (a1457+statutes on property use); the other is a no-fault regime enshrined in
a976. a976 is activated by the victim’s abnormal annoyance, even in the absence of fault and in spite of the nuisance-causing party’s
best efforts to prevent injury.
Comment: The first paragraph of the judgement is beautiful… one of the writing team (LeBel-Deschamps) is a poet.
Abuse of Rights
See also Amexco, Léo Pilon for abuse of procedural rights.
Houle v. Canadian National Bank, 1990 3 SCR [WebCT]
Facts: Hervé Houle Ltd. was a company with a line of credit from CNB that could be recalled at any time. H’s shareholders planned
to sell their shares to third party. When H applied for a larger line of credit, CNB performed an audit and as a result decided to recall
the loan even though there was no danger of bankruptcy. It was aware that the sale negotiations were proceeding. The time span from
first notification to liquidation of assets was three hours. The shareholders of H were placed in a weak negotiating position and
obtained a price far less than the previously estimated value of shares.
Issue: (1) Did CNB abuse its contractual rights towards H? (2) Can the abuse of contractual rights give recourse to third parties (the
shareholders) by “lifting the corporate veil”? (3) Is there an extra-contractual recourse available to H?
Holding: (1) Yes (2) No (3) Yes.
Reasoning: The banks recall of the loan was an abuse of contractual rights, given the unreasonably short time limit imposed on H and
the bank’s knowledge of the impending sale of the company. However, it cannot give recourse to the shareholders since any
contractual remedy applies only to H, since the shareholders did not sign the loan contract and there is no reason to lift the corporate
veil. H do have an extra-contractual remedy. Fault exists because there is a general duty not to prejudice a sale that a person knows to
be imminent. The bank had no justification for acting so quickly and thus breached this duty. The prejudice was clearly the loss in
value of the shares. Causality is simple, since liquidation of H’s assets to pay its debts will obviously lower the value of the shares.
Thus the bank is liable to the shareholders under 1053.
Ratio: (1) Abuse of contractual rights is not an extra-contractual liability and it applies only to the parties who signed the contract; (2)
There is a extracontractual duty not to prejudice imminent sales.
4.3.4 Right of Passage
a997 Conditions to claim a servitude (your property has no access or only difficult access from a public roadway). If your neighbours
refuse to grant you one, they can be forced to do so.// “Where an owner claims his right under this article, he pays compensation
proportionate to any damage he might cause.”
a998 Must claim right of way from the property with the most natural access to your property.
a999-1001 rules for servitudes created according to a997.
a1177+ General rules for servitudes
Audet c. Roberge, 2006 QCCS [WebCT]
Facts: A asks for the annulations of a servitude on his property allowing R to access R’s home via a path along the north side of A’s
property. This servitude included a path 10 feet wide, but extended a total of 30 feet in to A’s property. R began expanding and
reinforcing the path to a distance of 15 feet in order to allow construction equipment to enter his property. A claims that the servitude
was a personal right which was extinguished after the house was sold to him, and that in any case, since R never left the path, the
scope of the servitude should be reduced to 10 feet, preventing R from expanding the path. R claims that the servitude is a real right
and opposes the reduction in the size of the servitude, claiming he should benefit from a scope of 15-20 feet.
Issue: (1) Was the servitude a real or personal right? (2) What is the reasonable width of the servitude?
Holding: (1) Real (2) 15 feet.
Reasoning: Even if the contract relating to the servitude is not clearly written from a judicial standpoint, by giving words their usual
and ordinary meaning, it is clear that the servitude was intended to be a real right. R’s expansion of the path to 15 feet gives him a
right to a servitude of that width, but no wider. Thus the scope is reduced to 15 feet.
Amexco c. Racine, 2006 QCCS [WebCT]
Facts: A sues R for recognition of a servitude on R’s lot. This servitude was created in 1937 by the act of sale that created the lot A
now owns, which does not have direct access to a public highway. A complicated series of real estate transactions occurred between
1937 and 1999 which would extinguish any personal rights. The border between the two lots was covered in trees and previous owners
of A’s lot had not used their servitude on R’s land, preferring to access public highways by other routes.
Issue: (1) Does A have a servitude on R’s land? (2) If no, does A’s lawsuit constitute an abuse of legal process, allowing R to claim
“frais extrajudiciares” as damages?
Holding: (1) No (2) No.
Reasoning: (1) The wording of the contract of sale which created the servitude suggests that it was a real right. However, the holders
of that right did not use it after 1959, thus it was extinguished by extinctive prescription in 1989. Thus it could not be transferred to A.
Thus A has no right of servitude on R’s land. (2) Given the complexity of the case (the judge had to make a flow chart!) it can hardly
be qualified as an abusive or frivolous lawsuit. Thus there is no reason to award additional damages to R.
Ratio: (1) Proving abuse of legal process requires demonstrating either: filing of lawsuits over clearly non-existent rights or
unnecessary filing of motions and procedures, or the invocation of multiple judicial remedies (pleading in different courts and
tribunals simultaneously) with intent to impose costs on the defendant.
Comment: “In the common-law provinces, courts often award solicitor-client costs. However, in Québec, solicitor-client costs,
referred to as extrajudicial fees, are rarely awarded. In fact, Québec Courts generally award [only] judicial fees to the successful party.
These judicial fees are limited to certain costs and legal fees that are fixed by the Tariff of judicial fees of advocates and do not cover
all the legal fees incurred by a party. Extrajudicial fees, however, consist of the actual fees of a party's attorney.” (copy-pasted from
Gowlings’ website) Basically in Québec there are fixed procedural fees for going to court, filing motions, etc., that the losing party
pays for both parties. The cost of lawyers’ fees are borne by each party, irrespective of who wins, except if one party is deemed to
have abused the legal process.
CHAPTER 5: THE ACQUSITION OF PROPERTY
Section 5.1 Introduction
a916 “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.”
Succession and contract are largely beyond the scope of this course, and also less exciting from a DDB perspective, so this chapter
concentrates on possession/occupation, accession and prescription. Contract and succession apply to both real and personal rights.
Accession applies only to ownership, prescription/occupation apply to all real rights (including ownership). Extinctive prescription
can apply to personal rights.
Section 5.2: Possession/Detention/Occupation
Possession and the related concepts of Detention and Occupation are concerned with factual situations, rather than legal rights. Hence
the title of Chapter IV of Book IV of the Code “Certain de facto relationships concerning property.”
5.2.1 Occupation
Occupation is like possession: physical control exercised over an object with intent to become property-holder. Unlike possession,
there is no previous owner – the thing belonged to no one (wild animals, res derelictae).
a914 “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.”
a935 “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.”
a936 Immovables without owners belong to the state (So they can’t be occupied).
a939 Lost/forgotten movables are prescribed, not occupied.
Tremblay c. Boivin, 1960 CS 235[C2.90]
Facts: T shot and killed a moose on land owned by B. B arrived and claimed the moose carcass on two grounds: firstly because it was
killed on his territory, and secondly since he claimed to have inflicted a mortal wound on it earlier, so T’s shots did not really kill the
animal. Ballistics evidence indicated that the moose had been shot by B a mile and a half away from the site at which T killed it.
Issue: Who does the moose belong to?
Holding: Tremblay.
Reasoning: All wild animals are “biens sans maître” that can be claimed via occupation. The land on which they happens to be found
is irrelevant, since ownership of the land does not grant ownership of the animals on the land. “… le gibier, tant qu’il est en liberté,
n’est pas la propriété de personne.” Thus B’s claim on the basis of territoriality must fail. Wild animals are occupied by the first
person to exercise clear physical control over them. In this case it was T, because even if B shot the moose first, the wound was clearly
not fatal, since the moose walked for a mile and a half before being killed by T. T was also the first party to exercise physical control
over the carcass, since he and his friends were busy butchering the moose when B found them. Thus T is the owner of the moose
carcass by occupation.
Ratio: Occupation concerns the factual issue of physical control over the bien/chose; other factors are not important.
Comment: The discussion of damages is not only hilarious, but also very legally complex.
5.2.2 Detention
Detention means physical control over an object without intention of possessing it (corpus but not animus). It can include acts like
conservation/maintenance and enjoyment of the good, but there must be no intent to own it. Ex: Holding a friend’s cat while they’re
on vacation, keeping goods pledged as securities against a loan, test driving a car, etc.
Private Law Dictionary and Bilingual Lexicon: Biens: Rem. 1° La maîtrise effective de la chose peut, afin qu’il y ait détention, se
manifester par différents types d’actes matériels, tels des actes de préhension physique, de conservation, de transformation, ou encore
des actes de jouissance (par ex., percevoir des loyers). 2° On soulève la notion de détention lorsqu’il s’agit de déterminer si une
situation de fait peut ou non être qualifiée de possession… 4° En l’absence de volonté par le détenteur de se comporter comme le
titulaire du droit réel portant sur la chose, on qualifie la détention de détention précaire ou de simple détention. 5° La théorie portant
sur la détention a surtout été élaborée en regard des choses corporelles, meubles ou immeubles. Toutefois, il convient de noter que,
dans le Code civil du Québec, l’énoncé du droit relatif à la possession fait largement référence à l’objet de celle-ci comme un bien
plutôt qu’une chose.
a923 If you acknowledge the existence of a “domaine supérieure,” such as in a rental contract, you renounce your right to possession
and have only detention.
a941 detention of found objects.
a1592 detention of objects held in guarantee of debts.
a2913 “Detention does not serve as the basis for prescription, even if it extends beyond the term agreed upon.”
5.2.3 Possession
i) Introduction
a921 “Possession is the exercise in fact, by a person… 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.” [this presumption is obviously rebuttable! – Mike]
Whereas property is a legal right, possession is a matter of fact. Over time, possession is transformed in to ownership via prescription
(see below). Moyse: “On donne préséance à la réalité.” Possession can apply to incorporeal goods, in which case it is dealt with under
the heading of quasi-possession.
Possession has two elements: corpus (physical control of object) and animus (intention to become property holder). This intention is
presumed under law (a921). There is also the presence of a previous owner, although this may not be known to the possessor. Corpus
can be exercised by intermediaries, such as when a tenant occupies an apartment for a landlord (a923).
ii) Fundamentals of Possession
To have legal effects, possession must be (a922):
Peaceful: Non-violent transfer of physical control, and no theft. (see also a927)
Continuous: No interruption of either animus or corpus. (see also a926)
Public: Can’t hide good away, since this contradicts animus.
Unequivocal: There must be only one person exercising possession. (see also a925)
However, possession is presumed to be perfect under a928.
Interversion of title (a923) means that someone who was detaining property has decided that he intends to possess it. He is attempting
to transform his animus in to that of a possessor. a2914 explains how titles are inverted.
Essays on the Civil Codes (Landy and Caparros): “Where possession is precarious, however, it may be cured only by interversion of
title, which supposes a firm, public and proven intention of a person to henceforth act as an owner.”
iii) Miscellaneous Codal Articles
a924 “Merely facultative acts [I have no idea what “facultative” means here] or acts of sufferance do not found possession.”
a928 “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.”
a929 After 1 year, a possessor gains a right of action against anyone disturbing his possession.
a930 “Possession vests the possessor with the real right he is exercising if he complies with… prescription.”
a931-933 Possession and good/bad faith.
953 Owner of good can demand its return from the possessor.
Section 5.3: Prescription
Moyse: “Prescription c’est la métamorphose de fait en droit.” It includes both the extinction of rights or claims, and the acquisition of
rights and claims. Extinctive prescription typically applies to contractual and extracontractual obligations, while acquisitive
prescription typically applies to property. Prescription transforms possession in to ownership over time.
CCQ: Prescription can grant ownership and also dismemberments such as usufructs, but never servitudes (a1181).
a2875-2882 Basics of prescription.
a2889-2903 Interruptions.
a2904-2909 Suspension (pausing).
a2910+ Acquisitive prescription.
a2917-2920 Time periods for acquisitive prescription. 10 years for immovables, 3 years for movables held in good faith, 10 year
residual.
a2921-2933 Extinctive prescription. (10 years normally; 1 year for possession-related disputes about immovables; 3 years for
movable rights or personal rights unless they fall in to another category)
Code of Civil Procedure (a805-806) [C2.132]: Deals with procedure for prescribing immovables.
Section 5.4: Accession
a948 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.
a955-964 Immovable artificial accession.
a965-970 Immovable natural accession.
a971-975 Movable accession.
Le droit civil canadien (Mignault): “Le propriétaire d’une chose acquiert : […] Tous les produits qu’elle donne [et] Les choses qui,
étant unies accessoirement à la sienne, forment avec elle un seul et même tout : accessorium sequitur principale.”
Location Fortier Inc c. Pacheco [1997] AQ [C2.98]
Facts: LFI rented a pickup truck to P, who ceased payments. 2741-2824 Québec Inc had loaned P a platform, which he incorporated
in to the pickup truck at a cost of $3,500. LFI claims ownership of the platform by movable accession and claims removal of the
platform would irreparably damaged the truck (value $16,000). 2741-2824 claims that its platform (value $6,000-10,000) remains its
property and wants compensation.
Issue: What property rights apply to the truck and the platform?
Holding: LFI owns the truck and the platform by right of movable accession, however 2741-2824 has right to compensation for the
value of the platform ($6,000).
Reasoning: Removing the platform would render the pickup truck unsuitable for normal use, thus a971 applies. The value of the truck
being superior to that of the platform, ownership belongs to LFI. However, the complexity of the case calls for the application of a975,
which gives wide discretionary powers to judges. 2741-2824 should be compensated for the loss of its platform, since they rented it to
P in good faith and it serves as an improvement to the truck.
Ratio: Movable accession follows the regime of a971-975, but compensation must be given on the basis of equity.
Lacroix c. Her Majesty the Queen [1953] QB [C2.93]
Facts: L owned land near the Dorval airport, on which the government built a system of lights and underground cables to guide
incoming planes. L was compensated for the physical construction, but wants additional compensation, claiming that the expropriation
included a servitude on his property allowing plans to fly over it. L argues that the establishment of such a “flightway” constitutes a
violation of his right of ownership and full enjoyment of the property, since he owns everything above and below his land.
Issue: Does ownership over land extend to ownership of the airspace above the land by accession?
Holding: No.
Reasoning: a414 of the CCBC states that “the owner of the soil is also the owner of what is above and what is below”, a principle
going back to French customary law of the Middle Ages. This principle was created at a time where no one could foresee modern
technological developments, and modern doctrine/jurisprudence in other countries has tended to restrict it. In addition, air is res
communis and thus not susceptible to ownership by anyone, let alone accession or expropriation. Airspace occupied by a building is
part of a person’s property, but only by virtue of its physical incorporation in to an immovable.
Ratio: (1) Air and space are not susceptible to ownership and fall in to the category of res communis. (2) Ownership of air space over
land is limited to that which he can possess or occupy for the enjoyment of his land, such as the airspace occupied by erecting a
building.
CHAPTER 6: MODALITIES OF PROPERTY
1009 Ownership has two principal special modes, co-ownership and superficies.
1010 Definition of co-ownership. Definition of divided and undivided co-ownership.
Table by me, rather than copied from Dorian Needham for once!
Co-Ownership
Indivision
Divided Co-Ownership (Condos)
Other kinds of
Undivided Co-Ownership
Indivision*
*These are non-ownership rights like personal rights or dismemberments, so putting them under “co-ownership” is misleading!
Section 6.1: Undivided Co-Ownership and Indivision
Indivision is the regime regulating multiple rights holders who each have similar rights with respect to a single object. In many ways it
resembles the law of partnerships, although without the positive purpose. Indivision exists merely to regulate the mutual enjoyment of
property.
Brierly [slides]: “Civil law has consistently shown a distrust of indivision. It is viewed as leading to the wasting of assets, so held
because there is little incentive for the individual co-owners to incur expenses for their maintenance, let alone their improvement.
Initiatives taken by one co owner will often lead to disagreements and litigation with the others.”
A distinction must be made between indivision and undivided co-ownership. Indivision is the broader legal regime for multiple rightsholders without a partition of the shared object. So it applies to bank accounts, contractual obligations, usufructs, even intellectual
property. Undivided co-ownership is indivision as applied solely to ownership (typically in immovable property).
(quoted in Bandera) Québec Civil Law (Brierly and Macdonald) [C2.124]: Indivision is a larger concept that relates to any right or
title held jointly by several persons without a partition (either physical or otherwise) of the right/title/object of indivision.
6.1.1 Nature/Creation
i) Code Articles
1012 Created by contract, succession or judgement or by operation of the law.
1013 Partition of property (divided co-ownership or individual ownership) may be postponed in up to 30-year renewable periods.
1014 Publication required to be opposable.
1519 Obligations are divisible unless otherwise specified in the contract or if the nature of the object of the obligation prevents this.
ii) Doctrine
The Law of Real Property (Marler) [C2.107]: Defines indivision as “A thing belonging to several persons is stated to be in
indivision when the right of each of them is in the whole and each part of the thing, and not in a definite portion of the thing itself. The
right of each of the several persons is expressed as a fraction [of the thing]… It is the right of property which is divided between the
co-owners; the thing itself is undivided.
“L’indivision” (Cantin Cumyn) [C2.113]: Indivision can apply to any patrimonial right. Undivided co-ownership is merely one kind
of indivision. Use of the two terms as synonyms is incorrect. Indivision has approached the judicial regime for partnerships in many
ways, (management, duration, representation, etc.) but a fundamental difference between the two remains, which is the positive goal
of the partnership. Indivision has as its goal the joint enjoyment of property only. It is conceivable that large portions of the regime on
indivision can be avoided by contractual stipulation. Criticizes a1018 [118], a1125-27 [120]. “On peut douter que la réglementation
suffise alors à contrer la mauvaise volonté de l’indivisaire qui n’a plus personnellement intérêt à rester en indivision.”
iii) Jurisprudence
RCR de la STCUM c. Bandera, [1997] RJQ [C2.121]
Facts: S granted money to Trust General to invest in hypothecs. TG loaned $14 million to a company, of which $4 million were from
STCUM, the rest from TG. This loan was guaranteed by a $14 million hypothec. Trust General was bought out by Banque Nationale
du Canada, which then sold the $10 million portion of the loan to B for $4 million. S attempts to pre-empt the sale by claiming that the
hypothec was held in indivision, which would allow S to use a1022 to block the sale by paying $4 million.
Issue: (1) Can indivision apply to personal rights? (2) Is the loan held in indivision?
Holding: (1) Yes (2) No.
Reasoning: The loan from TG was a personal right, but the hypothec attached to it is an accessory real right. Thus under a904 S
exercises a real right. However, the loan itself can also be subject to indivision (although not undivided co-property) since the regime
on co-ownership is in fact broader than it first appears (see discussion at the start of this section). Thus it is possible for the loan itself
(rather than the hypothec) to be held in indivision. Applying these rules to the facts of the case, it is clear that the debt was divided,
rather than undivided. Debts can be held in indivision, but this must be stipulated, since the CCQ presumes that sums of money are
divisible.
Ratio: (1) Indivision and co-ownership are separate concepts; (2) The regime of indivision can apply to personal rights as well as real
ones.
6.1.2 Administration
i) Code Articles
Use of Indivision
1015 Shares are presumed equal (but obviously this is rebuttable!)//Each owner has exclusive rights over his own share. Can sell or
hypothecate it. Creditors can seize it.
1016 All co-owners can use property as long as they don’t affect the destination or the rights of the other owners.
1017 Accession. 1018 Fruits and revenues. 1019-1020 Costs.
Sale of Indivision
1020 Partition prior to the end of the indivision agreement can’t be set up against creditors.
1022-1024 An undivided co-owners can block acquisition of shares in the undivided property by third parties by buying them.
Administation
1025 Joint administration.
1026 Decisions are taken by majority of both owners (50%+ of the natural/moral persons who hold shares) and shares (that majority
of owners must own 50%+ of the shares)// Decisions to alienate or partition the property, or to charge it with a real right or change the
destination/make substantial alterations require unanimous approval.
End of Indivision
1030 Partition may be demanded at any time, unless postponed by agreement, or as a part of a will or due to legal judgements.
1031 Special exception for “mainly residential” buildings. Can terminate at any time with 75% of owners and 90% of shares.
1032 Court can postpone partition to avoid losses for two years.
1033-1034 Other owners can buy out one co-owner who objects to co-ownership.
1036 Indivision and loss of the property
1037 Indivision ends if the property is sold or partitioned.//In case of partition rules from Book 3: Succession apply.
ii) Jurisprudence
Harel c. 2760-1699 Québec inc., [2000] RJQ [C2.128]
Facts: H’s husband had debts to 2760-1699. As a result, his (undivided) part of the family home was seized and sold at auctions. H
had never published her address at the registry, so she did not learn of the sale until after it took place. She invokes 1022.
Issue: Can 1022 be invoked after the sale, or does 1023 prevent her from using 1022?
Holding: 1022 and 1023 are separate and distinct regimes for blocking the sale of shares in indivision. 1022 applies.
Reasoning: 1022 and 1023 are not mutually exclusive, and in fact they each target different factual situations. 1022 applies if the
person becomes aware of the sale after it takes effect, while 1023 applies before the sale is made. H does not fall under 1023, but 1022
applies to her case, since sale by law is still acquisition of the share via onerous title.
Ratio: 1022 and 1023 are complementary regimes.
Cadieux c. Caron, [2004] RJQ (CA) [C2.130]
Facts: Cm and Cw lived together but weren’t married. Cm bought the house they lived in. The deed was in both their names and there
was no indication as to their respective shares. They split up and Cm asks for title to the entire house.
Issue: (1) What share of the house is Cw entitled to?
Holding: Half.
Reasoning: The proof revealed that Cw took care of daily living expenses. Cw thus paid a significant amount of money towards their
common well-being. This balances out Cm’s payment for the house. Furthermore, the law presumes that undivided co-ownership is
held equally. Given the division of expenses and the fact that Cw’s name was listed on the title of the house, Cm must prove that equal
ownership was not intended and he failed to do this.
Allice c. Potashner, [1998] RJQ [C2.108]
Facts: A and P were co-owners of a house with 2 apartments. They agreed that each was responsible for the maintenance of their own
apartment and both paid for the common upkeep. P decided to move to Toronto; she offered to buy out A, or sell A her share of the
house so that she could get out of the co-ownership agreement. A refused to take either deal and so P rented her place out to 4 tenants
for a period of 10 years. There was a conflict between the tenants and A, so A seeks the eviction of the tenants, half of the rent paid
over the 10 year period, and compensation for the fulfillment of janitorial duties.
Issue: (1) Can P lease her share of the undivided co-property? (2) How will the undivided co-property be terminated?
Holding: (1) Yes (2) It will be sold and the profits divided. P does not owe A any of the rent.
Reasoning: Normally, one co-owner may not lease his or her share without unanimous consent. In this case, the parties had agreed in
writing that each owner would have control over their individual floors, in a semi-autonomous fashion. This is a sui generis situation
in that despite indivision, co-owners agreed to liberty in administration of their discrete parts. P does not have to share the rent.
Ratio: Derogations can be made from the regime of undivided co-ownership.
6.1.3 Forced Indivision (Permanent Co-Ownership)
The terms forced and permanent co-property are used to describe situations in which an immovable serves durably and essentially as
an accessory to two or more other immovables (this is similar to the fonds dominant-fonds servant relationship for real servitudes,
except here there are multiple fonds dominant and the fonds servant is the shared/accessory immovable). This can be a wall, a fence, a
courtyard, a well, irrigation works, etc. “Permanent” reflects the fact that such co-property is not subject to partition, since the interests
of all the owners are indivisible (see a1030 – durable purpose). “Forced” reflects the fact that such co-ownership may be involuntary
(your neighbour can build a wall in which you will have one-half property rights and half the cost). The CCQ deals with specific
solutions to factual scenarios, although Marler argues that this regime can apply very widely (below).
In the case of the well and irrigation examples, how can you distinguish between a servitude (right to use the immovable) and
permanent co-property (property right in the immovable itself)? This question is answered by reference to the titles of the property.
Remember that servitudes cannot be acquired by prescription, but ownership can. So if there is a factual situation which resembles
either a servitude or co-ownership, the legal question is resolved via title search.
i) Code Articles
1002-1008 Covers very specific stuff about walls, ditches, hedges and fences. No general provisions of any kind.
Note: These articles are not in the “Special modes of ownership” section – in fact they are in a section called “Special rules on the
ownership of immovables” which seems mostly concerned with property rights restrictions due to “les troubles de voisinage.” Which
somewhat undermines doctrinal arguments about their scope.
ii) Doctrine
The Law of Real Property (Marler) [C2.143]: When indivision is destined to last and a partition may not be demanded, the indivision
is forced. The cases of such indivision may be divided in to three groups: common walls/hedges/ditches; apartments owned by
different owners in the same building; immovables perpetually destined to serve two or more immovables, like irrigation works,
courtyards, wells, lanes and private roads. Expenses for such property is divided between the co-owners in proportion to their rights in
the common property. The owner may abandon his rights to the thing and thereby liberate himself from (propter rem) obligations as a
co-owner. Such property may not be partitioned, since the nature of the thing prevents this. Since the co-ownership arises from the
common property’s relationship to several immovables, only the owners of those immovables are a co-owner (so not their tenants,
etc). This right cannot be transferred to another immovable.
Le doit civil canadien (Mignault) [C2.143]: Mitoyenneté is a broad concept, even if the Code itself only speaks of walls and hedges.
It can be applied to any immovable whose destination is mityoenne.
iii) Jurisprudence
Meneghini c Zambito-Orazio, [1999] RDI (CA) [C2.136]
Facts: Two neighbours have a common wall which requires repairs. M renounced his right to wall. ZO had the wall repaired and sent
M half of the bill. M refused to pay. So ZO took the obvious and reasonable route, and had M’s goods seized in payment.
Issue: Does M’s renunciation absolve him of any debts related to the wall?
Holding: Yes.
Reasoning: M renounced his right to the wall before the repairs were made. Thus at the time they were undertaken, they were not
repairs to M’s property, so ZO do not have a claim on M’s goods.
Ratio: From the moment of renunciation of co-ownership, the former co-owner is no longer indebted for the common property.
Comment: Importantly, M denied that he owned the wall from the beginning. Only after a judgement stating that the wall was
common property did he attempt to abandon it. So he could be seen as having abandoned his property rights from the beginning.
Groleau c. Société Immobilière du Patrimoine Architectural de Montréal, [1999] RDI [C2.140]
Facts: Discussions on repairing a wall between the properties of the two parties started in 1990. Eventually the common wall between
G and SI’s property collapsed. G advised SI of the need to repair and asked to share the costs. SI refused, and published a notice of
abandon of its right in the wall (CCQ 1006). The city then required G to fix the wall, which they did. They are now making a claim
against SI, arguing that the right to renounce must be exercise in good faith
Issue: Does SI’s renunciation of the right of mitoyeneté absolve it of the costs of repairs?
Holding: No. But… SI is only told to pay 25% of the cost.
Reasoning: The need for repairs was acknowledged by both parties, and given the urgency in which G act, it was reasonable that he
acted without SI’s consent. It seems like the procedure for renunciation wasn’t followed, but I’m not sure.
Ratio: (1) Existing and urgent repairs to common property are paid for by the co-owners in proportion to their rights; (2) The right of
renunciation must be exercised in good faith.
Comment: This is a weird judgement. They really don’t have any reasoning to speak of. They list random factors that tend to show
that SI acted in bad faith, but they don’t have coherent answer as to why SI should pay.
Section 6.2: Divided Co-Ownership[ (Condos)
Consists of private parts of a building held by individual owners, plus common parts (exterior walls, roof, courtyard, shared facilities,
etc.). Applies only to immovables and is subject to many peculiar rules.
6.2.1 Nature/Creation
Establishment and Declaration
1038 Established via publication of declaration.
1039 Legal personality, Syndicate.
1041 By relative value. Relative value must be specified in the declaration (no presumption!)
1052 Declaration must include act constituting co-ownership, bylaws and description of fractions.
1053 Constituting act must specify destination of immovable as well as “exclusive” and common parts.
1056 No restrictions on co-owners unless justified by the destination, characteristics or location of the immovable.
1057 Bylaws apply to lessees if they are given a copy.
1058 No timeshares allowed unless specifically included as a possibility in the constituting act.
6.2.2 Administration
1042-1051 Explains common/private fractions, use thereof, etc.
1063 Co-owners have free disposal of private and common fractions as long as they observe bylaws and do not disturb others.
1096, 1097, 1098 Voting procedures for various kinds of decisions.
1096 Simple Administrative Decisions (majority of co-owners present at meeting. Only one specifying at meeting!)
1097 Purchases/sales by syndicate, work on common portions, creation or modification of shares in syndicate (50% of
owners with 75% of shares)
1098 Changing the destination of the immovable or adding time shares. (75% owners with 90% of all shares)
1101 Cannot derogate from voting procedure in CCQ
1108 Ending co-ownership 75% of owners representing 90% of votes.
Talbot c. Guay, [1992] RDI (CA) [C2.145]
Facts: T put an awning over his balcony, blocking G’s view of river. G got an injunction under the condo’s bylaws forcing T to
remove it. T claims this bylaw is unfair, since it is not related to the destination, characteristics or location of the immovable.
Issue: Is T’s awning an unjustified restriction of G’s co-property rights?
Holding: Yes
Reasoning: G’s view was not shared by the other co-property holders. Yet this is not a sufficient reason for T to interfere with G’s
rights. The restriction placed on T is minor in comparison to the harm he inflicts on G.
Ratio: (1) Unique advantages or benefits are protected by the divided co-property regime; (2) Disputes between co-owners will
involve a balancing of rights of enjoyment.
6.2.3 Destination of Co-Property
Wilson c Syndicat Le Champlain [C2.166]: “Nous sommes d’avis que… la destination de l’immeuble devrait être déterminé à partir
des éléments objectifs (situation, qualité des matériaux, distribution des appartements, confort, luxe), subjectifs (l’ensemble des
conditions en vue desquelles un copropriétaire a acheté sa fraction), et collectifs (la [manière dans laquelle] destination représente la
sauvegarde de l’intêret générale des copropriétaires), en tenant compte de l’ensemble des faits, incluant la déclaration de copropriété.”
(quoted in Wilson) Gagnon, La copropriété divise [C2.158]: “La destination de l’immeuble est sans doute l’une des notions les plus
importantes en matière de copropriété divise en ce qu’elle constitue la limite des droits individuels en même temps qu’elle assure
l’ultime protection…”
Wilson c. Syndicat Le Champlain, [1996] RJQ [C2.161]
Facts: W lives in LC. At their most recent meeting, a simple majority of the property owners at LC passed a resolution banning pets
from the building. Pets had been allowed in the building without problems for 13 years. W opposes the bylaw.
Issue: (1) Is the regulation justified by the destination of the immovable? (2) Which voting regime is required to ban pets here?
Holding: (1) No (2) a1098.
Reasoning: Justifies 3-factor test to determine destination. Finds that destination of the building is residential. Notes that the property
rights conferred by co-property are absolute, just like regular property rights, except to the extent that restrictions are justified by the
co-property regime. There are simply no clear reason to justify banning pets. The past 13 years were without incident. Thus keeping
pets is part of the residential nature of the building. Thus banning pets is not only unjustified by the destination of the building, it
effectively changes the destination!
Ratio: Creation of the Wilson test (see above).
Comment: Note that this is a very context-specific judgement! If pets were banned from the start, it would not be possible say that
keeping pets is part of the building’s destination. Equally, it seems like some kind of incident would justify banning pets.
Bergeron c Martin, [1997] RDI [C2.149]
Facts: M opened a daycare from her home in their condo. B bought an apartment in the condo few months later and was told there
would be only a few children present. In fact the daycare is noisy and disruptive from 7:45 am to 6:30 pm. M also built structures used
for the daycare in the common areas of the building, depriving B of their full use and enjoyment during the day.
Issue: Is M infringing on B’s rights under the divided co-property regime?
Holding: Yes.
Reasoning: Applies Wilson test to determine destination of building. (1) Objective factors like the location of the building, its
structural design, suggest that it is purely residential. (2) Subjectively, B bought the property in order to enjoy tranquility and was told
there would only be a few children present. (3) The declaration of co-property specifies that all apartments must be inhabited
“bourgeoisement” and cannot be used for any commerce of any kind. Occupants are required to avoid disturbing the tranquillity of the
apartment. Thus M’s business is an infringement on the destination of the building.
Ratio: (1) Destination should be determined via objective, subjective and collective factors (2) None of these factors alone is
determinative (3) The destination as set out in declaration of coproperty is not determinative either.
Kilzi c Syndicate 10400 L’Acadie, [2001] RJQ (CA) [C2.154]
Facts: K bought several units in the condo and rented them out over various time periods at a profit. The syndicate got together and
passed a number of bylaws severely restricting K’s ability to rent out units. K challenges the validity of these bylaws.
Issue: (1) Do the bylaws change the destination of the immovable? (2) If yes, were the bylaws passed with the appropriate majority?
Holding: (1) Most of the bylaws are invalid. Those restricting short-term leasing are valid (2) Yes.
Reasoning: The important role of the concept of “destination” suggests that a wide and multifactorial test must be used to identify it.
By applying the test to 10400 Boulevard L’Acadie, we see that its destination is as a residential building. There is nothing inherent in
a residential purpose that would prevent K from renting units over long time horizons or from owning more than three units. Hence
those bylaws are invalid. Short term leasing suggests not residential, but rather commercial, purposes. Thus it is lawful for the
syndicate to restrict short-term leasing of units. The Courts is not well-placed to determine what constitutes “short term” leasing. Thus
the judgement of the majority of coproperty holders stands (12 months).
Ratio: (1) Confirmation of Wilson categories of analysis at the Appeals Court level (2) The declaration of coproperty is not the
definitive source of a condo’s destination.
Syndicat Northcrest v. Amselem [WebCT]: From a DDB standpoint, this case is pretty boring, since the Supreme Court is concerned
only with the constitutional aspects of the case. The trial and appeal judges (but not the SCC) use CCQ a1039 (and find that the
restriction on succahs had a rational link to the syndicate’s objective), a1056 (and find that the restrictions were applied uniformly and
in good faith to preserve the destination of the immovable) and a1063 (this one is used to justify the harsh restrictions on aesthetics,
since it is argued that condo-owners were buying not just property but a "lifestyle" and this necessitated conformance to the bylaws).
Trial Judge: "The legislature has restated the classic triptych of the right of ownership: the right to use, enjoy and dispose of
property freely (art. 947 C.C.Q.)."
Binnie (SCC, dissenting): Il existe selon moi une énorme différence entre le fait d’utiliser la liberté de religion comme un
bouclier contre les atteintes portées par l’État…et le fait de l’utiliser comme une épée contre des cocontractants dans un
immeuble privé. Il appartenait aux appelants et non aux autres copropriétaires de déterminer, avant d’acheter leur
appartement, quelles exigences étaient liées à leurs croyances religieuses. Il y avait plusieurs immeubles où ils pouvaient
acheter. Ils se sont engagés par contrat envers les propriétaires de cet immeuble à respecter les règles de cet immeuble, même
si (comme c’est apparemment le cas) ils ont accepté les règles sans les avoir lues. Ils ont ensuite rejeté la mesure
d’accommodement proposée par les copropriétaires, en l’occurrence l’utilisation d’une souccah commune dans les jardins de
l’immeuble, parce que cette proposition ne satisfaisait pas entièrement leurs opinions religieuses,
6.2.4 Multiproperty/Time-Sharing
a1058 Ban on time shares unless expressly approved in co-ownership creation document
a1098 Authorizing timeshares is as hard as changing the destination of the building
Disposition Transitoires a56 deals with application of a1058 to pre-existing time shares
Not formally dealt with or regulated, but the possibility is recognized. Dealt with purely under the framework of divided coownership. So it’s not clear what happens if a group buys a single house and they want to share full use of the house (undivided coownership?).
Cantin-Cumyn’s article “De l’usufruit, de l’usage et de l’habitation” at C.231 also discusses time shares.
Section 8.3: Superficie
i) Code Articles
1110 Superficies formed by transfer or renunciation of the right of accession.
1111 Failing agreement as to a superficie, the subsoil is charged with servitudes necessary for the exercise of the superficiary right.
1113 Duration can be perpetual or fixed.
1114 Termination by: confusion (same owner of superificie and subsoil), fulfilment of a resolutive condition, expiry of term.
1115 Loss of structure and termination.
1116-1118 At termination, subsoil owner acquires ownership by accession by paying the value of the works. Exception if worth of
works/plantations is equal or greater value than subsoil.
Technically, superficies are limited to buildings, plants, crops and nothing else. But one can conceive of multiple superficies stacked
on top of each other – the owner of a piece of land could grant one superficie to build a building on top of the soil, while granting
another superficie to allow a company to tunnel under the soil, while retaining rights to the soil for himself. This creates three layers of
superficies!
ii) Doctrine
The Law of Real Property (Marler) [C2.170]: Definition “the right of superficies is a right of ownership in the buildings, trees or
plants, on the surface of an immovable of which the soil belongs to another.” This right is a derogation from CCLC 414 and largely a
judicial creation. Note that the owner of the soil retains full property rights, which he may exercise as long as he does not interfere
with the superficiary. The same applies to the superficiary.
iii) Jurisprudence
Explicit/By Agreement
Must be published to be opposable (Morin being an exception!)
Morin c. Grégoire, [1967] McGill L. J. 103 [C2.171]
Facts: M allowed G, his brother-in-law, to build a house on his land. Later their relationship soured and M demands transfer of title of
the house by accession. G claims he has a right to the house due to prescription, or at least compensation for his efforts.
Issue: Who owns property over the house?
Holding: G.
Reasoning: There is a difference between tolerance and permission. Tolerance cannot found prescription. But this was a deliberate
granting of permission. Furthermore this permission was contained in a verbal contract that granted G a superficiary right that was
either perpetual or lasted at least as long as the buildings themselves stand.
Ratio: (1) Renouncing the right of accession to create a superficiary is permissible (2) Superficiary rights can be of perpetual duration.
Comment: There’s a technical issue since transfers of immovable rights, even as gifts, must be registered to have legal effect. But the
judge finesses that problem by talking about natural obligations.
Lafontaine v. Gravel, [1997] RDI [C2.179]
Facts: G sold land to L and reserved for himself and heirs the right to cut timber; then he sold the right to timber and the land (which
he had already sold) to his son, FG. FG then sold both to brother YG. New owner, L, revendicates the land and timber cutting rights
and wants both sales of the right to cut timber declared invalid. FG and YG claimed a valid right of superficies to cut timber.
Issue: (1) Who has rights over the land? (2)Who has rights over the timber? (3) What kind of right is the droit de coupe?
Holding: (1) L (2) YG (passed down from G and FG – unclear if FG acquired them by contract or prescription) (3) Superficiary.
Reasoning: (1) FG clearly cannot own the land since it was sold to L already. (2+3) Droit de coupe can take many forms: personal
right (contrat de louage), real servitude, personal servitude or superficiary right. The first two can be eliminated immediately. It is not
a contrat de louage and there is no mention of dominant land. To decide between the last two options, the tribunal must analyze the
intention of the parties. Past cases with contracts similar to this one suggest that it is a superficiary right. Yet the prescriptive period
was filled, thus either way the droit de coup was legitimately held by FG and transferred to YG.
Veronneau v. IBIS, [2000] RDI [C2.183]
Facts: 1963: Joachim Verronneau (uncle) sells his land to Rule. He reserves the right of occupation on the land until three months
after the final payment for the land. He agreed to remove the buildings in the three months after the final payment.
1965: Verroneau (uncle) sells his house to Carrière; sale is not registered.
1966: Rule sells land to IBIS, who finishes payment 6 November 1973.
1977: Jean-Guy Verroneau buys the house from Carrière without publication.
1982: IBIS allows V lease on the land.
1991: IBIS refuses to renew the lease, but V stays.
Issue: Does V have a superficiary right?
Holding: No.
Reasoning: Joachim Verroneau created a right of superficies. But this was not perpetual due to the stipulations of the contract. The
right finished after payments+three months (early 1974). IBIS did not know of the existence of V until 1982 at which point the uncle
Verronneau should have removed the buildings. The lease in 1982 dealt only with the land and foresaw that, at the end of the lease, V
would have to remove the buildings. Were they not removed, it was provided for that the owner of the land would become owner of
the buildings. After 1991, V was only there by tolerance of the owner. IBIS did not give up any rights to him. a1116 and a1117 are
suppletive and do not apply if contradicted by a valid contract.
Ratio: Contracts may be used to derogate from the rules on superficies in the CCQ.
Implicit/By Renunciation
No need to publish for these to be opposable. Tends to be analysed more as a personal right (Moyse).
Stone Consolidated v. Pierre Desjardins Gestion, [1998] RDI [C2.174]
Facts: SC had a logging contract with the government that gave them permission to build a garage on Crown land. They hired a
contractor to build the garage and he in turn hired PDG. The contractor went bankrupt before paying PDG, who placed a legal
hypothec on the garage. SC claims the garage is owned by the government by accession and thus cannot be the subject of a hypothec.
Issue: Who owns the garage?
Holding: Stone Consolidated.
Reasoning: SC was given permission to construct a garage on government land in a manner which legally resembles a superficiary,
although this was never expressly stated and the building has to be removed at the end of SC’s contract. Effectively this is a
superficiary with a limited existence in time. Thus the building is not government property and SC is the superficiary owner of the
garage and hence PDG can place a hypothec on it.
Ratio: (1) Superficiaries can be read in to contracts via implication; (2) The right created by a contract depends on the nature of the
legal rights created, not the precise words used by the parties.
QC (Procurer Général) c. Developpements du demain, [2001] RDI [C2.176]
Facts: By mutual agreement, CN and the government of Québec built a walkway, some sidewalks and lampposts which partially
encroached on CN’s land. There was no formal transfer of property, nor was there an expropriation. Later CN is privatized. It sells this
land to D. D realized that there were encroachments on its land and demands an indemnity from the government of Québec.
Issue: (1) Did CN grant a superificiary to Québec? (2) Is this right opposable to others without being published?
Holding: (1) Yes (2) Yes.
Reasoning: (1) Because CN and the government worked on the walkway as a joint project, they did not think about ownership issues.
Thus there is no document specifying a transfer of rights by CN. Nonetheless, there was clearly tactic permission by CN for the
government to build on its land. This constitutes a renunciation of accession and hence a superficiary right. (2) Judgements on this
issue are few and contradictory. The court makes a distinction between superficiary property (created by express agreements) and
superficiary rights (created by implied renunciation of accession). Since the later are acquired by prescription, there is no need for
them to be published.
Ratio: A tacit superficiary right is gained when the right of accession is implicitly renounced; this right need not be published to be
effective against third parties.
CHAPTER 7: DISMEMBERMENTS OF PROPERTY
Dismemberments carve real rights out of the owner’s property rights and transfer them to non-owners. What is transferred is some
combination of usus and fructus (transfer/renunciation of accession creates a superficie). Abusus is never transferred and is always
retained by the owner (referred to as the nu propriétaire or “bare owner” in such cases). Dismemberments are real rights that place a
person in to a direct, unmediated relationship with a piece of property.
A word about (real/personal) servitudes. All dismemberments are servitudes, since they grant direct and universally-opposable power
over an object. What distinguishes real and personal servitudes is the relationship that grants this power. In the case of real servitudes,
the relationship is “between two immovables”, and the benefits/obligations apply to the owners of each of the immovables. In the case
of personal servitudes the name is a bit misleading, since the relationship is between a person and an immovable (rather than person to
person, which would be a personal right/contract!). Usufruct, use and emphyteusis are all personal servitudes. This fits with
Mignault’s definition of a servitude as “Une charge et un droit.”
Dominant land  Real servitude  Subservient land
Holder of right  Personal servitude  Object/property
[links object to object]
[links person to object]
Private Law Dictionary and Bilingual Lexicon (Biens): Démembrement: Droit réel qui ne confère à son titulaire qu’une partie des
attributs du droit de propriété. « Alors que la perpétuité du droit de propriété s’impose comme la seule règle de durée compatible avec
la notion de propriété, la diversité des démembrements, qui, selon leur contenu, portent une atteinte plus ou moins forte au droit de
propriété, sont susceptibles d’obéir à des règles de durée diverses » (Cantin Cumyn, (1988) 48 R. du B. 3, p. 15). Rem. 1° On
distingue parmi les démembrements de la propriété les servitudes personnelles (par ex., l’usufruit, l’usage) et les servitudes réelles
(par ex., le droit de vue). … 3° Outre l’usufruit, l’usage, la servitude et l’emphytéose qui sont les démembrements nommés du droit
de propriété, d’autres droits réels de jouissance ont été admis, tel le droit de coupe de bois. Des lois particulières prévoient aussi des
démembrements du droit de propriété (par ex., art. 9, Loi sur les mines, L.R.Q., c. M-13.1).
Cantin Cumyn (quoted in Cadieux) [208] : “Il est l’essence de la servitude personnelle qu’elle consiste en un droit que son titulaire
exerce directement et d’une manière autonome sur la chose d’autrui: elle droit être un droit réel de jouissance de la chose d’autrui.”
Section 7.1: Servitudes and Obligations Propter Rem
i) Definitions, Etymology and History
A servitude allows the owner of one immovable (the dominant land) to require the owner of another immovable (the subservient land)
to either tolerate an action by the owner of the dominant land, or to not do something; this action or inaction must be for the benefit of
the dominant land, rather than the owner personally. Servitudes can range from “let me cross your property to access my own” to “do
not build a restaurant.”
Servitudes cannot be used to impose positive obligations, so you could not have a servitude requiring the subservient land’s owner to
“shovel my driveway in the winter”. This is known as the ban on the “servitude in faciendo.”
Le droit civil canadien (Mignault) (quoted in Cadieux) [C.208]: “jamais elle [une servitude] ne consiste à faire quelque chose… La
servitude ne consiste donc, en générale, qu’à souffrir ou à ne pas faire.”
Since the servitude travels with the immovable, the servitude must directly benefit the dominant land and benefit the owner indirectly.
A direct benefit to the owner is not a servitude (real right) but rather a personal right. So “don’t plant daisies because I’m allergic to
them” is not a real servitude, because it clearly is for the benefit of the current owner, who is allergic to daisies. “Let me use your land
to access my own” increases the value of the dominant immovable and is useful to all owners, so it’s a real servitude.
Private Law Dictionary and Bilingual Lexicon (Biens): Servitude: Droit réel, démembrement de la propriété, constituant une charge
sur un immeuble, le fonds servant, en faveur d’un autre immeuble, le fonds dominant, appartenant à un propriétaire différent. Par ex.,
une servitude de passage. « [La servitude] établit un rapport entre deux immeubles ou fonds de terre, appartenant à des propriétaires
différents. Le bénéfice ou service établi par la servitude l’est pour l’utilité d’un immeuble qui devient le fonds dominant, il est dû par
l’autre immeuble, appelé le fonds servant » (Cadieux c. Hinse, [1989] R.J.Q. 353 (C.S.), p. 357, j. H. Steinberg). Rem. 1° L’article
1181 C.C.Q. prévoit que la servitude s’établit par contrat, par testament, par destination du propriétaire ou par l’effet de la loi. Elle ne
peut s’établir par prescription acquisitive. 2° Le Code civil du Bas Canada distinguait, selon l’origine, les servitudes naturelles, les
servitudes légales et les servitudes établies par le fait de l’homme (art. 500 C.c.B.C.). Dans le Code civil du Québec, le chapitre « Des
servitudes » ne régit plus que cette dernière catégorie (art. 1177 à 1194 C.c.Q.), tandis que les servitudes légales et naturelles sont
dorénavant prévues sous « Des règles particulières à la propriété immobilière » (art. 976 à 1008 C.c.Q.). 3° Le chapitre portant sur les
servitudes, dans le Code civil du Bas Canada, s’intitulait « Des servitudes réelles ». Dans le Code civil du Québec, on a cependant
délaissé cette terminologie et le terme servitude, sans autre qualificatif, est utilisé pour désigner les servitudes réelles. Syn. servitude
foncière, servitude prédiale, servitude réelle.
Le droit civil canadien (Mignault) [C.199]: As used in the CCQ, “servitude” refers only to real servitudes and not the personal
servitudes (use, usufruct, etc.). The term “personal servitude” was taken out of the CCLC because it might remind people of the feudal
obligations that Québec had just abolished. Similarly, servitudes cannot impose “positive obligations” (les obligations de faire)
because again this would be tantamount to feudalism. Servitudes consist of “un charge et un droit” depending on whose point of view
(owner of subservient land or owner of dominant land) is adopted. Mignault talks about the impossibility of purchasing a servitude in
order to extinguish it against the will of the owner (since it’s a property right and no one can be forced to sell property), but the CCQ
now allows this! He notes that servitudes do not require property to be contiguous.
.
Moyse [slides]: Les obligation de faire ne peuvent être qu’accessoire dans le cas des servitudes (obligations réelles : 1178. Une
obligation de faire peut être rattachée à une servitude et imposée au propriétaire du fonds servant. Cette obligation est un accessoire de
la servitude et ne peut être stipulée que pour le service ou l'exploitation de l'immeuble). La servitude réelle ne doit pas imposer
quelque obligation de faire que ce soit au propriétaire du fonds grevé. Or, en l’espèce, le but même de la clause est d’obliger chacune
des parties à offrir son immeuble à l’autre partie avant de vendre à un tiers….La disposition forme une relation juridique entre deux
personnes et non deux immeubles.
ii) Code Articles
1177 Definition and key features
1181 Creation: Succession, contract, destination of proprietor or effect of law. [Note: no prescription! – Mike]
1182 Real servitudes follow the dominant and subservient lands regardless of changes in ownership.
1183 Definition and application of servitudes “by destination of proprietor.” Allows current owner to set up servitudes which will take
effect in the future once a piece of property is divided and sold off.
1184-1190 technical stuff about how servitudes are exercised
1189 Can redeem (buy) servitude if its usefulness to the dominant fund is disproportionate to the inconvenience or loss caused to the
other property. Process for doing so.
1190 Parties to creation of servitude can exclude the possibility of redeeming the servitude for up to 30 year period.
1191 Extinction: same person owns both lands, renunciation by owner of dominant, expiry of term, redemption, non-use for 10 yrs.
1193 Mode of exercise of servitude can be prescribed (10 years)
Legal Servitudes are created by law rather than the will of the parties. Includes right of way stuff in section 4.3.4, above. Other legal
servitudes include the a976-987 on tree and a993-996 on views.
iii) Proving the Existence of a Servitude
The Law of Real Property (Marler) [C.213]: Discusses the requirements to prove a servitude. “No servitude can be established
without a title; possession, even immemorial, is insufficient for that purpose” (legal servitudes excepted, obviously). Said title can be
oral and even tacitly established. Three elements constitute “title” for a servitude. (1) Description of the dominant land: This must be
precise. “Servitude to take water for use on his premises” was held to be too imprecise. The requirement of precision is lower for the
dominant land than the subservient land. (2) Description of the subservient land: This must be very precisely defined. Almost any
ambiguity prevents a servitude from being established. (3) Description of the [content of] the servitude: “The use and extent of the
servitude are determined according to the title, which must be construed without extrinsic aid. Whatever may be the imperfections of
the deed, effect will be given to it if the intentions of the parties can be ascertained from it.” Lastly, all that is necessary for the use of
the servitude is implied in to the servitude. The right to draw water from the neighbour’s well would include a right to move to and
from the well, obviously.
Boucher c. Roy (quoted in Camieux) [C.210]: “In the case of a servitude we are concerned primarily with lands not with persons. A
servitude is established on one land for the benefit of the other land. The debtor is the servient property and the creditor is the
dominant property. The title must show clearly in favour of what land and upon what land the servitude is created. The title must be
construed without extrinsic aid. Any doubt will be construed in favour of the liberty of the subservient land. Every effort should be
made to ascertain the intention of the parties to the deed in question.” [emphasis added]
iv) Jurisprudence
Whitworth c. Martin, [1995] RJQ CA [C.203]
Facts: M has property that can only be reached by taking a public road, then transferring to a private road (Lower Road) then another
private road (Upper Road). The Lower Road is on W’s property and W has prevented M from using it for some time. This forces M to
park his car on a neighbour’s lawn and hike uphill to reach his own property. M asks for recognition of a servitude of passage on W’s
property. W claims that M has access to his property already through his neighbour, so the servitude should be on the neighbour’s
property and that since the Upper and Lower roads are private roads, the rules for servitudes of right of way do not apply.
Issue: (1) Does M have a servitude on W’s property allowing him to access his property?
Holding: Yes.
Reasoning: M’s property is clearly an “enclave” in the sense of the law. This is clear from the geography of M’s property and also the
fact that the route through W’s property has been used for decades, which creates a presumption that the road through W’s property is
the most natural route. The uphill hike from his neighbour’s lawn is clearly not a natural way of accessing his property. And the upper
and lower roads are clearly public roads in the sense of the CCQ since they permit access to a road that is actually public. Thus M has
fulfilled all the criteria to gain a legal servitude.
Ratio: (1) Use of a given access route can create a presumption that it is the most natural and convenient access point; (2) “Public
road” is to be defined widely.
Cadieux c. Morin, [1989] RJQ [C.]
Facts: C and L were neighbours with adjacent property. They signed an agreement in which they agreed to offer their property for
sale to eachother before selling it to anyone else. This agreement was described as a “servitude de preference d’achat” in the contract.
L then signed a 99 year lease of his property to M. C alleges this violates the servitude.
Issue: (1) Is the droit de preference d’achat a real servitude? (2) If yes, is the 99 year lease a disguised sale?
Holding: (1) No (2) N/A.
Reasoning: The first point the judge makes is that regardless of what the parties choose to call their contract, it is up to the courts to
determine whether the contract creates a servitude or not. He notes that the contract specifies that sale offers must be made to C or L;
thus the beneficiaries are natural persons, and not really the immovable. Any benefit to the immovable is indirect, and occurs only
through the benefit to the owner. Hence the agreement cannot be a real servitude since there is no relationship between immovables,
but rather a relationship between persons. Furthermore, the sales agreement imposes a positive obligation on the parties, which no
servitude can do. Thus it is merely a personal right (contract), not a real right.
Ratio: (1) The existence of a servitude depends on the juridicial content of an act, rather than the name the parties give to it; (2)
Quoting Boucher c. Roy: “Any doubt is interpreted against the existence of a servitude.”
Comment: I’m not sure if my reasoning section conveys the judge’s thought process very clearly. It’s a short, well-written judgement
and worth reading to get a quick overview of how servitudes work.
Zigayer c. Ruby Foo’s, [1976] CS [C.226]
Facts: R sold plots of land in a neighbourhood to various parties and imposed upon these plots servitudes to not build or operate a
restaurant. The servitude was extremely detailed. Z bought some land and now disputes the legality of the servitude upon them.
Issue: Are “non-competition” servitudes against public order?
Holding: Not automatically, and this case is not exceptional enough to invoke public interest.
Reasoning: The judge quotes the definition of public order from Traité de droit civil du Québec: “Public order includes everything in
which the interest of society is more directly involved than the interest of particular individuals... [this includes criminal, constitutional
and administrative law]… but public order is not limited to public law. In private law, everything which interests primarily society at
large falls in to this notion.” [my translation] The judge formulates this question as “Is society deprived or affected by these
servitudes?” He answers no, since they affect only a small portion of land and other restaurants exist in the neighbourhood. Hence the
servitudes are not against public order.
Ratio: (1) Valid servitudes may nonetheless be declared null due to public order; (2) Non-competition servitudes are not against
public order, unless there are exceptional circumstances.
Comment: This point is also discussed in a doctrinal reading in our coursepack. I didn’t have time to read it, but it criticizes this
decision.
iv) Real Obligations/ Obligation Propter Rem
Real obligations are like servitudes, in that they travel with a piece of property, except that in the case of a real obligation, the charge
falls directly upon the owner of the property (no second property owner/immovable). It is an obligation that binds the owner only as
long as he remains the owner/rights-holder over that piece of property. Real obligations are transmitted with the sale or acquisition of
an object, passing from the old owner to the new.
Droit Civil (Charbonnier) [C.222]: Real obligations are “Une obligation qui ne pèse sur le débiteur qu’en raison de sa propriété sur la
chose.” One excellent example of this kind of right is when a third party buys a house charged with a hypothec. As the new owner of
the house, he is not responsible for the debt protected by the hypothec, but he is obligated to leave the house if the bank seizes it.
Another one is a rental contract, which can be opposed to all acquirers of an apartment building by current tenants. He gives some
examples of what he calls “mixed rights” but they’re harder to conceive of as real obligations.
A Note on the Real Obligation [C.221]: “The real obligation… has had an uncertain place in Québec’s legal literature, the richness
of doctrinal development having been inhibited, no doubt, by the fact that it is not spoken of directly in the CCLC. Not only has the
place of real obligations in Québec law been obscured by a conceptual proximity to the servitude, but the principle of relative effect of
contracts [CCQ a1440] has also provided a stumbling block to its emergence as a coherent institution.”
Droit civil: Les Biens (Terré & Simler) [C.223]: The obligations that are bundled with the usufruct are real obligations, not real
rights. If they are not fulfilled they merely give rise to a personal right to compensation and do not involve power of the thing itself
(hence not real rights). Yet they are imposed on the holder of the usufruct only because they come along with his real rights. If he
abandons the usufruct, the real obligations no longer bind him. Thus they are intermediate between real and personal rights. “Cette
notion répond à l’idée qu’une obligation, tout en étant personnelle, peut peser sur le titulaire d’un droit réel, en cette qualité et se
transmette aux titulaires successifs de ce droit. Celui qui est tenu ne peut se libérer qu’en faisant abandon de son droit réel.”
Private Law Dictionary and Bilingual Lexicon (Biens): Obligation Réelle: Obligation dont une personne est tenue uniquement en
raison de sa qualité de titulaire d’un droit réel. Par ex., l’obligation qu’a chacun des propriétaires de contribuer à l’entretien, la
réparation et la reconstruction d’un mur mitoyen (art. 1006 C.c.Q.); l’obligation de l’usufruitier d’entretenir le bien dont il a la
jouissance (art. 1151 C.c.Q.). « La stipulation d’une obligation réelle doit être rattachée à un droit réel dont jouit le créancier puisque
c’est à cette condition qu’elle doit son caractère réel » (Cantin Cumyn, (1986) 46 R. du B. 3, n° 52, p. 38). Rem. 1° On distingue
l’obligation réelle d’origine légale de l’obligation réelle issue d’un acte juridique, notamment du contrat. Relativement à cette
dernière catégorie, l’opinion dominante ne qualifie d’obligation réelle que celle qui a un rapport suffisant avec l’exercice du droit réel
au regard de sa destination. 2° Lorsqu’il y a transfert du droit réel auquel se rattache l’obligation réelle, celle-ci est aussi transmise à
l’acquéreur. 3° Le débiteur d’une obligation réelle n’est tenu qu’autant qu’il demeure titulaire du droit réel auquel se rattache
l’obligation. Cependant, il peut s’en libérer pour l’avenir, notamment en exerçant la faculté d’abandon (par ex., art. 1185 C.c.Q.). 4°
Le régime de l’obligation réelle reflète les préoccupations qui ont mené à l’abolition du titre seigneurial; aucune obligation
s’apparentant à un devoir féodal ne peut être imposée à quiconque (voir art. 59, Acte concernant l’abolition générale des droits et
devoirs féodaux, S.R.B.C. 1861, c. 41).
For a case involving real obligations (but on the side of benefits), see General Motors v. Kravitz in my Contracts summary (section
8.1.1).
Hamilton c. Wall, [1879] LCJ BR [C.224]
Facts: H sold a plot of land next to his house to P. His deed of sale contained a clause that P, if he built a house, would build his house
in line with H’s own dwelling. P sold the land to W, and the contract stated that W would comply with all the conditions in the
original deed of sale to P. After buying the land, W built a house closer to the road than H’s house. H sues to have the building
demolished, claiming that its current location violates the servitude created by the original deed.
Issue: Was the agreement between H and P a real or personal right?
Holding: Real.
Reasoning: “If, from the circumstances, the obligation appears to have been stipulated for the personal advantage of the creditor,
without reference to his property, it will be considered a personal right, and will not follow his property, [even if the text claims that it
does].” In this case, its effects are beneficial to the immovable only, and the two properties were adequately described, thus it is a
servitude.
Ratio: The “ratio” of this case is technically obiter, but the judge implies that even without a servitude, the contract of sale between P
and W could have created a real obligation of some kind forcing W to obey the same terms as P.
Comment: Early on in his reasoning, the judge claims that if the deed merely states that the obligation is a servitude, or that it is for
the benefit of an immovable, this makes it a servitude. This is no longer an accepted principle of Québec law.
Section 7.2: Usufruct
i) Code Articles
Nature and Creation
1120 definition. “as if it were one’s own” subject to preserving substance.
1121 creation: contract, will, by law [can prescribe as well]
1123 max duration =100 years. If no term, granted for life or 30 years if recipient is a legal person.
1124 takes property in condition he finds it. Usufruct also bears on anything affected by accession of property.
1425 can ask bare owner to cease activities that interfere
1176 return of property in same condition. Accountable for loss caused by fault or non-normal use
Fruits and Revenues
1126 gets fruits and revenues
1127+1128 use of consumable/rapidly deteriorating property (=quasi usufruct)
1135 can transfer or lease rights in the property
1137 necessary disbursements reimbursed under good faith possessor rules from accession.
1138 useful disbursements kept by bare owner without indemnity. Usufructory can remove them, but bare owner cannot force him to.
Technical Bits
1142-1161 Inventory of property and insurance on obligations
Extinction
1162 expiry of term, death of usufructory, same owner for both, forfeit or renunciation, non use for 10 years
1163 total loss of property
1164 usufruct and expropriation
1169 renunciation of right in whole or in part
Principal obligations: 1142 inventory, 1144 insurance, conservation 1120.
Propter rem accessory obligations : 1142+, especially 1148 (assurance), 1151-1152 (maintenance) and 1154 (charges)
Note that the property owner’s obligations are limited: there is no guarantee that the usufructary receives the property in good
condition, and the owner is not responsible for repairing it during the exercise of the usufruct. Very different from a rental
contract/bail! In the rental example, the rights are personal – you can live in the apartment because of the contract you have with the
owner of the apartment, rather than because you have direct control over the apartment itself. Because the owner is promising to
provide you with accommodation, he remains liable to you if something happens to the apartment. A usufruct creates a direct
relationship with the object, which is unmediated by the object’s owner.
ii) Doctrine
Le droit civil canadien (Mignault) [C.229]: “Il existe… une resemblance parfait entre le droit de jouissance de l’usufruitier et le
droit de jouissance du propriétaire. L’un et l’autre constituent, en effet, un droit réel.” Importantly, while the usufructier has the right
to enjoy the property, all corresponding obligations come along with that right. So he has no right to demand that someone else put the
property in a state that he can enjoy it. (1) The usufructier must take the thing in the state that he finds it. (2) He cannot force the
owner to repair it (although those who rent apartments can, since they hold a personal right against the landlord, rather than a real right
against the property). (3) Usufructs are movable or immovable, depending on the property to which they apply. (4) They are real
rights.
De l’usufruit, de l’usage, et de l’habitation (Cantin Cumyn) [C.230]: (5) Usufructs must be in existing property; a usufruct in a
house not yet built is actually a promise of sale, not a transfer of real rights; (6) The usufruct’s direct relationship to the property
means that the landlord has no obligations to fix or repair it, since the landlord obviously would have no obligation to repair his own
property if he was living in it; (7) Usufruct differs in a personal/contractual right to the revenues of a property, since the usufruct can
get gross revenues (rather than net), and can control the management of the property; (9) The obligations that come with the usufruct
are all propter rem obligations and can be avoided by abandoning the usufruct; (10) As an opposable real right, a usufruct takes
precedence over real rights granted later in time; (62) Usufruct carries with it a right to possess [technically, the right to detain – Mike]
the property that is the same as the owner.
Real Property (Marler) [Slides]: Usufruct is a temporary real right in a thing, putting the usufructuary in a direct and immediate
relation with the thing, without the intervention of a debtor or other person, making the thing his as regards the enjoyment, and
entitling him to follow the thing into whatever hands it may have passed…”
Private Law Dictionary and Bilingual Lexicon: Biens (Slides): 1. (Biens) Droit réel dans la chose d’autrui conférant temporairement
à son titulaire, l’usufruitier, la faculté d’en jouir et d’en percevoir les fruits et revenus, à charge d’en conserver la substance. « Il
ressort de la définition de l’usufruit […] qu’il est essentiel que deux personnes soient en même temps titulaires de droits distincts sur
ce qui fait l’objet de l’usufruit » (Cantin Cumyn, Droits des bénéficiaires). Rem. 1° L’usufruit confère deux des prérogatives de la
propriété, l’usus et le fructus, mais non l’abusus… Quant à sa durée, l’usufruit est temporaire et il est présumé viager.
iii) Jurisprudence
Larocque c. Beauchamps, [1975] RJQ CS [C.233]
Facts: A man, R, dies and leaves his house to his relatives. However, he also granted B a usufruct in the house for as long as she lived
and as long as she paid certain upkeep costs on the house. The relatives take out a loan from L, which is secured by a hypothec on the
house. They default on the loan, L has the house transferred to her ownership by judicial declaration and wants B to leave. B claims
her usufruct allows her to stay in the house. L also alleges that B failed to pay some of the upkeep costs.
Issue: (1) Did L’s seizure of the house hypothec extinguish B’s usufruct? (2) Did B’s failure to pay costs extinguish her ususfruct?
Holding: (1) No (2) No.
Reasoning: B’s usufruct predates the judgement giving L ownership over the house, thus the judgement does not extinguish the
usufruct. Furthermore L can only seize the rights held by her debtors; she must take the house as charged with the usufruct. B’s
failure to pay certain costs is not enough to extinguish the usufruct either; failure to uphold usufructory obligations creates a personal
right to reimbursement for the missed payments. It does not extinguish the usufruct.
Breton c Pacquette, [2004] [C.242]
Facts: B sold his farm to a third party and in return was granted “un droit d’occupation du terrain et des batiments” on part of his
property. Along the border of this sub-set of property there were a series of plum trees. B had planted the trees many years ago and
sold the plums commercially for many years. P cut down these plum trees, thinking that he was doing B a favour. B sues for damages.
Issue: What rights does B’s “droit d’occupation” give him over the trees?
Holding: A usufruct.
Reasoning: B took care of the plum trees, and the company that bought his farm never tended to them or harvested their fruit. This
fact, plus the wording of the contract, suggest that he retained a usufruct over the sub-plot of his property and thus over the trees as
well. [Also, I believe that it cannot be “use” because the commercial exploitation of property is inconsistent with a1172; hence it must
be a usufruct. But I could easily be wrong. – Mike] B’s rights cannot be a superficie, since the corporation never renounced its right to
accession. Thus P’s cutting of the trees, even if it was in good faith, harmed B since he had the right to enjoy and profit from them at
the time they were cut. Transition to ECO discussion, damages, etc.
Ratio: Confirms jurisprudence that contracts will be examined for their legal content rather than just the name used for the right.
Comment: You can safely ignore the damage calculations and punitive damage discussion, since they are not DDB-related.
iv) Quasi-usufruct
Quasi usufructs are usufructs placed on consumable property (see section 3.3.2, above). They have a modified legal regime to account
for the fact that consumable property cannot be used without deteriorating/being used up. Thus separating usus and fructus is
impossible. So a quasi-usufruct is actually a transfer of property rights in full to the quasi-usufruitier, along with a personal obligation
to repay the owner.
a1127 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 [equivalent property at the end of the usufruct].// If return is impossible, cash is
allowed instead.
a1128 The usufructuary may dispose, as a prudent and diligent administrator, of property which, though not consumable, rapidly
deteriorates with use. // Cash value of property used up must be paid at end of the usufruct.
Répertoire de droit: Biens (Cantin Cumyn) [C.235]: “Le quasi-usufruit n’opère donc pas un démembrement : il transporte le droit de
propriété au ‘quasi-usufruitier’ et le rend simultanément débiteur du ‘nu-propriétaire.’ La créance de celui-ci nait lors de la
constitution du quasi-usufruit bien qu’elle ne soit pas exigible avant l’extinction de l’usufruit.” She also argues that the parties to a
contract of quasi-usufruct can designate property as consumable and thus subject to the rules of quasi-usufruct rather than the normal
regime. Additionally, a quasi-usufruct can apply to some parts of the property transferred as part of a usufruct (example: a store plus
the goods in it; store=usufruct, goods=quasi-usufruct since you need to be able to sell them).
Private Law Dictionary and Bilingual Lexicon: Biens [Slides]: Quasi-usufruit: Usufruit portant sur une chose consomptible…
Rem. 1° L’usufruit proprement dit confère à son titulaire l’usus et le fructus mais non l’abusus, car l’usufruitier doit conserver la
substance de la chose soumise à son droit. En revanche, le quasi-usufruit confère à son titulaire toutes les prérogatives du droit de
propriété, car on ne peut se servir de choses consomptibles sans les détruire ou les aliéner. Le quasi-usufruitier acquiert donc la
propriété de ces choses, à charge de rendre des choses semblables ou leur valeur à la fin de l’usufruit (art. 1127 C.c.Q.). 2° Le quasiusufruit n’existe pas à l’état isolé, mais à l’occasion d’un usufruit établi sur une universalité dans laquelle se trouvent des biens
consomptibles.
Section 7.3: Emphyteusis
i) Introduction
Contrary to the name, an "Emphyteutic Lease" is still a real right (thus the benefits and the obligations attached to emphyteusis are real
rights). The basic idea behind emphyteusis is a long-term lease in which the lessee agrees to make improvements to the land/building
he is leasing. In return, he gets far greater rights over the property (and presumably rent will be cheaper too). Emphyteutic leases last
for a long time (10 to 100 years) and at the end of the lease, the entire property plus improvements return to the lessor.
The emphyteutic lessee gains usus, fructus and a certain amount of abusus (a1200). Accession remains in the control of the lessor.
Unlike the usufruct, the emphyteutic lessee can change the destination of the immovable. He has far greater control over the
immovable (a1195) that falls just short of ownership. The emphyteutic lessor can sell his rights and even take out emphyteusis on his
emphyteusis!
ii) Code Articles
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.
1196 Co-emphyteusis. 1197 Duration: 10-100 years. 1198 Renewal of e. leases. 1199 Seizure of e. leases.
1200 Rights of the lessee – equivalent to owner except for destruction of immovable! Additional restrictions can be imposed by the
contract, but the default for emphyteusis is very few restrictions.
1201-1205 Obligations of lessee. Includes repairs, partial loss of immovable, waste, property taxes. 1204 can lose lease if wasteful.
1206 Obligations of owner/lessor. Equivalent to vendor (probably with respect to informing lessee about issues).
1208-1211 Termination. 1208 Terminated by: expiry of terms, total loss or expropriation of immovable, resiliation of contract, same
person becoming lesee and lessor, non-use for ten years, abandonment. 1210 Treatment of damage and improvements; rules for
improvements in excess of the requirement. 1211 restriction on abandonment.
iii) Jurisprudence
Cohen c. Minister of National Revenue, [1968] BR [C2.191]
Facts: C and another acquired an emphyteotic lease on property owned by the Seminary. The lease contained a number of unusual
provisions for an emphyteotic lease (see reasoning, below). This resulted in unclear tax rules, so the case went to court.
Issue: Did C own the building erected on the Seminary’s land, or were they merely leasing it under an emphyteotic lease?
Holding: They were owners of the building via superficie, since the emphy. lease contract granted them ownership of the building.
Reasoning: Emphy. leases are real rights. This lease is an unusual one in that it grants the lessee the right to destroy the building
constructed on the land provided that he erects another one worth $500,000 or more. Furthermore, the wording of the lease implies
that the buildings erected by the lessee become the property of the lessor only at the end of the lease, rather than immediately, as
would be the case under a normal emphy. lease. Furthermore, the contract specifies that “at the end of the lease, the Seminary shall
have the right to purchase the building then erected on the land.” This is in stark contrast to a normal emphy. lease, where ownership
is transferred automatically to the lessor (for free!) when the lease expires. Thus C is both the emphy.lessee of the property and owner
of the building via superficie.
Ratio: (1) It is possible to modify, in some cases extensively, the basic rules of the emphyeotic lease.
Sun Life v 137578 Canada inc., [2000] RDI [C2.194]
Facts: Sunlife seized a building owned by Metro. That building was leased by Metro from 137578 under an emphyteotic lease. An
obligation under the lease was to build a building with a value of $1.6 million. Sun Life claims that it seized only the rights under the
emphy. lease and not the obligations. 137578 claims that Sun Life is under and obligation to build a $1.6 million building.
Issue: Are the obligations and rights of an emphy. lease divisible?
Holding: No.
Reasoning: Emphy. leases are a real right. Metro had a right over the immovable only due to its emphy. lease. Sunlife chose to seize
that right and must accept all aspects of the lease, since the CCQ does not allow selective seizure, or prejudice to the emphy. lessor’s
rights (a1199).
Ratio: (1) Anyone acquiring and e. lease acquires all aspects of the lease, including rent and improvement obligations.
Section 7.4: Use
a1172-1175 Basic rules
a1176 Residual article stating that the rules for usufruct apply to us, adapted as required.
Seems like less strict/regulated version of usufruct whose purpose is to let people live/use a particular piece of property to satisfy their
basic needs. Less of a sense of property transfer (1172). 1176 imports usufruct rules to answer all questions not specifically dealt with
by the articles in that section.
Seems to be designed for habitation/family living arrangements. We didn’t really talk about it at all so I am not too sure about how
good this section is. Sorry!
Banque Nationale du Canada c. Gravel, [1984] [C.237]
Facts: B owed BN money, so BN had the B’s house seized and sold. B’s mother, G objected. She produced a document by which she
had sold the house to B for $1, in exchange for a right to live in the house for the rest of her life. B also promised to pay all the upkeep
of the house. G wants the bank to recognize her (real) rights in the building.
Issue: (1) Does G’s right to live in the house constitute a real right? (2) Does B’s promise to pay the upkeep and taxes constitute a part
of G’s real right?
Holding: (1) Yes (2) Yes.
Reasoning: Use is a real right recognized by the code and thus the Bank’s seizure of the house must accept the charge upon it in G’s
favour. The payment by B of the house’s upkeep cost is not necessarily part of G’s real right, since the CCLC’s definition of use
makes no mention of this. However, in the context of this particular contract, which was clearly motivated by generosity on B’s part,
the promise to let G live in the house “for free” must be interpreted as such. Thus the owner of B’s house must pay all the upkeep and
taxes. Also, the bank cannot seize or remove elements of the house that are essential to G’s use of it, like light fixtures, etc, since that
would violate the promise to let G live in the house in a normal and modern manner.
Ratio: (1) The core element of use – the right to enjoy property – should be interpreted generously; (2) Rights are not severable.
CHAPTER 8: DDB - XTREME!
Section 8.1: Numerus Clausus
The question asked in this section is whether there is a definitive list of real rights (a numerous clauses). The answer is allegedly
unsettled, but based on the case law, I think that there is definitely no numerus clausus in Québec.
i) Code Articles and Legislation
a1119 “Ususfruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights.” [Note the
phrasing of the article. It does not clearly designate the list as a closed/exhaustive definition of real rights. Yet neither does it use clear
language, like “includes,” to show that the list is open. The use of “are” in this context seems permissive, but is still somewhat
ambiguous. The French version of the article is equally unclear.]
Mining Act [CB1.171]: “The mining rights conferred by the following titles are immovable real rights”
ii) Doctrine
Private Law Dictionary and Bilingual Lexicon: Obligations (2003) [C1.125]: The issue is [allegedly – Mike] not settled in QC, and
the Code leaves open the possibility of new real rights via a.947 and a.1119. Legislation sometimes creates new real rights.
Planiol and Ripert, Traité Pratique de droit civil français: Les biens [C2.248]: No text prohibits the creation of new real rights or
modifications of existing ones, as long as they do not contradict public order (trying to reimpose feudal-style property rights, for
example). The only limit to the types of rights which can be created is that since they are dismemberments of property, they cannot
exceed the content of property rights. Lastly, in order to be opposable to third parties, real rights must generally be published. This is
problematic if the rules for publication do not recognize innominate real rights. [I skimmed Book 9 of the CCQ and it seems general
enough to allow publication of innominate rights – Mike]
iii) Jurisprudence
Duchaine c. Matamajaw Salmon Club, [1918] RJQ (CA) [C2.249]
Facts: B sold G the fishing rights in a river, but not (explicitly) property in the river-bed itself. G later sold these rights, and they were
eventually sold to M. D bought B’s property on which the river was located and contests the rights held by M. D claims that the
original fishing rights were personal, rather than real, rights and could not have been transferred by G to M.
Issue: (1) Is there a numerus clausus in Québec? (2) If not, did the agreement between B and G create a real or personal fishing right?
Holding: (1) Unclear (2) Real.
Reasoning: Pelletier: The Seigneurial Court recognized fishing rights as a separate kind of real right. Furthermore, transfer of fishing
rights inevitably carries with it transfer of the riverbed as long as it is used for fishing. This means that fishing rights are more than a
right of use [251-252… this bit is tricky reasoning]. There is nothing in law to prevent this and it fulfills the will of the parties.
Archambeault: The right given to G is either a property right or a usufruct, or personal servitude. In any case that right is transferable
to third parties while G is alive. Since this dispute does not concern the duration of the right, there is no need to choose between the
competing theories.
Ratio: None. This judgement is contradictory, although they both agree as to the outcome.
Comment: The trial judge compared the fishing rights to a common law concept called, ironically enough, profit à prendre. Every
subsequent court rejects this comparison. The status of French authorities is unclear since the authors that the judges quote here and in
the SCC are writing under a very different legal regime. The Seigneurial Court’s status is also unclear, since its judgements concerned
navigable and floatable rivers.
Duchaine c Matamajaw Salmon Club, [1918] SCC [C2.256]
Issue: (1) Is there a numerus clausus in Québec? (2) If not, did the agreement between B and G create a real or personal fishing right?
(3) How long will that right last?
Holding: (1) Yes (implicitly) (2) Real (3) Until G’s death.
Reasoning: Anglin: There was clearly no transfer of rights in the river bed. What exchanged hands was a usufruct or servitude of
some kind. Servitudes/usufructs/use are limited to the life of their holder. The rights are extinguished when G dies.
Brodeur (Concurring): There was no transfer of rights in the river bed. The rights G transferred with a usufruct which cannot be
perpetual and will extinguish at his death.
Idington (Dissenting): Agrees with Pelletier from CA. Bitches about lack of facts. There is no prohibition to dismembering property
rights, thus the only relevant question is whether B intended to do so in his contract with G. This seems to be his intent.
Mignault (Concurring): There was no transfer of rights in the riverbed. The right which was transferred was a usufruct, and for policy
reasons, such a right cannot be perpetual.
Ratio: (1) There is a numerus clausus of real rights in Québec; (2) Transfer of usufructory rights does not transfer rights in property
beyond those in the usufruct; (3) All non-property rights must last for a fixed period of time.
Comment: Here are the relevant codal articles.
CN a617: L’usufruit s’éteint par la mort naturelle et par la mort civile de l’usufruitier; [ou] par l’expiration du temps pour le lequel il a
été accordé
CCLC a479: L’usufruit s’éteint par la mort naturelle de l’usufruitier s’il est viager; [ou] par l’expiration du temps pour le lequel il a
été accordé.
a405 A person may have on property, either a right of ownership or a simple right of enjoyment, or a servitude…
Matamajaw Salmon Club c. Duchaine, [1918] Privy Council [C2.266]
Issue: (1) Is there a numerus clausus in Québec? (2) If not, did the agreement between B and G create a real or personal fishing right?
(3) How long will that right last?
Holding: (1) No (2) It created an innominate real right (3) Perpetual.
Reasoning: Haldane (for PC): The Seigneurial Court’s rulings are determinative on this question. Fishing rights are distinct real
rights which can be sold. a479 should not be interpreted as imposing a limit on the duration of rights, since the clear grammatical
construction of the article shows that “if for life” applies only to usufructs which are in fact designated as life-long usufructs. Thus it is
possible to create a perpetual real right of fishing rights. This is “a separable subject or incident of property” – in other words an
innominate real right.
Ratio: There is no numerus clausus in Québec.
Québec (PC) c. Club Appalaches, [1918] RJQ [C2.271]
Facts: Garneau sold some land to D’Auteil Lumber in 1951, and in 1955 transferred hunting and fishing rights to Club Appalache.
The government had expropriated part of DL’s land in 1953, and bought what was left from DL in 1955. In 1964, Garneau died. Some
time later, CA blocked access of the public to the land, claiming that they could do so as part of their (real) hunting rights and the
accessory rights acquired from Garneau. The government sought an injunction to prevent this, while simultaneously challenging CA’s
rights to the land.
Issue: (1) Does Club Appalaches have a real right to hunt and fish on the land? (2) Can it restrict access by the public to the land?
Holding: (1) Yes (2) No.
Reasoning: Hunting rights are a dismemberment of property rights like any other, and the agreement in 1951 created perpetual real
rights to hunting and fishing. These rights were real, rather than personal, and were thus transferable and continued to exist after
Garneau’s death. Expropriation did not extinguish these rights, as CA never received an expropriation notice. CA thus has hunting and
fishing rights on the land. It does not, however, have the right to restrict access of the public to the land, as its non-hunting rights are
either accessory or superficiary rights, neither of which justify this.
Ratio: There is no numerous clauses of real rights in Québec.
Comment: Note that passage rights are included along with the original hunting rights as “accessories.”
Section 8.2 Intellectual Property
i) Introduction
IP does not fit easily in to the “droit commun” of property in the CCQ. IP rights are not clearly patrimonial or extrapatrimo nial, real or
personal. In Canada, IP falls under federal jurisdiction, so droit civil applies only if federal legislation doesn’t provide an answer to a
given question (see Diffusion YFB below for an example). However, even in pure civilian jurisdictions such as France, IP is regulated
differently from other forms of property. Additional distinguishing features of IP include the importance of international conventions
and the heightened role of public interest.
Divisions of IP (modified from Dorian Needham’s summary)
Intellectual Property
Author’s Rights
Copyright
Moral Rights
Trade Marks
Industrial IP
Patents
Trade Secrets
The CCQ indirectly hints that IP could be considered property:
a909 // “Capital also includes rights of intellectual or industrial property…”
a458 “Intellectual and industrial property are private property…”
Kasirer, “L’Ambivalence Lexicographique…”(2003) [C1.207]: Federal jurisdiction over IP is superimposed on top of provincial
control of property and civil rights. Thus if there is a gap in the statutory law of Parliament, this gap is filled by the provincial laws.
Parliamentary IP laws are extremely ambiguous at the level of language and this appears to be deliberate.
ii) Author’s Rights
Author’s have rights over their “literary works,” a category which includes books, movies, plays, films, etc., as well as “tables,
computer programs, and compilations of literary works.” (Copyright Act) These rights are divided between copyright and moral rights.
Gendreau, “Moral Rights” [C2.210]: Copyright protects the economic interests of the author of a work. Only the copyright holder
may profit from the work or authorize others to profit from it. Copyright protects the expression of ideas as embodied in the literary
work itself. It does not protect the ideas or information behind the work (if you publish a table of statistics, someone else can turn that
table in to a graph) nor the effects of the ideas (if you copyright a cookbook you do not have rights over the food people make with it).
Moral rights are protection of the integrity of the literary work because it represents an extension of the author’s personality and
reputation. Civilian systems see this as a natural conclusion; the common law was reluctant to recognize moral rights, so they are
granted via statute. Moral rights cannot be transferred after the work is completed, but can be assigned before completion. They can,
however, be renounced against monetary consideration at any time. Moral rights have 4 components, of which only the first two are
recognized in Canada:
Paternity (Right to be identified as the work’s author by name or pseudonym or to remain anonymous)
Integrity (Right to ensure that the work remains in the state in which it was released to the public. Consists of
objective+subjective test. Does the author feel the integrity was violated? Do experts/other artists agree?)
Divulgation (right to determine how the work will be revealed to the public)
Withdrawal/repentance (right to remove work from public circulation, either permanently or to make corrections/updates)
Copyright Act, 2003 [C1.224]: a3(1) Copyright applies to production, reproduction, performance, translation or publication of a
“literary work.” This includes adaptations from one media to another; a6 Term of CR= life+50 years; a13 first owner of CR= a)
subject of portrait/photograph/plate if they hired the author to do it, b) Employer of author, unless contract states otherwise (exception
for newspaper/magazine/periodical articles), c) in all other cases, the author; a14(1) Moral rights: right of integrity+association; a14(2)
Moral rights can be waived but not transferred; a14(3) By default moral rights belong to the author (separate from copyright!);
a14.2(2) Last as long as copyright; 14.2(2) Can be transferred to succession; 28.2(1-3) definition of infringement.
Snow v. Eaton Centre [1982]: Snow sculpted a flock of Canadian geese for the Centre. At Christmas time, red ribbons were placed
around the necks of the geese by the Eaton Centre. Snow sued, alleging that the ribbons violated the statue’s integrity. Snow won on
the basis of his personal opinion (subjective test) and the testimony of other artists (objective test). Section 28.2(2) of the Copyright
Act now states that any modification to a sculpture, painting or engraving is deemed to prejudice the author.
iii) Trade Marks
Trade Marks Act, 1985 [C1.228]: a2 “certification mark”= indication of quality/method by which good was produced that differs
from other, similar goods (i.e. fair trade, organic), “distinguishing guise”= distinctive shape or packaging of good, trade
mark”=certification mark, distinguishing guise or “a mark that is used to distinguish one’s own products from those of competitors.
iv) Patents
Patents Act, 1985 [C1.230]: a2 “… ‘invention’ means any new and useful art, process, machine, manufacture or composition of
matter or any new and useful improvement [to the above]”; 3(a-d) information/specificity requirements for a patent; a27(8) “No
patent shall be granted for any mere scientific principle or abstract theorem”; a28.3 invention must not be obvious. Definition of
obvious.
v) Trade Secrets
Defined by Moyse as confidential information which has commercial value and which would lose that value if it were widely known.
Includes non-patented techniques, supplier lists, client lists and other secret information. Not technically property, even in the IP
sense. Contracts involving trade secrets and confidential information are typically written as service contracts. Confidentiality of trade
secrets must be protected by purely contractual means.
a1612 “The loss sustained by the owner of a trade secret includes the investment expenses incurred for its acquisition, perfection and
use…” lost profit can be compensated through royalties.
R. c. Stewart (quoted in Tritex): “Indeed, [confidential information] possesses many of the characteristics of other forms of property:
for example, a trade secret, which is a particular kind of confidential information, can be sold, licensed or bequeathed, it can be the
subject of a trust or passed to a trustee in bankruptcy. In the commercial field, there are reasons to grant some form of protection to the
possessor of confidential information: it is the product of labour, skill and expenditure, and its unauthorized use would undermine
productive efforts which ought to be encouraged. As the term ‘property’ is simply a reference to the cluster of rights assigned to the
owner this protection could be given in the form of proprietary rights. The cases demonstrate that English and Canadian civil law
protects confidential information. However, the legal basis for doing so has not been clearly established by the Courts… It appears
that the protection afforded to confidential information in most civil cases arises more from an obligation of good faith or a fiduciary
relationship than from a proprietary [property] interest.”
vi) Jurisprudence
Tri-Tex Co. Inc. c. Gideochem, [1999] RJQ [C1.187]
Facts: TT alleges that G illegally acquired its confidential chemical formulas, as well as confidential supplier/client lists. TT asserts a
right of ownership over the chemical formulas and all products produced from them under the Copyright Act, and also over written
documents containing confidential information. TT initiated seizure on the basis of its ownership rights. The seizure order was upheld
for the supplier/client lists, but set aside for everything involving chemicals by the Superior Court. TT appealed to CA for the
chemicals. G appealed on the written confidential information.
Issue: (1) Does TT own its chemical formulae under the Copyright Act? (2) If yes, does it have property over the barrels of chemicals
produced from its formulae? (3) Is confidential information property?
Holding: (1) No (2) N/A, but even if 1 was true, the answer would still be No (3) No.
Reasoning: Copyright was never meant to apply to an idea or information (the former being the proper subject of a patent, the latter of
trade secret regulations). The court cites Moreau v St-Vincent: “… the author has no copyright in ideas, but only in his expression of
them… the ideas are public property, the literary work his own.” The fact that the formulae were written or stored in computers does
not change their status as ideas and not literary works.
With respect to the chemical products, the court quotes SCC on Cuisenaire in which it was held that copyright protects the
expression of an idea, but not the effects of idea itself (i.e. the copyright on a cookbook does not extend to the meals made from its
recipes).
With respect to written confidential information, the court notes that jurisprudence and doctrine are divided over the issue of
confidential information as property. However, since Tri-Tex failed to prove that confidential information is movable property, its
action fails. [p.197-198]
Comment: The relevant CCP articles are reproduced below. Emphasis added.
733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to
fear that without this remedy the recovery of his debt may be put in jeopardy.
734. The plaintiff may also seize before judgment… the movable property which he has a right to revendicate.
Diffusion YFB c. Les Disques Gamma, [1999] R.J.Q. [C1.222]
Facts: In 1996 L (a musician) signed a contract with DG giving them rights to ¾ of the profits in all his songs. In 1998 L, signed a
contract giving YFB the rights to all of his songs for a five year period. When YFB tried to register L’s songs with SOCAN and
SODRAC (the Canadian copyright registration bodies) DG claimed ¾ of the profits.
Issue: Can L cede his rights in a future work of art?
Holding: Yes.
Reasoning: The Copyright Act is unclear on this point. Thus Québec’s civil law applies. a1374 allows contracts to transfer future
goods as long as the prestation is “determinate as to kind and determinable as to quantity.” L’s songs fulfill both criteria. Thus the
1996 contract is valid.
Ratio: Cession of copyright can be made in advance of the existence of the work.
Section 8.3: Indian Title
i) Introduction
“Aboriginal title” or Indian title” is a special kind of property right. It is a sui generis right, which means that it was not created by any
particular state action or declaration (so not the Royal Proclamation) or treaty or any article of the Constitution. It exists under Federal
Common Law as a means of reconciling the fact that aboriginal societies pre-date British sovereignty, yet the Canadian Constitution is
based on absolute sovereignty of the Crown. By means of compromise, aboriginals are given certain rights simply because they are
aboriginals.
Defining the nature of aboriginal title was difficult, since neither Civil nor Common Law was well-suited to the task. Comparisons to
servitudes or fee simple or saying Indian Title was “like a usufruct” were common. This changed with a series of Supreme Court
rulings after the Charter, starting with Guérin v R.
The content of aboriginal title arises from its origin: the historical attachment of the band to its territory. Thus it excludes any activities
that are incompatible with this link (clearcutting a sacred forest would be disallowed). This is the only restriction, and use of the land
is not limited to traditional activities/exercise of aboriginal rights (the band could start a white water rafting company). This usage
right is exclusive. It is held collectively, rather than on an individual basis. Indian titles are inalienable, except to the (federal) Crown,
in which case federal government administers the land for the benefit of the Indians to which it belonged.
Proving Indian title is tough (see Delgamuukw, below). Basically the band has to show exclusive control over the area at the time of
British sovereignty (1759 – the date of the capitulation of Montréal). Note that this is different from aboriginal rights, which are
proven at the time of contract with Europeans (generally 1603 in Québec – the start of Samuel de Champlain’s explorations).
5 difference between aboriginal title and regular property rights:
(1)
The source of aboriginal title is derived from pre-sovereignty occupation.
(2)
The range of uses is limited in aboriginal title.
(3)
Aboriginal title is inalienable, except to the federal Crown.
(4)
Aboriginal title is held communally.
(5)
Aboriginal title is constitutionally protected.
ii) Legislation
Indian Act [C1.315]: s2 Defines “reserve”; s18 Federal Government is the owner of the reserve’s land and holds that land in trust for
the band; s20 Members of the band cannot own the land individually, since it’s collective property; they can only possess it; s24 InterIndian transfers are okay with Minister’s approval; s28(1) Indian to non-Indian transfers, sales or leases are void (2) Not void with
approval of Minister and band council; s29 reserves not subject to seizure; s36 Reserves not vested in the Crown (?); s88 Provincial
laws of general application apply to Indians unless they contradict treaty rights or the Indian Act itself.
Canadian Charter of Rights & Freedoms [from Constitutional Law]:
25. The guarantee in this Charter of certain rights and freedoms shall not be construed as to abrogate or derogate from any aboriginal,
treaty or other rights or freedoms that pertain to the aboriginal peoples of Canada including
(a) any rights or freedoms that have been recognized by the Royal Proclamation of October 7, 1763; and
(b) any rights or freedoms that now exist by way of land claims agreements or may be so acquired.
iii) Jurisprudence
Background Cases
Guérin v. R (1984) [from Constitutional Law]: Aboriginal title is sui generis and does not depend on the Royal Proclamation of 1763.
It arises from the historic occupation by aboriginals of their native lands. The underlying title is held by the (federal) Crown, and
aboriginal title is a charge in favour of the band on the title. Aboriginal title is a collective right. The result of all this is that the land is
exclusively occupied by the band and may only be sold/ceded/rented to the Crown. Because of this the Crown has a duty to ensure the
land sold/ceded to it is used so as to benefit the band. In failing to uphold this duty, the Crown becomes vulnerable to similar penalties
it would suffer for violating a private law fiduciary duty.
R v. Sparrow (1990) [from Constitutional Law]: s25 of the Charter protects aboriginal rights existing in 1982. These rights cannot be
extinguished or regulated by either level of government unless justified by a specific public policy grounds. The government has a
semi-fiduciary duty in its interactions with natives.
R v. Van der Preet (1996) [from Constitutional Law]: Aboriginal rights are different from other Charter rights because they are given
to aboriginals because they are aboriginals. Such rights exist when it can be shown that they were an integral and distinct part of the
band’s culture at the time of European contact. The way in which rights are exercised may evolve over time - s25 did not have as its
intended effect “freezing” native rights in a particular form, nor does it force natives to use outdated traditional methods against their
will. Section 1 of the Charter does not apply to section 25, but governments may infringe aboriginal rights if they have a compelling
and substantial motivation, which must be specific rather than general (i.e. “public interest” is not enough).
The Van der Preet test is applied as follows: (1) determine the precise content of the right being claimed (“right to fish” is too
general “right to fish in Lake X” is specific enough) (2) Was the practice an integral and distinctive part of the band’s traditional way
of life at the time of contact with Europeans (effective European control in the case of Métis)? (3) Was that right extinguished? (4) Is
the infringement justified by a specific “compelling and substantial” public policy concern?
Coursepack Cases
R v. Adams, [1996] SCR [C1.357]
Facts: A was charged with fishing without a license. He probably could have gotten a license to fish for food, but did not apply for it.
His people do not have aboriginal title over the lake, but fishing there is a traditional practice.
Issue: (1) Can aboriginal rights be exercised outside of an underlying aboriginal title? (2) Does A have a right to fish in the lake? (3)
Were those rights extinguished? (4) Was the infringement justified?
Holding: (1) Yes (2) Yes (3) No (4) No.
Reasoning: (1) Some aboriginal peoples were nomadic. Even non-nomadic peoples changed their location of settlement over time.
Thus in order for them to have access to aboriginal rights, those rights must exist independently of a territorial claim. Thus even if A’s
people do not have aboriginal title over the lake he was fishing in, he may have a right to fish there.(2) Historical evidence shows that
his people traditionally fished there, hence he has the right. (3) The government claims that the 1854 flooding of the lands that A’s
claim was based on and a surrender agreement concluded with the Crown extinguished his rights. But only a clear and explicit
declaration can extinguish aboriginal rights. All ambiguity is interpreted in favour of the Indian and that is the case here. (4) The
government failed to demonstrate any justification for the restriction of A’s right to fish for food, since sports fishermen were granted
licenses for the lake!
Ratio: (1) Aboriginal title may be exercised outside of lands over which aboriginal title is exercised; (2) Extinguishing aboriginal
rights requires an explicit and clear declaration by the legislator pre-1982 and is impossible post-1982.
R v. Côté, [1996] SCR [C1.338]
Facts: C and some other Indians were charged with failure to pay an access fee to a special fishing zone (ZEC) which was required of
anyone who entered the ZEC by car. Exceptions were made for Indians who entered the zone on foot, by canoe or snowshoe or by
snowmobile. They claim that their aboriginal rights allows them to fish traditionally for food in certain off-reserve areas.
Issue: (1) Can aboriginal rights be exercised outside of an underlying aboriginal title? (2) Did the unique legal history of Québec/the
French approach to colonization block the creation of legal title? (3) Is C allowed to fish in the area without a license? (4) Does he
have to pay an access fee?
Holding: (1) Yes (2) No (3) Yes (4) Yes.
Reasoning: (1) Aboriginal title is a sub-category of aboriginal rights. Thus aboriginal rights need not and cannot depend on aboriginal
title. (2) The legal intricacies of the French approach to Indians are murky[342-343]. But there is no reason to believe that the laws
governing aboriginal title fall under civil law. Instead, they are an aspect of public law, which was switched to Common Law by the
original surrender treaty. Thus Indian rights fall under Federal Common Law. Thus the rules of Van der Preet may be applied here. (3)
Evidence shows C’s band had a right to fish in the area. The provincial government failed to provide a “compelling and substantial”
justification for infringing C’s rights. (4) The fee for access by car is not an infringement of this right since it is applied only to some
forms of access, is relatively small and is used for upkeep of facilities in the ZEC. C must pay the fee.
Ratio: (1) Treaty rights granted by the Federal government can be used to oppose provincial laws under s88 of the Indian Act; (2)
Québec Civil Law does not apply to disputes over aboriginal rights; (3) Aboriginal title may be exercised outside of lands over which
aboriginal title is exercised.
Delgamuukw v. British Columbia, [1997] SCR [C1.318]
Facts: Two aboriginal bands claim 58,000 square kilometres in BC as their ancestral territory. There are 5-7,000 band members and
30,000 non-aboriginals living in the land. The bands claim aboriginal title over the area and presented largely oral and hearsay
evidence to prove their case.
Issue: (1) What sort of evidence can be presented to prove aboriginal title? (2) What is the content of this title? (3) In 1871 did the
province have the power to extinguish the ancestral rights of the natives? (4) Have the bands demonstrated their right to aboriginal
title over the land?
Holding: (1) Evidence rules must reflect the difficulty of finding proof from the period of contract and the orally-transmitted history
of aboriginal groups (2) Right in land allowing the band to practice any activities that are not incompatible with the band’s historic
link to the land (3) No (4) Given new evidence rules the SCC orders a retrial.
Reasoning: (1) Oral histories and hearsay evidence must be admissible as evidence (but are not necessarily determinative!) at trial.
Otherwise the burden of proof will be impossible to meet.
Proof of title requires the band to show exclusive control over the land at the time that British sovereignty was asserted over the
province/territory (not first contact!). Some intrusion by other bands is allowed, but significant intrusion undermines their claim to
title. If current residency is used to prove past occupation, there must be an almost-continuous settlement of the area, although it does
not need to be perfect.
(2) The content of aboriginal title arises from its origin: the historical attachment of the band to its territory. Thus it excludes any
activities that are incompatible with this link (clearcutting a sacred forest would be disallowed). This is the only restriction, and use of
the land is not limited to traditional activities/exercise of aboriginal rights. This usage right is exclusive. It is a collective and
inalienable sui generis title that is not reducible to fee simple or a usufruct.
The existence of aboriginal title is an element of the accommodation between aboriginal and non-aboriginal societies. Infringing
on aboriginal title is thus permissible, but requires justification [453-454].
(3) The 1867 constitution gave jurisdiction over “Indians” to the Federal government. It would be strange if control over
aboriginal rights and aboriginal title were not included in this, and in fact not including aboriginal title in s.91(24) would encroach on
the essential elements of “Indianness.” Thus after joining Canada, BC no longer had the power to extinguish aboriginal title.
(4) Retrial, since new evidence rules require re-submission and re-consideration of all evidence.
Ratio: (1) Evidence regime for aboriginal title (2) Rules for proving aboriginal title: exclusive occupation of the land at the moment
of the proclamation of Sovereignty (3) More rules for justifying infringements on aboriginal rights.
Comment: Apparently no native bands have ever actually succeeded in fulfilling all the requirements for proving native title…