Contents
Origins of Québec Civil Law ............................................................................................................................................ 2
Sources of the Civil Law .................................................................................................................................................... 2
The Code (incl. Preliminary Provisions, CCQ) .............................................................................................................. 2
Things, Rights, and Property (incl. articles 899-915) .................................................................................................... 3
Patrimony (incl. art. 2, 302, 414-415, 625, 780, 2644-2646) ......................................................................................... 3
Extra-Patrimonial Rights (incl. art. 1-10, 35-36, 302, 537, 1212-1217, 1610, 2668)................................................. 4
Patrimony and Juridical Personality (incl. art. 1, 4, 298-299, 301, 303, 2186, 2188, 2199, 2208, 2211, 2221) ..... 6
Patrimony by Appropriation (incl. art. 915, 1260-1265)............................................................................................... 7
Real and Personal Rights (incl. art. 911-912, 947, 1119, 1371, 1373, 1440, 1453-1455, 1851-1852, 1897, 26442647, 2660-2661, 2751, 2923-2925) ................................................................................................................................. 8
Critique of the Distinction Between Real and Personal Rights ................................................................................. 10
Movable and Immovable Property (incl. art. 899-907, 2672) .................................................................................... 11
Publication (incl. art. 2938, 2941) ................................................................................................................................... 16
Intellectual Rights ............................................................................................................................................................. 17
Other Distinctions (incl art. 908-910, 1120, 1127, 1160, 2313-2314)....................................................................... 19
Domain: History of Land Tenures................................................................................................................................. 19
Public Domain (incl. art. 298-300, 915-920, 2645, 2668) ........................................................................................... 21
Common Property: Water (incl. art. 913, 916-920, 979-983) .................................................................................... 22
Justification of Property (guest lecture by David Lametti) ........................................................................................ 24
Ownership (Arts. 947-953, 977-978 CCQ; arts. 787-794 CCP) ................................................................................ 24
Limitations on the exercise of the right of ownership (Arts. 6-7, 976-1001, 1457 CCQ; arts. 751-752 CCP) .. 25
Possession (Arts. 911, 916, 921-933, 992, 2875, 2876, 2910-2920 CCQ; arts. 805-806 CCP) ............................. 27
Occupation and Accession (Arts. 913-914, 934-939, 948, 954-975 CCQ) .............................................................. 28
Undivided co-ownership (Arts. 1002-1010, 1012-1037, 1519 CCQ; arts. 689-690, 710 CCLC) ......................... 30
Usufruct (Arts. 1119, 1120-1171 CCQ) ........................................................................................................................ 32
Servitudes (Arts. 1119, 1177-1194 CCQ) ...................................................................................................................... 34
Numerus clausus (Arts. 947, 1009, 1119 CCQ) ........................................................................................................... 37
Trusts and Substitutions (Arts. 1218-1296 CCQ)........................................................................................................ 39
Aboriginal Rights .............................................................................................................................................................. 40
Articles from the Code of Civil Procedure: .................................................................................................................. 41
Articles from the Civil Code of Lower Canada ........................................................................................................... 43
1
Origins of Québec Civil Law
What are the key stages in the development of Quebec civil law?
Custom of Paris
English occupation (1760)
Ordinance imposing common law (1764)
Report on lack of uptake of common law (1766)
Quebec Act revert to back to Civil Law (1774)
CCLC (1866)
CCQ (1994)
In what sense is Quebec law a mixed legal system?
Freedom of testation one example (Dainow)
Sources of the Civil Law
What are the sources of civil law in general and property law in particular?
Brierley & MacDonald, The Civil Code and the Sources of Civil Law: Legislation is the prime source of law, and the
code has a unique place in civilian systems. It is inferior to the constitution, and can be amended by any
statute, but is otherwise quasi-constitutional. Other sources of law include custom, decided cases, and
doctrine, general law principles (e.g. common law principles) and contracts.
The Code (incl. Preliminary Provisions, CCQ)
What is the place of the Civil Code in the civil law of Québec?
It acts as the central source of common law in Québec; it directly prescribes actions in a multitude of areas of
society. It is the jus commune of the province.
Brierley, The Renewal of Quebec’s Legal Culture: The New Civil Code of Quebec:
 Social constitution; law of the land; fundamental reference point; new code – new self-affirmation
 Scope—codification aimed to reduce all private law to a single authoritative bilingual document,
consolidating legislation, cases, and doctrine. It may harmonize with other legal systems, e.g. Human
Rights Code of Ontario. All kinds of people are involved: special interests, law professors, judges,
government, and the public. Fundamental principles may be reexamined.
 How—it deals with every stage (birth, marriage, death, etc.) of your private life; the Romans and
Napoleon were never that interested in the public side, left to constitutions and Charters. A code is
made up of books: persons, things, and transactions. The CCLC added a fourth, commercial laws. The CCQ
now has ten. The style is general, using “open-textured” ideas like good faith, public order, equity,
abuse of rights, abusive clauses, general interest, etc. It tends to be articulated through legal
taxonomy.
(i)
Imperative rules are strict rules that cannot be changed using contracts, often preceded by the
words “notwithstanding any agreement to the contrary.”
(ii)
Suppletive rules are default rules that apply unless expressly excluded, allowing the code to be
permissive rather than always calling for obedience.
What role has codification played in the development of Québec civil law? of Québec society?
2
(Brierley) It truly distinguished Québec society from the common law tradition surrounding its formation, as
well as affirming a need for clarity and citizens-oriented interest which clashes with third-party perception of
the common law. In society, it affirmed the new rationalism that supplanted the previous religious society.
Codification, in the end, affirmed Québec as a distinct nation.
What is distinctive about a civil code?
(Brierley) It is a consolidated form of the law, as opposed to the more disparate form of legislative law found
federally in largely disparate acts. It pretends that one can rationally delimit human conduct in a largely
context-devoid manner. It is, in the terms of the readings, a 'social constitution'.
What are some of the criticisms that could be levelled at the Civil Code of Québec?
As a fundamental starting point of the law, one could ask whether certain inclusions should truly fall within
the code since this would be to give them a fundamental, jus commune status. One may beyond that criticize its
style, which is often rather general and unspecific, although this latter point is rather a question of ideological
preferences than flaw. There is also a difficulty in distinguishing imperative propositions from merely
suppletive ones.
Legrand, “Bureaucrats at Play: The New Quebec Civil Code”
o Legal fiction (code crafts world that drafters want to live in), too general
o CCQ is translated poorly
o Form dilutes substance (some articles deal with paperwork procedure)
Things, Rights, and Property (incl. articles 899-915)
What is the meaning of "property", "thing", "right"?
'Thing' is a non-human (possibly non-animal) existent. The term property designates material things over
which there exists a right of ownership. (Dict. of Obligations) Rights, esp. patrimonial rights, are those rights
which by essence have monetary value: they can be alienated, transmitted, sold, seized, etc.
Baffitol, Problèmes contemporains de la notion de biens
 The notion of property engages the notion of person, personality.
 Thing can be narrowly interpreted to include only corporeal objects, or broadly to include
incorporeal.
 Right: source of claims against one or more people
What is the difference between "bien" and "chose"?
A 'bien' is the object of a right, whereas a 'chose' may or may not be.
How do these concepts relate to each other?
Property is a specific right that relates an owner with a 'thing'
Why are they considered to be fundamental to civil law property?
Because they are the very objet of ownership rights.
Comments:
(6) Every person has a right to the peaceful enjoyment and free disposition of his property, except to the
extent provided by law. -Québec Charter
Patrimony (incl. art. 2, 302, 414-415, 625, 780, 2644-2646)
3
What is the analytical function of the patrimony?
The function of the patrimony regards the relationship between a person's rights and debts. Its function
relates to the ability to take on new rights and debts, as well as one's obligation towards debtors.
What is the essence of the two theories of patrimony and how do they diverge?
The first defines patrimony as the sum of property, which is an object to which a right is attached, as well as
the total outcome (fruits and revenues) of such property. It is, thus, an emanation of personality, and the
expression of the juridical power recognised/possessed by a person. Patrimony is indivisible, and contains
both rights and 'charges' (debts), present and future. The patrimony is the 'container' in which those rights
and charges are contained; it does not change as those rights and charges are moved to and fro. All rights may
be transmitted, but the patrimony itself cannot, for the person does not lose the capacity to gain new rights.
"Le lien établi par la doctrine classique entre le patrimoine et la personnalité est tel qu'on n'arrive plus à les
distinguer". (Ghestin & Goubeaux, Traité de droit civil: introduction générale)
The second, the "patrimoine d'affectation", defines patrimony by reference to a particular goal appended to
the rights and charges, which enables creation of patrimony without a subject. In this sense, a person could
separate its patrimony into one of professional interest, and one of family interest. Various degrees of
limitations to the creation and separation of patrimony are defined by different proponents of this approach.
Classical theory (Aubry & Rau, Cours de droit civil d’après la méthode de Zachariae) :
 1) Everyone has a patrimony (although it can be empty, or contain only debts).
 2) Only legal persons can have a patrimony – it is attached to personality
 3) Patrimonies are indivisible/a person can have only one patrimony.
 4) Patrimonies are intransmissible (but not their contents!) while the subject is alive.

Objective theory (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.”
Which theory of patrimony does the C.c.Q. embrace?
It appears to endorse the affectation conception of patrimony, for it not only refers to affectation, but also to
division of patrimony in line with affectation.
Comments:
"Le patrimoine est l'ensemble des biens d'une personne, envisagé comme formant une universalité de droit." Aubry & Rau
Extra-Patrimonial Rights (incl. art. 1-10, 35-36, 302, 537, 1212-1217, 1610,
2668)
Why does the law distinguish between patrimonial and extra-patrimonial rights?
To distinguish between rights that can be seen as 'economic' (pecuniary, transferrable, seizable, prescriptive),
and those that are outside of economy (personality rights; obligations against extra-patrimonial rights can be
patrimonial rights)
Beaudouin & Jobin, Les obligations: 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
4
Ghestin and Goubeaux, Traité de droit civil: introduction générale: Patrimony is the set of rights and charges, present
and future, in which rights answer for charges. It includes the set of rights that the given person could
transfer to another for money. There are some exceptions or weaknesses: (1) some patrimonial rights can be
declared unseizable, and so cease to universally guarantee the person’s debts, (2) legal persons (i.e.
corporations) now exist which have their own patrimonies without being what we would traditionally think of
as a person, (3) heirs instantly have the person’s personality transferred, as well as everything in the person’s
patrimony into their own, and (4) the modern conception allows patrimonies by appropriation, which are attached
to no person in particular. But the classical conception is still the foundation.
Can extra-patrimonial rights be transferred?
No. By their nature, they cannot be transmitted and, in principle, die with their owner. However, rights
secondary to an extra-patrimonial right (right to recover damages for defamation) can sometimes be
transferred.
Can a person renounce her extra-patrimonial rights?
In certain cases, a person can partially renounce an extra-patrimonial right. One can give blood, or organs, for
instance. One cannot transfer extra-patrimonial rights by onerous title.
Is it a good idea to allow the private creation of unseizable rights?
I prefer not making any value judgement. If one wants to secure livelihood for its citizens, then yes. If one is
to have its interests respected post-mortem, then yes.
When rights are unseizable, does this mean they are extra-patrimonial?
Not necessarily. Property may be unseizable, yet property is clearly a patrimonial right.
Comments:
If the "contrats de mère porteuse" are illegal provincially, but not Federally, can I make the contract "to be
interpreted under Canadian law" instead of Québec law?
Is the distinction between patrimonial and extra-patrimonial rights clear-cut?
It isn't. Many rights overlap both categories in specific instances, since the definition of 'economic' depends
on our conception of what can be monetised.
Deleury & Goubau, Les droit des personnes physiques :
The law protects the infringement and commercialization of people’s bodies, above all dignity tied to the
essence of the person. We shouldn’t take this too far, because it could prevent anyone from selling their
labour, threatening capitalism. With modern developments in biotechnology, and changes in morality, we
should even consider opening up the commercialization of the human body parts. Human beings and their
bodies are in fact, already both subjects and objects of the law. But it is a problem that corpses can no more
be considered property than can living bodies. Their heirs cannot then hold a right of property in them.
Laoun v Malo
[2003] R.J.Q. 381, [2003] R.R.A. 44 (C.A.)  107
Facts
 M is a model for Silhouette glasses
 L sells Silhouette glasses
 L gives a Silhouette promo photo of M to Larose, who publishes it in a catalogue
 M argues this is outside her agreement with Silhouette
 L argues consent was implied because he was using it to promote Silhouette glasses
Reasons
5

L’s argument fails on three grounds
o M’s contract with S was only for in-store posters; no re-publication
o Contract between M and S cannot transfer rights or obligations to third parties (art 1440
CCQ, privity of contract)
o a 3 CCQ says right to privacy is not transferable
 Right to privacy cannot be waived or transferred, only restricted (ex. selling one’s image)  in
such cases contract is to be interpreted narrowly
o Therefore subject to pecuniary evaluation despite being an extra-patrimonial right
o Breach brings damages
Holding
For M, with damages.
Ratio
Right to image/privacy can be restricted by contract, but not transferred, and interpretation must be
narrow. Right can be subject to pecuniary evaluation.
Is there a single criterion for making the distinction?
Absolutely not, since certain rights can give rise to - on one hand - economic damages, but also separate and
distinct moral damages.
Patrimony and Juridical Personality (incl. art. 1, 4, 298-299, 301, 303, 2186,
2188, 2199, 2208, 2211, 2221)
What is the relationship between patrimony and person?
Patrimony is normally associated with a single person. It may, however, exist independently of one, or a person
may be endowed with multiple patrimonies. It is also conceivable that a single patrimony be endowed to
multiple persons as in matrimonial relationships.
Can the person and the patrimony exist separately?
Yes. It is the case with a trust and, according to some, with a «s.e.n.c.» (partnership).
Popovici, “Québec’s Partnership: Une Société Distincte” :
 Partnership :
o Not a person
o Property actually owned by partners
o Way of being
o Partners liable for obligations
o Only exists if there are partners
o No distinct patrimony
 Corporation:
o Legal person
o May own property
o Type of being
o Liable for its own obligations
o Can exist on its own
o Has a distinct patrimony
Ferme C.G.R. enr. (Faillite de) [2010] :
 Partnership patrimony exists, and is separate from partners’. As such, the partnership CAN own.
 Partnership can go bankrupt without the partners going bankrupt.
6
What kinds of persons does the Civil Law recognize?
Moral persons, and 'real' persons.
What challenges does the partnership pose to the theory of patrimony?
The theory of patrimony of Aubry & Rau presumes the association of patrimony with personality. Yet,
entities that are not legal persons may be endowed with patrimony.
Patrimony by Appropriation (incl. art. 915, 1260-1265)
What does the patrimony of appropriation address?
The need for a form of patrimony created towards a certain goal without it necessarily being part of a
person's patrimony. The very existence of necessary institutions such as the Nobel Prize depends on the
existence of a theory behind a trust/fiduciary, which the patrimony of appropriation provides.
Cantin Cumyn, “Pourquoi définir la fiducie comme un patrimoine d’affectation?”: In the CCLC, Québec trust was
considered sui generis as property type. It wasn’t considered part of the patrimony of the trustee since the
rights were unseizable. Only fraud and bad faith are reprimanded; there is no otherwise obligation on the part
of the trustee. Under the new code, a trust is a patrimony by appropriate. Trustees have a duty towards this
patrimony and must exercise prudence, due diligence, and loyalty. Beneficiaries do not own the property. In
this system, the trustee has powers in the patrimony, but no rights. Patrimony by appropriation is not a
division of patrimony, but a subset of a patrimony, flowing from the idea of fiduciary property. A trust must
be formed by juridical act. (This seems to conflict with the words of article 1260)
Fiducie Côté Poirier (Syndic de)
[2007] R.J.Q. 2848, S.C.
Facts
 A fiducie makes bad investments and attempts to make use of the Loi sur la faillite et l’insolvabilité.
 The registrar accepts.
 The creditors sue, alleging that the fiducie isn’t a person and that the law doesn’t apply to it
Issue
Is a fiducie a person or moral person, e.g. corporation?
Holding
No.
Reasons
 The LFI defines a person as to include moral persons.
 While the CCQ creates a patrimony by affectation for fiducies, it does not make it a moral
person
Ratio
A fiducie isn’t a legal person.
What challenges does the Quebec trust pose to the traditional civilian notion of person? Of
patrimony?
It challenges the notion of person in that a person is typically associated with the concept of patrimony as the
subject of a property relationship. In the same breath, it challenges the notion of patrimony classically
associated essentially to a person.
What is the difference, in Quebec law, between a division of a patrimony and an appropriation of a
patrimony to a purpose?
7
The division of patrimony leaves the patrimony associated to the person, although may divide it based on
separate interests of his. The person retains the rights and obligations within the patrimony. The appropriate
of a patrimony to a purpose dissociates the patrimony from a person entirely, at least until the purpose is met.
It becomes a separate, autonomous entity. Once created, the rights of the creator are those of an
administrator instead of an owner (unless the creation contract stipulates otherwise).
Real and Personal Rights (incl. art. 911-912, 947, 1119, 1371, 1373, 1440,
1453-1455, 1851-1852, 1897, 2644-2647, 2660-2661, 2751, 2923-2925)
How does the law distinguish real rights from personal rights?
Real rights are set against everyone, and concern an object. Personal rights are set against a single person.
Ghestin & Goubeaux, Traité de droit civil: introduction générale:
 Droits réels: have a material thing for object. Those rights are all subparts of a property right.
Primary real rights exist alone, whereas secondary “accessory” real rights reinforce a creditor’s claim.
o Opposable to everyone, absolute, and includes a right of following and right of preference.
 Droit de créance/personnel: when one is a creditor.
What is the relevance of the distinction?
Only real rights may give rise to "droits de suite" and "droits de préférence". Real rights may be unilaterally
abandoned. A real right is only in a currently existing and individualised object, whereas personal rights may
concern nondescript objects.
What are the principal characteristics of real rights?
They are opposable to everyone, can give rise to "suite" or "preference", and concern objects. (Ghestin)
Terré & Simler, Droit civil: les biens:
o Real rights are sometimes seen simply as a type of personal rights, but this can’t be:
o (1) in the legal relationship between a person and a thing, the thing is simply a passive subject
of rights (to be active it would need an obligation imposed directly upon it),
o (2) it would be paradoxical to imagine such a universal passive obligation: since real rights
can be set up against anyone, it would mean that for each item of property, everyone else
would have an obligation in their patrimony, and
o (3) when it’s said that a real right can be set up against anyone, this has two different meanings:
even though personal rights only create obligations for the debtor, who alone is bound,
passive obligations can sometimes be created for third parties, e.g. in an employment
contract, another employer can’t knowingly hire the employee in violation of the first
contract without engaging his responsibility toward the other employer.
o The two types have begun to resemble each other more: real rights are now often held by
partnerships, not individual people, and personal rights have essentially become transferable between
creditors. At some point, it’s impossible to categorize, e.g., a renter’s rights as either real or personal.
Carbonnier, Droit civil: Les biens:
o Personal rights are between two people, and only exist between those two. They cannot be
abandoned. Real rights are between a person and a thing, and they allow abandonment.
o Unlike personal rights, (1) real rights can’t exist over things that don’t yet exist, or that haven’t been
individuated, (2) they give the right to follow and the right of preference.
o Right to follow says that the owner can exercise their right no matter whose hands the
property is in (it can be set up against third parties), e.g. hypothec. The right of preference
says that if a person becomes insolvent and their property is seized to pay off their debts,
8
o
those holding real rights over property get to exercise them first, and then the rest of the
person’s property is divided up between creditors of personal rights.
Hypothec is a guarantee against insolvability, not depreciation; real rights aren’t always the better.
Beaudoin & Jobin, Les obligtions:
o Real & personal rights work in the same way in QC as in France.
o There are some nuances, especially with the new CCQ:
o (1) immovable leases, even non-residential, can be set up by the renter against new owners of
the property;
o (2) hypothecs can be held even on creditor rights, mostly losing the right to follow;
o (3) in some cases a third party who makes a debtor lose her expected benefit from a
contractual right may be held responsible.
o We should now recognize there is a third category: intellectual rights.
What powers or prerogatives do real rights confer?
Rights to usage, derive profit or benefit, sale, or grievance (servitude, hypothec).
Mignault, Le droit civil canadien: property, usufruct, usage, habitation, servitudes, emphyteusis (serf-like rent
system), gage, privilege, hypothec.
Ouimet c Guilbault
[1972] CS 859  CB 165
Facts
 1964 – Promise of sale contract between O and G for land G owns (bilaterial – G promises to
sell, O promises to buy)
 1967 – Gov’t notices G of pending expropriation of land
 1969 – O tries to initiate a sale contract via a action de passation de titre
 1970 – land expropriated
 O claims real rights in the land, as well as damages for breach
Issue
What rights did the contract create? Were the rights extinguished with expropriation? Can O claim
damages?
Holding
G owes damages to O.
Reasons
 Promise of sale created personal rights, not extinguished by expropriation
 Promise of sale is not sale, so there are no real rights created
 Expropriation is a force majeure, making it impossible for G to transfer real rights (action pétitoire
must fail)
 Government compensated G, allowing him to fulfil his obligation created by O’s personal rights
 O’s personal rights with respect to G cannot affect third parties (the government)
Ratio
Promise of sale creates personal rights, breach of which leads to damages. Real rights are
extinguished with expropriation.
Do real rights confer more powers or prerogatives than personal rights?
In terms of rights, and powers, real rights confer more. That said, it may be 'better' to have personal rights,
for instance. If property owned gets destroyed, I must worry about it. If property owned by someone else is
9
destroyed, he worries about it and my personal right remains intact. (Carbonnier: depreciation isn’t protected
from in real rights, but quite possibly in personal rights)
Critique of the Distinction Between Real and Personal Rights
Do all patrimonial rights fit into one or the other category?
No. Québec trusts, namely, is impossible to properly characterise as either, since the trustee does not 'really'
have the real rights to the property, but isn't 'merely' endowed with personal rights given his holding the title.
The beneficiary isn't the owner either. He may not even be specifically named through the trust, being only
eventual or potential beneficiaries. Nor are they normal creditors. Lessee rights to enjoyment are also
somewhat in between the two categories. (SEE Terré & Simler)
Future, conditional and eventual rights (which are not explicitly recognized in Quebec but are so in France)
are also a third form of rights which are only ambiguously characterised as either of the classical categories.
Macdonald argues that patrimonial rights arising from extra-patrimonial rights cannot be personal rights since
they are opposable against everyone, but he is conflating the patrimonial right with the extra-patrimonial right
that gave rise to it, as if they were one and the same or intrinsically and relevantly linked.
Brierley, “Regards sur le droit des biens dans le nouveau Code civil du Québec”:
 Principal real rights (dismemberments of property)
o “Biens” are those things susceptible of appropriation.
o Property is not an indivisible right anymore, but includes many types of property rights.
 Secondary real rights (privileges and hypothecs)
o Even incorporeal rights can be hypothecated
o Is real because it can be opposed to third parties, which is what the following right is
o Trusteeship isn’t a real right; the title isn’t the right
o The beneficiary of a trust isn’t the owner either
 The CCQ has a vision of “bien” that is centered on the idea of pecuniary value
Macdonald, “Reconceiving the Symbols of Property: Universalities, interests and Other Heresies”:
 “If real rights can only bear on individualized corporeal things, then no real right (for example,
ownership) may be asserted in respect of a personal right (an incorporeal). […] Yet it also means that
no real right may be claimed in a universality, conceived as such. Again, no real right can bear on a
future thing and, in principle, real right may be claimed on another real right.”
 Materialist theory of property: value resides in corporeal assets, esp. their usufructus. This is false in
today’s society, but materialist theory remains.
 Intellectual rights don’t fit in those categories; there is no identifiable debtor, yet do not bear on any
“bien” or thing either. It is a third category, in Québec.
 Personality rights have patrimonial consequences. Are those consequences real or personal rights?
Human body isn’t a thing, and those rights are still opposable to everyone.
 Lessee can’t be just a personal right.
 Some rights attach to “future” things, like installations, without there being a real right proper.
 Use-value seems like a real right, but it isn’t “really” in the thing itself.
Does the C.c.Q. reflect the classical distinction between real rights and personal rights?
No. For instance, you may a hypothec (which is a real right) in a thing which may not be object of a real right
in classical notions. Many 'goods' like intellectual property are also not clearly objects of real rights, although
the Québec code does seem to view them as property, and thus object of real rights.
10
Comments:
For Macdonald, the distinction between real and personal rights shows an interest in property qua things,
rather than property qua expression of wealth, in opposition with the object of personal rights. Important to
this position is the concept of possession. Possession is important to real rights, whereas if they were merely
personal rights, it would hardly matter whether we do/can possess the thing at this moment.
The value of the thing is not equivalent to the value we may derive from the thing, either.
Movable and Immovable Property (incl. art. 899-907, 2672)
How does the law distinguish between immovables and movables?
A construction attached to the ground or that is an integrant part of another immovable is immovable.
(Nadeau) Movables, by their nature, are not permanently affixed to an immovable. The ultimate measure of an
immovable by nature is whether a construction participates in the fixity or immobility of the land. If it
possesses a fixed foundation, it is an immovable by nature. If a thing may be moved by themselves or by an
extrinsic force, it is a movable.
If an immovable is immovable insofar as it is necessary for the proper usage of another immovable, or makes
it more enjoyable, it is an immovable by destination. An immovable is immovable by nature if it cannot be
properly dissociated from its immovable foundations. (Nadeau)
Bélair c Ste-Rose (ville de)
[1922] 63 SCR 526 (QB)  CB 236
Facts
 B owns a toll bridge over the river, anchored to the bed by the piers
 VSR wants taxes on the bridge, as they do on all immovables
Issue
Is the bridge an immovable, subjecting B to the tax?
Holding
Yes.
Reasons
 Art 376 CCLC provides that “All land and buildings are immovables by their nature”
o Art 377 provides “windmills and water-mills, built on piles and forming part of a building,
are also immovable by their nature”
o Court interprets “buildings” to mean all “structures” which are attached to the ground.
o N.B. the French and English are given equal weight, so Court also considered whether
“bâtiment” had a different meaning than “building” – it doesn’t
 Servitude granted to build on the riverbed is an immovable (art 381 CCLC)
Ratio
Bridge is an immovable by nature.
Nadeau c Rousseau
[1928] 44 BR 545 (QB)  CB 238
Facts
 R installs a furnace for Proulx
 Contract states furnace remains R’s property until P pays him off
 P goes bankrupt, and presumably sells his house to N or something
 R claims the furnace as his property
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Issue
Was the furnace immobilized when installed? Does R have a claim to it?
Holding
Yes. No.
Reasons
 Furnace is immobilized when it is sufficiently incorporated into an immovable by nature (house)
o Becomes an immovable by nature
o Sufficient integration is a subjective test
 Must be integral to the structure – structure is incomplete without it
 Furnaces are integral because of Canadian winters
 Removal would cause serious damage to the immovable
o Not immovable by destination
 Movable that becomes immovable by destination must have the same owner as the
immovable
 Furnace cannot remain part of R’s patrimony once it is immobilized
o Immobilization is the same as accession here
o Contractual stipulation cannot prevent this, immobilization is determined by the code and is
an imperative law, not a suppletive one.
Ratio
Codal regime cannot be altered by contract. Immobilization automatically triggers accession.
N.B. cases like this brought about provisions in the CCQ to protect builders (e.g. art. 2724 CCQ)
Horne Elevator Ltd c Domaine d’Iberville Ltee
[1972] RJQ 403 (CA)  CB 240
Facts
 H installs the elevators in a tall building for D
 Contract states elevators will remain property of H until paid for, and if not contract gives H the
right to remove them from the building
 D went bankrupt
 H tried to seize the elevators, the buttons, etc
Issue
Can H claim the elevators? (Are they immoveable by nature?)
Holding
No (Yes).
Reasons (Rivard JA)
 Cannot be immovables by destination, because those must be immobilized by the owner.
 Elevators are immovables by nature
o Analogy to staircases
o Necessary for a tall building, integral part
o Removal would bring destruction
 Not a sufficient condition, because doors are also immovables by nature
Ratio
Necessity of the moveable to the immoveable is the most important factor for determining
immobilization.
Cablevision (Montreal) v Deputy Minister of Revenue (QC)
[1978] 2 SCR 64  CB 245
Facts
 C buys a network of antennas and wires
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 The wires are attached to the antennas and to Bell Telephone poles
 The antennas are attached to the ground
 Province charges a tax on sale of movables
Issue
Are the wires and antennas immovables and therefore not subject to the tax?
Holding
Yes.
Reasons (Beetz J)
 Wires are not immoveable by destination, because the immoveable they are attached to is owned
by someone other than the owner of the wires.
 Wires and antennas are immovable by nature
o Must be attached physically to the ground – through poles (ruled immovable earlier by the
court) and the building (in the case of the antenna on the building)
 Disjoint ownership is a legal, not physical distinction, so does not negate connection to
the ground.
o Attachment can be vertical (antenna on top) or horizontal (cable radiating from)
o Attachment does not need to be permanent
o Does not need to guarantee the utility of the immovable (contra Nadeau)
 Question is not whether a movable is being integrated, but whether an entire network is
a construction that adheres to the ground or another immovable
Ratio
Movables attached to the ground through an immoveable are immovable by nature. Attachment can
be vertical or horizontal. Attachment can be through a moveable owned by someone else.
What is the relevance of this distinction?
Taxes is an important question, as well as ownership.
Did the C.c.Q. change the law with respect to immovables and movables? How?
The main change is the disappearance of the explicit distinction between immovables by nature and
immovables by destination, and a more constraining definition for what may be called permanent
immovables. There is an attempt at restricting what may be viewed as an immovable.
How do courts determine the immovable or movable nature of property? What criteria do they use to
make the determination?
The first form of immovables is immovable by nature from article 900, C.c.Q., whereby land and
constructions upon land (including parts of such constructions considered in 901) are considered immovable.
(Construtek) It may be immovable permanently (article 901, C.c.Q.) if it is (1) physically incorporated to the
immovable, (2) without individuality, and (3) necessary to the utility of the immovable. It may otherwise be
immovable so long as it is materially attached to an immovable, despite not being incorporated nor losing its
individuality. (Mere comfort of occupiers does not constitute a form of utility for the immovable)
(Axor Test) Criterions for the latter case (article 903, C.c.Q.) are: (1) the presence of an immovable, (2) a
physical link between the considered item and the immovable, (3) the conservation of individuality and
absence of incorporation, (4) an "à demeure" link, that is, the indefinite, indeterminate or permanent nature
of the link, and (5) a function insuring the utility of the prior immovable.
(5) is to be determined based on the vocation of the immovable, whether it be of general and variable
commercial usage, or of a very specific conformation that does not lend itself properly to other vocations.
(Axor)
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Construtek G.B. inc. c. Laforge
[1998] RDI 137 (CQ)  CB 253
Facts
 L was married to Ghislain Bédard, owner of C.
 They broke up.
 L was still living in the house.
 GB won the house in court (had to pay L for half), C got the house through him, ordered L out
 L took the chandelier, major appliances, etc, with her
Issue
Were the appliances immobilized, thereby giving C a right them when he got the house? Were the
lights?
Holding
No. Yes.
Reasons
 CCLC – Except for the lights, no because the movables:
o Do not lose their interchangeability
o Cause no damage if removed
o Did not affect the utility of the immovable
 CCQ – application of articles 901 and 903. Nothing is immoveable except the lights.
o Art 901 – immoveable by integration
 Physically integrated
 Can’t be separated without breaking
 Moveable lost quality of individuality
 Assures utility of the moveable, completes it in an indispensable way
o Art 903 – immoveable by attachment
 Physical link
 Ensures immovables utility, not just for the occupant’s comfort or business (art. 48
below)
 Defendant’s replacing lights shows that they complete the building
 No loss of individuality necessary
 Immobilized while attached
Axor Construction c 3009-220 Quebec Inc
[2002] RDI 26 (CA)  CB 257
Facts
 3009 supplied the rink boards when A built an arena
 3009 published a legal hypothec on the arena as a whole, claiming the right to do so under art
2724 CCQ (allows hypothecs to be published by persons having taken part in the construction of
an immoveable)
 Axor moved to have the hypothec dismissed, claiming that the boards can be detached, are
movables, and therefore cannot be the subject of a hypothec.
Issue
Are the boards immovable? Is the hypothec valid?
Holding
Yes. Yes.
Reasons
 Art. 903 CCQ governs immoveables by attachment. Lafond finds five conditions for
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immobilization by attachment
1. Presence of an immovable
2. Attachment or joining of the movable to the immovable
3. Conservation of the individuality of the movable (to differentiate from immovable by
integration)
4. Perpetual attachment (attachment cannot be by its nature time-limited; duration of
attachment needs to be indefinite; does not need to be perpetual attachment)
5. Movable ensures utility of the immovable
 Here, it does, because a hockey arena doesn’t serve as a hockey arena without boards
 Must ensure the utility of the immovable, not just the owner’s business or the occupant’s
comfort
Dissent (Vallerand JA)
 Refuses to apply a subjective test
 Only applies An Act Respecting the Implementation of the Civil Code, s 48, re: utility to the owner vs
utility to the movable.
 Finds boards to be movables.
Ratio
To be immobilized under art 903 (immovable by attachment), key criterion is whether it ensures the
utility of the immovable.
Ville de Montreal c 2313-1326 Quebec Inc (Rock Sanna Café Bistro)
(17 January 2003)(CM)  CB 260
Facts
 RSCB went bankrupt and owed back taxes
 RSCB left the legally but not physically seized stuff in the restaurant, and told the owner of the
building it could have the stuff and left it to the next tenants
 Transaction was confirmed by the Superior Court
 VdeM seized its restaurant equipment
 RSCB and the new tenants oppose the seizure, claiming the equipment was immobilized
Issue
Was the equipment immobilized, therefore not subject to seizure?
Holding
No.
Reasons
 Some of the items are clearly moveable (e.g. chair, fire extinguisher)
 For the rest, Court applies of the 5 part test from Axor (above)
o None satisfy both step 4 of the test (permanent attachment), step 5 (utility to the
immovable)
Comments:
Legislation cites articles 901 and 903 of the C.c.Q., as well as the article 48 of the Act respecting the
implementation of the reform of the Civil Code, c. 57
"Under article 903 of the new Code, 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."
-Article 48, Act respecting the implementation of the reform of the Civil Code, c. 57
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Publication (incl. art. 2938, 2941)
What role does publication of rights play?
It establishes a real right in an immovable, opposable against everyone. You may also know about servitudes,
ownership, etc.
What are the consequences of absence of publication?
In the absence of publication, a real right is not opposable to third parties, but only to the contractors.
Real servitudes are set up with the building “benefiting” whereas personal servitudes have a person as
beneficiary and is thus temporary.
Tremblay c Martel
[2009] QCCQ 2465
Facts
Tremblay sold a campground with buildings to Charest, reserving a portion for himself, and
establishing a right to use it for snowmobiling and a servitude from Charest not to build in a section
of the land near his portion. The right was not published. When Charest sold to a new owner, the
new owner said Tremblay’s rights no longer applied.
Issue
Does Tremblay have a real right in the servitude?
Holding
No
Reasoning
To be a real right, it must be published, and its nature must be specified. It wasn’t published, so it’s
not a personal servitude, but rather a contractual claim which cannot be set up against third parties.
Personal servitudes are real rights, but not real servitudes.
Ratio
Real rights are only opposable to third parties once they are published.
9164-2298 Québec c. Église épiscopale St-James de Hull
[2008] QCCS 5608
Facts
Québec inc. offers to buy the building. Church says they’ll inform the clergy and that they’ll make the
final decision. Québec inc. pretends they accepted the offer, asks the “passation de titre” to be preinscribed.
Issue
Can Québec inc. have a pre-inscription?
Holding
Yes
Reasoning
The pre-inscription does not require debate on the ownership, but rather on whether the claim is in a
real right. The goal is to temporarily publish the contested right to avoid sale until the lawsuit is
settled. Since the church is the object of a real right, pre-inscription is appropriate.
Comments:
"Publication of rights allows them to be set up against third persons, establishes their rank and, where the law
so provides, gives them effect.
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Rights produce their effects between the parties even before publication, unless the law expressly provides
otherwise."
Article 2941, C.c.Q.
Intellectual Rights
What are intellectual rights? What kinds of things do they encompass?
A monopolistic right in the exploitation of the intellectual property.
For Beaudoin & Jobin, Les obligations, the object of the right is a product of the human mind: an idea,
conception, invention, and not its materialisation. They contain both a patrimonial and extra-patrimonial part,
the latter being due to a moral right similar to the right of reputation – you cannot modify it so as to deform
or betray its nature.
Ghestin & Goubeaux, Traité de droit civil: introduction générale:
 Intellectual rights have for object incorporeal things.
 Law gives the creator monopoly of exploitation, and is as such doubled by a moral right to prevent
reproductions and modifications.
 The object of the right is, in a sense, the regrouping of the clients
 The right can be dismembered like property, but in a different way, e.g. right to create shirts.
Tri-Tex Co Inc c. Ghaly
[1998] QCCS
Facts
 G paid a T employee to steal T’s secret chemical formulas
 G made chemical compounds with the stolen secret formulas
 G also stole clients lists and other confidential information
 T found out, and seized the formulas before judgement per the Copyright Act
Issue
Does T have a right to seize under either the Copyright Act or elsewhere?
Holding
No.
Reasons (Dalphond)
Chemical composition can be patented. It does not constitute a literary piece because the paper itself,
i.e. the expression, is what can be copyrighted, and not the idea of composition. Besides, they can’t
have property that isn’t theirs seized.
Tri-Tex Co inc. c. Gideon
[1999] RJQ 2324 (CA)  CB 190
Facts
 G paid a T employee to steal T’s secret chemical formulas
 G made chemical compounds with the stolen secret formulas
 G also stole clients lists and other confidential information
 T found out, and seized the formulas before judgement per the Copyright Act
Issue
Does T have a right to seize under either the Copyright Act or elsewhere?
Holding
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No.
Reasons (Nuss JA)
 Copyright gives the creator the sole right to reproduce and profit from works
o Copyright extends to “literary works” per the Act
o Only gives protection to the written expression of ideas, not the ideas themselves
 The ideas are public property
o Chemical formulae are not literary works, even in their written expression, therefore no
protection under the Act
 Trade secrets are not moveable property, therefore not liable to seizure per art 734 CCP
o Confidential information does not constitute property for the purposes of theft or fraud in
the Criminal Code
o The similarity to property is not close enough to deem information property
o It possesses many of the attributes of property:
 Can be sold, bequeathed, licenced, be the subject of a trust
 Product of labour, skill, and expenditure
 “unauthorized use would undermine productive efforts which ought to be encouraged”
o Legal opinions were held to be incorporeal moveable capable of being appropriated
o CCQ distinguishes between “property” and “information”/”intellectual property”
 Patent Act protects trade secrets
o T didn’t apply for a patent, so no protection.
Ratio
Cannot copyright information, only its expression. Confidential information does not constitute
moveable property.
Diffusion YFB Inc c Disques Gamma
[1999] RJQ 1455  CB 221
Facts
 Lapointe licensed DG to ¾ the royalties from his songs until a certain amount was paid
 He went bankrupt and his debts were cleared
 Much later, he licensed YFB
 YFB claims that DG only has a personal claim in the songs since they were future ones and thus
could not be ceded contractually
Issue
Can L cede his copyright on work that does not yet exist?
Holding
Yes.
Reasons
 Copyright Act is unclear on the point
o Principles of civil law must therefore fill the gap
 Future property can serve as the prestation for a contract (art 1374)
o To do so, it must be “determinate as to kind, and determinable as to quantity”
o The future song fills these criteria.
Ratio
Copyright promised in a contract is automatically, immediately transferred when the art is created.
Are they real rights? personal rights?
At their core, intellectual rights possess the characteristics of real rights insofar as they relate to an object and
are opposable to everyone. However, some authors argue that they are rights towards the group of clients of
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the right, and is thereby a form of personal rights. It is also fundamentally different from corporeal real rights
and therefore is not constituted of the same type of rights, e.g. selling, etc.
What role does the C.c.Q. play in the definition and regulation of intellectual rights?
It plays a small role, since copyright and patent law are federal in nature. It may nonetheless complete federal
law, where it is lacking. E.g. article 1374 determines that one may cede future intellectual rights.
Other Distinctions (incl art. 908-910, 1120, 1127, 1160, 2313-2314)
What other distinctions does the law make between things?
The law distinguishes that which is consumable from that which is not. If something is meant for prolonged
use, it is non-consumable.
It also distinguishes between fungible and non-fungible goods. Fungible goods are goods that can be mutually
substituted, like money, precious metals, bonds, shares. Non-fungible goods have juridical individuality.
In the C.c.Q., property is divided into capital, fruits and revenues.
Capital is property that produces fruits and revenues, is appropriated for the services of a company, is
common share of a partnership, is the reinvestment of fruits and revenues, or is the replacement for capital
(e.g. insurance). Intellectual and industrial property is also capital.
Fruits and revenues is that which is produced or derived by/from property or capital. Fruits is spontaneously
produced. Revenues are sums of money.
Terré & Simler, Droid civil: les biens:
 Consumables and non-consumables: if destined to be used over a long time, even if it depreciates
through usage, it is non-consumable. Only non-consumables can imply rights to give them back.
Usufruct otherwise becomes quasi-usufruct and only a similar quality and quantity must be given
back.
 Fungible and non-fungible: Fungibles are determined only through number, weight, or measure.
They have no individuality and are interchangeable. Mere distinguishability doesn’t preclude
fungibility. Fungible goods are typically considered for their value and not substance.
 Normally fungible goods can become non-fungible for subjective reasons, e.g. owned by celebrity
For what purposes are these distinctions relevant?
By their very nature, consumables cannot be the object of an obligation of giving it back. If submitted to
usufruct, the usufruct becomes a quasi-usufruct: the usufructor becomes owner of the thing, but is charged
with giving back an equivalent in quantity and quality to the thing, or a sum of money.
The fungible-non-fungible distinction is useful when the latter relates to a case of ownership whereby transfer
of property presumes the non-fungible character of the good, whereas money is fungible: although a specific
coin may be considered non-fungible in certain circumstances, all money is money. Fifty Shades of Grey may
be fungible, but your copy signed by the author may not be.
Domain: History of Land Tenures
What are the origins of private property in land in Quebec?
French feudal system, which was then converted into franc aleu roturier after Cession of Canada to the British
Crown, as well as free and common socage granted by the British Crown.
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William de Montmollin Marker, The Law of Real Property:
 Both franc aleu roturier and free and common socage are forms of free tenure, and can be disposed
of freely inter vivos or by will.
 Initially, the land was ceded to the seigneurs, who were not owners of the land, but instead needed to
make concession of their land to habitants. Those habitants had obligations relating to the Custom of
Paris as well as certain further obligations imposed by the land title, e.g. days of personal labour
 Land en franc aleu did not require specific obligations beyond fealty and homage. En franc aleu
roturier meant it did not concede any nobility title.
 Upon Cession of Canada, the King of Great Britain became owner of all public land and ceded nonprivate land.
 The King's acts in 1845 and 1849 made it possible for a serf to become "owner" of the land in franc
aleu roturier.
 In 1854, following the failure of the previous acts, the feudal system was abolished and a redeemable
rent was instituted.
 Exceptions:
o ○ Crown seigniories: crown land is exempt, esp. since it was already converted to free and
common socage and open to grant in fran aleu roturier
o ○ Certain fiefs in the District of Montreal, which were already under commutation.
o ○ Other fiefs owned by private individuals already commuted.
o ○ Lands of which the seigniors were the Gentlemen of the Seminary.
 The remaining land was divided into Townships, and granted in free and common socage.
 Franc aleu roturier land are subject ot the payment of a rent unless it has been redeemed, unlike free
and common socage. The measurement of the former is still in French imperial measures whereas
the latter is in English feet.
Québec (P.G.) c. Houde
[1998] R.J.Q. 158 (QCCA)
Facts
 Houde maintains that she owns the bed of the river in front of her terrain and thus does not
need a permit to access the river and fish in the salmon pool.
 The terrain, bought in 1852 by William Price, includes half the bed of the river because the river
was not navigable.
 In 1918, all non-practicable waters were made public, but the change was not retroactive.
Issue
Does Houde own the bed of the river?
Holding
Yes.
Reasons
 1918 change (reflected in CCQ 919) wasn’t retroactive
 Before 1918, the bed was owned if it wasn’t navigable and floatable. It is navigable if navigation
can be convenient and commercially profitable.
 There was no language specifically excluding the bed of the river.
 A public right to fish is, in Québec, only recognised where the waters are navigable. It is not the
case here.
What role did Quebec's colonial history play?
The division of land in two types as well as the distribution of such land was affected by Quebec's colonial
history.
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What are the characteristics of feudal land tenure? How does it differ from modern conceptions of
ownership?
A feudal land tenant does not own the land, but retain certain of the rights of ownership while having certain
obligations to the lord: the obligation to ground one's corn at the lord's mill, for example. Nowadays, apart
from municipal taxes, there are no specific obligations in the owners, and they are actual owners of the land,
rather than tenants to the lord's land.
How does the State grant land today?
It grants it in free and common socage.
Public Domain (incl. art. 298-300, 915-920, 2645, 2668)
Where does the State derive its title to land from?
According to article 918, any land that is not part of a patrimony is owned by the State, and it is presumed
that the State has the original titles to the property.
An Act Respecting Agricultural Lands in the Domain of the State, RSQ c. T-7.1
 State may grant or lease land for agricultural, fishing or food supply purposes.
An Act Respecting the Caisse de Dépot et Placement du Québec, RSQ c. C-2
 The Fund binds only itself when it acts in its own name.
o Same for the Hydro-Québec Act: can possess property and this property is the property of the
State but are answerable to the obligations of Hydro-Québec.
What is part of the public domain today?
That which is owned by the state and appropriated to the use of the general public.
Construction DRM c Båtiments Kalad’Art
[2000] RJQ 72 (CA)  CB 327
Facts
 City of Rimouski contracted DRM to build a salt storage depot (for roads)
 BKA was a supplier of materials to DRM, and registered a legal hypothec on them per art 2724
CCQ.
 DRM defaulted on its payments to BKA
 DRM claims BKA’s hypothec is invalid because the goods had been appropriated to the public
good per art 916 CCQ.
Issue
Is the depot a public utility per art 916?
Holding
Yes.
Reasons
 Art 916 provides that property of the state cannot be appropriated or seized. “Nor may anyone
acquire for himself property of legal persons established in the public interest that is
appropriated to public utility.”
 Two types of state property
o Intended for the public good, essential to the functioning of the state (cannot be seized)
o Other stuff (can be seized)
 Though the building itself is not essential to the functioning of the state, it is essential to an
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essential service (roads) therefore it cannot be seized.
Ratio
Property that is intended for public good and essential for the functioning of the state cannot be
seized or appropriated. Public utility in this sense is interpreted broadly.
What attributes distinguish the public domain from the private domain?
That which is in the public domain is "appropriated to public utility" (per art. 916 CcQ). It will be so if it is
directly appropriated for use by the general public, or if it appropriated to the functioning of an essential
service provided to the public. If it is "essential to the functioning of the municipality", it is in the public
domain of the municipality according to the accessory theory.
Common Property: Water (incl. art. 913, 916-920, 979-983)
What is a res communis?
It is a Roman law concept that categorises certain things as "common". As such, it is not susceptible to
appropriation since it cannot be property. It should be used by the general public, for the public's interest. It
is different from public domain in that it is not owned by the state.
Commentaires du ministre de la Justice: le Code civil du Québec, art. 913: second paragraph creates an exception to
what may not be appropriated, so that, e.g., mineral water and compressed air can be appropriated.
Morin c Morin
[1998] RJQ 23 (CA)
Facts
 M1 owns land with a river, which he dammed to make a lake
 M1 sold off the land around the lake in plots, with plots going all the way to the water’s edge
 M2 bought some of the land, and wants to go boating and fishing on the lake
 M1 says because he owns the lake bed, he has control over the water, and says M2 can’t go
swimming
Issue
Can M2 use the lake?
Holding
Yes, but not for fishing.
Reasons
 Art 913 says water is a common good, and can be used for common purposes (arts 920, 981)
o Applies to floatable/navigable water as well as non-floatable/non-navigable waters
 Art 920 gives the right to water if legal access is possible; it is a circulation right.
o Because M1 didn’t maintain a strip of land around the lake, but rather sold plots to the
water’s edge, he does not have the right to control access to the lake
 He still controls access to the fish, being an accessory to his real right of ownership of the
lakebed.
Ratio
Water is a common good, and everyone with legal access to the shoreline has legal access to it.
Are/should all things be capable of appropriation?
Property of the state cannot be appropriate, nor can water and air destined for public use, e.g. non-bottled
water and non-pressurized air.
In Quebec civil law, what is the legal regime applicable to water?
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Every riparian owner has a large right of access (including that of usage) to any non-private body of water.
The right to fish is, however, linked to that of the bed of the river and is exclusive to the owner of that bed.
The legal regime applicable to water is that of res communis, and water - whether it be surface water or
groundwater - possesses the status of common resource according to the Water Act (Act to Affirm the
Collective Nature of Water…) and art. 913 CCQ. According to Cumyn, however, rights of use of a spring is
exclusively the owners' by article 980.
Uses of water which satisfy human needs, including alimentary and sanitary needs, as well as agricultural
purposes and industrial purposes which do not substantially affect the quality or quantity of the water are
legitimate uses of such a res communis.
An Act to affirm the collective nature of water resources and provide for increased water resource protection, 2009 RSC c. C-6.2
 “It is the right of every natural person to have access to water that is safe for drinking, cooking and
personal hygiene.”
 “Every person has a duty…to prevent or at least limit the damage the person may cause to water
resources and to thus join in the effort to protect water resources.”
Cantin Cumyn, “Reccent Developments to the Law Applicable to Water in Quebec”
 Water in excluded from the category of property in the Code.
 Use of water ≠ use of a body of water, watercourse, which depends on ownership of the bed
 Ownership of bed carried with it the ancillary rights to fish, incorporate a construction, take gravel or
sand from the banks, etc.
 Fresh water is res communi and cannot be appropriated. It remains so even if the landowner has sole
access to a spring and may consume it entirely.
 Protection of water is based on the powers of the state and not a common law claim to the land.
 Water Act creates a system of governance where hydrologic units are administrated by a
representative body of individual users, interested actors and community groups.
 Legitimate uses of water is to satisfy human needs, incl. alimentary and sanitary, as well as agricultural
and industrial purposes. Bottling water contradicts the principles of the Water Act.
Quebec (PG) v Auger
[1995] RJQ 1980 (CA)  CB 322
Facts
 Ville de Laval (represented by PGQ) is expropriating land from A
 Land was originally granted in the 17th C, original grant includes the “grève” (beach)
 Amount of compensation depends on whether the original grant extends to the high-water mark
or the low-water mark, which depends on the meaning of “grève”
Issue
Does the land grant extend to the low-water mark?
Holding
Yes.
Reasons
 The word “grève” (beach, riverbank) in the original grant is interpreted to have included the
riverbank, which goes below the high-water mark.
 High water mark is that which the highest point the water normally reaches.
23
Comments :
"L'article 913 CCQ reconnaît le statut de l'eau comme bien commun. Les articles 920 et 981 CCQ
reconnaissent en conséquence le droit commun de l'utilisation. L'article 913 CCQ classe l'eau dans les biens
communs, non susceptibles d'appropriation." (Morin c Morin)
Justification of Property (guest lecture by David Lametti)
Portalis, Presentation on the Proposed Title on Ownership (1804) (translation by Nicolas Kasirer)
 Man has a natural right to those things necessary for his subsistence.
 Communal ownership is just a way to deny rights to all.
 Men who own things look to the future because they know they have some sort of property to lose –
check on cruelty and violence.
 Ownership does not bring inequality, nature does.
 Principle of ownership: “the right to enjoy and to dispose of things in the most absolute manner
possible” – limited only by law.
 “No one may be compelled to give up his right of ownership except by reason of public utility, and for
just and prior compensation” – state considered as an individual in negotiations
Ownership (Arts. 947-953, 977-978 CCQ; arts. 787-794 CCP)
What are the characteristics of civil law ownership?
It is absolute and unitary; also perpetual. (Barbara Pierre, BP) It is the union of usus, fructus and abusus. (ibid)
Comment:
Absolute and unitary as opposed to relative, opposable.
What does it mean to say that ownership is "absolute"?
It is absolute insofar as it describes the totality of powers that can be exercised over property. It is the right to
the full economic and social benefit that the land affords, comprising usus, fructus and abusus. (BP)
How is ownership different from other real rights?
Real rights are characterised primarily by their opposability to everyone, whereas ownership is primarily
characterised by its relation in a thing. (BP) Other real rights are also not absolute or unitary, but rather
dismemberments, alienated "parts" of ownership. (BP)
Barbara Pierre, Classification of Property and Conceptions of ownership in Civil and Common Law
 Classifications between common law and civil law cannot be homologized.
 “Ownership is the institution employed in civil law to describe man’s interaction with all things,
whether land of objects… It denotes the totality of powers that can be exercised over… The right is
therefore described as absolute, and ipso facto, unitary.”
 Civil law doesn’t distinguish between ownership of immovable and movable like the common law
does.
 The notion of ownership in civil law is confounded with the object itself; it is a real right in the thing,
rather than a right against others, as it is in common law.
 The ownership bundle can be split, but there is always only one right of ownership for a parcel of
land.
 Matamajaw was wrongly decide because the JCPC thought personal servitudes were not real rights.
24
Lacroix c. Her Majesty the Queen [1954] Ex.C.R. 69.
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 allowing planes 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.
Issue: Does ownership over land extend to ownership of the airspace above the land by accession?
Holding: No
Reasoning: Art. 414 of the CCLC states that “the owner of the soil is also the owner of what is above and
what is below”, a principle of French customary law. 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. However, the air (“milieu aérien”) is res communis and not susceptible to appropriation or
ownership. 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: Airspace is not susceptible to ownership. 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.
Limitations on the exercise of the right of ownership (Arts. 6-7, 976-1001,
1457 CCQ; arts. 751-752 CCP)
What are some of the limitations of the right of ownership?
It is limited by the appearance of good faith. Commentary mentions “exigencies de la bonne foi plutôt que de bonne
foi” (CCQ 6 & commentary) One may not use one's right in with the intent to harm or make use of it
excessively and unreasonably. (CCQ 7 & commentary)
Comments:
A contextual reading of the various texts (Environment Quality Act, Minister's commentary, Charter of Human Rights
and Freedoms, Act Respecting the Preservation of Agricultural Land and Agricultural Activities) suggests that all prima
facie legal uses of one's rights is limited insofar as it may undermine another's rights.
What role does the notion of fault play in the resolution of neighbourhood disturbances?
Theoretically, none; it is a strict liability regime. (Ciment du St-Laurent c Barette, para 3)
Can it be said that ownership entails obligations as well as rights?
Of course, the most obvious example being taxes. Servitudes for right of way are another example. (CCQ
997)
Charter of Human Rights and Freedoms, RSQ c 12, s 6, 46.1
Article 6 Every person has a right to the peaceful enjoyment and free disposition of his property, except to the
extent provided by law
Article 46(1) Every person has a right to live in a healthful environment in which biodiversity is preserved, to
the extent and according to the standards provided by law
Environment Quality Act provides for a right to a healthy environment and its protection, as well as living
species inhabiting it, and commits to that protection by allowing a judge to issue injunctions to prevent
infringement.
25
Ciment St-Laurent c. Barette, [2008] 3 RCS 392
Facts: Ciment St-Laurent opened a cement plant that disturbed nearby residents due to emission of
dust, odour and noise. Barette brought a class action against CSL for the inconveniences suffered
from the operation of the plant.
Issue: Is CSL liable for the nuisances suffered by the residents?
Holding: CSL is strictly liable under article 976.
Reasoning:




Article 1457 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.
Article 976 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). If art. 976
required a real right, this recourse by tenants would be impossible.
Article 976 is a strict liability regime: 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.
The term “neighbour” should be broadly construed as to include all geographically proximate
plaintiffs.
Yazedjian v Hassan, 2010 QCCA 2205
Facts: Yazedijian built a garage requiring him to impede on the shared driveway. Hassan wants to
build a fence to keep him from impeding on his part of the driveway.
Issue: Is there a servitude by destination or a right of way to the benefit of Yazedijian?
Holding: There is a right of way.
Reasoning:




The servitude wouldn’t be to the benefit of the land, which is a requirement of this type of
servitude by destination. There is also a requirement of evidence in writing, which is absent.
Article 976 is a remedy against causing harm to neighbors, which isn’t the case here.
Furthermore, continuous, repetitive passage isn’t itself a normal inconvenient.
There is a right of way established by economic enclosure within the meaning of article 997.
Inadequate, difficult of impassable access amounts to enclosure. The fact that enclosure was
due to a voluntary act does not make it any less enclosed.
The right of way’s location can be established by longstanding use. The voluntary nature of the
construction is accounted for by deciding the location and extent of the right of way, in this case
by deciding this location and extent based on the land prior to the construction.
Wallot c Québec (Ville de), 2011 QCCA 1165
Facts: Wallot, a riparian owner along Lac St-Charles, claims that the new legislation requiring a new
vegetation buffer to protect water quality amounts to expropriation, since they lose efficient usage of
their property.
Issue: Was the legislation within the legislative powers of the city?
Holding: Yes.
Reasoning:
1. Protection of the environment is within the powers given to the city per provincial statute.
2. Ownership isn’t absolute; it is limited by the interest of the public, and by law.
3. To be illegal, legislation has to be an absolute negation of ownership right. If reasonable use of
the property remains, the legislation will not be found abusive or illegal. In this case, the
fundamental attributes of property, such as exclusive use, aren’t confiscated.
26
Possession (Arts. 911, 916, 921-933, 992, 2875, 2876, 2910-2920 CCQ; arts.
805-806 CCP)
What constitutes possession?
It is the de facto exercise of a real right by someone with detention of the object with the intention of acting as
the holder of that right. (CCQ 921) It is a form of factual power (as opposed to legal) over the thing.
(Carbonnier “La notion de possession”) It is composed of corpus - acting as an owner (which may be exercised by
someone else, so long as it is the possessor) - and animus - the intention of acting as an owner. (Mazeaud) "La
possession est l'exercise concret d'un droit réel (ici la propriété) dont on se veut le titulaire." (Bolduc c Fortier)
In what ways is possession protected?
The real right exercised by possession is presumed; the burden of proof is on whomever contesting it. (CCQ
928) Continuous possession for over a year constitutes a right of action against anyone disturbing the
possession. (CCQ 929) Possession may lead to ownership by prescription. (CCQ 930) Acquisitive
prescription takes 10 years, unless otherwise fixed. (CCQ 2917) Good faith possession also gives the rights to
the fruits and revenues of the property. (CCQ 931)
For Mazeaud, the main protections are that possessors have a right of action, are presumed owners, and can
become owners by possession.
What is the difference between possession and detention?
Possession presumes an intention of the wish to act as the holder of a real right; where there is no such
intention, we have mere detention. (CCQ 921)
Detention recognises the owner's rights, whereas possession denies the owner's rights. (Mazeaud)
To invert title (e.g. go from detentor to possessor), one must either "buy" the thing from a third person not
the owner, or formally, certainly and unequivocally negate the owners' rights (e.g. by not paying rent and
mentioning that is so because we consider ourselves owners) (Mazeaud)
Mazeaud et al “Droit de propriété et ses démembrements”
 Possession of non-ownership real rights is quasi-possession. Universalities and outside commerce things
aren’t susceptible to possession.
 Corpus is the physical mastery over the thing; it is behaving materially like the owner. It can be exercised by
a third party for the possessor.
 Animus is the intent of acting as the owner. Detention lacks animus domini, and instead has animus tenendi.
1. Animus domini is presumed to exist unless proof to the contrary.
2. It is appreciated in abstracto, by reference to a normal person in the same situation.
3. Animus is presumed to be conserved during the whole of occupation.
4. The presumption of animus falls if there is inversion of title by a third party, or acts contradicting
the person’s acting as an owner.
 Savigny: What matters is the intent to act as owner. The theory is a subjective one. However, we
can only appreciate it in abstracto, making it a reasonable observer-type standard.
 Ihering: Both possessor and detentor have the same intent to retain the thing. We must appreciate
animus domini objectively by reference to an objective standard. As such, we shall give the
protection of possession to everyone unless there is a reason to think there is mere detention, i.e.
by a contract for lease.
 French law adopted Savigny’s approach which denies detentors the protections given to
possession.
 Proving ownership is quite hard, whereas proving possession isn’t.
 Protection of possession is justified to maintain public order. It avoids violent repossession by the owner.
27

Acquisitive prescription is justified by economic efficiency and by the wish to protect third parties.
Bolduc c Fortier, 2008 QCCS 3799
Facts: Fortier published an act of acquisition of a lot that Bolduc claimed was his. Bolduc maintains
that they acquired the terrain in the ‘70s, and have acted as the owners from ’94 to ’04, fulfilling
decennial prescription requirements.
Issue: Who owns the terrain? Did Bolduc (with her husband Daigle) acquire the property by
acquisitive prescription?
Holding: Fortier owns the terrain. The property wasn’t acquired by Bolduc since the fence and the
camping were not of a clearly permanent nature.
Reasoning:




1.
2.
3.
4.



There is no convincing evidence that Bolduc bought the terrain.
Titles are the best evidence and proof of property.
Good faith and title isn’t required for acquisitive prescription; only useful possession is.
Acts that one can make without being the owner, and simply tolerated acts cannot constitute
evidence of possession.
Possession cannot have begun in violence, either physical or moral.
Possession must be continuous, and is so if there are regular and frequent material acts of
ownership. (Corpus)
Possession must be public; knowledge by the owner is not necessary, but it must not be hidden.
Possession must not be equivocal; it is equivocal if the acts can be interpreted as something
other than evidence of animus. It will also be equivocal if two individuals or more make use of
the same right without allowing us to distinguish the possessor from the owner; possession must
be exclusive.
Paying taxes does not constitute a determining factor of either title or possession.
We must consider the circumstances and nature of the property in appreciating possession.
We must respect publicity of right in interpreting rules of prescription. (Narrower interpretation)
Occupation and Accession (Arts. 913-914, 934-939, 948, 954-975 CCQ)
How and why does the CCQ treat abandoned property differently from lost or forgotten property?
Abandoned movable property, unless appropriated, belongs to the state. (935) However, lost or forgotten
immovable belongs to its owner until prescribed. (939) Abandoned property is associated with "biens sans
maître", and has no owner unlike lost or forgotten property. (Malette, see also 934)
In the acquisition of lost or forgotten property, what role does good faith play?
Article 940 dictates that one must attempt to find the owner, and 941 dictates that the finding must be
declared. Good faith plays a role in the length of prescription, where prescription in good faith is of 3 years,
whereas prescription in bad faith is of 10 years. (2919, Malette)
In what circumstances can property be acquired by occupation?
If it is of slight value or deteriorated state and left in a public place. (934) It, of course, must be without
owner. (935) Animals can be acquired by occupation, if they are captured or if hurt in a way that would make
the capture imminent. (Tremblay c Boivin) There is a presumption towards those with peaceful, actual
("mainmise") possession. (Tremblay c Boivin)
Rules of accession on movables are fairly similar to the ones on immovables (cf. 955+ and 971+) The owner
is the one that contributed most to its value, either by material contribution or by work. (971) It must be
28
impossible to separate without deterioration or excessive work and costs. (971) The owner pays for the
materials and work. (973) Equity trumps in unforeseen circumstances. (975)
Boivin c Procureur Général du Québec, [2000] RJQ 687 (Court of Appeal)
Facts: Boivin and others found gold bars in a lake belonging to the government. The government
claims 50% of their value
Issue: (1) Are the gold bars “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) Abandoned (2) Not answered (3) No.
Reasoning:

To reject the thesis that movables are abandoned, we can’t limit ourselves to asking whether a
reasonable person would abandon something of such high value.
 Forgotten or lost immovables can be prescribed under articles 941-942.
 Treasure must be split with the owner of the location it was found in; it is defined as something
hidden for which no one can justify ownership, and that is found by sheer chance.
 The most reasonable explanation is that the owner abandoned the objects; the silence of the
owner is itself telling, considering the intense media coverage.
 N.B. Prescription is immediate in case of abandoned property.
Ratio: To classify as treasure, it must be shown that no one has any rights to the thing after analyzing
the context of its discovery
Malette c Sûreté du Québec, [1992] RJQ 2963 (Superior Court)
Facts: Mallete discovered $20,000 by the side of the road. He declared his discovery to the SQ and
deposited the money there. After one year SQ 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; prescription is of 10 years.
Reasoning:




Abandoned things have no owner, whereas lost or forgotten ones do.
The finder must try to find the owner, and must declare it to a peace officer to benefit from
prescription (940-941 CCQ).
Presumption of abandonment (934 CCQ) applies only to things of little value; otherwise,
abandonment must be proven.
The case cannot be one of good faith; therefore prescription is of 10 years.
Tremblay c Boivin, [1960] CS 235
29
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: Whom does the moose belong to?
Holding: Tremblay.
Reasoning:


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.”
 Possession results from the exercise of clear physical control over them, or a wound sufficiently
grave that capture is certain and imminent.
 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.
 Peaceful possession creates a presumption of ownership, which can only be reversed by proof.
Ratio: Ownership of wild animals is concerned by the factual issue of physical control over the
thing. Capture on land of another only gives rise to a right of action for trespass/intrusion.
Comment: Solation doloris/moral damages aren’t recoverable; only the economic value of the meat.
Location Fortier Inc c Pacheco, [1997] AQ 4199 (Superior Court)
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, suggesting that 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:



Article 971 applies where the modification is important, i.e. when it is impossible to put the
movable back to its initial state without deterioration or excessive costs/labour.
LFI, by contributing the most value to the immovable, is the owner.
Equity, under article 975, takes precedence over the right of accession in unforeseen
circumstances.
Undivided co-ownership (Arts. 1002-1010, 1012-1037, 1519 CCQ; arts.
689-690, 710 CCLC)
What are the legal characteristics of indivision?
"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." (Montmollin)
"Co-ownership is called undivided where the right of ownership is not accompanied with a physical division
of the property." (1010) The indivision must be published if it is to be opposable to third parties. (1014)
30
Any patrimonial right or property can be subject to indivision. This includes co-titularity of dismemberments,
plurality of titulary of an intellectual right. (Cantin-Cumyn) It also includes personal rights. (Régime
Complémentaire v Bandera)
Indivision is not like a share, insofar as share in a company is a share that one owns, whereas indivision is a
partial ownership of the thing itself. (Cantin-Cumyn)
Administrative decisions, lest they regard alienation or affect the value of the property, have to be decided by
double majority of numbers and shares. (Cantin-Cumyn)
Why does the Civil Law favour partition?
The lack of express rules regarding resolution of conflicts in administration of goods supports the thesis that
indivision is of low viability. Convergence of interest may change over time, too. It would be wise in such a
case to permit partition of the undivided goods. (Cantin-Cumyn)
According to Brierly and MacDonald quoted in Régime Complémentaire v Bandera, tragedy of the commons (no
incentive to incur maintenance costs), disagreement and litigation in administrative matters is why partition is
traditionally favoured.
William de Montmollin Marler, The Law of Real Property: “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... It is the right of property which is divided between the co-owenrs; the thing itself
is undivided.”
.
Cantin Cumyn, L’Indivision:
 Undivided co-ownership is merely one kind of indivision. Use of the two terms as synonyms is incorrect.
 Indivision has similarities with 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.
 Administrative decisions are by majority of number and shares, whereas major decisions like partition or
other substantial alterations require unanimous approval, under article 1026. (Isn’t that against 1030-1031
which state that no one can be forced to remain in indivision?)
Régime Complémentaire de Retraite de la Société de Transport de la Communauté Urbaine de Montréal c Bandera
Investments Co, [1997] RJQ 1906 (Superior Court)
Facts: RC authorised Trust General to make hypothecary investments. TG invested 14m, of which
4m belonged to RC. TG’s mother company gave the hypothecary rights to Bandera. Bandera tried to
sell the hypothecary rights, and RC mentioned wanting to use its priority right to buy the credit for
the same sum.
Issue: Can RC make use of the priority buying rights under article 1022 CCQ?
Holding: No, because they weren’t individed co-owners.
Reasoning:



Under article 1022, the right of priority/redemption must be exercised within 60 days of leaning
of the acquiring of the share, up to one year at the latest. Cession must be onerous, and it must
be of the undivided share.
Articles 1015-1024 CCQ, despite the terms used, aren’t limited to real rights.
The shares here were distinct and divided; no co-ownership, only joint co-creditors.
31

The purpose of 1022 is to exclude strangers from a close relationship; this purpose isn’t
applicable to commercial litigation.
Groleau c Société Immobilière du Patrimoine Architectural de Montréal, [1999] RDI 328 (Cour du Québec)
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 exercised in good faith
Issue: Does SI’s renunciation of the right of mitoyeneté absolve it of the costs of repairs?
Holding: No.
Reasoning:





The renunciation is, according to article 1006, completed once the renunciation is published and
made known to the owners.
The court agrees with author Denis Vincelette that the renunciation is only for the future.
Therefore, SI is bound to pay for the repairs necessary at the time of the renunciation.
In case of emergency, any owner can have the necessary repairs made and claim compensation
for the necessary repairs, and not just any chosen method of reparation.
This necessity might require proof, but in this case no one contested it.
In case that the reparations are necessary, there must be agreement under article 1005, and in
absence of agreement the tribunal may be referred to.
Usufruct (Arts. 1119, 1120-1171 CCQ)
Does the situation of the bare owner fit with the civilian understanding of ownership?
No. He has almost no de facto rights over the thing. He keeps only the abusus.
What are the obligations owed by a usufructary to the bare owner?
He must make an inventory of the property. (1142) He must also, exceptions notwithstanding, take insurance
or other security. (1144) He must maintain the property, although not bound to make major repairs unless
necessary due to his act, or omission to make regular minor repairs. (1151)
What are the differences between a usufruct and a lease?
Usufruct, being a real right, is a right to enjoy and use an object. The owner must only allow the enjoyment as
anyone else must. Lease, on the other hand, is a personal right against the owner who must make them enjoy;
this means that the owner must repair the thing, etc. (Mignault; Cantin-Cumyn) Whereas the usufructary has a
general, basic duty to maintain the property, it is the owner that has this duty in a lease situation. (CCQ,
general)
Between a usufruct and a trust?
The beneficiary of a trust has a personal right. The usufructary is also administrator of the fruits, unlike the
beneficiary (Cantin Cumyn)
A usufruct is essentially temporary. (Cantin-Cumyn; 1123)
There is generally no right to alienate the object of the usufruct. (Cantin-Cumyn)
Mighault, Le droit civil canadien – L’usufruit et le droit d’usage:
 The usufructary has a right of enjoyment over the thing itself, but it may carry obligations as well.
32




The owner is not bound to make enjoy the usufructary, like he would the lessee; it is a negative right. The
lessee gains a personal right to be made to enjoy, but not a right to enjoy.
The usufructary can’t ask that the thing be served in a good state; it takes it as is. If during use there is
deterioration, he cannot force the owner to fix it.
The usufructary has a right right that is opposable to third parties. However, that is partly true of the
lessee as well, exceptionally.
Usufruct may be movable or immovable depending on what it is a usufruct in.
Cantin Cumyn, De l’usufruit, de l’usage et de l’habitation:
 Usufruct is a real right in a corporeal presently existing, much like ownership.
 The right is exercised over the thing without intervention of a third party or the owner.
 The creditor to a right to fruits has a personal right, whereas the usufructary has a real right and can take
the fruits and or administer them.
 Obligations are tied to usufruct, such as the obligation to conserve the thing, pay charges, etc. which are
real obligations, i.e. propter rem; the usufructary can only avoid them by abandoning the usufruct.
 Possession goes to the usufructary, even though the bare owner retains abusus. The usufructary has all
normal administrative powers, exception made of alienation.
Larocque c Beauchamps, [1975] CS 384
Facts: R left his house to his relatives after his death. 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, also alleging failure
to pay upkeep. B claims her usufruct allows her to stay in the house.
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, therefore the judgement
does not extinguish or prevent the usufruct.
L can only seize the rights held by her debtors; she must take the house as charged with the
usufruct.
B’s failure to uphold usufructory obligations creates a personal right to reimbursement for the
missed payments. It does not extinguish the usufruct. Since she had a duty to pay the interest on
the loan, she had a right to oversee the loan, which wasn’t done. The new loan cannot create a
greater obligation than the one she was held to from the date of the usufruct.
Banque Nationale du Canada c Gravel, [1984] Superior Court
Facts: G owed BN money, so BN had the G’s house seized and sold. G’s mother, B 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.
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 and habitation is a real right recognized by the code and thus the Bank’s seizure of the house
must recognise the right of Dame Benoit-Beaudry.
The right to habitation consists in the right to the immovable itself, but also all elements
constituting normally necessary for the usage of a residence: this includes heating, lighting and
33


normal repairs.
Since the contract stipulated a right of free habitation, the bank must recognise that right and
include it in the title; the bank must pay all such fees.
As a real right, it includes a droit de suite.
Servitudes (Arts. 1119, 1177-1194 CCQ)
How are servitudes created?
By contract, will, destination or effect of law, where one has the title: possession is insufficient. (1181, 1182)
What criteria do the Courts use to determine the existence and the nature of a servitude?
A real servitude must have certain characteristics: (1) between two immovables - relationship of dominant
immovable to servant immovable, (2) without establishing a positive duty to act, (3) for the benefit of the
immovable. It is, in principle, perpetual, although it may be determined otherwise. (Cadieux)
We must interpret any doubt as to the existence of a servitude against its existence. (Cadieux citing Boucher v
Roy) Its existence cannot be presumed, but must be proven, and the title creating it must be sufficient to
determine its existence and nature. (Cadieux)
What does "benefit to the immovable" mean?
A servitude is to the benefit of the immovable if it facilitates usage, exploitation, or increases
comfort/pleasure in the immovable. (Cadieux) In such a case, it would essentially be useful to every acquiring
party of the immovable. (Cadieux)
Why do courts interpret servitudes restrictively?
Because the courts are not in favour of dismemberments of property. (Épiciers, c.f. usufruct, indivision;
Davidson)
What is a personal servitude? Is it a real right or a personal right?
It is a servitude established for the benefit of a person, rather than an immovable. (Mignault) It is a real right.
(Cadieux) It must be exercised directly on the immovable. (Épiciers) It is not clear, according to Cadieux citing
Cantin-Cumyn, whether personal servitudes exist beyond standard usufruct, usage, emphyteusis, habitation, etc.
The personal servitude is established if there is (1) a real right, (2) to the benefit of a person independent of
land owned, and (3) where the real right is temporary. (Épiciers citing Cardinal; n.b. he erroneously defines real
servitude as between two contiguous immovables, so his description of the personal servitude may not be
accurate either)
Mignault, Le droit civil canadien – Servitudes et obligations réelles:
 A real servitude is a charge imposed on an immovable for the benefit of another immovable owned by a
different person. It is a dismemberment of property.
 The servitude presupposes (1) a benefit or advantage, (2) a fonds servant which owes the servitude, and (3)
a fonds dominant which is owed the servitude. It is the property equivalent of an obligation.
 Since immovables have no successors, servitudes are extinguishes with the loss of the immovable.
 It is a negative obligation; it cannot establish positive obligations. Although it may include the obligation
of the land to keep itself clean and practicable.
 The owner of the dominant land can be liberated from any servitude by abandoning the land.
 Immovables do not have to be contiguous for the servitude to be established.
34
Marler, The Law of Real Property:
 No servitude can be established without title (of the servitude); possession, even immemorial, is
insufficient. Title must be taken widely, as an agreement which can be proven.
 Three things must be observed in establishing a servitude: (1) description of the dominant land, (2)
description of the servient land, and (3) description of the servitude itself.
 The servient land requires a greater degree of accuracy in description.
 Must be construed without extrinsic aid, and effect be given to the intention of the parties that can be
ascertained from it, whatever the imperfections of the deed.
 Doubt must be interpreted in favour of the servient land, but all rights necessary for the exercise of a
servitude are also granted with it.
 Servitude can be established by destination at the moment the lands stop belonging to the same person
and an equivalent of the title is established.
Carbonnier, Droit civil – catégories intermédiaires:
 There are real obligations, obligations propter rem, which are attached to a real right. The owner of the land
on which a servitude exists is such an example.
 It is akin to hypothecs: one isn’t bound through patrimony, but through the immovable which can be
seized.
 Some personal rights are partially real, like lessee rights which are opposable to the new owner of the
building. Some real rights are partially personal, like where ownership is used abusively and a personal
obligation to damages is owed.
Terré & Simler, Droit civil:
 A creditor of a person with a real obligation doesn’t have a real right. What distinguishes those
obligations is rather that the person is only obliged as the owner.
 It is a personal obligation, but that is tied to property, and which follows the property.
 Servitude for the servient land is a form of dismemberment of property. In this conception, no real
obligations arise. Yet, in reality some may arise.
Whitworth c Martin, [1995] RJC 2388 (Court of Appeal)
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: Does M have a servitude on W’s property allowing him to access his property?
Holding: Yes.
Reasoning:




M’s property is enclosed in the sense of the law. This is clear from the geography of M’s
property. Furthermore, the Upper and Lower roads are public within the terms of the CCQ,
which isn’t limited to public roads in the strict sense – public usage is sufficient to make it public.
There is enclosure when access to public road is ‘inadequate, difficulty or impassable’. It may also
arise where the cost to create the shortest way out is exaggerated, unreasonable.
The right of way cannot be acquired by prescription, but the location and means of the right of
way can be established by prescription of ten years.
Long term use of a route creates a presumption that this route is the shortest and least damaging.
35
Ratio: Use of a given access route can create a presumption that it is the most natural and
convenient access point.
Cadieux c Morin, [1989] RJC 353 (Superior Court)
Facts: C and L were neighbours with adjacent property. They signed an agreement in which they
agreed to offer their property for sale to each other before selling it to anyone else. This agreement
was described as a “servitude de préférence 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 préférence d’achat a real servitude? (2) If yes, is the 99 year leasing a disguised
sale?
Holding: (1) No (2) No
Reasoning:






One cannot impose a positive obligation on another person through a real servitude.
A supposed servitude that only really benefits one person isn’t a real servitude; it must benefit
the land itself by facilitating use or exploitation, or by making it more pleasurable.
Real servitudes are perpetual.
Both options and preference agreements give rise to personal rights.
Any doubt is interpreted against the existence of a servitude; the title must show clearly
which land is the dominant land, and which is the servient land. The title must be construed
without extrinsic aid. The interpretation against the servitude is a sort of contra proferentem for the
servient land.
In this case, there is a positive obligation imposed, and only to the benefit of a person.
Épiciers Unis Métro-Richelieu Inc c. Standard Life Assurance Co., [2001] RJC 587 (Court of Appeal)
Facts: EU, having a hypothec with SL, granted a servitude against the exploitation of
supermarkets.SL brought a claim to have the servitude declared inopposable, and that it isn’t a real
servitude in any case.
Issue: Is the non-competition “servitude” a real servitude?
Holding: No
Reasoning:







Personal servitude requires a real right in an immovable, benefiting to a person, and is of
temporary nature.
Real servitude requires two immovables belonging to two neighbor owners, that the servitude be
a benefit for the immovable which forces the owner of the servient land to tolerate or refrain
from doing something, and is perpetual.
The law is against dismemberments of property.
Just because a term is mentioned in the title doesn’t mean the servitude is not a real servitude.
This servitude only benefits the owner of the immovable, so it must be personal
Personal servitudes are not opposable without publication.
According to Cantin Cumyn, non-concurrence clauses aren’t personal servitude.
Davidson c. Rosaire Nadeau & Fils, 2007 QCCS 2928
Facts: Trépanier reserved a right to take water at the source, and a right of way to maintain the
aqueduct. After splitting his land, the property made its way to Nadeau, and the servient land was
sold to Davidson.
Issue: Is it a real servitude or a personal servitude?
Holding: Personal servitude.
Reasoning:

Épiciers Unis establishes the law distinguishing real and personal servitudes.
36


Personal servitude doesn’t entail right to follow of the dominant land (since there is none), but
does follow the servient land.
Trépanier only can benefit from the servitude, whether or not he still owns the dominant land.
Numerus clausus (Arts. 947, 1009, 1119 CCQ)
Should the courts limit the creation of new real rights?
Since predictability is important in law, yes.
In Matamajaw, was the Privy Council justified in finding that the right of fishing created by the
parties was a real right?
Yes, but I do think it was wrong in opposing its being a real right to its being a usufruct. Usufructs are real
rights, and would have been a perfectly appropriate regime for fishing rights. I am open to creation of new
real rights, but not beyond necessity.
Planiol & Ripert, Traité patrique de droit civil français – Domaine des droits réels:
 Doctrine generally accepts the possibility of creating new real rights. No text formally prohibits them.
 Real right entails opposability of third parties; there must be a pre-existing passive obligation of third
parties. Thus, new real rights would have to be dismemberments.
 Real rights must be published. Since it’s hard to publish a right that is not statutorily recognised, it’s hard
to find a real right.
Duchaine c. Matamajaw Salmon Club, [1917] 27 KB 196 (CA)
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: 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; it is co-ownership of the bed.
Archambeault: The right given to G would be either a property right or a usufruct, or a lease right. In any case
that right is transferable to third parties while G is alive. In the specific circumstances, it is a usufruct.
Duchaine c Matamajaw Salmon Club, [1919] 58 SCR 222
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. Right to fish is an accessory right of ownership.
37
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. Usufruct can be restricted to certain fruits
and products.
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:
CN art. 617: 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 art. 479: 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.
CCLC art. 405: 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, [1921] 2 AC 426 (PC)
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): If right of using the solum is necessary for fishing rights, then the grant includes some such
right. Haldane agrees with Archambault that it’s not usufruct in the old meaning. What we have here is a real
right that isn’t a usufruct, and gives right to a separable physical subject for possession. Agree with Pelletier
decision.
Comments: Was respected in Québec c Club Appalaches Inc [1999] RJC 2260 (CA).
Anglo-Pacific Group PLC v Ernst & Young Inc. [2013] QCCA 1323
Facts: The appellant, a royalty company, secured an $8,000,000 debt with the debtors, a mining
company, through a royalty agreement and two hypothecs. These hypothecs we published in various
public registers. The debtors went bankrupt.
Issue: Do the debenture and the royalty agreements entered into between the debtors and the
appellant on August 28, 2009 constitute an innominate real right in favor of the appellant?
Holding: Only a personal right.
Reasoning:



“The creation of an innominate real right is not solely the result of the use of these terms in a
contract. In addition, the contract must contain the essential characteristics of a real right. The
characteristics are, as I wrote earlier, the attribution to the innominate real right beneficiary of
one or more of the attributes of ownership—the right to use, enjoy and freely dispose of the
property—as well as a right of pursuit on the property and the capacity to abandon it.”
The clauses concerning the debenture do not grant the appellant any right in (to use, enjoy, or
dispose of) the debtors’ property, therefore no real right was created, only a personal right to
collect royalties on the sale of mineral substances extracted.
There was no dismemberment of the debtors right to extract minerals. The appellants did not
and do not have the right to extract the mineral to seek payment in kind in lieu of being paid in
cash.
Ratio:
The constitution of a dismemberment of the property requires a division of the attributes of
ownership, i.e. usus, fructus or abusus, absent from the debenture and the royalty agreement.
38
Trusts and Substitutions (Arts. 1218-1296 CCQ)
Who owns the property held in a substitution?
The institute is the owner of the substituted property. (1223)
Who owns the property held in a trust?
No one. The patrimony is distinct. (1261, Brierley) Upon termination, the property goes to the beneficiaries, or
absent beneficiaries it goes to the settlor and its heirs. (1297) It's more complicated in English law. (Hudson)
The trustee is endowed with control and administrative powers. (Brierley, 1278)
What kind of rights do the beneficiaries of a trust have? Are they real, personal, or something else?
It is not a real right. (1261) Provision 1284 seems to suggest that he has a right to require specific
performance or payment. This quasi-contractual vision of trusts seems to make the beneficiary's right a
personal one, however it isn't a normal creditor relationship: he can ask the trustee to account for the trust,
and ask his destitution. (Brierley) The pecuniary interest of the beneficiary is a personal right. (Cantin Cumyn)
1212 CCQ :
La restriction à l'exercice du droit de disposer d'un bien ne peut être stipulée que par donation ou testament.
La stipulation d'inaliénabilité est faite par écrit à l'occasion du transfert, à une personne ou à une fiducie, de la
propriété d'un bien ou d'un démembrement du droit de propriété sur un bien.
Cette stipulation n'est valide que (1) si elle est temporaire et justifiée par un (2) intérêt sérieux et
légitime. Néanmoins, dans le cas d'une substitution ou d'une fiducie, elle peut valoir pour leur durée.
Brierley, De la substitution:
 Stipulations of inalienability must be motivated in sufficient terms so that the judge can appreciate its
merits. The terms can nonetheless be implicit.
 Article 1220 stipulates that insufficiently clear stipulations of inalienability entail substitution in favour of
the heirs of the recipient of the property.
 Article 1213: Courts can allow alienation of inalienable property if the interests the inalienability has
disappeared, or if a greater interest demands it.
 Under 1213 again, the court removing inalienability can set any conditions to safeguard the interests of
the relevant parties. Brierley suggests this may entail establishment of a trust by judgement.
Hudson, understanding Equity and Trusts:
 Trust came about where legal rights were passed to the trusted person, but where equity recognised the
ultimate rights laying in the landowner-beneficiary of the arrangement.
 The modern trust splits the absolute ownership of the settler into the legal title of the trustee, and the
equitable title of the beneficiary. The equitable title carries a set of personal claims against the trustee.
 You can’t be both trustee and sole beneficiary of the trust, because in that case you retain full ownership.
Brierley, De la fiducie:
 The trust is composed of (1) intent of the settler to place specific property in the hands of the trustee, (2)
detention of the property by the trustee for administration under law and the terms of the trust, and 93) a
specific goal, such as profiting a beneficiary.
39






Although a trustee ordinarily retains all powers of administration and alienation, he doesn’t own the
thing. The trustee also has title over the property. (Does he?)
The trust constitutes a separate patrimony. The property isn’t “bien sans maître”, because they cannot be
appropriated and the trustee has mastery and detention of the property.
The patrimony includes the property as active, and the obligations assumed by the trustee to further the
trust, as passive.
It is not a dismemberment of property, nor a modality of property (like co-ownership and superficie).
The beneficiary is not just a creditor; he can ask the trustee to account for the property, and ask that he
be removed.
For Brierley, the institute is a trustee, but a trustee is not usually a beneficiary like the institute is.
Cantin Cumyn, La fiducie, un nouveau sujet de droit?:
 Patrimony by affectation has no titulary. It isn’t just a regrouping of property since it can have a
corresponding passive.
 Substitution, unlike fiducie, does not create a distinct patrimony. (Only a divided one)
 A trust is not a moral person; we want to retain compatibility with common law trust.
 Patrimony underlies the principle of common pledge of the creditors. It allows us to distinguish rights
answering for charges, from rights that cannot answer charges.
 A human being, the subject of right, and the person are three distinct notions.
 We should consider the trust as a subject of rights, which is the titulary of the patrimony and which owns
the property within. It should be allowed to be insolvable and go bankrupt.
Aboriginal Rights
What are Aboriginal rights?
Aboriginal rights flow from the distinctive set of rules that bridge the gap between English and Indigenous
legal systems. (Slattery) It is concerned with the recognition of the exclusive title of an Indigenous group to
the lands it traditionally occupied and controlled. (Slattery) It may be seen as customary (i.e. grounded in
Indigenous law), translated (i.e. reconceived as the closest English law equivalent), or sui generis (i.e. invention
of the crown). (Slattery)
"Aboriginal title is a right in land... Those activities do not constitute the right per se; rather, they are parasitic
on the underlying title." (Delgamuukw) It is sui generis: inalienable, yet more than a licence to use and occupy,
arose before British sovereignty, and is a collective right. (Delgamuukw)
Aboriginal rights are a broader category than aboriginal title, and may exist without it. (Côté)
How do these rights relate to the law of property as set out in the CCQ?
It is a usufruct held in trust by the Government of Canada. (Act Respecting the Lands in the Domain of the State)
This position is in tension with R v Côté which sees aboriginal title as sui generis federal common law, even in
Québec.
Indian Act:
 s. 2 defines reserve as a tract of land the title to which is vested in Her Majesty, and is set apart for the
use of a band.
 s. 20(1) states that an Indian lawfully possesses land in a reserve if it has been allotted to him by the band
council.
40

s. 28 voids, except by yearly permission of the minister, any deed, sale, contract, etc. which allots land to a
non-band member.
An Act Respecting the Lands in the Domain of the State (Québec):
 Government can reserve and allot to Indian bands the usufruct of lands designated for such use by the
minister. (a. 51)
 The usufruct of such designated land is gratuitously transferred to the Government of Canada for the
trust administration of the land for Indian bands. (a. 52 al. 1)
 The usufruct is unalienable, and return to the (Québec) government if relinquished. (a. 52 al. 2)
 Mining rights are not included. (a. 52 al. 3)
Delgamuukw v British Columbia, [1997] 3 SCR 1010 (British Columbia)
Facts: N/A
Issue: Proof of aboriginal title.
Reasoning:







Aboriginal title is a right in land, and is larger than aboriginal right to engage in specific activities;
it confers right to use land in ways that isn’t integral to the distinctive culture.
Aboriginal title is inalienable, but is more than a non-proprietary interest in a licence to use and
occupy. If it was alienable, it would extinguish the special relation aboriginals have to the land.
Aboriginal title is sui generis because it arises from possession, pre-British sovereignty assertion.
Aboriginal title is held communally; it cannot be held by individuals, but is rather held by all
members of an aboriginal nation.
Aboriginal title can arise from the Indian Act.
Aboriginal title is not an inalienable fee simple; aboriginal title originates in part from pre-existing
aboriginal law.
Title is established by reference to activities which have taken place on the land. If occupancy is
established, there will be a special bond between the group and the land. This also explains
inalienability – alienating it would go against this bond.
R v Côté, [1996] 3 SCR 139 (Québec)
Facts: Côté were convicted of entering a controlled harvest zone without paying required fee for
motor vehicle access, and of fishing without a valid licence. They claim, as Algonquin, to have an
aboriginal right to fish on their ancestral land.
Issue: Did French sovereignty extinguish aboriginal rights?
Holding: No.
Reasoning:




Aboriginal rights may exist independently of aboriginal title. A right can be set out even without
demonstration of a title to the land, even if the right is site-specific.
The French crown never recognized aboriginal title; however, it only colonized as terra nullius the
St-Lawrence valley and maintained that aboriginal peoples were sovereign nations.
Aboriginal title is a form of federal common law, and cannot be reduced to a simple subset of
provincial property and civil rights.
The non-recognition of the French crown didn’t extinguish aboriginal rights.
Articles from the Code of Civil Procedure:
787. A demand to have the boundaries between lands determined is made by serving a notice containing
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(1) a statement of the demand and of the reasons therefor, without mentioning disturbances, damages or
other claims;
(2) the description of the immovables concerned;
(3) the name and residence of the land surveyor proposed for the operations;
(4) a statement that proceedings will be instituted before the competent court unless an agreement is reached,
within 15 days, on the right to have the boundaries determined and on the choice of a land surveyor.
788. If, after the demand is made, the owners agree on having the boundaries determined and on the choice
of a land surveyor, their agreement must be evidenced in writing, set out the reasons for the determination of
boundaries, describe the immovables and identify the land surveyor who will carry out the operations.
If the parties do not agree, the party that has given the notice may ask the court, by a motion to institute
proceedings, to rule on the right to a determination of boundaries and to designate the land surveyor who will
carry out the operations.
789. The land surveyor proceeds with the determination of boundaries under his oath of office and in the
same manner as an expert. He may carry out all necessary operations to determine the boundaries of the
immovables concerned. He draws up minutes of his operations, to stand in lieu of a report, in which he
includes a plan of the premises, mentions the respective claims of the parties and indicates the dividing lines
that he considers the most appropriate. He gives a copy of his minutes to the parties.
790. Where the parties have agreed on the right to the determination of boundaries and on the choice of a
land surveyor but one party does not accept the conclusions of the land surveyor's report, either party may
ask the court, by a motion to institute proceedings and within 30 days after deposit of the report, to rule on
the report.
791. If, during the proceedings, one of the parties transfers his rights in the immovable subject to the
determination of boundaries, the transferee may be compelled to a continuance of suit.
792. The court determines the boundary line and appoints a land surveyor who places the boundary markers
in the presence of witnesses and draws up minutes of his operations which he must file at the office of the
court.
The homologation of the minutes by the court is proof of the complete execution of the judgment.
793. The costs of determining boundaries are common and, if proceedings have been instituted before the
court, they include the costs of an ex parte action. However, in case of contestation, the losing party must pay
the costs of the contestation unless, for good reason, the court orders otherwise.
794. Where it appears that the boundaries cannot be determined without affecting immovables that are not
contiguous to that of the plaintiff, the court may, of its own motion or on application, order that the owners
of such immovables be impleaded.
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751. An injunction is an order of the Superior Court or of a judge thereof, enjoining a person, his senior
officers, agents or employees, not to do or to cease doing, or, in cases which admit of it, to perform a
particular act or operation, under pain of all legal penalties.
752. In addition to an injunction, which he may demand by a motion to institute proceedings, with or without
other conclusions, a party may, at the commencement of or during a suit, obtain an interlocutory injunction.
An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is considered
to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a
nature as to render the final judgment ineffectual.
805. A person who, in accordance with the rules of the Book on Prescription of the Civil Code, has
possessed an immovable as owner may acquire the ownership of that immovable by applying to the court of
the district in which it is situated.
The application is accompanied with
(1) a recent statement, certified by the registrar, of the rights registered in the land register in respect of the
immovable;
(2) a copy of or abstract from the cadastral plan of the immovable; in the case of a part of lot or of an
immovable that it not immatriculated, a technical description accompanied with the relevant plan drawn up
by a land surveyor is sufficient;
(3) a location certificate, if a construction has been erected on the immovable.
806. The court called upon to establish the right of ownership may, even of its own motion, order
(1) that the motion be served on the owners of the contiguous immovables, if they have not consented in
writing to the introduction of the motion;
(2) that the boundaries of the immovable be determined if the accuracy of the plan is contested by the
owners of the contiguous immovables.
Articles from the Civil Code of Lower Canada
689. No one can be compelled to remain in undivided ownership; a partition may always be demanded
notwithstanding any prohibition or agreement to the contrary. It may however be agreed or ordered that the
partition shall be deferred during a limited time, if there be any reason of utility which justifies the delay.
690. Partition may be demanded even though one of the coheirs enjoys separately a part of the property of
the succession, if there have been no act of partition, nor a sufficient possession to acquire prescription.
710. Every person, even a relation, who is not entitled to succeed to the deceased, and to whom one of the
coheirs has assigned his right in the succession, may be excluded from the partition, either by a'U the coheirs
or by one of them, on being reimbursed the price of such assignment.
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