Civil Law Property

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1

Civil Law Property
, Fall/Winter 2010
-
2011, Prof Veronique Belanger

With some content from Michael Shortt’s summary, and other anonymous PubDocs summaries.


P
ERSONS
,

T
HINGS
,

AND
P
ROPERTY

................................
................................
................................
.................

4

Persons

................................
................................
................................
................................
.......................

4

Physical Person

................................
................................
................................
................................
.....

4

Legal Person

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................................
.........

4

Property

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................................
.....................

4

P
ATRIMONY

................................
................................
................................
................................
....................

5

Common Pledge

................................
................................
................................
................................
....

5

Legal Persons

................................
................................
................................
................................
.............

5

Patrimonies by Appropriation

................................
................................
................................
....................

5

Ville de Quebec v Cie d’immeubles Allard ltée.

................................
................................
..............

5

Roy v Carrier s.e.n.c.

................................
................................
................................
........................

6

Extrapatrimonial Rights

................................
................................
................................
.............................

6

Laprairie Shopping Centre Ltd. (Syndic de) v Pearl

................................
................................
........

6

Société Québécoise d’Initiatives Agro
-
Aliment
aires v Libman

................................
.......................

7

Torrito v Fondation Lise T.

................................
................................
................................
..............

7

Laoun v Malo

................................
................................
................................
................................
...

7

C
LASSIFICATION OF
R
IGHTS

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................................
................................
............................

8

Real Right

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................................
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................................
..................

8

Ouimet c Guilbault

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................................
................................
...........................

8

Personal Right

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................................
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................................
............

9

Intellectual Rights

................................
................................
................................
................................
......

9

Droit d’Auteur/Copyright

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................................
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.....................

9

Tri
-
Tex c Gideonchem

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....................
11

Diffusion YFB Inc c Disques Gamma

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............................
11

Patent

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................................
................................
................................
...................
12

Trademark

................................
................................
................................
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............
12

Publication of Rights

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................................
................

Error! Bookmark not defined.

C
LASSIFICATION OF
P
ROPERTY

................................
................................
................................
......................
12

Immovables

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................................
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................................
..............
12

Bélair c Ste
-
Rose (ville de)

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................................
.............
14

Nadeau c Rousseau

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................................
.........................
14

Horne Elevator Ltd c Domaine d’Iberville Ltee

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..............
15

Cablevision (Montreal) v Deputy Minister of Reven
ue (QC)

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.........................
15

Construtek GB c Laforge

................................
................................
................................
................
16

Axor Construction c 3009
-
220 Qu
ebec Inc

................................
................................
.....................
16

Ville de Montreal c 2313
-
1326 Quebec Inc (Rock Sanna Café Bistro)

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..........
17

Movables

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..................
17

Other Distinctions

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.....
17

Water

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....................
18

Morin c Morin

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................................
................................
.
18

Larouche v Quebec (PG)

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19

Quebec (PG) v Auger

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......................
19

P
ROPERTY IN
R
ELATION WITH
P
ERSONS
................................
................................
................................
.........
20

Private and Public Domain

................................
................................
................................
.......................
20

Quebec (PG) c Houde

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................................
................................
.....................
20

Construction DRM c Båtiments Kalad’Art

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20

O
WNERSHIP

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................................
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................................
....................
21

Limitations on the Exercise of Ownership

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................................
................................
22

Drysdale v Dugas

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............................
23

Katz c Reitz

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.....
23

Lessard c Bernard

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24

Gestion Serge Lafrenière c Calvé

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................................
................................
...
24

2

Goudreau c Lettelier de St Just

................................
................................
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.......
24

Ciment du St
-
Laurent c Barrette

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................................
.....
25

Sula c Cité Duvernay

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......................
26

Sutton (Ville de) c 9034
-
822 Quebec

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26

Acquisition of Ownership

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.........................
26

Possession & Prescription

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....................
27

Bolduc c Fortier
................................
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...............................
28

Boivin c Quebec

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..............................
29

Malette c Sureté de Quebec

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................................
.............
29

Occupation & Accession

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................................
......................
30

Tremblay c Boivin
................................
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................................
...........................
30

Location Fortier c Pacheco

................................
................................
................................
..............
30

Publication of Rights

................................
................................
................................
................................
31

Tremblay c Martel

................................
................................
................................
...........................
31

9164
-
2298 Quebec c Église episcopale St James de Hull

................................
...............................
31

M
ODALITIES OF
O
WNERSHIP

................................
................................
................................
..........................
31

Co
-
Ownership

................................
................................
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................................
...........
31

Undivided
................................
................................
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.............
31

RCR de la STCUM c. Bandera Investment Company

................................
................................
....
32

Harel c. 2760
-
1699 Quebec

................................
................................
................................
.............
33

Robin c. Nicole
................................
................................
................................
................................
33

Forced Indivision (Permanent Co
-
Ownership)

................................
................................
....................
33

Zambito
-
Orazio c. Meneghini

................................
................................
................................
.........
34

Groleau c. Société Immobilière du Patrimoine Architectural de Montréal

................................
.....
34

Divided (Condominium)

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......................
34

Talbot c. Guay

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................................
................................
.
35

Amselem c. Syndicat Northcrest

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.....
35

Bergeron c. Martin

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36

Kilzi c. Syndicat des copropriétaires

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36

Wilson c. Syndicat des copropriétaires de condominum Le Champlain

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.........
37

Superficies

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................
37

Morin c. Grégoire

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37

Stone
-
Consolidated c. Pierre Desjardins Gestion

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................................
............
38

Québec (P.G.) c. Développements de Demain

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................
38

Lafontaine c. Gravel

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........................
39

D
ISMEMBERMENTS OF
O
WNERSHIP

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................................
................
39

Usufruct & Use

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................................
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................................
.........
39

Larocque c. Beauchamps
................................
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40

Banque Nationale du Canada c. Gravel

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...........................
41

Servitudes & Real Obligations

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41

Whitworth c. Martin

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43

Cadieux c. Hinse, Morin

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44

Zigayer v. Ruby Foo’s (Montreal) Ltd

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44

Standard Life Assurance Co. c. Centre commercial Victoriaville ltée

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............
45

Hamilton v. Wall

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.............................
45

Pelletier c. Bui

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................................
................................
.
45

Davidson c. Rosaire Nadeau & Fils

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................................
46

Emphyteusis
................................
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47

Sun Life Assurance Co. Of Canada c. 137578 Canada

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................................
...
47

N
UMERUS
C
LAUSUS

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................................
................................
................................
.......
47

Duchaine c. Matamajaw Salmon Club Limited, Cour
t of Appeal

................................
...................
48

Duchaine c. Matamajaw Salmon Club Limited, Supreme Court of Canada

................................
...
48

Duchaine c. Matamajaw Salmon Club Limited, Privy Council

................................
......................
49

Quebec (P.G.) c. Club Appalache

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................................
...
49

A
BORIGINAL
T
ITLE

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................................
........
49


3




4


P
ERSONS
,

T
HINGS
,

AND
P
ROPERTY

Persons

Physical Person



“Every human
person possesses juridical personality and has the full enjoyment of civil rights” (
art 1
)




Every human being has a right to life, and to personal security, inviolability and freedom.

He also
possesses juridical personality
” (
Quebec Charter
, s 1)

o

Juridical

personality begins at birth (
Tremblay c Daigle
,

[1989] 2 RSC 230)

o

A foetus is only treated as a person where necessary to protect rights after birth (ex. Succession,
art 617
)

Legal Person



Endowed with juridical personality (
art 298
)



Have full enjoyment o
f civil rights (
art 301
)



Constituted “in accordance with the juridical forms provided by the law, and sometimes directly by
law” (
art 299)



Examples

o

Corporations

Property



Office de revision du Code civil

suggested this definition (rejected by National Assem
bly): “All the
personal and real rights which belong to a person constitute his property.”



Things

and the
Rights

associated with their use (
chose

vs
bien
)



A thing is a material object (Prv Law Dic)

o

Not all things


some reserved for common use (
art 913
)

o

“Water and air not intended for public use may be appropriated if collected and placed in
receptacles” (
art 913 para 2
)


“La notion des biens”,
Madeline Cantin Cumyn & Michelle Cumyn


CB 30




Two definitions of “bien”
=
o

Material thing subject to
appropriation

o

Ensemble of patrimonial rights

=
oåly=àur楤楣慬is敮sÉ
=


Real rights are patrimonial rights, along with, and opposed to, personal rights (“aussi dits droits de
créance” at 31), and intellectual rights
=


Roman law

o

Res

is a material thing, but later develops
res corporales
(material things), and
res incorporales

(rights)

o

Property is
res corporales


i琠楳⁳ubj散琠瑯
dominium

o

Res incoporales

includes rights held on other people’s things (
jus in re aliena
)

=
s敲î楴id敳É=É
瑣t
=


Medieval law

o

Based on land, so allows for multiple uses of land, “notamment sous la forme de domains et
tenures don’t aucun n’accorde à son titulatire un droit exclusif” (at CB 33)
=
o

Difference between durable things that can be passed on to maintain a f
amily (
heritages
), and
goods that are perishable or apt to be sold (
chatels
)

=
sué敲iméos敤=oå=瑨És攠捡瑥tor楥猠慲攠瑨攠
oomaå=捡瑥tor楥猠if=immoî敡b汥猠慮d=moî敡b汥sK





CCLC

=
property is “le
droit
de jouir et disposer des
choses
” (art 406)
=


CCQ

=
“Les droi
瑳=d攠捲å捥=整É汥猠lro楴i=楮瑥汬散tu敬s=soå琠m敵b汥s=é慲琠t敲m楮慴楯å=d攠污l汯椺⁥å=
effet, le critère de mobilité ou fixité ne leur est pas applicable.” (at CB 37).
=


CCQ uses “bien” in 3 ways
=
o

Synonym for patrimonial rights

o

“droits réels
dits principaux

=
o

“l’objet du droit de propriété our d’un de ses démembrements” (at CB 38).
=
=
5



P
ATRIMONY



“Universality of rights and obligations and obligations having a pecuniary value in which rights answer
for obligations” (Prv Law Dic)



Real rights, personal rights,
intellectual rights (see below)



Cannot be transferred between living persons (
inter vivos
), only after death to heirs

Common Pledge

Gage commun



“The property of a debtor is charged with the performance of obligations and is the common pledge of
his credito
rs” (
art 2644
)



“Any person under a personal obligation charges, for its performance, all his property, moveable or
immoveable, except property which is exempt from seizure or property which is the object of a
division of patrimony permitted by law” (
art 26
45
)

Legal Persons

Personne morale



Corporations



Titulary of its own patrimony, distinct from those of its shareholders



Have a patrimony, which may be divided or appropriated (
art 302
)



Also have extra
-
patrimonial rights (
art 302
, also below at
Pearl
,
SOQUIA
)



Regulated by statute

o

Loi sur les companies
, RSQ c C
-
38;
Canada Business Corporations Act
, RSC 1985, c C
-
44.

Patrimonies by Appropriation

Patrimoine d’affectation



Objectivist theory of patrimony

o

Responds to criticisms of the subjectivist theory



Impossibility to divide patrimony in subjectivist theory (despite that it must, and did, happen,
ex. separation of patrimony between deceased and heir, art 780; hypothecs, art 2260; family
patrimony, art 414
-
5)



Leads to creation of multiple fictional corpo
rations, so one person can do business in multiple
areas without being held personally liable (Ghestin & Goubeaux, at CB 49
-
51)



Prevented institutions like trust, foundation

o

Creates a patrimony where the titulary is the purpose, not the person



Trust

(
fiduc
ie
)

o

Patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or
beneficiary, in which none has a real right (
art 1261
)



Settlor (
constituant
)


person who puts the property in the patrimony by appropriation
(constituted by him,
appropriated to a purpose)



Trustee (
fiduciaire
)


accepts to administer the property



Beneficiary (
bénéficiare
)


person for whom the trust is meant to benefit



Foundation



Partnership

(
société
)

o

Created by a private agreement, in which partners work toward c
ommon benefit (
art 2186
)

o

No legal personality (only for humans and legal persons,
art 915
, see
Allard

below)

o

Partners are co
-
owners of all the partnership’s goods (share in partnership =
part sociale
)(see
Roy

below)

o

Partnership’s assets

must be discussed b
efore the partners’ patrimonies can be
discussed
in any
claim against the partnership (
art 2221
, also
Roy

below)


Ville de Quebec v Cie d’immeubles Allard ltée.

[1996] R.J.Q. 1566


CB 52


6

Facts



Two of four partners in the partnership sell their shares in

the partnership to the other two partners.
They also sell their parts in a building owned by the partnership.



The city tries to claim taxes on the sale of the immovable

Reasons



Trial judge found it was not a sale, but a transfer within the partnership



Hi
storical analysis shows that the case could go either way



Jurisprudence in Quebec has shown a tendency to assign partnerships a form of co
-
property (largely
dependent on archaic French precedent


probably
obiter
)



CCQ says legal personality only belongs to

humans and corporations (CCQ 915)


meant to be
interpreted as an exhaustive list



Partnerships do things like sign cheques, etc, which resembles personality, but probably just a
shorthand for all the partners signing



The transfer was between one partner a
nd another, therefore the transfer of a real right in an
immoveable

Holding

For the City. Partnership is not a legal person and has no patrimony, therefore cannot own property.


Roy v Carrier s.e.n.c.

2006 QCCS 2663


CB 76


Facts



Motion within a larger

case, in which R (fired lawyer) wants to sue C (a partnership, R’s former
Émé汯y敲F=慮d=simu汴lå敯usly=su攠敡捨=of=瑨攠é慲瑮敲s=楮diîidu慬ay
=


C brings the motion, arguing that art 2221 CCQ implies R must first obtain judgement against the
partnership, befo
re suing the partners; he can’t sue them simultaneously
=
Reasons (Guthrie J)



Partnership has no legal personality, so cannot own property



But, property can be given to the partnership



Partnership’s property is
l楫攠

é慴a業oåy=by=慰éroér楡瑩iå
I=owå敤=by=瑨
攠é慲瑮敲s=bu琠獥t慲慴攠from=
瑨敩É=é敲soå慬aé慴aimoå楥猬iiå=wh楣h=瑨Éy=st楬氠敮àoy=r敡氠l楧h瑳=Er敡氠l楧hts=åo琠åorm慬afor=é慴aimoåy=by=
慰éroér楡瑩iåF



Must use up partnership’s assets before getting into the partners’ personal assets

Holding

For C. Must u
se up partnership’s assets before getting into the partners’ personal assets. Does not
敳瑡É汩lh=瑨慴aé慲tå敲sh楰s=haî攠é慴a業oå楥猬ibu琠usÉs=楴⁡s=愠捯å捥é瑵慬aframÉworkK
=
Extrapatrimonial Rights



Rights that are outside the patrimony, generally do not ha
ve pecuniary value (see exceptions below, ex.
Malo
)

o

Public and political rights


Charter

o

“Every person is the holder of personality rights, such as the right to life, the right to the
inviolability and integrity of his person, and the right to respect of

his name, reputation, and
privacy.

These rights are inalienable.” (
art 3
)

o

Rights under family law (ex. Right to alimentary support,
art 585
)

o

Other rights (ex. Attorney
-
client privilege)



Legal persons can hold some extrapatrimonial rights (not right to
life)

o

“every legal person […] has the extrapatrimonial rights and obligations flowing from its nature”
(
art 302
, also
SOQUIA
below)


Laprairie Shopping Centre Ltd. (Syndic de) v Pearl

[1998] R.J.Q. 448 (C.A.)


CB 96

Facts

7



Shopping Centre went bankrupt, L

(the union) was the trustee in bankruptcy



L wants information from P (Centre’s lawyer), P claims info protected under privilege



L claims, as the trustee, it inherited Shopping Centre’s legal personality, so it can waive the privilege

Reasons



Privilege is

an extrapatrimonial right



Extrapatrimonial rights do not transfer to the trustee in bankruptcy



Only the bankrupt party can waive its extrapatrimonial rights

Holding

For P, extrapatrimonial rights can only be transferred with the consent of the owner.


So
ciété Québécoise d’Initiatives Agro
-
Alimentaires v Libman


[1998] C.A.I. 463 (C.Q.)


CB 101


Facts



SOQUIA is a public company that had holdings in a bankrupt private company Socomer



L, a MNA, wants SOQUIA to publicize Socomer’s records



SOQUIA claims
Socomer’s extrapatrimonial right to privacy prevents it from publicizing them



Socomer ceased doing business, but the legal person was not dissolved

Issue



Does a legal person have the extrapatrimonial right to privacy?



At what point does that right cease to

exist?

Reasons



Legal persons have extrapatrimonial rights (arts 300, 301, 302 CCQ; CB 103)



Legal persons have a right to privacy (art 5 Qc Charter)



Financial statements are protected under the right to privacy (art 302, 35
-
36)

Holding

For S. Legal persons have a right to privacy, and that only ceases on their dissolution.


Torrito v Fondation Lise T.


[1995] R.D.F. 429 (C.S.)


CB 104


Facts



F used pictures and videos in publicity of T’s deceased child (after whom the F was named)
=


T says daughter’s extrapatrimonial right to privacy passed on to her heirs
=


F says using the pictures/video was in the public interest (awareness of handicapped people)

Reasons



art 653 CCQ guarantees rights of the deceased passes to heirs, incl art 35, righ
t to privacy

Holding

For T. Right to privacy passes to the heirs.

NB

art 635 has been amended: “
ko=oå攠may=iåî慤攠th攠ér楶慣y=of=愠é敲soå=wi瑨ou琠瑨攠捯åsÉå琠tf=瑨攠é敲soå

or his heirs

unless authorized by law.” Italics removed. Right to action on a breach extends to the heirs
beyond the person’s death, but only if the breach occurred before death.
=
=
Laoun v Malo


[2003] R.J.Q. 381, [2003] R.R.A. 44 (C.A.)


㄰1


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 Silhou
ette glasses

Reasons

8



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 extrapatrimon
ial right

o

Breach brings damages

Holding

For M, with damages. Right to image/privacy can be restricted by contract, but not transferred, and
interpretation must be narrow. Right can be subject to pecuniary evaluation.



C
LASSIFICATION OF
R
IGHTS

Real Rig
ht


Droit Réel



Right of a patrimonial nature that is exercised directly upon property” (Private Law Dictionary, CB
119)



Direct, one
-
sided relationship with property



Principal Real Rights

o

Right of ownership (droit de propriété)


most complete right
available (
art 947
)



Use (
usus
)



Fruits and products (
fructus
)



Disposition (
abusus
)

o

Dismemberments of right of ownership (
art 1119
)



Usufruct (right to use and enjoyment) (
art 1120
)



Use (limited usufruct) (
art 1172
)



Servitudes (limited use) (
art 1177
)



Emphryteusis (
art 1195
)



Accessory Real Rights (
arts 2660, 2661
)

o

On immovables



Hypothec



Prior claims and hypothecs are the legal causes of preference (
art 2647
)



Hypothecary has preference on proceeds of the sale (
art 2660
)



Hypothecs rank according to date o
f publication (
art 2945
)



Attributes of Real Rights

o

Droit de suite


“Right that bears on property permitting the holder of the right to assert it
regardless of whose hands property may be found.” (Prv Law Dic)



Can be exercised by hypothecary (
art 2660
)

o

Dro
it de préférence


preferential right of claim on an immovable, as granted by a hypothec



Prior claims and hypothecs are the legal causes of preference (
art 2647
)



Hypothecary has preference on proceeds of the sale (
art 2660
)



Claims

o

Remedy for real action:
Titulary can be placed in possession of the property (the defendant is
expelled or the property is taken from him)(
art 565 Code of Civil Procedure
)



Abandonment


holder can renounce claims to real rights

o

To a common wall (
art 1006
)

o

To land with a servitude

(servient land)(
art 1185
)


Ouimet c Guilbault

[1972] CS 859


CB 165


9

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 contract, as well as damages for breach

Issue



What rights did the contract create?



Were the rights extinguished with
expropriation?



Can O claim damages?

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 majeur
, 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)

Holding

G owes damages to O. Promise

of sale creates personal rights, breach of which leads to damages. Real
rights are extinguished with expropriation.


Personal Right


Droit Personnel



“Right of a patrimonial nature that permits its holder, the creditor, to claim the performance of a
prestation from another person, the debtor” (Private Law Dictionary, CB 119)



Relative, two
-
way relationship with another person, in which each person holds part of the right
(credit, debt)


Intellectual Rights



“Difficult to define except in the negative” b
ut that their objects are “incorporeal things” (Ghestin &
Goubeaux CB 183)



“Droits qui portent sur un produit de l’esprit humain” (Baudouin & Jobin, CB 184)



“Monopole de l’exploitation de la création intellectuelle.” (Ghestin & Goubeaux, CB 183)


Divisions

of IP (from Mike Shortt’s summary)

Intellectual Property

Author’s Rights

Industrial IP

Copyright

Moral Rights

Trade Marks

Patents

Trade Secrets




Federal regulation per
Constitution Act 1867

ss
91(22)

patents,
91(23)

copyright

o

Patent Act, Trademark Act,

Copyright Act



Provincial regulation per
Constitution Act 1867

s
92(13)
, property and civil rights

o

Private law fills the statutory gaps (contracts, succession of rights)(
Diffusion YFB
)
(Kasirer,
204
)

o

CCQ hints intellectual property could be considered prope
rty



“Capital also includes rights of intellectual or industrial property” (art 909)



“Intellectual and industrial property are private property” (art 458)


Droit d’Auteur/Copyright



Governed by the
Copyright Act
, federal legislation under 91(23), copyright.



Includes economic rights (copyright), and moral rights.



Protects “literary works”

10

o

Only the written expression, not the idea (
Tri
-
Tex
)

o

Not chemical formulae (
Tri
-
Tex
)



Kasirer

(CB 259)


Ambiguity in Canadian copyright law

o

Civil “author’s law” = natural righ
t, patrimonial and extra
-
patrimonial elements

o

Common “copyright = juridical monopoly, primarily economic

o

None of the aspects of Roman
dominium

o

Private law acts as suppletive law to the statute
, which has holes and ambiguities

(ex contracts)

o

Western concept
, too individualistic to mesh well with Aboriginal law.


Copyright



Patrimonial rights in economic side of a work



Monopoly on the exploitation of a clientele (Ghestin & Goubeaux,
CB 183
)




sole right to produce or reproduce the work or any substantial part
thereof in any material form
whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished,
to publish the work o
r any substantial part thereof” (
Copyright Act
, s 3(1), CB 223)



Term: author’s life + 50 years (s 6)



S
ubject: “the author is the first owner of the copyright” (s 13(1))

o

Subject of portrait is first owner if they hire the author

o

Employer is first owner of copyright to employees’ work (exception for newspapers etc)



Assignment: in writing, can be subjected to

limitations of scope and term (s 13(4))

o

Can be assigned in advance of production (
Diffusion YFB
)


Moral Rights

(Gendreau,
CB 208
)



Extra
-
patrimonial rights belonging to the author

o

Give legal effect to the link between the author and his work



Uniquely civilian concept, present mostly in Europe but adopted by Canada through international
obligations, specifically the 1866 Bern Convention, s 6bis

o

Art 1701 of NAFTA requires adoption of the same provision



Protects expression of the work, not the i
deas in it



Four general components

o

Right of divulgation (when work is made public)

o

Right of withdrawal or repentance (withdraw or change)

o

Right of paternity (to be identified as author)

o

Right of integrity



Expression in the
Copyright Act

o

A
uthor has the ri
ght to claim authorship of the work, as well as the right to restrain any distortion,
mutilation or other modification of the work that would be prejudicial to his honour or reputation

(s 12(7))

o

Right of divulgation read into s 3(1), defining the right to
publish.



Can also be read into art 36(3) CCQ gives right to control use of manuscripts

o

Right to paternity, recognition by: real name, pseudonym, anonymous (s 14.1(1))



Only can assert the right “where reasonable in the circumstances)

o

Right of integrity: aut
hor can prevent “distortion, mutilation or other modification”
; use in
association with a product, location, etc



Says nothing about destruction



Infringed only if act causes damage to author’s honour or reputation

(s 28.2(1))



Mere relocation does not
trigger right of integrity (s 28.2(3)(a))

o

Ownership of rights



Separation of copyright and moral rights more common than not (copyright usually held by
someone other than the author)



Owned by author, who is the creator, or maker



Can be a legal person

o

Term:
same as copyright (author’s life + 50 yrs)

o

Waiver



Cannot be assigned (see also
Laoun
,
above in “Extrapatrimonial Rights”

at 5
)

11



Waiver can be limited by scope and term, or general



Different aspects of the right can be waived separately (ex paternity, withdr
awal, etc)



Can be oral or tacit



This is an example of a public order exception to the prohibition on waiver of rights found in
art 8 CCQ

o

Succession (14.2(2))



By specific bequest



Where economic rights bequeathed but not moral, moral follow economic



If neith
er economic or moral rights are bequeathed, they both fall on “the person entitled to
any other property”


Tri
-
Tex c Gideon
chem

[
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

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



Prod
uct 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



L licensed DG to ¾ the royalties from his songs



Later, he licensed YFB to royalties from his future works



DG claims L could not give his copyright in advance of making the work, therefore his contract with
YFB

is void.

Issue

12

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

T
o do so, it must be “determinate as to kind, and determinable as to quantity”

o

The future song fills these criteria.

Ratio

Copyright exists on works that have not yet been made, and can be assigned in advance of their creation.


Patent



Governed by
Patents
Act
, 1985



Protection “inventions” = “any new and useful art, process, machine, manufacture or composition of
matter”



Application must be filed, and correctly describe the thing and the steps to make it



No patents for abstract principles or theories



Subject

matter cannot be obvious



Does not protect trade secrets


Trademark



Governed by
Trademarks Act
, 1985



Trademark = a mark used for the distinguishing of wares and services

o

Certification mark

o

Distinguishing guise


special shape, etc


C
LASSIFICATION OF
P
ROPERTY



Determined by law



Contracts cannot change the classifications (
Nadeau
)

Immovables



Immovables under CCLC



Immovables by nature

(art 378 CCLC)

o

The land, or a building attached to it

o

“Building” is interpreted broadly (
Belair
)

o

Also any moveables that

are sufficiently integrated into a building

(
Horne
,
Nadeau
)



Loss of identity



Utility to the immoveable

o

Can be a moveable attached to an immoveable, horizontally or vertically (
Cablevision
)

o

Attachment does not need to be permanent (
Cablevision
)



Immovables
by destination

(art 378
-
9 CCLC)

o

Moveable that does not lost its individuality

o

Accessory to an immovable by nature belonging to the
same owner

o

Ex. things to work the land (beehives, rabbits, cattle)


Immovables by Adherence



“Land and any constructions and w
orks of a permanent nature located thereon and anything forming an
integral part thereof, are immovable.” (
art 900 CCQ
).



Formerly i
mmovables by nature
in
CCLC
.


Immovables by Integration

13



“Movables incorporated with an immovable that lose their
individuality and ensure the utility of the
immovable for an integral part of the immovable” (
art 901 CCQ
)



Formerly immovables by nature in CCLC.



Test

(
Construtek
)

o

Physical integration

o

Movable loses its identity

o

Ensures the utility of the immovable



Not
just utility of business or occupant (
Axor
;

Rock Sanna Café
;
An Act Respecting the
Implementation of the Civil Code
, s 48)



Most important criterion (
Horne
)

o

Cannot be removed without breaking the movable or immovable



Not as important (
Horne
)



Remain immovabl
es even if detached, as long as destined to return to the immovable into which they
were integrated (
art 902 CCQ
)


Immovables by Attachment



“Movables which are permanently physically attached or joined to an immovable without losing their
individuality and

without being incorporated with the immovable are immovables as long as they
remain there” (
art 903 CCQ
)



Formerly i
mmovables by destination

in the

CCLC
, but with some changes.

o

Do not need to have the same owner as the immovable, do not need to be placed t
here by the
owner.

o

Utility criterion is new



Test

(
Axor
, quoting Lafond)

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.

Perpetu
al 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



Not just utility of business or occupant (
Axor
;

Rock Sanna
Café
;
An Act Respecting the
Implementation of the Civil Code
, s 48
)



Most important criterion (
Horne
)



Attachment can be to a moveable owned by someone else (
Cablevision
)



Remain immovables even if detached, as long as destined to return to the immovable into

which they
were integrated (
art 902 CCQ
)



Retain their movable quality if claimed by a hypothecary creditor (
art 2672
)(art 571 CCP)


Immovables by Determination of Law



Real rights in immovables and actions to claim or obtain possession of immovables are im
movables
(
art 904 CCQ
)

o

Ex. Servitude, usufruct



Hypothec on rents produced by an immovable is an immovable (
art 2695 CCQ
)



Rights from a forest management permit are immovables (
Forest Act
)



Mining rights are immovables (
Mining Act
)


Accession




“Ownership of

property gives a right to what it produces and to what is united to it, naturally or
artificially, from the time of its union. This right is called a right of accession.” (
art 948 CCQ
)



Owner of the immovable becomes owner by accession of all movables use
d in its construction. He is
bound to pay for them. Previous owner has no right to get them back, nor any obligation to take them
back. (
art 956 CCQ
)



Immobilization by integration automatically triggers accession (
Nadeau
)



Immovables by attachment retain
their movable status when claimed by a hypothecary creditor (
art
2672 CCQ
)(art 571 CCP)

14


Legal Hypothec



Suppliers of construction materials for an immovable automatically have a legal hypothec on the entire
immovable (
art 2724
; also
Axor
;
Kalad’art
,
below
in “Public Domain”

at 18
)



Don’t need to publish it, but if you don’t it’s only valid for a limited amount of time, whereas if you
publish it, valid forever.


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
J
m楬isI=bu楬琠iå=é楬is=慮d=formiåg=é慲琠tf=愠bu楬i楮gI=慲攠
also immovable by their nature”

o

Court interprets “buildings” to mean all “structures” which are attached to the ground.

o

NB the French and English are
given equal weight, so Court also considered whether “båtiment”
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

Issue

Was the furn
ace 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

=
s瑲u捴cr攠楳=iå捯mé汥瑥lwi瑨ou琠楴



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 ha
ve 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 la
w, not a suppletive one.

Ratio

15

Codal regime cannot be altered by contract. Immobilization automatically triggers accession.

NB

cases like this brought about provisions in the CCQ to protect builders (ex art 2724 CCQ)


Horne Elevator Ltd c Domaine
d’Iberville Ltee

[
1972] RJQ 403 (CA)


CB 240


Facts



H installs the elev
ators 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 immoveables by nature?)

Holding

No (Yes).

Reasons

(Rivard JA)



Cannot be immovables by destination, because those must be installed 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 mo
st 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



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 immoveables by destination, because the immoveab
le they are attached to is owned by
someone other than the owner of the wires.



Wires an antennas are immovable by
nature

o

Must be attached physically to the ground

=
瑨rough=éo汥猠lru汥l=immoî慢汥l敡r汩敲=by=th攠捯ur琩=
慮d=瑨攠bu楬iiåg=E楮=th攠捡s攠of=瑨攠
aå瑥åå愠oå=瑨攠bu楬i楮gF



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 no
t need to guarantee the utility of the immovable (unlike per
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

Moveables attached to the grou
nd through an immoveable are immovable by nature.

Attachment can be vertical or horizontal.

16

Attachment can be through a moveable owned by someone other than the immobilized moveable.


Construtek GB c Lafo
rge

[
1998] RDI 137 (CQ)


CB 253


Facts



L was
married to Ghilain 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 appli
ances immobilized, thereby giving C a right them when he got the house? Were the lights?

Holding

No. Yes.

Reasons



CCLC


=
bx捥é琠tor=th攠汩lhtsI=åo=b散慵s攠瑨攠moî慢汥s㨠

o

Do not lose their interchangeability

o

Cause no damage to be removed

o

Did not affect t
he functioning of the movable



CCQ


=
慰é汩捡瑩lå=of=慲瑩捬ts=VMN=慮d=VMP
.

Nothing is immoveable except the lights.

o

Art 901


=
業moî敡b汥lby=iå瑥gr慴楯å



Physically integrated



C
an’t be separated without breaking



Moveable lost quality of individuality



Assures
utility of the moveable, completes it in an indispensable way

o

Art 903


=
業moî敡b汥lby=慴瑡捨mÉåt



Physical link



Ensures immoveable’s utility, not just for the occupant’s comfort
=
or=busiå敳s



No loss of individuality necessary



Immobilized while attached

Ratio

Appliances are not immobilized. Lights are by attachment. Tests for
attachment and integration.


Ax
or 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 immobilization
b
y 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
17

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



VdeM seized its restaurant equipment



RSCB left the seized stuff in the restaurant, and told the owner of the building it could have the stuff
and left it to the next tenants (why didn’t the city take it
=
r楧h琠tway?F



Transaction was confirmed by the Superior Court



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 (ex chair, fire extinguisher)



For the rest, Court applies of the 5 part test from
Axor

(above)

o

None satisfy step 4 of the test (permanent attachment), or step 5 (utility to the immovable)

Ratio

Application of the
Axor

test
.


Movables




“Property, whether corporeal or incorporeal, is divided into immovables and movables” (
art 899
)



“Things which can be moved either by themselves or by an extrinsic force are movables” (
art 905)



Movable by determination of law: “Waves or energy harnessed an
d put to use by man” are corporeal
movables (ex electricity)(
art 906
)



Movable by anticipation: “Fruits and other products of the soil may be considered to be movables,
however, when they are the object of an act of alienation” (
art 900(2)
)



“All other
property, if not qualified by law, is movable” (residual category)(
art 907
)



Rights

on movables, or personal rights, are immovables per the residual category (
art 907
)


Other Distinctions

Consumability
(Terré & Simler, CB 265)



Consumable things are used up
by the lone fact that we use them according to their destination (ex
food)



Even though something is subjected to prolonged use diminishing its value, it can remain non
-
consumable (ex a house)



Only non
-
consumable things can be the object of rights implyi
ng, for their titulary to put them back
afterwards in their identical individuality (ex usufruct)

18



Consumables have different regimes (ex quasi
-
usufruct


must return the same quantity, not the same
exact thing,
art 1127 CCQ
; also loans on consumables are w
eird,
art 2314
)


Fungibility

(Terré & Simler, CB 265)



Fungible things can be employed interchangeably with one
-
another, being determined only by their
weight or measure (ex money, wheat)



Non
-
fungible things are “imagined in their individuality”



Right of ow
nership attaches to a fungible thing at the moment it is identified and becomes non
-
fungible (
art 1453
)(ex when you pick out the car, it becomes yours
at that point
because it
is

no longer
a

Yaris, it is
that

Yaris)


Vacant Property



Things without an owner

belong to no one (wild animals, etc)(
res nullius
)(
art 934
)



Things abandoned by their owners fall under the same regime (
art 934
)



An irrebuttable presumption of abandonment applies to some things like garbage bags (
art 934(2)
)



A moveable without an owner c
an be appropriated (
art 935
)

o

Lost and forgotten moveables retain their ownership and cannot be appropriated (
art 939
)

o

Can only be acquired by prescription, which happens after a certain amount of time (
arts 916,
2910, 2917, 2919
)

o

Must try to find the owner

or declare the thing found (
arts
940
)



An immovable without an owner belongs to the state (
arts 918, 936
)


Water



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

Howev
er, water and air not intended

for public utility may be appropriated if collected and placed in
receptacles” (
art 913 CCQ
)



Every person has the
right to access water

safe for drinking, cooking, and personal hygiene (
An Act to
Affirm the Collective Nature
of Water Resources and Provide for Increased Water Resource
Protection
, s 2)



Ownership of the
bed of a watercourse

confers right to fish, mess with it
, subject to regulation (ex
environmental)

(Cantin
-
Cumyn
, CB 280;
Morin
)



Owners of the shoreline have non
-
restrictive
access
to water (
art 920
;
Morin
; broadly defined by arts
980
-
82)

o

All persons have a right to travel on water (
art 920
)



State owns the bed of all navigable and floatable watercourses, up to the high water line (
art 919
)

o

Also owns beds of all
non
-
navigable watercourses ceded after 1918 (
art 919
; see also
Houde

and
Larouche
,
below in “Private Property and its Origins”

at 17
)

o

Always look at the original grant, if riverbed is in the grant, it stands

o

After 1918, presumption is that the riverbed is
owned by the state

o

Before the three chain reserve, presumption of private ownership

o

After the three chain reserve, but before 1918, the nature of the three chain reserve ensured the
government owned the riverbed


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
lakebed, he has control over the water, and says M2 can’t go swimming

Issue

Can M2 use the lake?

19

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 of non
-
restrictive use to anyone who owns the shoreline.

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 owning shoreline has access to it.


Larouche v Queb
ec (PG)

2007 QCCS 6152


CB 302


Facts



L owned property with a non
-
navigable/non
-
floatable river cutting across it



L was using a backhoe to mess with the river in his project to restore an old windmill.



MNR fined him, claiming he was messing with a public

waterway.



The land was granted in 1900

Issue

Is the riverbed public domain?

Holding

Yes.

Reasons

(Gagon JCS)



Issue revolves around the “three chain reserve” and the subsequent issues it brought up

o

In the late 19
th

C the government required that land grants on waterways (incl non
-
navigabele)
stop three chains from the waterline, to ensure the state maintained ownership of the bank so it
could control fishing rights

o

1918 CCLC is amended to place beds of non
-
navigable

waterways in the public domain

o

1991 the three chain is abolished, and lands given to the owners from whose land the reserve was
taken



substituted a servitude of 10m for fishermen

o

art 919 CCQ reproduced art 400 CCLC, stating that navigable and non
-
navigabl
e waterbeds are
public domain



Held: the 1991 devolution of the three chain reserve did not include the river bed



The river L was messing with was public domain.

Ratio

All riverbeds and lakebeds are public domain, except where the original grant or law spec
ify otherwise.


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 17
th

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 orig
iå慬agraå琠楳⁩å瑥tér整敤=瑯=h慶攠楮捬ud敤=瑨攠r楶敲b慮kI=
wh楣h=go敳⁢敬Éw=瑨攠high
J
wa瑥t=m慲kK

20


P
ROPERTY IN
R
ELATION WITH
P
ERSONS


Private and Public Domain



1854


beginning of abolition of feudal tenure (Marler, CB 287)



After, land held by a form of
freehold tenure (
franc aleu
, Marler)



Public domain

o

Property owned by legal persons in the public interest, or directly by the state



Not everything owned by the
Crown corporations

is in the public domain, only that serving
the public good (
Houde
)

o

Cannot be
seized (
art

)

o

Cannot be prescribed (
916(2)
)

o

Immune from taxation (
Constitution Act 1867

s 125)

o

Minerals belong to the state (
Mining Act
)

o

River and lakebeds belong to the state in most cases (see
above in “Water”

at 16
)



Expropriation is a prerogative
of the state (
art 952
;
Auger

above in “Water


at 17
)


Quebec (PG) c Houde

[
1998] RJQ 158


CB 297


Facts



H’s ancestor Price purchased a plot of land to build a sawmill in 1852



The original survey shows islands down the river, rendering it non
-
navigable



At

low tide, the river is almost dry



There is a salmon spawning ground in the river on H’s designated land



PGQ contends that at high tide the river is navigable, thus making the salmon part of the public domain

Issue

Are the salmon public property by virtue
of living in a public watercourse?

Holding

No, the original grant indicated the river was not navigable.

Reasons



Fishing rights go to the owner of the riverbed



Quebec law only gives the state domain over the riverbeds of navigable waterways

(
art 919
, also
applies to non
-
navigable/non
-
floatable water alienated by the state after 1918)



Original survey indicates the river was not navigable
at the time of concession
, so there was no public
fishing right



Grant does not specifically exclude fishing rights

Ratio

T
erms of land grants must be decided in reference to the land
at the time of concession.


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
é敲=慲琠tNS=CC儮

Issue

Is the depot

a public utility per art 916?

Holding

Yes.

21

Reasons



Art 916

provides that property of the state cannot be appropriated or seized.



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 essential
service (roads) therefore it cannot be seized.

Ratio

Property that is intended for public good and
essential for the function
ing of the state

cannot be seized or
appropriated.
Public utility in this sense is
interpreted

broadly.


O
WNERSHIP


947

Right to use, enjoy and dispose, fully and freely, limits determined by law, modes and
dismemberments

948

Right to what it produces
and is united to it (accession)

952

Expropriation for public utility, just and prior indemnity


Portalis
, Presentation on the Proposed Title on Ownership (1804)

(trans Kasirer)



Man has a natural right to those things necessary for his subsistence



Need
and industry are the founding principles of ownership



Communal ownership is just a way to deny rights to all



Agriculture


ownership of land


ownership of all manner of property


wealth



Men who own things look to the future because they know they have so
me 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”


exception: men cannot contravene socie
ty’s laws



Sovereign owns territory for different reasons


as administrator for the common good



“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 ind
ividual in negotiations



ownership extends to movables and immovables, and all they produce


Cantin
-
Cumyn

“Essai sur la duré des droits patrimoniaux”



Principal real rights are the direct and immediate connections between a person and a thing



Patrimonial
character of real rights help determine duration

o

Survive original titular

o

Disappear with the thing to which they are attached



Code says nothing on duration of real rights other than usufruct and emphryteusis



Ownership is a perpetual right

o

Only extinctive p
rescription kills it, not disuse

o

Indissociable with allodial tenure/franc
-
alleu roturier



Acquisitive prescription is only a transfer or ownership, not the end of one right and the creation of
another



Pierre

“Classification of Property and Conceptions of
ownership in Civil and Common Law”



Matamajaw



wrongly decided

o

JCPC thought personal servitude was not a real right

o

Thought all real rights were dismemberments of ownership

o

Confusion comes from differences between CML and CVL



CVL Ownership = totality of po
wer exercised over, and benefits derived from property



CML ownership has no technical definition and is used indiscriminately



CML has one set of rules for objects, and another for land (unlike CVL)

22



CML developed through pragmatic approach, incrementally c
hanging the feudal system, whereas CVL
was a clean break that drew on Roman concepts



CML no rights, just “interests in land”



CML moved away from feudal tenure earlier than CVL



By the end of 17thC, estate was property held by tenant, and could use and
dispose of it



Ownership came to mean holding the land in tenure for an estate



Equitable ownership allowed for multiple owners


beneficiary of trust, mortgagor, holder of fee tail or
life estate


protects these people from
suffering loss from acts of trus
tee, mortgagee and holder of fee
simple absolute, which is allowed at common law but justice and good conscience oppose (equity)



Because multiple people were entitled to land, title disputes not solved by finding the owner, but by
seeing who had the best c
laim to the land among the claimants


ownership is relative, not absolute



CVL


Roman concept of ownership is corporeal (
res
)


combines
usus, fructis, abusus



Ownership


CML property + obligation, CVL property only



Property


CVL right is in the land, di
rect link between person and thing; CML right is against others,
defined by whether it is enforceable against the whole world or not



Object of property


CVL owner of things, corporeal; CML owner is person entitled to estate and other
hereditaments, so alw
ays a right and therefore incorporeal



Extent of the rights


CVL absolute; CML tenure is limited if uncertain, not absolute



Abstraction


CVL ownership is abstract; CML no abstraction, ownership is necessarily relative



Exclusivity


CVL exclusive, CML can
have multiple owners

Patault

“Introduction historique du DDB”



Basic historic introduction to DDB


Limitations on the Exercise of Ownership


Nuisance



Anything
beyond normal annoyances
, limit of tolerance (
976
)



Judged
relative

to the neighbourhood (
976
,
Drysdale
)



Right of action is not extinguished as long as the nuisance remains (
Goudreau
)



No fault
, only must prove damage (
Ciment St
-
Laurent
)

o

Abuse of right or fault can also admit fault
-
based liability (1457,
Ciment St
-
Laurent
)



Cannot use private law to
invalidate decisions in the public interest (
Calvé
)

Expropriation



State can expropriate for public utility (
952
)



Only for just and prior compensation (
952
)



Regulations that restrict or prohibit use are expropriation

(
Sula
)


6

All rights must be exercised w
ith good faith

7

Rights must be exercised reasonably, in good faith, not excessive

952

Expropriation for public utility, just and prior indemnity

976

Must suffer “normal neighbourhood annoyances” not beyond “limit of tolerance” according
瑯=瑨攠å慴ur攠o
r=汯捡瑩tå=of=污ld=慮d=汯捡氠lus瑯m
=
978

Can compel neighbours to survey

979
-
83

Water: must let it flow onto land, can divert on land, but not from its natural course
downstream, can require destruction to keep water pure, roofs can’t drop snow on
neighbour’s land
=
=
987

Allow neighbours access for repairs

990
-
91

Cannot let things collapse onto neighbouring land, or undermine it in construction

992

Accidentally building on neighbour’s land

=
mus琠tuy=th攠污åd
=
993

Cannot have windows less than 1.5m

from line, unless translucent

1002
-
1008

Fences




Charter of Human Rights and Freedoms
, RSQ c 12, s 6, 46.1

23

6

Every person has a right to the peaceful enjoyment and free disposition of his property, except to
the extent provided by law

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
, RES c Q
-
2

19.1

“Every person has a right to a healthy environment and to its protect
ion, and to the protection of
the living species inhabiting it”

19.2

Superior Court can issue injunctions to prohibit interference with 19.1

20

“No one may emit, deposit, issue or discharge or allow the emission, deposit, issuance or
discharge into the env
ironment of a contaminant in a greater quantity or concentration than that provided
for by regulation of the Government”



An Act Respecting the Preservation of Agricultural Land and Agricultural Activities

RSQ c P
-
41.1

79.17

In an agricultural zone, no pe
rson shall incur liability toward a third person by reason of dust,
noise or odours resulting from agricultural activities

79.19

In an agricultural zone, the inconvenience caused by dust, noise or odours resulting from
agricultural activities does not exce
ed the limit of tolerance neighbours owe each other, insofar as the
activities are exercised, subject to section 100


Drysdale v Dugas

CB 52

Facts



Drysdale built a stable next to Dugas’s house



Shit leaked into the basement of the house, and the smell was
horrible



Drysdale took all the most modern precautions to prevent it

Issue

Is the odour a nuisance? Do D’s precautions exempt him from liability?
=
Holding

Yes. No.

Reasons



The odour lessened the plaintiff’s enjoyment of his property



It was more than the
usual annoyances in the neighbourhood

Ratio

Injury caused by nuisance greater than the normal for the neighbourhood is compensable, regardless of
mitigation techniques.


Katz c Reitz

CB 55

Facts



K built a store beside R’s property



The careless building
practices followed by the contractors caused R’s house to partially collapse
=

Issue

Was K responsible for the contractors? If so how?

Holding

Yes.
No fault liability.

Reasons



It is clear the contractor was at fault



R is not an architect, so he cannot
be faulted for improper supervision



The construction was so dangerous that it created a strict liability on whoever instigated it



R’s right to enjoyment stops where it interferes with K’s

Ratio

Nuisance is strict liability.


24

Lessard c Bernard

CB 60

Facts




B built a wood furnace that conformed to legal standards, and included smoke
-
mitigation techniques



It produced massive amounts of smoke



The smoke was so thick L couldn’t use his back yard and had to keep the windows of his house closed

Issue

Is the
furnace a nuisance?

Holding

Yes. Injunction and damages to L.

Reasons



976

doesn’t consider fault, so the only issue is the fact of the smoke



The only thing to consider is the excessive nature of the damages, not how they came about



The smoke deprived enj
oyment in a manner that was clearly excessive, so 976 applies

Ratio

Right to enjoyment ends where neighbour’s begins. 976 is no fault.


Gestion Serge Lafrenière c Calvé

CB 63

Facts




GSL runs a fish farm, which was authorized by the MoE in 1993 and 1996



C lives on the same lake, sues under EQA s 19.1 for elevated levels of phosphorous resulting from the
fish farm
, attacking the validity of the MoE’s license



GSL’s license was revoked independently of the action and is before an admin tribunal

Issue

Shoul
d the Court grant an injunction contrary to the MoE regulations?

Holding

Not really (Court limits emissions to similar amount of 1996 license pending admin tribunal decision)

Reasons



Discretion given to the Minister by the EQA is broad



Courts will
intervene when discretion is exercised:

o

To improper ends, not foreseen by the law

o

In bad faith

o

On erroneous principles or non
-
pertinent considerations

o

In a fashion that is discriminatory and unjust, arbitrary, or unreasonable



Courts will overrule decisions

where procedure is not followed, but not where the result is inopportune
or erroneous



CCQ is suppletive law



EQA represents public order

=
䵩j楳瑥t=b慬慮捥s=b整w敥å=éub汩挠慮d=ér楶慴攠楮瑥t敳És
=


EQA (public law) takes precedent over private law



GSL is allow
ed to produce 80 tons of fish and emit no more than 130 kg of phosphorous (slightly less
than allowed by the 1996 license)

Ratio

Public law limits on the enjoyment of property take precedence over private law actions.


Goudreau c Lettelier de St Just

CB
77

Facts




L’s ancestor builds a house in 1923



G’s ancestor builds a 3 story apartment building beside it in 1940



L’s ancestor builds a 3 story wall beside the apartment building for privacy in 1941



With G’s ancestor’s agreement, the wall used G’s building
for=suééort

25



G wants to demolish the wall

Issue

Is the wall a nuisance? Did G lose his right to sue over the 50 years since it was built?

Holding

Yes. No.

Reasons



Doctrine recognizes three kinds of nuisance

o

Intentional injury of another with property
rights

o

Negligent or excessive use of property rights

o

“Antisocial” exercise of rights, in which rights are exercised reasonably but there is still damage



976 is a no fault regime because of its place in the code



The wall is a nuisance because it completely
blocks views, air, and light, and makes maintenance on
the building difficult



It is not a reasonable response to privacy concerns because it is so high



Tolerance alone does not constitute prescription of rights (analogy to servitudes)



Delay only means that

G cannot force L to pay for the demolition

Ratio

976 is no fault. Gives rules for prescription of rights under 976.


Ciment du St
-
Laurent c Barrette

CB 83

Facts




CSL opens a plant that annoys nearby residents with dust, noise, and odour



B brought a
class action

Issue

Is CSL liable for nuisance? Is it fault based? Is it a real right?

Holding

Yes. No. No.

Reasons



Fault
-
based TDV, under 1457 (Rejected)

o

Obligation to act reasonably and within any legislative norms applying to immovable property

o

Duty

of means

o

Only applies is there is fault

o

CSL didn’t commit any fault, so can’t apply here



Right to claim under nuisance is a real right (
propter rem


=
adî慮捥d=by=CAFEo敪散瑥tF

o

Right attaches to property

o

This would mean that tenants would not have right to

claim

o

Never mentioned in the Minister’s comments

o

Not appropriate theory because 976 is activated by victim’s inconvenience

=
楴⁩i=th敲敦or攠愠
é敲soå慬ar楧h琠

o

Tenants have a right to claim under 976



No
-
fault based regime (Accepted)

o

976’s location in Book
䙯ur=睩瑨=o瑨敲=åo
J
f慵汴⁲敧im敳

o

Judicial notice must only be given to
results
, not conduct

o

Only question is whether the victim’s annoyance exceeds what is reasonable to expect in the
捩c捵ms瑡å捥



Statutory exemption? (Rejected)

o

CSL claims that its
establishment statute exempts it from civil liability

o

SCC rejects this: the statute wasn’t specific on the point so no exemption



CSL cannot claim prescription



“Neighbour” should be broadly defined

Ratio

Two liability regimes for TDV



Fault
-
based (abuse of r
ights or violating norms of conduct

=
NQRTF
=
26



No
-
fault (unreasonable annoyance


976)


Sula c Cité Duvernay

CB 122

Facts




D rezoned 3 undeveloped residential lots owned by S into parks



S claims that effectively expropriated them because he could no longer
develop them nor could he
control access to them



D claimed no expropriation because S remained owner.

Issue

Were the lots expropriated?

Holding

Yes.

Reasons



Rezoning S’s property reduced his rights over it to the level of any other citizen.
=


His property

was effectively expropriated without compensation



This is beyond the power of the municipality, so rezoning is illegal

Ratio

Regulations that restrict or prohibit use are expropriation.


Sutton (Ville de) c 9034
-
822 Quebec


CB 124

Facts





Issue


Holding


Reasons




Ratio



Acquisition of Ownership




Occupation



Possession



Detention

o

Cannot acquire ownership by detention

o

Can become possession by i
nversion of title (2914)



Prescription



Accession


913
-
14

Cannot appropriate
res communis
, can appropriate
things without an owner

916

Property acquired by: contract, succession, occupation, prescription, accession. Cannot
appropriate State property


Carbonnier

“La notion de possession”



Possession is a factual situation that may or may not coincide with a le
gal situation (ownership)
(pouvoir de fait, pouvoir de droit)



Majority of possessors are at the same time owners, and inverse



The thief might be the possessor, but is not the owner

27


Mazeaud et al

“Droit de propriété et ses démembrements”



Owner’s juridical
power (pouvoir juridique) exists independent of its exercise



Possession is a situation of fact (pouvoir de fait), ownership and real rights are powers in law


possession is assessed without reference to legal situation



Detention

(

tention, qu’on nomme po
rfois possession précaire
) is different than possession



Detention always comes from a legal situation, it supposes at its origin, a juridical title: conventional
(farmer, renter), juridical (sequester), or legal (père usufruitier légal, spouse)


détenteu
r holds in the
name and with the understanding of the owner



Detention is a pouvoir de droit



Détenteur cannot be the owner



The owner can still have ownership despite the presence of a détenteur



Apparent owner


by common error considered owner (comes from t
hird parties’ notions)



Apparent ownership exists to secure third parties’ reliance in a situation that may not be legally correct



Legal effects of possession

o

Possessor can defend against all troubles attendant to possession (possessory actions)

o

Possessor i
s presumed owner, and is the defendant in an action of revendication

o

Possession can lead to ownership



Ownership of immovables is difficult to prove, possession is easy to prove

o

Law presumes ownership to protect the owner



By presuming possessor is owner, t
he possessor is given incentive to take care of property



Presumption secures and facilitates transaction

(136)



Possessor can only become owner in good faith



Possession applies to all real rights = basically is the same as acting like you legit hold the rig
ht



Things outside commerce cannot be possessed


public domain, juridical universalities (patrimony,
inheritance)



Elements of possession

o

Corpus



Material element of possession



Exercising the attributes of the rights of ownership (usus, fructus, abusus)



Not

necessary for possessor to exercise corpus himself



Material apprehension of the thing


acquisition of corpus

o

Animus



Intentional element of possession



Two theories



Savigny



Subjective theory



Posessor need
animus domini



intention to act like the pwoner



Savigny does not see détenteurs as possessors



Ihering



Objective theory



No distinction between possessors and détenteurs based on animus



Law accords in principle all occupants the effects of possession



Following Pothier, Code civil sees possession as the wi
ll to conduct oneself as owner



Two rules for animus



Presumption


animus is presumed, all occupants are presumed to be possessors and
not détenteurs



Abstract


animus is determined based on outward appearances, from the perspective
of the “occupant
-
type pl
acé dans la meme situation” (reasonable man?)



Inversion of title


when the possessor becomes owner
-



Possession & Prescription


28



Possession

o

Corpus



material element

o

Animus



intention to be owner



Possession can be opposable after 1 year of good faith
possession (
929
)



Test

for acquisitive prescription (
Bolduc
)

o

Property subject to prescription (not State property,
res communis
, etc)

o

Exercise of useful possession (possession utile)(
922
)



Peaceful


not obtained by violence



Continuous


regular, material
acts like an owner would do; not necessary to have
permanent contact, just regular and not abnormal



Public


public exercise of possession, third parties think possessor is owner



Unequivocal


certain and exclusive

o

Over the period of 10 years (2917)



Mere t
olerance or facultative acts don’t found prescription (
924
)


Possession

921

Possession is detention and intention. Intention is presumed.

922

Must be

peaceful, continuous, public, unequivocal

923

Detention is presumed to continue without proof of
inversion of title

924

Tolerance does not found possession

925

Presumption of continuous possession

927

Thief cannot benefit from possession, but successors can if unaware of defect

929

1 year possession creates right of revendication

930

Prescription

gives possessor the real right he possesses

932

Possessor must believe he has the right to possess in good faith (cannot be aware of defect)


Prescription

2875

Acquisitive prescription = getting ownership, extinctive prescription = end of ownership

2883

Prescription can be renounced

2910
-
12

Acquisitive prescription brings ownership through possession, not detention. Can be based
on possession gained by succession

2913

Detention is not a basis for prescription

2914

Inversion of title: by title fro
m another, or demonstration of animus

2917

General period for
acquisitive
prescription is 10 years

(also extinctive, 2922)

2919

Period for movables is 3 years


Bolduc c Fortier

CB 142

Facts



B claims that she has title to a parcel of land F purchased in

2004



B claims her husband purchased the land in 1970, even though there was no registered transfer of title



B’s husband had paid taxes on the property since 1970



In the alternative B claims she gained ownership by acquisitive prescription

Issue

Does B hav
e a claim to the land?

Holding

No.

Reasons



916 says prescription is a mode of acquisition of property



2910, 2911 say acquisitive prescription is a mode of property acquisition as an effect of possession



921
-
933 say the term for acquisitive prescription is

10 years



932

=
åo=å敥d=瑯=敳瑡É汩lh=good=f慩瑨=éossÉss楯å
=


Two conditions for acquisitive prescription (
2918
)

29

o

Exercise of useful possession (possession utile)
(
922
)



Peaceful


not obtained by violence



Continuous


regular, material acts like an owner would
do; not necessary to have permanent
contact, just regular and not abnormal



Public


public exercise of possession, third parties think possessor is owner



Unequivocal


certain and exclusive

o

Over the period of 10 years



Two elements of possession (from Lafon
d)

o

Corpus


material possession

o

Animus


intention du possesseur de so comporter comme le
véritable

propriétaire



If the owner tolerates use, it does not count as possession (924)

o

Neighbourly tolerance


parking a car, camping, etc



Paying taxes is not deter
minant of possession

Ratio

Defines possession for acquisitive prescription


Boivin c Quebec

CB 158

Facts



B found gold bars on the bottom of a lake



B claims ownership of the bars and all other bars discovered on the bed of the lake because it forms a
whole treasure

o

Any other people looking there would only have been motivated by B’s discovery anyway
=



PGQ argues it is the half
-
owner of the bars because the lakebed belongs to the state



Several third parties found gold bars as well, claiming they were
never part of the original treasure, nor
were they treasure, but rather abandoned moveables

Issue

Are the bars treasure or abandoned movables?
Does B have a claim on the other bars?

Holding

Abandoned movables. No.

Reasons



Court highlights the importance

of no
-
one being able to justify their rights over treasure, which would
requires knowing the intention of the people who put the bars in the lake (did he want to get rid of
them or hide them for later recovery?)



Court believes bars were permanently abando
ned

o

Treasure is implausible because it would be hard to recover them and the SQ would probably get
involved because it’s Crown land
=


The fact no owner came forward due to the intense media coverage means they were probably
abandoned.

Ratio



Malette c
Sureté de Quebec

CB 162

Facts



M discovered $20,000 on the side of the road and deposited it at an SQ office



After 1 year, M tried to recover it


Issue

Is the money a lost or forgotten movable? Does M have rights to it?

Holding

Yes.

Reasons



Clearly
has an owner

30



Likely not an abandoned movable


has not gained the inference in 934(2) and failed to prove
abandonment by other means



Therefore, lost or forgotten movable (938)



Malette cannot be considered a good faith possessor unless he faces a 10 year pr
escription period



He has fulfilled requirements to take possession of the money from SQ

Ratio



Occupation

& Accession


934

Wild animals belong to no one

935

Appropriation of movables without an owner through occupation

938

Treasure

939
-
46

Lost or
forgotten movables can be acquired by prescription, not occupation, finder must
attempt to find owner, declare it to police, can sell it after 60 days (unless perishable)

954

Voluntary accession = artificial, involuntary = natural

956

Owner of immovable

owns things he builds on it, but must pay for the materials

965
-
70

Natural accession
:

sediment in rivers

971
-
75

Movable accession:
Intermingled movables impossible to separate belong to whoever
contributed the most value


Tremblay c Boivin

CB 165

Facts




T shot a moose on B’s land that B had shot earlier in the afternoon



B claims the moose because mortally wounded it (so T didn’t really kill it), and because it was shot on
h楳=污åd

Issue

Can be claim the moose because it was shot on his land?

Holding

No

Reasons



Wild animals are “biens sans maître” that can be claimed by occupation
=


Ownership of land does not grant ownership of animals on it, so it doesn’t matter where it was shot
=


Wild animals are occupied by the first person to exercise physica
l control over them



It doesn’t matter that B shot it first because killing doesn’t mean control
=


T was the first to control it, because he and his friends were butchering it when B found them

Ratio

Occupation is determined only by physical control.


Location Fortier c Pacheco

CB 168

Facts




LF rented a truck to P



P installed a platform that he borrowed from
2741
-
2824 Québec



P stopped payments on the truck



LF claims the truck, and claims the platform belongs to it due to moveable accession

Issue

Whose
property is the truck?

Holding

LF owns the platform by movable accession, but must compensate
2741
-
2824 Québec
.

Reasons

31



The platform is sufficiently integrated that removing it would render the truck unsuitable for normal
use



Art 971 applies



Because the t
ruck costs more than the platform, the whole thing belongs to LF



Complexity of the case calls for application of 975 judicial discretion



2741
-
2824 Québec

should be compensated because it rented the platform to P in good faith and it adds
to the value of th
e truck.

Ratio

Movable accession is defined by 975, but compensation must be given on an equitable basis


Publication of Rights



Superficies must be registered (
Morin
, though judge gets around it there)


2934

Publication of rights when they are registered

2938

Immovable real rights require publication

2941

Publication of rights allows them to be set
-
up, but produce their effects before publication


Tremblay c Martel

CB1

Facts




T had a servitude with the previous owner of the land, it wasn’t registered



M

bought the land, says servitude isn’t good

Issue

Is the unregistered servitude opposable?

Holding

No

Reasons



Real rights must be registered for them to be opposable

Ratio



9164
-
2298 Quebec c Église episcopale St James de Hull

CB1

Facts





Issue


Holding


Reasons



Registered rights can be the object of prescription

Ratio




M
ODALITIES OF
O
WNERSHIP

C
o
-
Ownership

Undivided


487

Spousal property is presumed to be held in undivided co
-
ownership, half and half

32

973

Movable accession: undivided
co
-
ownership where impossible to tell who gave the most

1002
-
1006

Common walls and fences

1010

Undivided co
-
ownership where no physical division in property

1012

Indivision by contract, succession, judgement

1015

Presumption of equal shares, rights &
obs of exclusive owner for share

1016

Use cannot affect destination or right of other co
-
owners, exclusive use requires
compensation for other owners

1020

Reimbursement for upkeep costs

1022

Other owners have right of redemption on sale of shares, up to

1 year after sale

1026

Majority rule on admin; alienation, change of destination, substantial alterations = unanimous

1030
-
31

Partition at any time

unless postponed by agreement, residential exception (75% of owners
with 90% of building can force partit
ion)

1520

Indivisible obligations


everyone is responsible for the whole thing


Cantin
-
Cumyn
“L’Indivision” (CB 178)



Indivision = multiple titularies of the same right on the same object



Indivision can apply to any property or patrimonial right



Co
-
owner
ship is a species of indivision, where the right of ownership is held in indivision



Modality of ownership, movable or immovable depending on the object of the indivision



Thinking of the owner of an undivided part as the owner of a part distracts from the
fact that indivision
means the same people exercise the same right of ownership over the whole thing (like the relationship
between shareholders of a corporation and the corporation’s property, if every shareholder held 100%)



Simple presumption of equality

of shares in indivision (for when one owner wants to sell, etc)



Partners in indivision have a right of preemption for any sale of another’s part



If one person in fact has exclusive use of the property held in indivision, he must compensate the other
owner
s



Not a very viable situation in practice



Decisions about alienation or changing value of property must be unanimous


RCR

de la STCUM
c. Bandera Investment Company

CB
187

Facts




STCUM gave money to Trust General to invest in hypothecs



TG made a $14millio
n loan to a company

o

$10million TG

o

$4million STCUM

o

Loan is guaranteed by a $14million hypothec



TG was bought out by BNC



BNC sold TG’s share in the hypothec to B



STCUM claims the hypothec is held in indivision, and as one of the co
-
holders of the indivision,

it can
pre
-
empt the sale if it matches the price being paid to the third party (B)

Issue


Holding


Reasons



STCUM’s share in the hypothec is an accessory real right
=
o

S exercises a real right (
904
)



STCUM’s share in the loan is a personal right
=
o

It can be sub
ject to indivision (not undivided co
-
ownership)

o

Regime on co
-
ownership is broader than it appears

o

Possible for the loan (as well as the hypothec, and independently of it) to be held in indivision



Debt was not held in indivision

33

o

CCQ presumes sums of money
can be divided

o

Indivision therefore must be expressly stipulated, which it was not

Ratio

Indivision and co
-
ownership are separate concepts. Indivision can apply to personal and real rights.


Harel c. 2760
-
1699 Quebec

CB 194

Facts




H’s and her husband
慲攠uådiî楤敤=捯
J
owå敲s=of=th敩É=family=homÉ



H never published her address at the registry, so she did not learn of the sale until after it took place



Husband had debts to 2760, who sold his share in the undivided property at auction



H is claiming rights u
nder 1022 on the share 2760 was selling

Issue

Can 1022 be invoked after sale? D
oes 1023 prevent her from using 1022?

Holding

Yes. No, they are separate regimes.

Reasons



1022 and 1023 target different fact situations, but are not mutually exclusive

o

1022
applies if the person becomes aware of the sale after it takes effect

o

1023 applies if the person is aware before the sale is made.



Sale is acquisition of the share by onerous title, so 1022 applies.

Ratio

1022 and 1023 are complementary regimes


Robin c.
Nicole

CB 196

Facts




R and N bought a farm, each paid half (R loaned N some of the money for his half), and held it in
indivision



They also did some improvements on the property



They broke up, and R moved out



R is claiming for compensation for N’s
exclusive use, and her half of the shit

Issue

Is R entitled to indemnity for N’s exclusive use?

Holding


Reasons



Indemnity is provided for by 1016



Person enjoying the use must pay all the taxes, etc



As far as improvements, court found R contributed ¼ and N ¾



R gets what she put in (half of the purchase, ¼ of the improvements)

Ratio




Forced Indivision (Permanent Co
-
Ownership)



Immovable serves as an accessory to two or more immovables = wall, fence,

courtyard, well



Property cannot be subject to partition because it has a durable purpose (
1030
)



Co
-
ownership can be involuntary (neighbor builds wall, other one automatically has rights and costs)



1002
-
1008 = provisions on walls, no general provisions



3 t
ypes of forced indivision

o

Shared property (things)

34

o

Land and certain parts of buildings divided into apartments where each part has a different
owner

o

Certain property where an agreement or state of facts makes them destined to perpetual
service of two or m
ore immovables either b/c there are indispensable accessories to the
immovables they serve

Zambito
-
Orazio c. Meneghini

CB 205

Facts




M renounced his right in a common wall he shares with his neighbor ZO



ZO had the wall repaired and sent M a bill for half
the expenses



M refused to pay, pointing to his renunciation



ZO had M’s goods seized for payment

Issue

Can M renounce rights of undivided co
-
ownership?

Holding

Yes.

Reasons



M renounced his right in the wall before the repairs were, so it was not M’s proper
瑹=w传r数慩a敤
=


M had never claimed any rights in the wall, and only renounced his rights after a
previous
judgment
said he had them

Ratio

Renunciation of right of ownership absolves liability for the common property from the moment of
renunciation.


Groleau c. Société Immobilière du Patrimoine Architectural de Montréal

CB 209

Facts




G and SI share a wall



They were having discussions to repair it for a while



It collapsed



G advised SI of the need for repair and asked to share costs



SI refused and publi
shed a notice to abandon its right to the wall per 1006



City required G to fix the wall, which it did



G is claiming SI did not exercise its right to renunciation in good faith, so should still be liable

Issue

Is SI liable for the repairs?

Holding

Yes, but
only for 25%

Reasons



Both parties acknowledged the need for repairs



Given the urgency, it was reasonable G acted without SI’s consent



SI’s renunciation was in bad faith



It was liable for its share

Ratio

Right of renunciation must be exercised in good
faith. Urgent repairs do not need consent, paid for by both
parties in proportion to their shares.


Divided (Condominium)




Test to determine destination (
Wilson
)

o

Objective elements
: situation, quality of materials, distribution of condos, comfort, luxury

35

o

Subjective elements
: the expectations the co
-
owner had when buying his part

o

Collective elements
: manner in which destination represents a safeguard of the general interests
of the co
-
owners


1010

Divided co
-
ownership where ownership is divided in
physically distinct fractions

1038

Established by publication

1039

Co
-
owners are a legal person (syndicate), and goods for common utility are owned by it

1042
-
46

Common portions

1052
-
53

Declaration sets bylaws, destination

1056

Restrictions must be
justified by destination, characteristics, or location

1058

No time shares unless allowed by declaration of co
-
ownership

1059

Declaration must be notarized

1063

Co
-
owners have free use of their part and common ones; cannot impair others or destination

1064

Proportional contribution to renovations

109
6
-
98

Syndicate decisions are by majority
, except some require ¾ majority

1108

Ending co
-
ownership requires 75% of owners holding 90% of shares


Talbot c. Guay

CB 213

Facts



T put an awning over his
balcony restricting G’s view of the river



G got an injunction under the condo’s bylaws forcing T to remove it



T claims the bylaw is unfair, since it is not related to the destination, characteristics or location of the
immovable


Issue

Is T’s awning an unj
ustified restriction of G’s property rights?
=
Holding

Yes.

Reasons



G’s view was not common to all co
J
owå敲s
=


Not sufficient reason for T to interfere with G’s rights
=


The restriction placed on T is minor compared to the harm he inflicts on G

Ratio

Unique
benefits are protected by the divided co
-
property regime. Disputes between co
-
owners will involve
balancing rights of enjoyment.


Amselem c. Syndicat Northcrest

CB 216

From a DDB standpoint, this case is pretty boring
, since the Supreme Court is concern
ed only with the
constitutional aspects of the case
. The trial and appeal judges
(but not the SCC)
use CCQ
a
1039 (and find
that the restriction on succahs had a rational link to the

syndicate’s
=
obà散瑩t攩I=
a
NMRS=E慮d=f楮d=瑨慴ath攠
r敳瑲楣瑩Éås=w敲攠慰é汩敤
=
uå楦ormly=aåd=楮=good=f慩瑨
=
瑯=ér敳敲î攠瑨攠d敳瑩å慴楯å=of=th攠immoî慢汥
F=慮d=
a
NMSP=E瑨楳=oå攠楳=us敤=瑯=àus瑩fy=th攠h慲sh=r敳瑲楣瑩iås=oå=慥s瑨整楣sI=s楮捥=i琠楳⁡tgu敤=瑨慴a捯ådo
J
owå敲s=
w敲攠buyiåg=åo琠tus琠troé敲瑹=bu琠t=?汩l敳Éy汥l=慮d=瑨楳=å散敳s楴慴
敤=捯åform慮捥=瑯=th攠bylawsFK
=
=
qr楡氠gudg攺
=
≔h攠汥l楳污lur攠h慳⁲敳瑡瑥É=瑨攠捬慳s楣i瑲楰tych=of=瑨攠r楧h琠tf=owå敲sh楰㨠瑨攠r楧h琠瑯=
us攬=敮àoy=慮d=d楳éos攠of=éroé敲ty=fr敥ly=E慲琮tVQT=CKCK儮FK?
=
=
B楮å
i
攠EpCC
I=d楳s敮瑩tg

=
=
f氠lx楳瑥ts敬Éå=mo椠iå攠ormÉ
=
différence entre le fait d’utiliser la liberté de
religion comme un bouclier contre les atteintes portées par l’État

et le fait de l’utiliser comme une
=捯å瑲攠d敳⁣o捯å瑲慣瑡t瑳=d慮s=uå=immÉub汥lér楶
=
=
f氠léé慲瑥t慩琠慵x=慰é敬慮ts=整Éåoå=慵x=慵瑲És=
copropriétaires de déterminer, avant d’acheter leur appartement, quelles exigences étaient liées à leurs
捲oyaå捥s=r敬Ég楥us敳É
=
=
f氠y=aîa楴⁰汵s楥urs=imm敵b汥s=où=楬i=éouî慩aå琠t捨É瑥tK
=
=
f汳=s攠soå琠tågag⁰慲=
捯å瑲慴a敮î敲s=汥猠lroér槩瑡楲敳⁤攠捥琠tmm敵
b汥lr敳É散瑥t=汥猠l汥猠l攠捥琠tmmÉub汥l=mêm攠s椠
(comme c’est apparemment le cas) ils ont accepté les règles sans les avoir lues.
=
=
f汳=oå琠tåsu楴攠r敪整污l
36

mesure d’accommodement proposée par les copropriétaires, en l’occurrence l’utilisation d’une sou
ccah
commune dans les jardins de l’immeuble, parce que cette proposition ne satisfaisait pas entièrement
leurs opinions religieuses


Bergeron c. Martin

CB 245

Facts




M opened a daycare in her condo



B bought a condo a few months later and was told there w
ould only be a few children present



The daycare is noisy and disruptive for most the day



M also built structures used for the daycare in the common space, depriving B of their full use and
enjoyment during the day

Issue

Is m infringing on B’s rights under
瑨攠d楶楤敤=捯
J
owå敲sh楰?
=
Holding

Yes.

Reasons



Applies
Wilson
test to determine destination of the building

o

Objective factors suggest it is purely residential (location, structural design)

o

Subjectively, B bought the property in order to enjoy tranquility
and was told there would only be
a few children present

o

D
eclaration of co
-
propriety: all c
ondos but be inhabited “bourgeo
isement” and cannot be used for
捯mm敲捥
=


Occupants are required to avoid disturbing the tranquility of the building



M’s business is
th敲敦or攠慮=iåfr楮gÉm敮琠tå=瑨攠d敳瑩ta瑩tå=of=瑨攠bui汤楮g
=
Ratio

Destination is determined by objective, subjective, collective factors. None of the factors is determinative
alone. Destination as set out in declaration of copropriety is not determinati
ve either.


Kilzi c. Syndicat des copropriétaires

CB 250

Facts



K bought several units in the condo and rented them out for profit



The S passed bylaws restricting K’s ability to rent units



K challenges bylaw


Issue

Do the bylaws change the destination of
the immovable? If yes, were they passed with the appropriate
majority?

Holding

Most of the bylaws are invalid, except those restricting short
-
term lease. Yes.

Reasons



Destination is a residential building



There is nothing inherent in the residential
purpose that would prevent K from renting units for long
time periods or for owning more than three

o

Bylaws restricting this are invalid



Short term leases suggest a commercial, not residential, purpose

o

Lawful for bylaws to restrict this

o

Court is not compete
nt to determine what constitutes “short term” so the majority of the co
J
owå敲s=w楬氠i散楤攮
=
Ratio

Confirms Wilson test. Declaration of co
-
ownership is not the definitive source of a condo’s destination.
=
=
37

Wilson c. Syndicat des copropriétaires de
condominum Le Champlain

CB 257

Facts




W lives in LC



A majority of LC owners banned pets, which had been allowed for 13 years



W opposes th ebylaw

Issue

Is the regulation justified by the immovable’s destination? Which voting regime is required to ban
pets?

Holding

No. Art 1098.

Reasons



Test to determine destination

o

Objective elements
: situation, quality of materials, distribution of condos, comfort, luxury

o

Subjective elements
: the expectations the co
-
owner had when buying his part

o

Collective elements
: manner in which destination represents a safeguard of the general interests
of the co
-
owners



Destination is residential



Rights in co
-
ownership are absolute, just like regular property rights

o

Except to the extent hat restrictions are justified by the co
-
p
roperty regime



No clear reasons to justify banning pets (13 years without incident)



Keeping pets is part of the residential nature of the bilding



Banning pets is not only unjustified by the destination of the building, it effectively changes the
destinatio
n.



If pets were banned from the start, it would not be possible to say keeping pets is part of the building’s
destination

o

An incident with pets might have changed the outcome as well

Ratio

Test for destination of immovable


Superficies



One person owns the

building (superficiary), another owns the subsoil (1011)



Superficiary has all servitudes necessary to exercise his right (
1111
)


955

Presumption constructions belong to bare owner

=
捡å=b攠r敢u瑴敤=by=sué敲f楣楥i
=
1009

Superficies is a special mode of
ownership

1011

Ownership of constructions, works, plantations, when someone else owns subsoil

1110

Division of right of ownership, transfer or renunciation of right of accession

1111

Comes with any servitudes necessary to exercise superficies

1113

Can
be perpetual or have a term attached

1114

Termination by: union (or confusion) of owners, fulfillment of condition, expiry of term

1115

Loss of construction terminates superficies, expropriation does not

1116
-
18

Termination: subsoil owner
gets the stuff

back, has to pay



Morin c. Grégoire

CB 280

Facts



M allowed G to build a house on his land



Relationship soured, M demands transfer of title of the house by accession



G claims he has a right to the house due to prescription, or at least compensation


Issue

Who owns the house?

38

Holding

G.

Reasons



Difference between tolerance and permission

o

Tolerance cannot found prescription

o

This was a deliberate granting of permission



There was a verbal contract granting G a superficiary right

o

Either perpetual or
lasted at least as long as the buildings stood.

Ratio

Renouncing the right of accession to create a superficie is permissible. Superficiary rights can be
perpetual.

NB
: sup
erficies must be registered, judge gets around it here (exceptional)


Stone
-
Consol
idated c. Pierre Desjardins Gestion

CB 283

Facts




SC had a logging contract with the government that gave them permission to build a garage on Crown
land.



The contractor for the garage sub
-
contracted to PDG



PDG gets a construction hypothec on the garage



General contractor went bankrupt before playing PDG



SC claims PDG cannot exercise the hypothec because it claims it is state property by accession, and so
cannot be subject to a hypothec

Issue

Is the garage state property by accession?

Holding

No.

Reasons




The permission given to build the garage legally resembles a superficie

o

Never expressly stated

o

Building had to be removed at the end of SC’s contract



Effectively this is a superficie limited in duration



SC is the superficiary owner, the government is not
the owner, so PDG can claim its hypothec

Ratio

Superficies can be read into contracts. Right created in a contract depends on the nature of the legal rights
created, not the precise words used by the parties.


Québec (P.G.) c. Développements de Demain

CB

285

Facts




By mutual agreement CN and Quebec built a walkway, some sidewalks, and lampposts which
partially encroached on CN’s land



No formal transfer of property nor was there expropriation.



CN is privatized and sells land to DD



DD realized that there
were encroachments and demands an indemnity from the government

Issue

Did CN grant Quebec a superficie?
Is the right opposable without being published?

Holding

Yes. Yes.

Reasons



Creation of superficie

o

CN and QC did not consider ownership because it was
a joint project

o

No document specifying transfer of rights

39

o

Clearly tacit permission by CN for QC to build on its land


renunciation of accession and hence
creates superficie



Opposability of unpublished superficies

o

Distinction between



superficiary ownershi
p (created by express agreement) and



superficiary rights (created by implied renunciation of accession)

o

Rights are acquired by prescription, so no need for them to be published

Ratio

Superficiary rights established

when the right of accession is implicitly renounced. Superficies need not be
published to be opposable to third parties.


Lafontaine c. Gravel

CB 288

Facts




G sold land to L but reserved the right to cut timber for himself and his heirs



G sold his time
r rights to FG



FG sold them to his brother YG



After buying the land, L revendicates the timber rights and wants both sales of the right to cut timber
declared invalid.



YG and FG claim the timber rights are superficiary.

Issue

Who owns the land? Who holds
rights to the timber? What kind of rights are the timber rights?

Holding

L. YG (passed down from G and FG, unclear if FG acquired them by contract or prescription).
Superficiary.

Reasons



FG clearly cannot own the land since it was already sold to L



Timber rights can take many forms

o

Personal right (contrat de louage), real servitude, personal servitude, or superficiary right



First two can be eliminated immediately in this case (no contract, no mention of dominant land)



Court must analyse intention of
parties



Past contracts suggest this is a superficiary right.



Prescriptive period was filled, so either way the timber rights were legitimately held by FG and
transferred to YG

Ratio







D
ISMEMBERMENTS OF
O
WNERSHIP

Usufruct & Use


Usufruct



Principal
obligations

o

Inventory (1142)

o

Insurance (1144)

o

Conservation (1120)



Accessory obligations (
propter rem
)

o

1142+

o

Assurance (1148)

40

o

Maintenance (1151
-
52)

o

Charges (1154)


Quasi
-
Usufruct



If return of property is impossible, cash is allowed (
1127
)



Cash value of
consumed or deteriorated property is due at end of usufruct (
1128
)


Usufruct

1119

Dismembers are real rights: usufruct, use, servitude, emphyteusis

1120
-
23

Usufruct: right to use and enjoy, must preserve substance; established by contract, will, or
law;
cannot last longer than 100 years; no term=life, legal persons=30 years

1125

Bare owner’s alienation does not affect usufructuary
=
1126

Usufructuary gets fruits and revenues

1135

Can be transferred, property included in usufruct can be leased

1136

Usufruct can be seized and sold by creditors; seizure of bare ownership does not affect
usufruct

1139
-
41

Usufructuary cannot fell trees or mine, but can farm and tree farm

1142
-
61

Usufructuary is responsible for: inventory, maintenance, charges, insuranc
e

1162

Extinguished: end of term, death, union of rights, forfeiture or renunciation, non
-
use for 10 yr

1168

Forfeiture of usufruct if depreciation or endangerment of bare owner’s rights
=
1169
-
70

Renunciation

1171

Difficulty performing obligations?
Usufruct becomes annuity


Use

1172

Right to use and enjoy, and take fruits and revenues to the extent of user’s needs
=
1176

Provisions for usufruct apply to use


Mignault
,
Usufruct (CB 359)



Usufruct is a real right



Usufructuary has the same right to
enjoyment as an owner



Obligation on owner is negative: must respect the right to enjoyment he has ceded to the usufructuary



Usufructuary has an immediate relationship with the thing, no personal right as in a lease



Usufructuary must not degrade the propert
y



If there is damage, usufructuary cannot force the owner to fix it, the inverse is true



Usufruct is movable or immovable based on whether the property on which it is exercised is movable
or immovable



Usufructuary has a real action to revendicate his usufr
uct against anyone who takes it


Cantin
-
Cumyn
, Usufruct (CB 360)



Usufructuary has a real right opposable to everyone including the owner (unlike the tenant)



Usufructuary ensure the property’s management, and collects profits



Usufructuary is in a better
place than the beneficiary of the trust because he can manage and exploit the
property



Usufruct is opposable against third parties


Cantin
-
Cumyn
, Quasi
-
Usufruct (CB 365)



Quasi
-
usufructuary assumes the risk of losing the thing, and does not have the obligat
ion to conserve it



Quasi
-
usufruct applies to things like food, combustables, anything consumable



Consumability by nature or by destination (ex real estate portfolio)


Larocque c. Beauchamps

CB 363

Facts

41




R dies and leaves his house to his relatives



Also
granted B a usufruct in the house house for as long as she lived and paid certain upkeep costs on
the house



Relatives secure a loan from L with a hypothec on the house



They default on the loan



L has the house transferred to her ownership by judicial declar
ation and wants B to leave



L also claims B stopped paying for upkeep



B claims her usufruct allows her to stay

Issue

Is B’s hypothec opposable to L? Was B’s right extinguished when she stopped paying costs?

Holding

Yes. No.

Reasons



B’s usufruct predates
L’s acquisition of the house



Judgment doesn’t extinguish the usufruct



L can only seize the rights held by her debtors, which means the house less the usufructuary rights



B not paying costs is not sufficient to extinguish the usufruct

o

Failure to uphold usuf
ructuary obligations creates a personal right for missed payments

o

Does not extinguish real rights in usufruct

Ratio



Banque Nationale du Canada c. Gravel

CB 367

Facts




B owed BN money



BN had B’s house seized and sold



B’s mother, G, objected



She produced

a document by which she had sold the house to B for $1 in exchange for a right to live in
the house for the rest of her life



B also promised to pay all the upkeep of the house



G wants the bank to recognize her real rights in the building

Issue

Does G have

a real right to live in the house? Does B’s promise to pay the upkeep and taxes constitute part
of G’s real right?
=
Holding

Yes. Yes.

Reasons




Use is a real right recognized by the CCLC and thus BNC’s seizure of the house must accept the
捨慲g攠uéoå=楴

G’s right to use)
=


Payment by B for upkeep is not necessarily part of G’s right, because CCLC’s definition of use makes
åo=mÉå瑩tå=of=楴
=


In the context of this contract, which was motivated by generosity on B’s part, the promise to let G live
in the house “
for free” must be interpreted as such.
=


The owner of B’s house must pay all the upkeep and taxes
=


BNC cannot seize or remove elements of the house that are essential to G’s use of it (light fixtures, etc)
since that would violate B’s promise to let G live i
å=th攠hous攠楮=愠åorm慬aaåd=mod敲å=m慮å敲
=
Ratio

The core element of use

=
r楧h琠瑯=敮àoym敮琠

=
shou汤=b攠楮t敲ér整敤=g敮敲ouslyK==o楧hts=慲攠åo琠獥t敲慢汥l
=
=
Servitudes & Real Obligations


42



Real servitude

(
Davidson
)

o

Two pieces of land

o

Different owners

o

Neighbours

o

Advantage for one piece of land

o

Other owner must suffer something or not do something

o

Perpetual



Personal servitude


o

Not actually in the code, only found in jurisprudence and doctrine



Basically one of the other dismemberments, but set up like a
real servitude

o

Test
(
Davidson)



Real right on a property



In favour of a person, independent of his immovables



Limited period



Legal servitudes

o

Not created by parties, but by law

o

Ex. Arts 976
-
87 on trees, 993
-
96 on views



Cannot be establis
hed by prescription
(1181)

o

L
ocation and nature
of right of way
can be established by 10 years’
use

(
Whitworth
)

o

If something looks like either a servitude or co
-
ownership, do a title search because servitude
can’t be prescribed



Must include three things in title (Marler)

o

Description of the dominant land

o

Description of the servient land (more important)

o

Description of the service to be rendered


997
-
1001

Must give a servitude to access enclosed land by most natural way, repairs by beneficiary

1177

Charge imposed on a movab
le, owner must tolerate acts or abstain from exercising rights;
extends to everything necessary for its exercise

1178

Obligations can be attached for service or exploitation of servitude

1179

Continuous: view, abstain from building; discontinuous: right
of way, requires intervention of
holder

1181

Established by contract, will, destination, law; cannot be established by possession

1182

Not affected by transfer of ownership

1184

Dominant land can do work for exploitation, must return it to original
state when serv is done

1188

Division of servient land does not affect servitude

1189

Can be redeemed (bought) if benefit doesn’t outweigh detriment to servient land
=
1191

Extinguished: union of owners, renunciation (dominant), expiry, redemption, non
-
u
se (10yr)





Mignault
, Servitudes (1896)(CB 302)



Real servitudes are to distinguish from personal servitudes, which are imposed on an immovable in
favour of a person, like use, usufruct, emphryteusis, etc



Real servitude is a charge imposed on an
immovable for the utility of another immovable belonging to
a different owner



Servitude has the same aspects as a usual obligation (benefit, debtor, creditor): service, servient land,
dominant land



Real servitudes are opposable to everyone, not just the de
btor



Servitude is a dismemberment of the right of ownership



Never involves a positive obligation, just to suffer something



Real servitude is for the advantage of a property, personal servitude is for the advantage of a person


Marler
“Acquisition of Servit
ude by Title” (CB 315)

43



Servitudes must be established by title, possession is not enough



Title must not be written, can be an oral contract



Must include three things in title

o

Description of the dominant land

o

Description of the servient land (more important
)

o

Description of the service to be rendered



Description, esp of the servient land, must be very detailed



Code presumes when a servitude is granted, all that is necessary for its exercise is also granted



Otherwise, servitude is interpreted strictly



Ambiguit
ies are resolved in favour of liberating the servient land



Destination by the proprietor (destination du père de famille)

o

“Person establishes between two properties which belong to him a state of fact which would
constitute a servitude, if it concerned two

properties belong to different owners”

o

As soon as one of the pieces of land is sold to someone else, the servitude comes into being


Terré & Simler
, Dismemberments of ownership and
propter rem

obligations (CB 336)



Obligations falling on the owner of
property are real obligations (ex those of the usufructuary, owner
of servient land, concessionaire of a mine)



For the dominant land, a real servitude is a real right, for the servient land it is a dismemberment of
ownership



Servitude is a state of propert
y (état du bien), suffered by the owner of the servient land, but it is not an
obligation



Servitude imposes real obligations on the servient land to ensure the servitude can be exercised
(upkeep, etc)


Scapel
, “La notion d’obligation réelle” (CB 337)



Real
obligations are personal obligations



Accessories to real rights



Only exists as long as the real right to which it is an accessory (unless renounced or stipulated
otherwise)



Can be freely formed by convention



Servitudes, because they are real rights, are ha
ve a unilateral structure



Real obligations, due to their personal nature, are bilateral



Real obligation attached to a servitude functions to assure the efficacy of the exploitation of the
servient land



Real obligations are not a principal mode of exploiti
ng property, rather they necessarily complement
the chosen mode of exploitation



They create a “lien de droit” between the debtor (owner of the servient land) and the creditor (holder of
the real right of servitude)



Can be renounced


Whitworth c. Martin

CB

305

Facts



W’s
=
land has no road access, and to get home he takes a private road that crosses M’s land (some
å敩Éhbours=mus琠to=瑨攠sam攩



M stops access to his land, making W park his car and walk home down a trail

Issue

Does W have a servitude?

Holding

Yes.

Reasons



People need to have car access to their property

44



Because the road touches a public road, and is used by the public, it is a public road for the purposes of
997 CCQ



Forcing other neighbours to build another access road is unreasonable



A right
of passage can’t be acquired by prescription



art 2917 says
location of
a servitude can be acquired after 10 years of use



Passage here had been used since 1946



Servitude is to be enforce, M pays damages for blocking W’s access to his land

Ratio


NB
:
Cantin
-
Cumyn doesn’t like that it’s a real servitude because that makes it perpetual. CCQ says that
once a public access is available the servitude no longer exists. Thinks it would be better to call it a “real
obligation” rather than a real servitude, b
ecause it is a lesser right that exists so long as it is needed.


Cadieux c. Hinse
, Morin

CB 308

Facts




C and L were neighbours with adjacent property



They signed an agreement where they agreed to offer their property to eachother for sale before they
offered it to anyone else



Agreement was described as a “servitude de preference d’achat” in the contract



L signed a 99 year lease to his property to M



C claims this violates the servitude

Issue

Is it a real servitude? Is the lease a disguised sale?

Holdin
g

No. N/A

Reasons



Court decides whether it is a servitude, parties cannot define it in a contract



Contract specifies that sale offers must be made to the parties personally


=
b敮Éf楣楡i楥猠if=瑨攠
s敲î楴ud攠慲攠é敯é汥l=åo琠業moî慢敳
=


Any benefit to an immo
vable is indirect, and only comes through the benefit of the owner



Agreement cannot be a real servitude because there is no benefit to an immovable, and no relationship
between immovables, only immovable

=
é敲soå=
=


Sales agreement imposes a positive obligat
ion (to offer the land to the other party)

o

Real servitudes cannot impose positive obligations because they are unenforceable (slavery)



The preference is only a personal right, not a real one, so is not opposable against anyone but the other
party to the co
ntract, not M

Ratio

Existence of servitude is determined by juridical content, not the parties. Ambiguity is to be interpreted
against the existence of a servitude.


Zigayer v. Ruby Foo’s (Montreal) Ltd

CB 317

Facts




R sold plots of land in a
neighbourhood to various parties and imposed servitudes on them not to build
or operate a restaurant. Servitude was very detailed



Z bought one of the lots and disputes the servitude’s legality

Issue

Are non
-
competition servitudes against public order?

Hol
ding

Only exceptionally. This is not an exceptional case.

Reasons



Definition of public order “public order includes everything in which the interest of society is more
45

directly involved than the interest of particular individuals [this includes criminal, constitutional, and
administrative law] … but public order is not l
imited to public law. In private law, everything which
interests primarily society at large falls into this notion.”



Judge formulates question: “is society deprived or affected by these servitudes?”


No, they affect
only a small portion of land and oth
er restaurants exist in the neighbourhood

Ratio

Servitudes can be nullified for public order. Non
-
competition servitudes are not against public order unless
their restrictions are exceptional.


Standard Life Assurance Co. c. Centre commercial Victoriavil
le ltée

CB 325

Facts



M leased a spot in CCV, which included a clause restricting the mall to having only one grocery store



SL claims it is not a real servitude


Issue

Is the non
-
competition clause a real servitude?

Holding

No

Reasons



1177, 1191, 1440 CCQ



Real servitude must benefit the immovable



This servitude only benefits the owner of the immovable, so it must be personal



Real servitudes cannot contain positive obligations



Personal servitudes are not opposable

(relativity of contracts, 1440)

Ratio

Real
servitudes must benefit the immovable. Non
-
competition clauses are personal, not real servitudes


Hamilton v. Wall

CB 339

Facts




H sold a plot of land next to his house to P



Deed of sale stipulated that if P built a house he would build it in like with
H’s dwelling



P sold the land to W, and the contract stated W would comply with all the stipulations in the original
deed to P



W built a hose closer to the road than H’s house



H sues to have the building demolished, claiming the location violates the origin
al servitude

Issue

Was the original agreement a real right?

Holding

Yes.

Reasons



Personal right

=
é敲soå慬a慤îaå瑡t攠of=瑨攠捲敤楴ir=w楴iou琠t敦敲敮捥=瑯=his=éroé敲瑹I=w楬氠åo琠to汬lw=
éroé敲瑹



Real right

=
敦f散瑳=oåly=bÉå敦楣楡氠瑯=immoî慢汥



Two properties are adequately described in the agreement, so it is a real right


s敲v楴ude

Ratio

Even without the servitude, contract of sale could have created a real obligation.

NB:

The claim that


Pelletier c. Bui

CB 341

Facts

46




P owns property next

to B, and a woodlot behind B’s property



The only way to access the woodlot is through a road across B’s property



B bought the property, and the title stipulated that there was a servitude for the road across 2 of the lots
it crosses, but not across a thir
d



P has been using the road for 60 years



B claims the road is not a real servitude, but rather a personal one, which did not transfer to P when he
bought his land a long time ago (before B)

Issue

Is the road a real servitude? Does the servitude apply to t
he third lot? Is the woodlot an enclave?

Holding

Yes. Yes. Yes.

Reasons



Real servitude is charged on servient land for the benefit of dominant land, personal servitude is only
for the benefit of a person



Conditions for a real servitude (Lafond)

o

Two
pieces of land

o

Different owners

o

Land is neighbouring

o

Servitude is for the advantage of one piece of land

o

Obliges owner of other land to suffer or not do something

o

Perpetual



Characteristics: immovable right, accessory to land, perpetual, indivisible, confer
s non
-
exclusive usus,
charge is passive



Real servitude cannot be established without title or by prescription



Woodlot is an enclave, and the road is the most natural way there, building another would bring
unreasonable costs



“assiette de la servitude et so
n mode d’exercise le peuvent par prescription”

Ratio



Davidson c. Rosaire Nadeau & Fils

CB 355

Facts




LT owned two pieces of land, house on one, spring on the other



When he sold the piece of land to RN, he created a servitude to access the spring



D
bought LT’s house, and wants to enforce the servitude to the spring as a real one

Issue

Is it a real servitude?

Holding

No.

Reasons



Epicier Metro

reviewed doctrine and established the criteria for real and personal servitudes:



Real servitude

o

Two pieces of

land

o

Different owners

o

Neighbours

o

Advantage for one piece of land

o

Other owner must suffer something or not do something

o

Perpetual



Personal servitude

o

Real right on a property

o

In favour of a person, independent of his immovables

o

Limited period



The agreement
that established the servitude for LT makes it clear that it was for LT personally, not for
47

his land, so it’s a personal servitude.

Ratio



Emphyteusis



Emphyteutic lease, but unlike a lease, is a real right



Long lease, where the lessor promises to make
improvements to the property



Usus, fructus, some abusus



Can change destination of immovable (unlike usufruct)



Can sell rights, or take out an emphyteusis on emphyteusis

1195

Use and enjoyment in exchange for constructions that increase immovable’s value
=
1
197

Term must be between 10 and 100 years

1199

Can be seized and sold

1200

All the rights and obligations of an owner, but can be limited in agreement

1203

Bound to make repairs

1204

Can be forfeited by massive deterioration or endangering rights of
owner

1208

Termination: expiry, loss or expropriation of immov, resiliation, union in same person, non
-
use for 10 year, abandonment


Sun Life Assurance Co. Of Canada c. 137578 Canada

CB 297

Facts



Metro had an emphryteotic lease with 137578 on a building



Obligation to build a building worth $1.6M



SL seized the building from M



SL claims it seized only the rights under the lease and not the obligations



137578 claims by seizing M’s emph lease, SL is under an obligation to build a $1.6M building

Issue

Are th
e obligations and rights of an emphreyteotic lease divisible?

Holding

No.

Reasons



Emph leases are a real right



Metro had a real right over the immovable only due to its emph lease



SL chose to seize the right and must accept all aspects of the lease becaus
e CCQ doesn’t allow
selective seizure, or prejudice to the emph lessor’s rights (1199)

Ratio

Anyone acquiring an emph lease acquires all aspects of the lease, including rent and improvement
obligations.


N
UMERUS
C
LAUSUS


The question asked in this section

is whether there is a definitive list of real rights (a

numerous clauses
).
The answer is allegedly unsettled, but based on the case law, I think that there is definitely no
numer
us
clausus

in Québec.


i) Code Articles and Legislation

a1119 “Ususfruct, use
, servitude and emphyteusis are dismemberments of the right of ownership and are
real rights.” [Note the phrasing of the article. It does not clearly designate the list as a closed/exhaustive
definition of real rights. Yet neither does it use clear languag
e, like “includes,” to show that the list is open.
The use of “are” in this context seems permissive, but is still somewhat ambiguous. The French version of
the article is equally unclear.]

48


Mining Act

[CB1.171]:

“The mining rights conferred by the followi
ng titles are immovable real rights”


ii) Doctrine


Private Law Dictionary and Bilingual Lexicon: Obligations
(2003) [C1.125]:

The issue is [allegedly


Mike] not settled in QC, and the Code leaves open the possibility of new real rights via a.947 and a.11
19.
Legislation sometimes creates new real rights.


Planiol and Ripert,
Traité Pratique de droit civil français: Les biens

[C2.248]:

No text prohibits the
creation of new real rights or
modifications of existing ones, as long as they do not contradict
public order
(trying to reimpose feudal
-
style property rights, for example). The only limit to the types of rights which
can be created is that since they are dismemberments of property, they cannot exceed the content of
property rights. Lastly, in order t
o be opposable to third parties, real rights must generally be published.
This is problematic if the rules for publication do not recognize innominate real rights. [I skimmed Book 9
of the CCQ and it seems general enough to allow publication of innominate
rights


Mike]


Duchaine c. Matamajaw Salmon Club Limited
,
Court of Appeal


Facts




B sold G the fishing rights in a river, but not (explicitly) property in the river
-
bed itself



G sold these rights, eventually being sold to M



D ought B’s property on which
瑨攠riî敲=was=汯捡瑥t



D claims the original fishing rights were personal not real, so they couldn’t have been transferred from
䜠瑯=j

Issue

Is there a
numerous clausus

of real rights? Did the agreement create a real right?

Holding

Unclear. Yes.

Reasons



Seigneurial court recognized fishing rights as a kind of real rights



Transfer of fishing rights carries with it the transfer of the river bed as long as it is used for fishing



Fishing rights are more than a right of use, nothing in law to prevent it and it
’s the will of the parties
=


Fishing rights must be either property right, usufruct, or personal servitude



In any case it is transferrable to third parties while G is alive

Ratio

Contradictory, though they agree in outcome


Duchaine c. Matamajaw Salmon Club

Limited
, Supreme Court of Canada

CB 380

Facts




Same as above

Issue

Is there a
numerus clausus
? Is the fishing right a real right? How long does it last?

Holding

Yes. Yes. Until G dies.

Reasons



There was clearly no transfer of rights in the river bed



It was a usufruct or servitude of some kind



These are limited by the life of their holder, so extinguished when G dies

Ratio

There is a
numerus clausus
of real rights in Quebec
. Transfer of usufructuary rights does not transfer rights
in property beyond t
he usufruct. All non
-
ownership rights must last for a fixed period of time.

49


Duchaine c. Matamajaw Salmon Club Limited
, Privy Council

CB 390

Facts




Same as above

Issue

Is there a
numerus clausus
? Is the fishing right a real right? How long does it
last?

Holding

No. Yes (innominate real right). Perpetual.

Reasons



Fishing rights are distinct real rights which can be sold



479 CCLC should not be interpreted as imposing a limit on the duration of rights,since the clear
grammatical construction o fthe
article shows that “if for life” applies only to usufructs which are
d敳楧å慴敤=慳afÉ
J
汯åg=usufru捴c



it is possible to create a perpetual real right to fish



this is a separable subject or incident of property


楮nomin慴攠r敡氠l楧ht

Ratio

There is no

num
erus clausus
in Quebec


Quebec (P.G.) c. Club Appalache

CB 395

Facts




G sold land to DL in 1951, and in 1955 transferred hunting and fishing rights to CA



government expropriated part of DL’s land in 1953
I=慮d=bough琠wh慴awas=汥f琠楮=NVRR



1964, G dies



Later, CA blocked access of the public to the land, claiming they could do so as part of their (real)
hunting rights and the accessory rights acquired from G



Government seeks injunction, while challenging CA’s right to the land

Issue

Does CA have a real
right to hunt and fish? Can it restrict access to the land subject to the right?

Holding

Yes. No.

Reasons



Hunting rights are a dismemberment of ownership



1951 agreement created perpetual hunting and fishing rights



real rights were transferrable and surv
ived G



expropriation did not extinguish the rights, because CA didn’t receive an expropriation notice



Non
-
hunting rights are either accessory of superficiary, neither of which justify limiting access.

Ratio

Real rights can be created (no
numerus clausus
)

N
B
: right to passage is included as an accessory to the hunting rights.


A
BORIGINAL
T
ITLE