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Major Company That Went Bankrupt and Filed Chapter 7

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Major Company That Went Bankrupt and Filed Chapter 7 Powered By Docstoc
					I. Introduction
Théorie du patrimoine
         1 all humans juridical personality
         2 and patrimony
         3 extra-pat
         4 civil rights + assistance
         5 name
         8 cannot renounce
         9 supplementary v. public interest articles
        10 integrity of person
        11 consent to Tx
        12 consent, then best interest when giving/refusing care
        13 no consent if emergency
        19 alienation of body parts, if Rx low
        20 experiments
        21 no experiments for minors or those protected, exceptions
        22 body parts for research
        23 expertise before proceeding to alienation
        24 writing required if care not required by health
        25 only gratuitous alienation, except indemnification
        32 children right to protection
        33 Dx children in their best interest
        34 child to have say if old enough
        35 reputation and privacy rights
        36 examples of invasion of privacy
        42 funeral determination rights
        43 use of body for research after death
        44 consent not always needed if urgent
        45 death must be attested first!
        46 autopsy
        47 court-ordered autopsy
        48 attestation before burial
        49 disinterment of body (digging up)
       153 majority = 18
       154 can't limit freedoms of adult, unless law
       298 legal persons have juridical personality
       299 constitution of legal persons
       300 public interest special acts; private purpose general acts
       301 civil rights of legal persons
       302 pat & xtra-pat rights of legal persons
       303 nature determines
       304 cannot be tutors
       305 name includes nature
       414 marriage and family patrimony
       541 carrying for another is illegal
       543 adoption must be in child's best interest
       614 succession is one patrimony
       625 seisin of rights and obligation at death
      1212 can't stipulate goods' inalienability unless temporary
      1260 trust: goods from settlor to trustee
      1261 trust = patrimony by appropriation
      1262 must be done by K
      1412 object of K = juridical operation aimed at
      1413 cannot be illegal
      1610 right to damages can be transmitted, unless x-pat, then only heirs
      1612 loss of trade secret includes acquisition, perfection and use + profit deprived
      2632 transaction can't be made w.r.t. public order provisions
      2639 status and capacity not subject to change by arbitration
      2644 property of debter charged with performance of obligations and accessible to creditors
      2645 obligations are charged to all property, unless good specifically designated, exceptions
      2646 judicial procedures for seizure and sale of property to pay debts; ranking of creditors
      2647 preference: prior claims and hypothecs
      2648 exemptions from seizure unless hypothec or not paid in full
      2649 alienability only valid if gratuitous act and temporary/justified; must be published
      2650 prior claims are indivisible
      2664 hypothecs
   cpc 552 movables necessary are unseizable up to $6K
   cpc 553 certain sacred and religious objects are unseizable
II. Classification des biens
2. Droits réels, droits personnels et autres
       911 different ways of holding the thing: owner, possessor, trustee, administrator
      1119 uf, usage, emphyteusis are property dismemberments
      1373 object of obligation: must be possible and determinable
      1374 can be property, even future, as long as determinable
      1453 simple transfer gives right at time of K; for future property, as soon as it exists
      1454 movable sold to two people: first to possess it
      1455 immovable: same with publication
      1456 Rx assumed by holder until delivered to owner
      2647 prior claims and hypothecs
      2733 hypothec doesn't divest
      2938 modifications to real right in immovable (stimes movable) require publication
      2939 restrictions, etc. must also be published
      2941 opposability of published rights
      2945 published rights rank by date
      2946 first to publish has right (cf. 1455)



3. Meubles et immeubles
       899 goods are movable or immovable
       900 land & permanent nature = immovable
       901 loss of individuality or serve utility of immovable = immovable
       902 temporary detachment doesnt take away immovable status
       903 immovable by destination
       956 accession: constructions, works, etc. made w/ others' materials: must compensate
      2672 movables in sense of 901 that have hypothec retain movable status until latter ends
      2695 hypothecs on rents, etc. are immovables
    2724.2 claims admissible of hypthecs: construction
   cpc 571 903 immovables can't be seized with principal immovable, exceptions
   cpc 667 debtor keeps possession unless sequestration asked; fruits and revenues immobilised
4. Autres classifications
a. Capital, fruits ou revenus
       908 capital, fruits, revenues
       909 description of capital
       910 description of fruits and revenues
      1129 usufructury: entitled to fruits at beginning, not end; compensation for fruit-making
      1130 uf revenues
      1131 premiums to uf
      1132 uf gets debts, then gives to bare-owner at end
      1133 b-o can increase capital, which then also uf
      1134 voting rights to uf, unless substantially changes
      1139 uf can't use trees except for repairs
      1140 agriculture ok
      1141 uf can't use minerals except for repairs
      1345 administration: who gets fruits, who capital
      1346 what comes out of revenue account
      1347 what comes out of capital account
      1348 net income is fruits and revenues
      1349 count day by day
      1350 at end, pay all during and what's left, but not a day more
b. Fongibles et consomptibles
      1453 simple transfer gives right at time of K; for future property, as soon as it exists
      1127 quasi-uf
      1128 uf on deterioratable thing (e.g. car)
      1305 administrator doesn't need consent of beneficiary to alienate perishables
      2314 simple loan: like quantity of same kind and quality
c. Appropriables, res nullius , res communes
       913 res communes , but water and air not for public may be appropriated
       914 res nullius : all you need is intention to become owner (e.g. Tremblay v. Boivin)
      916   acquisition of property: state property can't be prescribed unless vacany, etc.
      934   things w/o owner and abandoned things
      935   occupation
      936   immovable w/o owner to state, but can be prescribed
       937 state administration of things w/o owners
       938 treasure
       939 forgotten movables
       940 thing found: obligation
       941 what to do when find a thing
       942 can sell if not claimed w/in 60 days, unless perishable, then immediately
       943 auction rules
       944 90 days: forgotten, then have 90 more days to claim
       945 forgotten entrusted things to be sold
       946 owner can revendicate w/in limit by paying
      1212 inalienability stipulations
      1213 court can countervene inalienability
      1214 inalienability must be published
      1215 inalienable prop is unseizable
      1216 can always contest this
      1217 nullity of alienation against stipulation only by stipulator, beneficiairy or heirs
      2876 res communes cannot be prescribed
4. Statut juridique de l'eau
       913 res communes, but water and air not for public may be appropriated
       919 river beds
       920 access to rivers
       951 ownership of soil includes above and below
       980 owner of spring
       981 riparian owner can use lake
       982 can require destruction of upstream pollutant
III. Rapports entre biens et personnes
       915 property belongs to persons, state, or appropriation ("affectation")
       916 acquisition of property: state property can't be prescribed unless vacany, etc.
       917 confiscated property is state's
       918 territory not owned by patrimonies belongs to state, which has presumed title
       919 river beds
       951 ownership of soil includes above and below
      2877 prescription effective against all, incl. State
IV. Le droit de propriété
1. Concepte au Qc.
       947 right of ownership: fullest use
       948 gives fruits and revenues, and products
       949 fruits and revenues
       950 Rx assumed by owner
       953 right to revendicate
2. Restrictions à son exercise
a. Rapports de voisinage
         6 good faith
         7 abuse of rights
      950 Rx assumed by owner
      953 right to revendicate
      976 neighbourly relations
      990 if danger to neighbour, owner must repair or destroy
      991 can't infringe on other's land with what do on yours
     1457 XK liability and fault
     1467 owner of immovable liable for harm done by its ruin if fault
b. Découlant de l'état des lieux et autres de même nature
      953 right to revendicate
      978 can compel boundary-making
      979 run-off water: lower and higher land obligations
      983 water and snow from roofs must fall on owner's land
      984 fruit from tree belongs to owner of tree
      985 branch and root-invasion cutting
      986 farmer's right to destruction of neigbour's trees
      987 if necessary for repair, must let neighbour on land (w/ notice)
      988 compensation if damage from 987
      989 stray thing on other's land: must allow for search or search herself
      990 if danger to neighbour, owner must repair or destroy
      991 can't infringe on other's land with what do on yours
      993 direct views on other's land must >1.5m.
c. Expropriation et autres cas de vente non-consensuelle
      952 no expropriation w/o compensation
      997 enclave, way out, compensation
      998 most natural way out
      999 if partitioned, right of way from co-partitioner w/o compensation
     1000 beneficiary of right of way builds and maintains works on it
     1001 when no longer enclave, right of way extinguishes
     1004 existing fencing can require neigbour to pay 1/2
     1008 when heighten common wall, you own heightened part, unless payment
     1022 redemption: <60 days from sale of undivided share, can buy back (more costly)
     1023 subrogation: if publicized, can buy out creditor w/in 60 days of notification (less costly)
     1024 can be done by several co-owners, then divided accordingly
     1033 if one want to end indivision, others can buy out in kind or in cash (his choice)
     1080 sale of divided co-owners fraction if non-compliance
     1082 condo atop superficie: syndicate can buy out owner's rights if latter sells, within 6 mos. of sale
3. Acquisition du droit de propriété et démembrements
      916 acquisition of property: state property can't be prescribed unless vacany, etc.
a. Possession et prescription acquisitive
      921 possession exercise in fact; intention presumed; if no intention, detention
      922 effective possession: peaceful, continuous, public unequivocal
      923 intention presumed same as when possession started
      924 sufferance doesn't found possession
      925 possession presumed continuous
       926 defective possession only effective when no defect
       927 thief
       928 burden of proof on the one contesting possessor's right
       929 >1yr gives possessor action against disturbances
       930 prescription
       931 good faith: don't owe fruits; bad faith: do
       932 good faith possession
       933 reimbursement of works done by possessor
       939 forgotten movables
       940 thing found: obligation
       941 what to do when find a thing
       957 owner gains by accession those works
       958 necessary disbursements
       959 useful disbursements
       960 if disbursements huge, may force possessor to buy land
       961 disbursements for amenities: good faith
       962 disbursements for amenities: bad faith
       963 possessor can retain until compensated
       964 detainor = same rules as possessor in bad faith
      2910 acquisitive prescription
      2911 requires possession
      2912 successor can join possession to predecessor
      2913 detention never leads to prescription
      2914 interversion of precarious title
      2915 prescription against dismemberment or precarious holding
      2916 institute doesn't prescribe against substitute
      2917 10 years
      2918 after 10 years, ask court
      2919 3 years after dispossession for movables
      2920 good faith can exist even if bought from bad faith possessor
    2923.2 action to retain or obtain possession is prescribed in 1 year
b. Expropriation (vue)
c. Occupation
       914 res nullius: all you need is intention to become owner (e.g. Tremblay v. Boivin)
       916 acquisition of property: state property can't be prescribed unless vacany, etc.
       934 things w/o owner and abandoned things
       935 occupation
       936 immovable w/o owner to state, but can be prescribed
      937 state administration of things w/o owners
      938 treasure
d. Accession
      954 voluntary = artificial; involuntary = natural
      955 presumption of makership by owner
      956 accession: constructions, works, etc. made w/ others' materials: must compensate
       957 owner gains by accession those works
       958 necessary disbursements
       959 useful disbursements
       960 if disbursements huge, may force possessor to buy land
       961 disbursements for amenities: good faith
       962 disbursements for amenities: bad faith
       963 possessor can retain until compensated
       964 detainor = same rules as possessor in bad faith
       965 Natural accession: alluvion is riparian's
       966 no claim for land lost to river
       967 unless really large and identifiable
       968 island belongs to owner of bed
       969 even when created by new watercourse
       970 if change of watercourse, new land belongs proportionately to land lost
       971 Movable accession: the one who contributes most gets it
       972 if work on thing and work>thing, it's yours
       973 compensation when new thing
       974 candetain until compensated
       975 principles of equity prevail!
i. Propriété du sol
       951 ownership of soil includes above and below
ii. Présomption d'un propriétaire unique
       955 presumption of makership by owner
iii. Mode d'acquisition
       954 accession: voluntary = artificial; involuntary = natural
       955 presumption of makership by owner
       956 accession: constructions, works, etc. made w/ others' materials: must compensate
       957 owner gains by accession those works
iv. Bornage
       977 limits of land set in cadastral plan
       978 can compel boundary-making
      2996 boundaries must coincide for registration to be effective
   cpc 787 to 794: how to do it!
v. Empiétement
       947 right of ownership: fullest use
       951 ownership of soil includes above and below
       952 no expropriation w/o compensation
       953 right to revendicate
       954 accession: voluntary = artificial; involuntary = natural
       955 presumption of makership by owner
       992 good faith, small, harmless encroachment
       932 good faith possession
e. Publicité au régistre foncier
V. Modalités de la propriété
      1009 Modes of ownership: co-ownership and superficies
1. L'indivision et copropriété par indivision
      1012 k, succession or operation of law
      1013 30 years at a time
      1014 publication: lenthg, who, shares, pre-emptive rights if applicable
      1015 shares presumed equal
      1016 respect rights of other owners and destination
      1017 accession to benefit of all, unless in places restricted
      1018 fruits and revenues to indivision
      1019 liability costs proportional to shares
      1020 liable for damages; can get $ for improvement
      1021 partition before agreed end can't be used against creditors
      1022 redemption: <60 days from sale of undivided share, can buy back (more costly)
      1023 subrogation: if publicized, can buy out creditor w/in 60 days of notification (less costly)
      1024 can be done by several co-owners, then divided accordingly
      1025 administered jointly
      1026 majority Dx, unless change destination and sustantial change/sale: unanimity
      1027 manager
      1028 presumed manager
      1029 manager = simple administrator (1299)
      1030 division can be asked at any time, unless for durable purpose (e.g. aquaduct)
      1031 3/4 ppl, 90% shares can change into divided coownership
      1032 court can force indivision for up to 2 yrs
      1033 if one want to end indivision, others can buy out in kind or in cash (his choice)
      1034 if disagree, expert
      1035 creditors paid before partition
      1036 division when loss or expropriation
      1037 ends with partition or alienation
       460 unless proof of sole ownership, all goods in marriage are undivided
       487 ditto
a. Situation juridique de l'indivisaire
b. Contrat d'indivision
      1013 30 years at a time
      1014 publication: length, who, shares, pre-emptive rights if applicable
    2973.2 repealed!
c. Demande de partage, fin de l'indivision
i. Recevabilité de l'action
      1030 division can be asked at any time, unless for durable purpose (e.g. aquaduct)
      1031 3/4 ppl, 90% shares can change into divided coownership
      1032 court can force indivision for up to 2 yrs
       836 no partition before liquidation
       837 testator can delay partition
ii. Mécanisme de partage
      1037 ends with partition or alienation
      838 partition usually according to testator's suggestion
      849 partition over whole or part
      850 as many shares as heirs
      851 to 898 etc.
2. Copropriété Permanente
a. Mitoyenneté
     1002 can make fencing and require neighbour to share
     1003 presumption of common wall on boundary
     1004 existing fencing can require neigbour to pay 1/2
     1005 common wall can be used by both
     1006 maintenance fees
     1007 can heighten at own expense
     1008 when heighten common wall, you own heightened part, unless payment
b. Copropriété d'un accessoire immobilier
  1030.fin durable purpose, e.g. aquaduct
c. Copropriété divise ou condominium
   1010.3   right apportioned among co-owners in fractions
     1038   publication of declaration (constitution)
     1039   co-owners are legal person: syndicate
     1040   if emphyteutic lease or syperficie >50yrs, can make condo
     1041   determination of fractions' relative value
     1042   privat portions
     1043   common portions, but can serve for use of one or several
     1044   presumed common
     1045   walls presumed common
     1046   undivided coownership of common portions
     1047   fraction is entity
     1048   cannot be seperated from adjoining common portion
     1049   to alienate, must be a fraction in the declaration
     1050   fraction is entity for taxation
     1051   hypothec divided according to relative value of fractions
     1052   declaration = building by-laws
     1053   constituting act = constitution
     1054   bylaws set common obligations
     1055   description of fractions w.r.t. cadastral plan
     1056   declaration can only restrict w/in limits of destination
     1057   by-laws enforceable
     1058   no time-share unless constitution says so and how
     1059   declaration and changes must be notarized
     1060   and deposed in registry office
     1061   registration of private portion flows to accessory
     1062   declartion binds all that buy in
     1063   free use of fraction and common; must respect others
     1064   expenses according to fractions
1065   if private portion leased, must tell syndicate
1066   work for whole decided by syndicate cannot be refused
1067   but must be compensated if infringes on private part
1068   revision of fractions
1069   common expenses due by buyer
1070   register kept by syndicate
1071   contingency fund
1072   contributions fixed yearly
1073   insurance by syndicate for bldg and liability
1074   insurance K binds syndicate, but not liable for owner infraction
1075   indemnity
1076   syndicate can have fractions, portions and other rights
1077   syndicate liable for bldg defects
1078   jt against syndicate = jt vs. co-owners at the time
1079   non-performance of lessee
1080   refusal of co-owner to comply: can be ousted
1081   action for faulty bldg
1082   right of pre-emption to syndicate for bare-ownership or land under superficie
1083   syndicate can join association of syndicates
1084   composition of the board
1085   manager = simple administrator (1299)
1086   replacement of manager
1087   AGM notice
1088   w/in 5 days of receipt, can add question to AGM
1089   quorum = majority of vote
1090   vote weight
1091   if one more votes than all others, vote reduced to amount present
1092   promoter votes ltd to 60%; after 2 yrs, 25%
1093   promoter = who owns more than 50% fractions
1094   no voting rights if not paid >3yrs
1095   can't assign voting rights, unless tell syndicate
1096   Dx by majority of those at mtg
1097   75%: buy, sell, work, enlargement, constitutional amendment
1098   3/4, 90%: change destination, time-share
1099   reduction of voting rights for one, means same reduction for the totality
1100   common partitions can be changed with syndicate approval
1101   vote weight can't be changes
1102   changes of relative value/destination by syndicate are null
1103   court annulment
1104   90 days after promoter gone, mtg to elect board
1105   accounts
1106   accountant
1107   right to change maintenance services after mtg
1108   termination 3/4, 90%
      1109 liquidation of syndicate
      2972 land register
      3026 cadastral plan
      3030 must exist to have condo
      3041 first must measure boundaries
i. Multipropriété
      1058 no time-share unless constitution says so and how
    1098.3 3/4, 90%: change destination, time-share
      2974 repealed!
3. Droit de superficie dit propriété superficiaire
      1011 ownership of immovable on other's land
      1110 superficie: division of object of property; renunciation of accession
      1111 agreement, or servitudes necessary to its use
      1112 charges to superficiary
      1113 can be perpetual or fixed
      1114 ends: union, resolutive condition, term expiry
      1115 expropriation doesn't terminate, but destruction does only if was divided
      1116 owner pay superficiary to acquire construction at the end, unless more value than soil
      1117 superficiary can buy if <90days; after goes to owner
      1118 application to court if disagreement on price
VI. Démembrements de la propriété
       911 one can hold right of ownership or orther real right in a thing
      1119 usufruct, use, servitude and emphyteusis
1. Usufruit et servitudes personnelles analogues
      1120 usus and fructus
     1121   K or jt.
     1122   one or several jointly or successively (cf. substitution)
     1123   <100yrs.; if not term, or if legal person, then 30yrs
     1124   use and enjoyment on all that accessory as well
     1125   bare owner can't impede
     1126   uf gets fruits and revenues
     1127   quasi-uf
     1128   uf of deteriorables
     1129   necessary works
     1130   revenues countede day-by-day
     1131   extraordinary income accountable to bare owner
     1132   debt pd to uf accountable to b.o.
     1133   right to increase capital is b.o.'s
     1134   voting rights are uf's, unless substantive change
     1135   uf transferrable
     1136   uf seizable
     1137   necessary disbursements
     1138   useful disbursements
     1139   can't cut trees, unless maintenance
     1140 farming ok, w/ conditions
     1141 can't use minerals, unless maintenance
     1142 inventory
     1143 until inventory, can't exercise right
     1144 insurance required, unless uf reserved by seller
     1145 sequestration by b.o. if no insurance
     1146 delay deprives of rights for that time
     1147 exception for bare necessities
     1148 insurance details
     1149 indemnity to uf, then to b.o. at end
     1150 insurance can be to b.o. as well
     1151 uf maintenance, unless major
     1152 description of "major repairs"
     1153 notification of need for "major repairs"
     1154 uf liable for charges
     1155 reimbursement to specific uf of debts required to maintain uf by b.o. or debtor at end
     1156 b.o. liable for capital of debt; general uf liable for interest
     1157 if uf pays b.o. obligations 1156, then latter must reimburse at end, if not, b.o. can sell
     1158 uf legal proceedings payment
     1159 3rd person encroachment: b.o. must be notified, otherwise uf liable
     1160 no obligation to replace anything fallen into decay
     1161 herd or flock dies by superior force, uf must give skins;
     1162 end of uf: expiry, death, union, renunciation, 10yrs non-use
     1163 total loss extinguishes uf; partial loss doesn't on remainder
     1164 expropriation doesn't terminate
     1165 if uf established until a person becoming some age, continues to that time even if dead
     1166 successive uf ends with death of last uf; death of one, rights go to b.o.
     1167 at end, uf gives prop in state that it is in at time, and accounts for loss due to fault
     1168 forfeiture of right of uf
     1169 renunciation
     1170 opposability of renunciation
     1171 change to annuity if obligations to heavy
     1172 right of use: uf to extent of need
     1173 cannot be assigned or seized
     1174 if right on only part, can use common parts as well
     1175 if goes beyond need, liable for that
     1176 uf is general law for use, notw/standing differences above
2. Emphythéose
     1195 full enjoyment of immovable if undertakes to make improvement
     1196 co-emphyteusis subject to similar rules to co-ownership
     1197 10-100yrs
     1198 if prop on land co-owned, e doesn't have to do anything other than useful disbursemts
     1199 e can be seized
     1200 e = o, as governed by constituting act
     1201 statement
     1202 liability for partial loss
     1203 e must make reparis, even major on improvements
     1204 forfeiture of right of e
     1205 property charges to e
     1206 owner same obligations towards e as vendor
     1207 if e fails to pay price in constituting act, owner can resiliate it
     1208 end: expiry, total loss or expropriation, resiliation, union, 10yrs non-use, abandonment
     1209 rights and charges after e are not owner's, unless end by union or agreement
     1210 obligation to remit in good state
     1211 abandonment possible only if obligations fulfilled
     1218 Substitution: gift or will; obligation of institute to give to substitute later
     1219 institute, substitute and subsequent institutes
     1221 max 2 substitutions
     1223 institute = owner
     1224 inventory
     1225 prudence and diligence in view of substitute's rights
     1226 obligation to maintain and preserve property
     1227 insurance, unless not worth it
     1228 if want to farm, see uf
     1229 sale OK; hypothec only if required for upkeep
     1230 if sold, must re-invest soundly
     1231 inform substitute of change on yearly basis
     1232 can only not re-invest if act says so
     1235 substitute's rights
     1240 substitute at institute's death, unless legal person: 30yrs
     1243 receipt of substitution: becomes owner
3. Servitudes Réelles
     1177 charge on one immovable in favour of another
     1178 obligation to perform can be attached to servitude
     1179 continuous v. discontinuous
     1180 apparent (external sign) or unapparent
     1181 K, will, destination of proprietor or by law
     1182 Xfer doesn't change servitudes
     1183 by destination: original owner who subdivides
     1184 owner can make all works necessary for servitude
     1185 servient owner can abandon rights, and so also obligations
     1186 cannot aggravate servient's land
     1187 division of dominant land gives new owners same right, but can't increase it
     1188 division of servient land no change to dominant rights
     1189 servitude of right of way can be redeemed if benefits>costs
     1190 unless excluded by agreement, and then max 30 years
     1191 end: union, renunciation, expiry, redemption, 10 years non-use
     1192 prescription: discontinuous: when cease to use; continuous: when do opposite
     1193 mode is prescribed just as servitude
     1194 if lands change, prescription still runs
4. Numerus Clausus
      911 different ways of holding the thing: owner, possessor, trustee, administrator
     1119 uf, usage, emphyteusis are property dismemberments
VII. Fiducie (trust): patrimoine d'affectation
        2 patrimony can be affected
     1256 foundation for durable purpose, irrevocable
     1257 property of foundation either own patrimony or legal person
     1258 gift or will
     1259 intial property to be kept intact, rest to be used to fulfill purpose
     1260 Trust: settlor transfers property to patrimony appropriated to purpose w/ trustee
     1261 autonomous patrimony
     1262 K, will, law, jt.
     1263
     1264
     1265
     1266
     1267
     1268
     1269
     1270
     1271
     1272
     1273
     1274
     1275
     1276
     1277
     1278 fiduciary: full administrator
     1279
     1280
     1281
     1282
     1283
     1284
     1285
     1286
     1287
     1288
     1289
     1290
     1291
     1292
     1293
     1294
     1295
     1296
     1297
     1298
i. Administration du bien d'autrui
     1299 administration du bien d'autrui
     1300
     1301 simple administration
     1302
     1303
     1304
     1305
     1306 full administration: preserve and make productive
     1307 only useful and necessary acts
     1308 obligations to beneficiary (to 1318)
     1309 prudence and diligence in view of beneficiary's rights
     1310
     1311
     1312
     1313
     1314
     1315
     1316
     1317
     1318
     1319
     1320
     1321
     1322
     1323
     1324
     1325
     1326
     1327
     1328
     1329
     1330
     1331
     1332
     1333
     1334
     1335
1336
1337
1338
1339
1340
1341
1342
1343
1344
1345
1346
1347
1348
1349
1350
1351
1352
1353
1354
1355
1356
1357
1358
1359
1360
1361
1362
1363
1364
1365
1366
1367
1368
1369
1370
#       Section - Subsection - Case                                 Year                                 Facts                                                            Rule                                          CCQ
      1 INTRODUCTION
    1.1 Historic Overview
            11 Patault, Introduction historique                     1989

                                                                                                                                              1-5, 8-13, 19-25, 32-36, 42-49, 153-4, 298-305, 414, 541, 543, 614, 625, 1212, 1260-
    1.2 Patrimony: Origins, Definition, Consequences, Distinction from Extrapatrimonial RIghts
                                                                                                                                              2, 1412-3, 1610, 1612, 2632, 2639, 2644-2650, 2664

            20 Aubry & Rau on Zachariae                             1917
            21 Ghestin on Classification des droits subjectifs      1990
            30 Bergel, Bruschi, Cimamonti on Biens                  2000
            31 Baudoin & Jobin on Obligations                       1998
            33 Cantin-Cumyn on Fiducie, sujet de droit?             2002
               Deleury, La personne en son corps: l'éclatement du
            40                                                      1991
               sujet

                                                                         Late Lise's parents seek injunction against foundation's use of
                                                                         daughter's image re right to privacy (35, 36, Ch.qc.5). Barbeau Extrapatrimonial violations lead to patrimonial reparations.
            46 Torrito v Fondation Lise T pour le respect...        1995 J: Lise's succession goes to parents (653); similarly, heirs have Patrimonial reparations are transmissible. Injunctions are a 35, 36, 625.3, 653, 1610
                                                                         deceased's right of action for breach of personality rights (625.3) remedy for extrapatrimonial violations.
                                                                         and parents can sue for violation of child's privacy rights (1610).


                                                                         Magazine takes Malo‘s picture from Laoun's Silhouette ad,
                                                                                                                                              Extrapatrimonial rights can have patrimonial role. Violation
                                                                         makes new Laoun ad without asking Malo or Laoun. Dussault J:
                                                                                                                                              of extrapatrimonial rights can lead to patrimonial damages.
            48 Antoine Laoun v Linda Malo                           2003 sans consentement clair et spécifique, on ne peut pas présumer                                                                      3.2, 1440, 1611
                                                                                                                                              Analogy: work contract, of limited duration (2085 CCQ) and
                                                                         de consentement (1440 re privity of contract), so personality
                                                                                                                                              unilaterally resiliable (2094 CCQ).
                                                                         rights alienated (3.2) leading to patrimonial damages (1611).


      2 CLASSIFICATION: BIENS AND CHOSES
    2.1 Importance of Classifications
           55 Rémy on the Civil Recodification                      1998
    2.2 Real Rights, Personal Rights, Other Patrimonial Rights
           63 Ghestin's Traité de droit civil                       1990
           65 Carbonnier's Droit civil: les biens                   1992 Lessor's regime: more and more similar to a real right (1886-7 CCQ), since it is opposable to third parties?                        1886, 1887
           67 Baudoin & Jobin                                       1998
           68 Mignault                                              1896
           68 Act Respecting Lands in Domain of State               1973                                                                                                                                     953
           72 Forest Act                                            1986 Permit-holder has immovable real rights!
                                                                           Every real and immovable mining right constitutes a separate property! Lessee may directly go against trespassers (contra
            73 Mining Act                                           1987
                                                                           953).
            74 Ghestin on Immaterial Rights                         1990

                                                                         Pre-bankruptcy agreement on future IP continues to hold post-
                                                                         bankruptcy. If it had been a real right (1453, ―certain and
                                                                                                                                             Intellectual property is a hybrid regime of personal and real
                                                                         determinate‖), a future thing could not be transferred. By
            76 Diffusion YFB v Disques Gamma                        1999                                                                     patrimonial rights (droit d'exploiter) and extrapatrimonial     1374, 1453, 1497
                                                                         implication, the judge treats IP as a personal right (1374). At the
                                                                                                                                             rights (moral rights).
                                                                         same time, once the oeuvre is complete Diffusion has a direct
                                                                         real right on the exploitation of the object (IP right): real right

                                                                         Lawyers' office: cost of photocopying borne by all partners.
                                                                                                                                              Documents and the information they contain are separate
            78 Hindle v Cornish                                     1991 Deschamps J: photocopying confers no right to contents;                                                                             37, 1612
                                                                                                                                              patrimonial schemes.
                                                                         documents subject to professional secrets (37).
#       Section - Subsection - Case                                 Year                                  Facts                                                            Rule                                       CCQ
    2.3 Movables and Immovables
           82 516-529 Code civil français
           83 375-388 CCBC
           85 899-907 CCQ
           86 1-12 ORCC
           87 901-903 CCQ

                                                                         Axor wanted to seize the boards, but couldn‘t, because judged
                                                                         an integral part for ensuring the utility of the building under 903;
                                                                                                                                              Movables may become immovable by incorporation (901)
            87 Axor Construction v 3099-2200                        2002 would the building be complete without this movable? Rochon J:                                                                     901, 903, 905
                                                                                                                                              or destination (903).
                                                                         boards essential to utility (903), therefore movable. Vallerand
                                                                         (diss.): building not used just for hockey.

           91 Fungible Things
    2.4 Other Qualifications of Things

                                                                           Quebec sells St-Jean exclusive right to ice on Gatineau River,
                                                                                                                                                Water is a res communes and cannot be appropriated --
                                                                           but river is navigable and flottable (919) then making its water a
            92 Dupuis v Saint-Jean                                  1910                                                                        the difference between bien de l'État (as private owner) and 913.2, 919, 980
                                                                           public resource, so St-Jean has no exclusivity. Today we
                                                                                                                                                regulation de l'État (for common good).
                                                                           recognize that all water is a public resource (913.2; 980).

                                                                         Morin creates artificial lake, sells surrounding lots, defaults to
                                                                         city, but still claims exclusivity of water (he owns lake bed).
                                                                                                                                                Even non-navigable, non-flottable waters are res
            93 Morin v Morin                                        1998 Because water is common (920), can't restrict recreative use,                                                                      913, 920, 981
                                                                                                                                                communes.
                                                                         but does have exclusive droit de pêche as riparian (riverbed)
                                                                         owner.

            97 L'eau, chose commune: statut juridique à confirmer


      3 PROPERTY AND PERSONS
    3.1 Québec: Origins of Land Ownership (Propriété foncière)
          101 918 CCQ
          102 Marler, Law of Real Property
          105 Terres concédées dans le Québec en 1760
          106 Rights and Duties

                                                                         Riparian owner holds land beside non-navigable non-floatable
                                                                         river from before February 1918; wants fishing rights; PG says
                                                                         province owns riverbed. Judge: river wasn't navigable or
                                                                                                                                              Before 9 Feb 1918, property in non-navigable, non-flottable
           109 PG Québec v Houde                                    1998 floatable at time of land‘s alienation, so bed didn't then belong to                                                               919
                                                                                                                                              lakes and rivers included riverbed.
                                                                         State; nothing in ancient titles to suggest that intervening owners
                                                                         gave over riverbed ownership to State.


    3.2 Public and Private Domains
          114 Loi sur les terres agricoles du domaine de l'État
          117 Loi sur le régime des eaux

                                                                           Laval expropriates land from Auger, paying for expropriation of
                                                                           riverbanks to high-water mark. Auger: under concessions made Riverbeds normally belong to the State, except where title
           119 PG Québec v Auger                                    1995                                                                                                                                    919
                                                                           by Crown to original owners (Seminary) land extends to low-     granted to another.
                                                                           water mark. Judge: letters/grants from king agree.

           124 Loi sur les mines
#       Section - Subsection - Case                              Year                                  Facts                                                             Rule                                           CCQ
    3.3 Droits fonciers des autochtones
          126 Loi sur les Indiens
          127 Loi sur les terres du domaine de l'État
          129 Yergeau, Qualité de l'environnement

      4 RIGHT OF OWNERSHIP
    4.1 Ownership in Québec Law and the Civil Tradition
           131 544 CC (France)                                     -
           131 406 CCLC                                            -
           132 947 CCQ: Minister's Comments                        -  Trying to breath life into possession: impenses nécessaires, utiles, d'agréement...
           132 34 ORCC re ownership                                -
           133 Portalis                                          1827

           138 Cantin-Cumyn on Durée des droits patrimoniaux     1988

    4.2 Restrictions to Exercising the Right of Ownership
          141 6-7 CCQ                                              -
                                                                        Golf balls always fly onto Pilon's property, but judge won't grant
                                                                                                                                             Neighbours shall suffer the normal neighbourhood
                                                                        perpetual injunction to force golf course to prevent it, because
           142 Pilon v St-Janvier Golf                           1975                                                                        annoyances that are not beyond the limits of tolerance they     976
                                                                        Pilon doesn't use his land and leaves during golf season. Bad
                                                                                                                                             owe each other (976).
                                                                        judgement.
                                                                        Lessard's stinky heating system is beyond normal annoyances          Adherence to law doesn't necessarily absolve from
           144 Lessard v Bernard                                 1996                                                                                                                                        976
                                                                        for Bernard.                                                         responsibility.

           148 Cantin-Cumyn on Administration du bien d'autrui

                                                                        The city rezones Sula's land as a park, going beyond prescribing No owner may be compelled to transfer his ownership
           150 Sula v Cité de Duvernay                           1970                                                                                                                                        952
                                                                        usage to prevent its enjoyment.                                  except by lawful zoning.
          152 Loi sur les biens culturels
    4.3 Acquiring the Right of Ownership

                                                                                                                                                                                                             921-933, 939-941, 957-
         4.3.1 Possession & Acquisitive Prescription
                                                                                                                                                                                                             964, 2910-2920, 2923.2

           154 Carbonnier on Property                            1995
           154 Mazeaud, Mazeaud, Chabas                          1984
                                                                        Husband builds chalet on wife's land. She locks him out. He          Possession by two people is equivocal at best (922), and
                                                                        claims possession 6m later, but he hasn't exclusive possession,      does not start the one-year clock without further action
           160 Sivret v Giroux                                   1997                                                                                                                                        929
                                                                        he hasn't proved his continuous possession, and he hasn't            (929), even resetting if a challenge results in clear absence
                                                                        challenged her title (petitoire).                                    of title (932).
                                                                                                                                             When borning is invoked (978) in a situation where the title
                                                                        The owners invoke borning (978), the arpenteur-géomètre's
           162 Piché v Lahaie                                    2002                                                                        is clear (977), the arpenteur-géomètre's only option is to      977, 978
                                                                        decision goes against the title, and the title wins out (977).
                                                                                                                                             reiterate the title.
         4.3.2 Expropriation
         4.3.3 Occupation                                                                                                                                                                                    914, 916, 934-938
          164 Mignault on Mourlon                                1897
                                                                        Boivins shoot moose on their Club Brûlé land, then Tremblay
                                                                                                                                             Res nullius (934) does not belong to the landowner unless
                                                                        shoots it from Club des Canots. The moose is movable sans
           165 Tremblay v Boivin                                 1960                                                                        the landowner occupies the res nullius by successfully          914, 934
                                                                        maître (934), so the prise de possession réelle goes to the
                                                                                                                                             acting on intent (914).
                                                                        mortal wounder (914), Tremblay.
         4.3.4 Accession
          168 Notes                                              2001
#      Section - Subsection - Case                      Year                                 Facts                                                             Rule                                        CCQ

                                                                                                                                   Ownership of what is above and below (951) affects roofs
                                                             Airspace over Lacroix's land is used for a flight path; he calls this
                                                                                                                                   (983), trees (984-985), and other encroachments (992), but 913, 951, 976, 983,
          170 Lacroix v R.                              1953 expropriation without compensation (951) leading to diminution
                                                                                                                                   eventually fades into common goods (913) like airspace --  984, 985, 992
                                                             in property value. Fournier J: airspace is a common good (913).
                                                                                                                                   whose use is subject only to neighbouring rights (976).

                                                               Themens encroaches considerably (992) on Royer's land, who
                                                                                                                               Under the CCLC, all encroachment was considerable:
                                                               can revendicate (953; 417-418 CCLC) against expropriation
          176 Themens v Royer                           1937                                                                   destruction could always be revendicated, although was             952, 953, 992
                                                               (952; 406-407 CCLC), despite encroacher's good faith (992, 417-
                                                                                                                               sometimes converted to superficie instead.
                                                               418 CCLC).

                                                                                                                                   Under the CCQ, destruction can be revendicated only for
                                                                                                                                   "considerable" encroachment. Under limited encroachment
                                                             Doiron helps Gosselin build a slightly-encroaching garage; they
                                                                                                                                   that was preceded by borning (978, and is therefore in good
                                                             are obviously waiving the borning requirement (992), and so the
          180 Gosselin v Doiron                         2002                                                                       faith, 992), the owner may compel the encroacher either to 978, 992, 2805
                                                             encroachment is presumed to be in good faith (2805), therefore
                                                                                                                                   buy the land or to pay for temporary loss of its use (992) --
                                                             preventing Doiron from requiring construction (992.1).
                                                                                                                                   making a rule of what was in any case actual practice under
                                                                                                                                   CCBC.

                                                                                                                                                                                                  2934-2947, 2957-2979,
         4.3.5 Publicizing Real Rights: Land Registry
                                                                                                                                                                                                  3026-3033

      5 RIGHT OF OWNERSHIP: MODALITIES                                                                                                                                                            1009
    5.1 Undivided Coownership (Indivision)                                                                                                                                                        1012-1037, 460, 487

                                                               Indivision can apply to all droits patrimoniaux: dismemberment (eg usufruct), droits personnels, intellectual-rights, etc. Never
                                                               just ownership of a quote-part: think of it as an uncorporation, no common goal but only use and preservation--the "indivision"    1018, 1020, 1026,
          183 Cantin-Cumyn on Indivision                1993
                                                               itself owns nothing (hence oddness of 1018 awarding fruits to the indivision: they meant the manager, 1029 and 1302).              1029, 1031, 1302
                                                               Administration: majority (1026.1), unanimity (1031), 90%-3/4 (1031), disbursements (1020.1 v 1026.1)


                                                             Harel and Peeri own house as indivisaires; Peeri loses share in
                                                                                                                                   Undivided coowners can buy out a departing indivisaire
                                                             bankruptcy, but tells Harel >60d after it's sold (1023). LeBel J:
                                                                                                                                   <60d after presale notification (1023), or else add on
          192 Harel v 2760-1699 Québec Inc.             2000 1022 is operative; Harel can exercise droit de retrait up to a year                                                                  1022, 1023
                                                                                                                                   transaction costs to buy them out within 60d of post-sale
                                                             afterwards, as long as she moves within 60d after discovery
                                                                                                                                   notification, anytime during the first year post-sale.
                                                             over the course of the year.

    5.2 Permanent Coownership
         5.2.1 Mitoyenneté                                                                                                                                                                        1002-1008
          195 Mignault on Mourion                       1897
                                                               Meneghini co-owns wall. Doesn't pay reconstruction costs at
          195 Zambito-Orazio v Meneghini                1994                                                                       Mitizenship cannot be renounced (1006.2) retroactively.        1006
                                                               due date, but doesn't renounce right (1006).
         5.2.2 Coownership of an Immovable Accessory                                                                                                                                              1030
                                                             Can‘t ask for partage of the chose commune, because both need it. Justification: mitoyenneté, a community of forced
          197 Mignault on Mourlon                       1897 indivision whose enumeration is not limitative. (Quebec context: better under 1030 than 1006, since 1030 provides for                1006, 1030
                                                             ―appropriated to a durable purpose‖.)

                                                             Three kinds of forced indivision: (1) clôtures, eg common walls, hedges, ditches; (2) common shares in divided-coownership
          197 Marler on Real Property                   1932 property; (3) indispensable accessories, eg private roads, wells, irrigation. Analogy with mitoyenneté: partage (1030) can‘t be      1006.2, 1030
                                                             demanded and thing can‘t be transferred, but it can be abandoned and right renounced (1006.2).
#      Section - Subsection - Case                   Year                                 Facts                                                            Rule                                       CCQ

                                                            A permanently co-owned aqueduct is an immovable accessory.
                                                                                                                               Noone may be bound to remain in indivision unless
                                                            Although noone is bound to remain in indivision, the aqueduct
          197 Michon v Leduc                         1890                                                                      partition has been postponed, or unless it has become         1030
                                                            has been appropriated to a durable purpose, so the indivision
                                                                                                                               impossible because of a durable process (1030).
                                                            cannot be ended (1030).

                                                                                                                                                                                             1038-1039, 1041-1048,
         5.2.3 Divided Coownership in an Immovable
                                                                                                                                                                                             1052-1058
          198 521 CCBC
                                                          Péloquin-Braley sells fraction but retains and rents out accessory
                                                                                                                               Condominium managership grants no ownership rights
                                                          garage. Judge invalidates under declaration's destination
                                                                                                                               (1085). Fractions are distinct entities (1047) which can be
                                                          (1056) and allows managers to recuperate as owners. The                                                                            1043, 1047, 1048,
          199 Landreville v Péloquin-Braley          1994                                                                      broken up, but not by cleanly splitting common portions
                                                          error: they are only managers (1085); P-B should have been                                                                         1056, 1085
                                                                                                                               (including common for restricted use, 1043.2) from private
                                                          overruled under inalienability of common portion from fraction
                                                                                                                               portions (1048).
                                                          (1048).

                                                          Ouellette expands her balcony, but the CA, acting for syndicate
                                                          (1039), asks for injunction to destroy it (1080) in keeping with
                                                                                                                               Co-owners may not impair rights of other co-owners (1064),
                                                          building's destination and characteristics (1056), on grounds that
                                                                                                                               particularly in common portions (1043), and especially when 1038, 1039, 1043,
          201 Trillium Court Condominum v Ouelette   1998 balcony contrary to clause in declaration (1038). Had there
                                                                                                                               such impairment expressly contravenes the published         1044, 1063, 1080
                                                          been no clause, Trillium might have argued impairment of rights
                                                                                                                               declaration (1038) or the spirit of its destination (1056).
                                                          of other co-owners (1063) with regard to common portions
                                                          (1043), particularly balconies (1044).


                                                                                                                        Co-owners whose constructions impair the rights of other
                                                          Mr. Talbot installs an au-vent which blocks Ms. Guay's even-
                                                                                                                        co-owners (1064) so as to contravene the published
                                                          better view, contravening the declaration's no-view-blocking
          204 Talbot v Guay                          1992                                                               declaration (1038) and the spirit of its destination (1056)          1038, 1056, 1064
                                                          clause. The view-blocking portion must be removed, though not
                                                                                                                        may be compelled to undertake the minimum modifications
                                                          the whole thing.
                                                                                                                        required to restore those rights, but not necessarily more.


                                                          Martin opens a day-care in her condominium, but the building's
                                                                                                                               Co-owners may not impair rights of other co-owners (1064),
                                                          destination (1053) is "exclusively residential" whereas her                                                                      1038, 1043, 1053,
                                                                                                                               particularly in common portions (1043), and especially when
          205 Bergeron v Martin                      1997 daycare is an "enterprise" (1525.3). The restriction (1056) on                                                                   1056, 1063, 1064,
                                                                                                                               such impairment expressly contravenes the published
                                                          her impairing other co-owners' rights (1063), and request for an                                                                 1080, 1525.3
                                                                                                                               declaration (1038) or the spirit of its destination (1056).
                                                          injunction (1080) against its running, are therefore justified.


                                                          Kilzi rents his 8 apts on short-term basis. Valid syndicate by-      Explicit destination (1053) deals with immeuble, parties
                                                          law: no rentals under 12 months (implicit destination, 1056;         privatives, parties communes. Implicit destination (doctrine)
                                                          destination not changed so voted by majority [1096] not              deals with reason co-owners invested, inherent                1041, 1053, 1056,
          210 Kilzi v Syndic des copropriétaires     2001
                                                          75%/90% [1098]) . Invalidated syndicate by-law: those with >3        characteristics of the property; informs admissibility of by- 1063, 1096, 1098
                                                          apts can rent only to family (not justified by destination, 1056;    laws (1056, 1041). Destination cannot curtail free use of
                                                          violates free use and enjoyment, 1063) .                             private property unless it infringes others' (1063).

    5.3 Superficies

                                                          Definition: ownership in buildings, trees, plants on surface of an immovable whose tréfonds belongs to another.
          217 Marler on Real Property                1932 Characteristics: immovable by reason if its object; perpetual or temporary; hypothecable. Rights: of owner re superficie
                                                          objects; can't interfere with tréfonds owner. Practically: makes land much less useful, so usu. temporary.
#      Section - Subsection - Case                         Year                                 Facts                                                              Rule                                       CCQ

                                                                Morin helped brother-in-law Grégoire build house on Morin's
                                                                land. Morin: only 2y of simple tolerance (924, LeBerre v
                                                                                                                                       Permission to construct implies renunciation of accession
                                                                Mossat); anything more was unauthorized encroachment (953)                                                                           924, 951, 953, 1011,
          218 Morin v Grégoire                             1969                                                                        (951) over part of property, something available only
                                                                of Grégoire's construction on what is above the surface (951,                                                                        1110, 1111
                                                                                                                                       through a superficie (1011, 1110).
                                                                accession). Grégoire & court: superficie agreement (1111) was
                                                                implied by permanence of construction we built.


                                                                Gravel sells land, retaining droit de coupe for self and heirs.
                                                                Resale of land doesn't mention droit de coupe. Lafontaine: droit
                                                                de coupe was personal right (1371), now extinguished by sale
                                                                (1011). Superior Court: it is so strong that is a a superficie,        Droit de superficie is a personal servitude and therefore
                                                                                                                                                                                                     1011, 1111, 1113,
                                                                which can be permanent or temporary (1118); this was intended          real right (1111, 1119), can be temporary or permanent
          220 Lafontaine v Gravel (CS)                     1997                                                                                                                                      1118, 1119, 1371,
                                                                as temporary (―pas de temps fixé‖ but ―pour son usage et celui         (1113), is transferable (2644), and can be acquired by
                                                                                                                                                                                                     2644, 2910, 2917
                                                                des ses heritiers‖), but acquired by accession, then cessible.         prescription (2917, including dismemberments [2910]).
                                                                Appeals Court: it is a usufruct bound by the suppletive provision
                                                                of the testament, so extinguished with death of current heir; sale
                                                                to cousin annulled.


                                                                Carrière's superficie ends, but he sells to nephew Véronneau
                                                                anyway. Nephew squats, then leases, then claims to be a
                                                                                                                                       The superficiary's right to acquire ownership of subsoil less
                                                                superfishy owner with right to buy land worth less than building
                                                                                                                                       in value than the constructions, works, or plantations (1116)
                                                                (1116.2). Court: superficie ended with sale to present owner
          226 Véronneau v Ibis Investeringen               2000                                                                        is merely suppletive. So is the subsoil owner's automatic     953, 113, 1116, 1117
                                                                (Ibis) as per stipulated conditions (1113); Ibis is currently
                                                                                                                                       retention of the constructions, etc. after 90 days (1117) --
                                                                tolerating Véronneau, (Morin; 953) so no prescription; nephew's
                                                                                                                                       both provisions can be contracted out of.
                                                                only right is to destroy buildings. Obiter: in any case you contract
                                                                out of 1116-7 which are merely suppletive.


     6 RIGHT OF OWNERSHIP: DISMEMBERMENTS
                                                                                                                                       405 CCBC establishes just two kinds of servitude (right of
                                                                  A person may have on property either a right of ownership, or a
          229 405 CCBC                                                                                                                 enjoyment or servitude to exercise), but the CCQ has many 911, 947, 1009, 1119
                                                                  simple right of enjoyment, or a servitude to exercise.
                                                                                                                                       more.
    6.1 Usufruct and Similar Personal Servitudes                                                                                                                                                  1120-1176
                                                                Compares usufruct to lease (landlord has more responsibility, bare-owner has to not do things), to droit aux revenus
          231 Cantin-Cumyn on Usfruct, usage, habitation   1990 (créancier can‘t manage, usufructuary must), to fiducie (bénéficiare steps in only to reprimand fiduciaire, usufruitier must
                                                                manage things).

                                                                  The usufruct for a Clark St triplex goes to Mrs Beauchamps;
                                                                                                                                       Usufruct can be established by will (1121). If published, it is
                                                                  bare ownership goes to Mrs St-Denis, who defaults to Mrs
          234 Larocque v Beauchamps                        1975                                                                        opposable to third parties (1125.2). If granted to a physical 1121, 1123.2, 1125.2
                                                                  Larocque. Larocque wants to kick Beauchamps out, but the
                                                                                                                                       person without a term, it is granted for life (1123.2).
                                                                  usufruct is good until Beauchamps dies.

                                                                  Bare owner Gravel defaults to Banque nationale, but Dame             The right of use may not be assigned or seized unless the
                                                                  Benoit-Beaudry's droit d'habitation (1172) may not be assigned       agreement provides otherwise (1173.1). If the agreement
          235 Banque nationale v Gravel                    1984
                                                                  or seized, because the published agreement didn't allow that         is silent the court decides whether to authorize that right
                                                                  (1173).                                                              (1173.2).
X         240 Cantin-Cumyn on Quasi-usufructs              1990                                                                                                                                      1607
    6.2 Emphyteusis
#      Section - Subsection - Case                        Year                                 Facts                                                              Rule                                        CCQ
                                                               Cohen buys TSB's emphyteutic lease with Sulpicians, but lease
                                                                                                                                      Emphyteutic lessee can't endanger value of land (1195.2),
                                                               says Cohen can destroy to rebuild and that Sulpicians must buy
                                                                                                                                      nor commit waste or fail to prevent deterioriation of building
          242 Cohen v Minister of National Revenue        1968 building from Cohen -- so Cohen must be superficiary owner                                                                            1195, 1204
                                                                                                                                      (1204.1). Emphyteusis is a dismemberment, not right of
                                                               (therefore pay ownership tax on building), not emphyteutic
                                                                                                                                      ownership (1195).
                                                               lessee.

                                                               Ultramar wants to leave its 20y lease and remove its equipment;
                                                               Petra asks for injunction on grounds that Ultramar is                  Emphyteutic lessee is liable for all real property charges
                                                               emphyteutic lessee (1110, 1195) so mustn't (955): lessor gets          affecting the immovable (1205). No presumption of              955, 1110, 1116, 1195,
          245 Petra v Ultramar Canada                     1994
                                                               them (1116). Côté J: bail is 9-99y (1197), but no cession of           emphyteusis where lessee has right, but not obligation, to     1197, 1205
                                                               building: responsibility for immovable stayed with Petra (1205);       build.
                                                               Ultramar had only the right, not obligation, to improve.


                                                               Beauport taxes HLP as superficiary owner of improvement on             Although the emphyteutic lessee has all the rights in the
          247 HLP v City of Beauport                      2000 emphyteutic land. Michaud J: HLP is emphyteutic owner of               built immovable -- as opposed to the sol -- that are attached 1195, 1200
                                                               improvement, so tax inappropriate.                                     to the quality of owner (1200), it is not the bare owner.

    6.3 Real Servitudes
         6.3.1 Definition and Characteristics
          249 Mignault on Mourlon's Canadian civil law    1897

                                                               Beatrice sells her lot, reserves the droit de passage and parking      Real servitudes can be dissociated from neither the fonds
          252 Lord v Kardasz                              1974 spot, but loses them in judgement -- they go with the lot (fonds       dominant (positif) nor fonds servant (négatif): they follow    1182
                                                               dominant) as real servitude, not with her as personal servitude.       the immovables into whoever's hands they pass (1182).

                                                               Whitworth's land has no road access without crossing Martin's
                                                                                                                                      Real servitudes are distinguished from rights of way
                                                               land; to a road except by private road which crossed a
                                                                                                                                      granted by operation of law (997, 999): rights of way are
          253 Whitworth v Martin                          1995 neighbour‘s land. Baudoin J: classic 997 situation leading to                                                                         997, 999, 1001
                                                                                                                                      extinguished when they cease to be necessary (1001),
                                                               servitude de passage. Cantin-Cumyn: not servitude, but droit
                                                                                                                                      while real servitudes are inextinguishable (1182).
                                                               granted by law according to situation.


                                                               Métro-Richelieu defaults on hypothecated building to Standard
                                                               Life, who wants out of Métro's real servitude to lessee                Obligations de faire cannot constitute personal servitudes.
                                                               ("obligation not to sell certain food"). Métro: it reduced the value   Real servitudes require two neighbouring fonds, two
                                                                                                                                                                                                     1177, 1182, 1191.3,
          255 Métro-Richelieu v Standard Life Insurance   2001 of the hypothecated fonds (2734), and anyway only a personal           owners, perpetuity (except 1191.3), and advantage to one
                                                                                                                                                                                                     2734
                                                               obligation (contra 1177) extinguishable at lessee's departure          (dominant) and suffrance to other (servant) in doing or not
                                                               (contra 1182). Forget J: not a real servitude, and (Cantin-            doing something.
                                                               Cumyn) non-competes can't be personal servitudes.

         6.3.2 Constitutive Charge of Real Servitudes
                                                               Contract of sale perpetually binds future land-buyers to respect
          264 Auger v Grenier                             1985 environmental conditions. Paré J: this binds people, not land, so Real servitude must be explicit, specific, and land-binding.        1177
                                                               it is a personal obligation.
                                                               Mutual right of first option (droit de préemption). One party
                                                               leases for 99 yrs: does this break preemption contract?
          268 Cadieux v Hinse                             1989 Steinberg J: not opposable to third parties: not a real servitude      Real servitude must be explicit, specific, and land-binding.   1177
                                                               (obligation de faire; binds people, not land), not a personal
                                                               servitude (no real right).
                                                                 Real obligations: attached to property, opposable to property-owner. Example: buying hypothecated immovable; also some
          275 Carbonnier on Property                      1992                                                                                                                                       1178
                                                                 personal rights (lease), some real rights (re voisinage).
#      Section - Subsection - Case                        Year                                  Facts                                                                Rule                                       CCQ
                                                               Real obligations: transmitted to successive owners. Not the same as servitudes, but attached to them (never to people) where
          275 Terré & Simler on Property                  1992                                                                                                                              1178
                                                               necessary for servitude's use.
                                                               (Real) servitudes require a title, never just prescription (1181.2). Essential elements: very accurate description of dominant
          276 Marler on Real Property                     1932 land, accurate description of servient land, unambiguous description of servitude. Where title is imperfect, effect given by           1177
                                                               ascertaining intentions.
    6.4 Real Rights: Rule of Limitative Enumeration                                                                                                                                                   977, 1009, 1119
                                                               Obstacles to new real rights: (1) opposability to all requires that all be subject to regime -- so new real rights must be subsets
                                                                                                                                                                                                      publicity: 1455, 2934,
          278 Planiol & Ripert on real rights in France   1952 of old ones. (2) opposability to all requires valid publication -- so new real rights may have to piggyback on old ones to get into
                                                                                                                                                                                                      2941
                                                               the registre.

                                                                 Facilitating new real rights: (1) not prohibited; (2) free disposition of property right subject to prohibitions (947); (3) French
          279 Bergel et al on Property                    1999                                                                                                                                        947
                                                                 jurisprudence has allowed it (Caquelard, 1847); (4) publication of real rights is not stringent.

                                                               Contract of exchange: land (property rights) for money and
                                                               fishing rights. Are original fishing rights (published) opposable
          280 Duchaine v Matamajaw Salmon Club            1919 to new owners? Mignault J: not ownership, not "real" servitude,          Limitative enumeration: no new conventional real rights
                                                               so temporary right of enjoyment, ie temporary usufruct (405
                                                               CCBC).
                                                               Fishing right as perpetual usufruct! The problem: fishing rights
                                                               confer a certain usage (of river bed) for a certain time of year --
                                                               no fructus (fish are res nullii), contra 479 CCBC ("Usufruct ends
                                                                                                                                   Abolition of tenures resisted: perpetuity implies multiple
          289 Matamajaw Salmon Club v Duchaine            1921 by the natural death of the usufructuary, if for life; by the                                                                          911, 947, 1177
                                                                                                                                   proprietors of the same property.
                                                               expiration of the time for which it was granted"). Is this a
                                                               servitude de passage (1177)? It is multiple ownership -- sort of a
                                                               new real right.

                                                               Québec expropriates Appalaches lands, wants to extinguish
                                                               fishing and hunting rights. Landry J: Appalaches had superficie
                                                                                                                                        Support for the unusual permanent personal servitude
                                                               on constructions and accompanying personal servitudes;
          293 Québec v Club Appalaches (CS)               1998                                                                          established in Matamajaw, and for absence of numerus          911, 1119
                                                               Expropriation Act failed to extinguish them explicitly. Hunting
                                                                                                                                        clausus.
                                                               and fishing rights are separate and permanent real rights
                                                               (Matamajaw).

                                                               Notes that Appalaches' servitude personnelle de passage does             Support for the unusual permanent personal servitude
          300 Québec v Club Appalaches (CA)               1999 not let them block others from using the Quebec-expropriated             established in Matamajaw, and for absence of numerus
                                                               land.                                                                    clausus.
          305   Real Rights: Chart
           63   Ghestin's Traité de droit civil
           65   Carbonnier on Property
           67   Baudoin-Jobin's Les obligations
          106   Act abolishing feudal rights & duties

      7 FIDUCIE: PATRIMOINE D'AFFECTATION
    7.1 Nature of the Fiducie
           306 Lawson on the Law of Real Property
#      Section - Subsection - Case                  Year                                Facts                                                            Rule                                     CCQ

                                                                                                                             Beneficiary not required for trust. Cantin-Cumyn: 981 can't
                                                         Tucker makes deed of donation and trust to her future children,     work as ownership right: can be replaced (981c); expires
                                                         if she has none it passes to her sisters. Is this valid? Beetz J:   with misuse (981d); not transferable (981e); majority of
          308 Royal Trust v Tucker                  1982
                                                         can make trust for not-yet-existent person because trustee must     trustees may act (981f); remuneration for exercising right
                                                         constitute and retain rights for beneficiary.                       (981g); must be authorised to renounce (981h); not
                                                                                                                             personally responsible (981i); must render accounts (981l).

           39
    7.2 Essential Elements
          317 981a-981n CCBC
          318 Cantin-Cumyn on the Quebec Trust
          323 Bergel et al on Property
    7.3 Constituant, Beneficary, and Fiduciary
                                                         McLeod puts money into RRSP but retains control. Fish J:            Fiducie requires constituant (1260, translative act); acte
          324 Scotia McLeod v Scotiabank            2001 RRSP not fiducie because no translative act -- goods did not        translatif (contract, will, donation); fiduciaire; biens;     1260
                                                         leave original patrimony.                                           affectation.
    7.4 Administration du bien d'autrui
          329 Cantin-Cumyn on Biens d'autrui
    7.5 Droit comparé
          333 Cantin-Cumyn on fiducies and trusts
    ARTICLE, CASE, TERM                                                      TEXT/SUMMARY                                                                            COMMENTS
1 - INTRODUCTION
1.1 - The PERSON of SUJET DU DROIT
Juridical Personality & Legal Persons
Juridical Personality               The ability to become the subject of the law.
1 CCQ                               Every person has a juridical personality, and the ability to exercise full civil rights.

6 CCQ                                       Every person is bound to exercise his civil rights in good faith.
7 CCQ                                       No right may be exercised with the intent to hurt another or in an excessive and          Often relates to voisinage cases, abus du droit (976 CCQ).
                                            unreasonable manner which is contrary to good faith.
9 CCQ                                       In the exercise of civil rights, derogations may be made from those rules of this         Under contractual agreements, parties may modify or waive certain rights, if
                                            Code which supplement intention, but not from those of public order.                      not against public order.


Legal Person                                Characteristics of Legal Persons:                                                         Partnerships and Trusts are not legal persons.
                                            - may or may not be physical persons,
                                            - have juridical personality,
                                            - have full access to civil rights,
                                            - have a patrimony,
                                            - have the capacity to exercise all of their rights.

298 CCQ                                     Legal persons are endowed with juridical personality. (2) Legal persons are               CCLC deals with a narrower idea of "persons".
                                            established in the public interest of for a private interest.


301 CCQ                                     Legal persons have full enjoyment of civil rights.
302 CCQ                                     Every legal person has a patrimony…                                                       In the case of a corporation, the assets belong to the person (corporation)
                                                                                                                                      though its shareholders have an interest in the person.
316 CCQ                                     In case of corporate fraud, people who have participated in the fraud may be liable for
                                            damages.
317 CCQ                                     The corporate legal person may not act against a person in good faith for fraud, abuse
                                            of right or against public order.
3083 CCQ                                    The status and capacity of a natural person are governed by the law of his
                                            domicile. *** The status and capacity of a legal person are governed by the law of
                                            the country under which it was formed subject… to the law of the place where [its
                                            activities] are carried on.
1525.3 CCQ                                  The carrying on of one or more persons of an organized economic activity… is an           Note that a partnership is a contract, and has no juridical personality. Nor
                                            enterprise.                                                                               does a trust (although a trust has a patrimony).
1039 CCQ                                    …[T]he co-owners [of a condominium] as a body constitute a legal person…
                                            called a syndicate.
1.2 - The THING (la CHOSE) or l'OBJET DU DROIT
913 CCQ                            Certain things may not be appropriated…                                                            An example of ways to distinguish types of objects.
914 CCQ                            Certain other things, being without an owner… may… be appropriated by                              An example of ways to distinguish types of objects.
                                            occupation…
908 CCQ                                     Property, according to its relation to other property, is divided into capital, and       <-- Very significant in appropriation of wills.
                                            fruits and revenues.
1.3 - The nature of the relationship between the PERSON and the THING
947 CCQ                               Ownership is the right to use, enjoy and dispose of property fully and freely,                  Example of real rights relationship (between person and thing).
                                            subject to the limits and conditions for doing so determined by law. (2) Ownership
                                            may be in various modes and dismemberments.


1851 CCQ                                    Lease is a contract by which a person, the lessor, undertakes to provide another          Example of personal rights relationship (between person and person).
                                            person, the lessee, in return for rent, the enjoyment of a movable or immovable
                                            property for a certain time.
1.4 - Brief note on the transition from the CCLC to the CCQ
1.5 - Definition of LES BIENS OR PROPERTY
Property                               All of the rights (real and/or personal) of a person to a thing.
899 CCQ                                Property, whether corporeal or incorporeal, is divided into movables and                       Movables constitute the residual category. I.e., if something is determined
                                            immovables.                                                                               not to be an immovable, it is legally a movable.
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                                 COMMENTS
1 - INTRODUCTION
1708 CCQ                                    Sale is a contract by which a person, the seller, transfers ownership of property to The ownership is sold, not the thing.
                                            another person, the buyer, for a price in money which the latter obligates himself
                                            to pay.
1.6 - Concept of PATRIMONY or PATRIMOINE
Patrimony                        Patrimony is a universality of pecuniary rights and obligations attached to a person.

2 CCQ                                       Every person has a patrimony…
302 CCQ                                     Every legal person has a patrimony…
2644 CCQ                                    The property of a debtor is charged with the performance of his obligations and is Your patrimony becomes liable for your obligations.
                                            the common pledge of his creditors.
2645 CCQ                                    Limited recourse security: A debtor can contract with a creditor such that only certain Not originally provided for in CCLC, but was amended to allow it.
                                            elements of the former's patrimony is used as security for an obligation.


Different modes of Patrimonies
177 CCQ                                     Tutorship is established in the interest of the minor; it is intended to ensure the          Children have a patrimony. If they don't have the capacity to manage it,
                                            protection of his person, the administration of his patrimony and, generally, to             such management falls to the child's tutor.
                                            secure the exercise of his civil rights.
625 CCQ                                     The heirs are seised… of the patrimony of the deceased… (2) The heirs are not…               Under CCLC, heirs could only renounce a patrimony with a negative value.
                                            bound by the obligations of the deceased to a greater extent than the value of the           The patrimony's creditors took recourse against the patrimony before it was
                                            property they receive…                                                                       merged with the heir's. The new code explicitly allowed for this.


780 CCQ                                     The patrimony of the deceased is separate from that of the heir by operation of              779, 800, 801 CCQ provide exceptions to the heir's "insulation" from the
                                            law until the succession has been liquidated. (2) This separation operates in                deceased's creditors.
                                            respect of both the creditors of the succession and the creditors of the heir…


2221 CCQ                                    A creditor cannot take recourse against the patrimony of his partner until they have         Prioritizes claims on patrimonies.
                                            exhausted their recourse against the assets of the partnership. If proceedings against
                                            the partner are taken, "the property of the partner is not applied to the payment of
                                            creditors of the partnership until after his own creditors are paid."


1223 CCQ                                    Fiduciary Substitution - When a testator leaves his property to his heirs on the condition   Different use of the term "patrimony".
                                            that they then remit it to someone else, a separate patrimony is created consisting of
                                            the conditionally inherited property.
414 CCQ                                     Family patrimony - Marriage entails the establishment of a family patrimony       415 CCQ enumerates what kinds of property falls under a family patrimony.
                                            consisting of certain property of the spouses regardless of which of them holds a
                                            right of ownership in that property.
Couture c. Gagnon [1994] R.J.Q.             Co-habiting couple tried to form a family patrimony by contract.                  One cannot use a contract to create a patrimony. 2 CCQ says patrimonies
                                                                                                                              may be appropriated "only to the extent provided by law."
2924

Patrimony by Appropriation                  Patrimony that belongs to no one (not the settlor, the trustee or the beneficiary). The
                                            patrimony is defined by a purpose, not a person.
(Trusts) or Patrimoine d'Affectation

State Property and Public                   Public corporations (e.g. Hydro-Quebec) are "mandatories of the state", I.e. they act on     Confusing and contradictory concept here of a legal person with its own
                                            behalf of the state. They have the power to possess property. However, "the company          patrimony, acting on behalf of the State, yet incurring obligations only on its
Corporations
                                            binds none but itself when it acts in its own name."                                         own patrimony.
1.6.2 - patrimonial and extra-patrimonial rights
Extra-patrimonial rights             Cannot be represented in pecuniary terms, cannot be seized by creditors, are not
                                            objects of commerce.
3 CCQ                                       Every person is the holder of personality rights, such as the right to life, the right These are extra-patrimonial rights. They do not have a pecuniary value
                                            to the inviolability and integrity of his person, and the right to respect of his name, attached to them.
                                            reputation and privacy. (2) These rights are inalienable.


Moore v. Regents of the University          Cells removed from a patient were sold in a lucrative medical research scheme.               Held: Patients do not retain ownership of their cells after their removal.
                                            Issue: To what extent is your genetic material part of your patrimony?                       After removal, you no longer retain an interest in it; it is no longer part of your
of California [1990], S.C. California
                                                                                                                                         patrimony.
    ARTICLE, CASE, TERM                                                     TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
Fabrique de la Paroisse de l'Ange-         "Sacred objects" ruled to be outside of commerce and not subject to patrimonial
                                           transactions.
Gardien v. Procureur General de la
Province de Quebec, Musees
Nationaux du Canada [1980] C.S.
Phillips v. The Montreal General           Plaintiff's husband died of cancer and, contrary to her wishes, an autopsy was               The plaintiff has an extra-patrimonial right to the sanctity of her husband's
                                           performed on his body.                                                                       body (although in theory, this extra-patrimonial right dies with him).
Hospital [1908] S.C.
                                           Issue: Is the extra-patrimonial right to the sanctity of the deceased's body                 Exceptional treatment of extra-patrimonial rights. The husband's extra-
                                           transferrable? Does the body of the plaintiff's husband become her property after her        patrimonial right is 'inherited' by his wife... blurry distinction between
                                           death?                                                                                       patrimonial and extra-patrimonial rights.
Deschamps v. Renault Canada                Renault placed photos of two celebrities on an advertisement without permission.             Held: The right to your face and likeness is a real and extra-patrimonial
                                           Issue: Is the right to exploit one's name and image a property right?                        right, and cannot be appropriated without consent. The image itself is extra-
[1977] S.C.
                                                                                                                                        patrimonial but the exploitation of it is patrimonial, pecuniary.


Torrito v. Fonation Lise T. pour le        Plaintiff asked for injunction against use of their dead child's name and likeness without   Held: Injunction granted, but no damages. The right to privacy (5 CCQ) is
                                           permission.                                                                                  an extra-patrimonial right. Certain extra-patrimonial rights are transmittable
respect du droit a la vie et a la
                                                                                                                                        to heirs.
dignite des personnes lourdement
handicapees [1995] S.C.

Dans L'affaire de la Faillite de           Syndic, as executor of bankrupt shopping center, asks for the right to information           Held: The lawyer-client privilege is an extra-patrimonial right and is not
                                           protected by lawyer-client privilege of shopping centre.                                     transferrable. The only rights transferred are those relating to the property
Laprairie Shopping Centre c. Peal
                                                                                                                                        and not attached to the person.
[1998] C.A.
Aubrey v. Editions Vice-Versa Inc.         Aubrey's picture was printed in a magazine without her consent, and she was teased           Held: The right to privacy (5 CCQ) was infringed upon. The infringement on
                                           about it at school.                                                                          the right has extra-patrimonial and patrimonial aspects, and damages were
[1998] S.C.R.
                                                                                                                                        awarded. Commercial exploitation of an extra-patrimonial right = patrimonial
                                                                                                                                        injury.
Assets                                     Definition of assets has evolved from hard assets with pecuniary value to the ability to
                                           generate income.
1.7 - Distinction between PERSONAL RIGHTS, REAL RIGHTS and INTELLECTUAL PROPERTY
1.7.1 - Definitions
Real Right                        Right of a patrimonial nature which is exercised directly on property.                                Excludes all others from participation in the right on the property. Note:
                                           Consists of two elements: the person and the thing.                                          CCLC said real rights bore on "the thing"; 947 CCQ says it bears on
                                                                                                                                        "property".
947 CCQ                                    Ownership is the right to use, enjoy and dispose of property fully and freely,     Ownership is a principal real right.
                                           subject to the limits and conditions for doing so determined by law. (2) Ownership
                                           may be in various modes and dismemberments.


Personal Right                             Right on the patrimony of another person with respect to property. The right constitutes
                                           an asset in the patrimony of the creditor and a liablility in the patrimony of the debtor.
                                           Consists of three elements: The creditor, the debtor, and the object of obligation.



1590 CCQ                                   An obligation confers on the creditor the right to demand that the obligation be    Describes a personal right.
                                           performed in full, properly and without delay…
1851 CCQ                                   Lease is a contract by which a person, the lessor, undertakes to provide another    Example of personal rights relationship (between person and person).
                                           person, the lessee, in return for rent, the enjoyment of a movable or immovable
                                           property for a certain time.
1712 CCQ                                   Failure by the promisor, whether he be the seller or the buyer, to execute the deed Example of personal rights relationship (between person and person).
                                           entitles the beneficiary of the promise to obtain a judgment in lieu thereof.


1.7.2 - principal real rights and accessory real rights
Principal Real Right                   The right of ownership and all of its dismemberments and modes:
                                           - Right to use the thing (jus utendi )
                                           - Right to derive the fruits and benefits from the thing (jus fruendi )
                                           - Right to dispose of the thing (jus abutendi)
     ARTICLE, CASE, TERM                                                       TEXT/SUMMARY                                                                          COMMENTS
1 - INTRODUCTION
947 CCQ                                        Ownership is the right to use, enjoy and dispose of property fully and freely,     Ownership is a principal real right.
                                               subject to the limits and conditions for doing so determined by law. (2) Ownership
                                               may be in various modes and dismemberments.


1119 CCQ                                       Usufruct, use, servitude and emphyteusis are dismemberments of the right of
                                               ownership and are real rights.
1120 CCQ                                       Usufruct is the right of use and enjoyment, for a certain time, of property owned       Example of a dismemberment of the right of ownership.
                                               by another as one's own, subject to the obligation of preserving its substance.         See also emphyteusis, 1195 CCQ.


Accessory Real Right                           A right conferred for the security on an obligation.                                    Example: a legal hypothec.
2660 CCQ                                       A hypothec is a real right on a movable or immovable property made liable for the       The creditor has preferred rights to a specific asset (droit de preference),
                                               performance of an obligation. It confers on the creditor the right to follow the        and the right to follow the property (droit de suite).
                                               property into whosever hands it may be, to take possession of it or to take it in
                                               payment, or to sell it or cause it to be sold and, in that case, to have a preference
                                               upon the proceeds of the sale ranking as determined in this Code.


2797 CCQ                                       A hypothec is extinguished by the extinction of the obligation whose performance
                                               it secures.
1.7.3 - real rights and personal rights compared
                                                                                   REAL RIGHTS                                                                   PERSONAL RIGHTS
                                               *Real rights are defined by law and cannot be created.                                  *Personal rights can be created by contract with very few limitations.
 Distinguishing characteristics of             *Real rights are opposable, must be respected by everyone.                              *Personal rights need only be respected by the parties to the contract.
  REAL RIGHTS vs. PERSONAL                     *Real rights are assets unto themselves, with no corresponding liability in someone     *Personal rights necessarily correspond to an obligation in someone else's
             RIGHTS                            else's patrimony.                                                                       patrimony.
                                               *Real rights confer the right to follow and the right of preference on property.        *No right to preference or right to follow.


1.7.4 - intellectual property
Intellectual Property                          IP rights are neither purely patrimonial or purely extra-patrimonial. They have both    IP does not fit into the movable/immovable categories or the real/personal
                                               monetary and moral value.                                                               rights categories.
458 CCQ                                        Intellectual and industrial property rights are private property, but all fruits and    Distinguishes between the right and the income derived from it.
                                               income arising from them and collected or fallen due during the regime are
                                               acquests.
1.8 - Publication of rights (registration)
Registration of rights                  A publication in a public register of one's right of ownership in a thing.                     Gives administrative and legal support to the opposability of real rights. Only
                                                                                                                                       recently have movables become registrable.
1.8.1 - Cadastre
Cadastre                                       Formal public index of lots of land in Quebec.                                          The cadastre is a work in progress.
3027 CCQ                                       The cadastre is presumed accurate.                                                      This is a simple presumption and can be rebutted with evidence to the
                                                                                                                                       contrary.
2934 CCQ                                       The publication of rights is effected by their registration in the register of          Registration does not create the right, but it is a legal record of it.
                                               personal and movable real rights or in the land register... (2) Registration benefits   Registration effects the right.
                                               the persons whose rights are thereby published.


1.8.2 - Rights susceptible of publication
2938 CCQ                              The acquisition, creation, recognition, modification, transmission or extinction of
                                               an immovable real right requires publication. (2) Renunciation of a succession,
                                               legacy, community of property, partition of the value of acquests or of the family
                                               patrimony, and the judgment annulling renunciation, also require publication. (3)
                                               Other personal rights and movable real rights require publication to the extent
                                               prescribed or expressly authorized by law. Modification or extinction of a
                                               published right shall also be published.


2939 CCQ                                       Any restriction to alienate an immovable property must be published.
    ARTICLE, CASE, TERM                                                      TEXT/SUMMARY                                                                                 COMMENTS
1 - INTRODUCTION
2940 CCQ                                     Transfers of authority over immovables between the governments of Québec and
                                             Canada may be published. (2) Transfers of authority between the government of
                                             Québec or Canada and legal persons established in the public interest may also
                                             be published.
1.8.3 - Legal effects of publication: opposability, rank, effect
2941 CCQ                               Published rights become opposable; third parties must respect the rights.                            For rights to be opposable to third parties, they must be published.
                                                                                                                                            Publication gives effect to the rights.
2945 CCQ                                     Registration establishes rank with respect to parties attempting to exercise the same
                                             right (e.g. two parties with hypothecs on the same property): First registered, first right.


2943 CCQ                                     A right that is registered… is presumed known to any person acquiring or
                                             publishing a right in the same property. (2) A person who does not consult the
                                             appropriate register… may not invoke good faith to rebut the presumption.


2944 CCQ                                     Registration of a right… carries, in respect of all persons, simple presumption of
                                             the existence of that right.
1.8.4 - Rules of public order
2935 CCQ                                     Any person, even a minor or a protected person, may request the publication of a               The registrar would not inquire as to the requestor's interest in the matter.
                                             right, on his own behalf or on behalf of another.
2936 CCQ                                     Any renunciation or restriction of the right to publish a right which shall or may
                                             be published… is without effect.
2 - DISTINCTION BETWEEN MOVABLES AND IMMOVABLES
2.1 - Introduction: evolution of the relative importance of the distinction between movable and immovable property and relevance of the distinction

899 CCQ                                      Property, whether corporeal or incorporeal, is divided into immovables and
                                             movables.
3076-3168 CCQ                                Section on "Private International Law", deals largely with jurisdiction, domicile, conflicts
                                             of law, etc.
4 CCLC                                       Movables are subject to the rule of the domicile of the owner; immovables are subject to Same concept carried over to CCQ.
                                             the rules of where they are.
3098 CCQ                                     Succession to movable property is governed by the law of the last domicile of the
                                             deceased; succession to immovable property is governed by the law of the place
                                             where the property is situated…
Movables in CCLC and CCQ                     Under CCLC, movables were not subject to hypothecation. Under the CCQ, they can
                                             be the objects of hypothecs.
2.2 - Of immovables under the CCLC - ***NOTE - CASES BELOW ARE ALL DECISIONS UNDER THE CCLC!!!***
                                                                CCLC                                                 CCQ
 Categories of Immovables under                  Immovables by Nature (376-378 CCLC)                 Immovable by Nature (900-902 CCQ)
   the CCLC (and corresponding                   Immovables by Destination (379 CCLC)         Immovable by Physical Attachment, Joining (903 CCQ)
       categories in the CCQ)             By Reason of Attachment to the Immovable (380 CCLC) By Reason of Attachment to the Immovable (904 CCQ)
                                             Immovable by Determination of Law (382 CCLC)         Immovable by Determination of Law (907 CCQ)
                                                         Immovables by Nature                            Immovables by Destination
                                             *Buildings ("batiments "), permanently fixed structure (see Belair case below)                 *There must be identity of ownership. The same person must own the
                                             *Things that are one with the land, that are incorporated with the land.                       immovable and the immobilized thing.
   Immovables by Nature and by
                                             *Identity of ownership not required (thing and land may have different owners).                *They must be placed on the premises or attached to the immovable "for a
     Destination under CCLC                  *Things that "complete the building" in the notional (not physical) sense.                     permanency".
                                             *Purpose of the object is of paramount importance (see Nadeau ).


Belair v. La Ville de Ste-Rose               Municipality of Ste-Rose wished to tax a bridge as an immovable. Belair argued that it         Held: The court held that buildings ("batiments ") as mentioned in 376 CCLC
                                             was not a "building" ("batiment )", and was therefore not considered an immovable              means "structures", "les constructions" . Since the bridge is physically and
[1922] S.C.R.
                                             under the CCLC.                                                                                permanently attached to the land, it is immovable.
                                                                                                                                            Land is immovable by nature, so that which is attached to the land is also
                                                                                                                                            immovable by nature.
    ARTICLE, CASE, TERM                                                 TEXT/SUMMARY                                                                               COMMENTS
1 - INTRODUCTION [1928] C.A.
Nadeau v. Rousseau                       By contract, Rousseau retained ownership of a furnace installed in Proulx's building        Held: The furnace is immovable by nature, as it has been incorporated into
                                         until payments were complete. Proulx forfeited the building to Nadeau, and Rousseau         the building as an integral part of it. It completes the building (as it is
                                         tried to claim the furnace.                                                                 unrealistic to have a building in this climate without a furnace).
                                                                                                                                     *NOTE* Rousseau could not claim it was immovable by destination,
                                                                                                                                     because there was not identity of ownership.

Cablevision v. Deputy Minister of        Cablevision bought 2 antennas, one fixed to the ground and one on top of PVM. Their Held: The vertical attachment of the wires to the ground was sufficient to
                                         network also consisted of cable running on rented poles. Quebec tried to tax the    render the network immovable. Court also ruled that the antenna, as
Revenue of the Province of
                                         network as a movable, and Cablevision argued their network was immovable by nature. something firmly attached to the building, was also immovable by nature.
Quebec [1977] S.C.R.
Horn Elevator Ltd. V. Domaine            H installed an elevator in DD's building, contractually retaining ownership until payment   Held: The elevator became an immovable by nature (duh!). The
                                         was completed. DD went bankrupt and H tried to claim the elevator.                          construction includes all that is affixed for a permanency. It is unreasonable
D'iberville Ltd. [1972] C.A.
                                                                                                                                     to think a 15 story building might exist without an elevator. The elevator
                                                                                                                                     completes the immovable.
St-Laurent (City) v. Quebec (Hydro-      Quebec HEC operated 6 electricity transforming substations on St.-Laurent's property.       Held: They are not IBN. There is not sufficient incorporation into the
                                         St-Laurent tries to tax the stations as immovables by nature. HEC argues they are not       building. The machines can be moved and are moved between stations,
Electric Commission) [1978] S.C.R.
                                         IBN.                                                                                        therefore there is no permanent fixity. They were also on concrete bases
                                                                                                                                     and not attached to the structure itself. Equipment's necessity for operation
                                                                                                                                     of the system is irrelevant to classification as IBN.


La Banque D'Hochelaga v. The             Waterous sold a boiler to Kelly, contractually retaining ownership until payment was        Held: The boiler is not IBD. It was not incorporated with the owner's real
                                         complete. The bank tried to seize Kelly's mill for default on payments, and Waterous        property. There was no identity of ownership.
Waterous Engine Works Co. [1897]
                                         tried to claim the right to be compensated for the boiler.

Immovables --> Movables                  *If (part of) an immovable is demolished or dismantled, it becomes movable (unless the
                                         materials will be used to rebuild the immovable.
                                         *If the purpose of the property changes (eg hotel becomes home, flatware no longer
                                         IBD.
                                         *If there ceases to be identity of ownership, the IBD becomes movable.
Immovable Actions                        *Action in revindication - Action by owner to reclaim, get property back.
                                         *Action in petitory - Action by owner to have his right legally recognized.
Actions re: Real Servitudes              *Action confessoire - Owner of right of servitude takes action to have his right enforced
                                         or recognized by judgment.
                                         *Action negatoire - Action to have right of servitude legally annulled, denied.
2.4 - Of movables and immovables under the CCQ
899 CCQ                           Property, whether corporeal or incorporeal, is divided into immovables and
                                         movables.
2.4.1 - Articles 900 and 901 CCQ - Incorporation, loss of identity, utility
900 CCQ                               Land, and any constructions and works of a permanent nature located thereon                    Similar to Immovables by Nature, CCLC.
                                         and forming an integral part thereof, are immovables. (2) Plants and minerals, as           *Constructions of a permanent nature (reflects the broader definition of
                                         long as they are not separated or extracted from the land, are also immovables.             "batiments ".
                                         Fruits and other products of the soil may be considered to be movables, however,            *Ensure the utility (of the building, not the enterprise!!!)
                                         when they are the object of an act of alienation.                                           *Lose their individuality.


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


902 CCQ                                  Integral parts of an immovable that are temporarily detached therefrom retain
                                         their immovable character if they are destined to be put back.
Caisse Populaire v. Service Diron        In a garage in a building owned by CP was a hydraulic lift on which payments to the         Held:The lift is not is not immovable by nature. It has not been sufficiently
                                         vendor were still outstanding. The garage went bankrupt and the vendor came to claim        integrated, and has retained its individuality.
[1996] R.D.I.
                                         the lift. CP claimed it had been immobilized and could not be taken.
2.4.2 - Article 903 CCQ - no identity of ownership, permanent attachment but no loss of individuality
903 CCQ - must be read with s. 48 Movables which are permanently physically attached or joined to an immovable                       Similar to Immovables by Destination, CCLC.
                                       without losing their individuality and without being incorporated with the                    *Physically attached or joined (new condition. Chairs or jeeps could never
of SQ!
                                         immovable are immovables for as long as they remain there.                                  be considered immovables under this provision.)
                                                                                                                                     *Not incorporated, does not lose its individuality.
                                                                                                                                     *Must ensure the utility of the immovable (s. 48).
                                                                                                                                     *Must not be used for the operation of an enterprise of for the pursuit of
                                                                                                                                     activities.
                                                                                                                                     *Identity of ownership not required.
                                                                                                                               Similar to Immovables by Destination, CCLC.
                                                                                                                               *Physically attached or joined (new condition. Chairs or jeeps could never
                                                                                                                               be considered immovables under this provision.)
    ARTICLE, CASE, TERM                                                  TEXT/SUMMARY                                                                        COMMENTS
                                                                                                                               *Not incorporated, does not lose its individuality.
s. INTRODUCTION
1 -48 of SQ                                Under article 903 of the new Code, only those movables referred to which ensure *Must ensure the utility of the immovable (s. 48).
                                           the utility of the immovable are to be considered immovables, and any movables      *Must not be used for the operation of an enterprise of for the pursuit of
                                           which, in the immovable, are used for the operation of an enterprise or the pursuit activities.
                                           of activities are to remain movables.                                               *Identity of ownership not required.
                                                                                                                               *Must not be leased or charged with a hypothec (1843 CCQ).

901 vs. 903 CCQ                            *903 deals with utility.
                                           *901 and 902 are still talking about destination, but doing it implicitly.
                                           *901 and 903 give more respect to movables by protecting them as distinct.
Montreal Trust v. Richard [1998]           Air conditioning units ruled movable…                                                    …in spite of the fact that they are arguably integral to the building and
                                                                                                                                    ensure its utility. BUT…
Axor Construction Canada v.                Hockey boards installed in an arena ruled immovable as fundamental to the utility of the Is the "arena" the building or the enterprise? Technically, s. 48 says that if
                                           building (arena).                                                                        the boards are used for an activity or enterprise, they can't be immobilized.
Immeubles Spina [2002] R.D.I. 26

1843 CCQ                                   Property that is the subject of a leasing, even if attached or joined to an                Any movable that does not lose its individuality and that is the subject of a
                                           immovable, retains its movable nature for as long as the contract lasts, provided          hypothec cannot be immobilized for the life of the hypothec.
                                           it does not lose its individuality.
2672 CCQ                                   Movables charged with a hypothec which are permanently physically attached or              Same as 1843!!!
                                           joined to an immovable without losing their individuality and without being
                                           incorporated with the immovable are deemed, for the enforcement of the
                                           hypothec, to retain their movable character for as long as the hypothec subsists.


571 CCP                                    Movable that are immobilized under 903 can only be seized with the immovable to
                                           which they are attached. They may be seized separately, though, by a prior creditor if
                                           they do not belong to the owner of the immovable.
Construtek Inc. c. France Laforege         Woman forced to sell house. She took the fridge and stove, blinds and curtains, lighting Held: Under CCLC, they may all have been immobilized. But under CCQ,
                                           fixtures. Construtek claimed it was all immovable.                                       only the lighting fixtures are immobilized, as they complete the building.
[1998]
                                                                                                                                    Appliances and curtains not immobilized under 901 because they do not
                                                                                                                                    lose their individuality, or under 903 because they are not physically
                                                                                                                                    attached and are not necessary to the utility of the building.

2.4.3 - Articles 904, 905, 906 and 907 CCQ - Movables
904 CCQ                                Real rights in immovables, as well as actions to assert such rights or to obtain
                                           possession of immovables, are immovables.
905 CCQ                                    Things which can be moved either by themselves or by an extrinsic force are
                                           movables.
906 CCQ                                    Waves or energy harnessed and put to use by man, whether their source is
                                           movable or immovable, are deemed corporeal movables.
907 CCQ                                    All other property, if not qualified by law, is movable.
1453 CCQ                                   The transfer of a certain and determinate property...vests the acquirer with the     If I buy a house, it's mine as soon as I sign. If I buy 50 lbs of sugar from
                                           right upon the formation of the contract, even though the property is not delivered someone with 10,000 lbs of sugar, title does not pass until my 50 lbs is
                                           immediately and the price remains to be determined. (2) The transfer of a            separated out.
                                           ...property determined only as to kind vests the acquirer with that right as soon as
                                           he is notified that the property is certain and determinate.


3 - PROPERTY IN RELATION TO PERSONS, DOMAIN
3.1 - Introduction
915 CCQ                        Property belongs to persons or to the State or, in certain cases, is appropriated to                   All property belongs to somebody.
                                           a purpose.
3.2 - Things "not owned by anybody": choses communes and biens sans maitre (res nullius)
913 CCQ                            Certain things may not be appropriated; their use, common to all, is governed by                   choses communes
                                           general laws and, in certain respects, by this Code. (2) However, water and air not
                                           intended for public utility may be appropriated if collected and placed in
                                           receptacles.
934.1 CCQ                                  Animals in the wild, or formerly in captivity but returned to the wild, aquatic fauna biens sans maitre
                                           and things abandoned by their owner, are things without an owner. (2) Abandoned
                                           things.
    ARTICLE, CASE, TERM                                                      TEXT/SUMMARY                                                                                  COMMENTS
1 - INTRODUCTION
938 CCQ                                     Treasure belongs to the finder if he finds it on his own land; if it is found on the             Treasure
                                            land of another, one-half belongs to the owner of the land and one-half to the
                                            finder, unless the finder was acting for the owner.
696 CCQ                                     Where the deceased leaves no spouse or relatives within the degrees of                           The state is not an heir, but claims the property by right (697 CCQ)
                                            succession, or where all the successors have renounced the succession, or
                                            where no successor is known or claims the succession, the State takes of right
                                            the property of the succession situated in Québec.


3.3 - Things said to be hors commerce : extra-patrimonial rights, things forming part of the public domain and choses sacres , things subject to a restriction on
the right to alienate
Things that are hors commerce      *Things in the public domain (publicly owned property, State property.) Things that are hors commerce do belong to someone, but they are not
                                            *Right to use, right of habitation (1173 CCQ)                                                    subject to normal commercial dealings.
                                            *Eventual rights (e.g. your right in your father's estate before he dies - 631 CCQ)
                                            *Choses sacres (sacred things.)
                                            *Things subject to a prohibition to alienate (e.g. land left by father to son with stipulation
                                            that he not alienate it.)
                                            *Inalienable rights (personality rights, right to life, integrity of the person, etc.)

3.4 - Domain
Domain                                All property belonging to the State.
3.4.1 - Public and Private Domains - Introduction
918 CCQ                               Public Domain: Parts of the territory not owned by natural persons or legal                            Property is presumed to be public property unless it can be proven to be
                                            persons nor transferred to a trust patrimony belong to the State and form part of                private property. (idea carried over from CCLC)
                                            its domain. The State is presumed to have the original titles to such property.


919 CCQ                                     The beds of navigable and floatable lakes and watercourses are property of the
                                            State up to the high-water line…
3.4.2 - Historical evolution of these notions and development of the forms of land tenure… see notes
3.4.3 - Special nature of the rights relating to property forming part of the public domain: distinction between dominium and imperium , imprescriptibility,
inalienability/unseisability, immunity from taxation
Propriete administrative               Property used for public purposes. Enjoys a different status since it cannot be used for
                                            reasons contrary to its public purpose, the collective needs of society.
Peculiarities to the State's                1-Imprescriptability: Historical prerogative of the Crown (2876 CCQ).                            **The restrictions on the State's ability to sell property have been relaxed,
                                            2- Inalienability: Exempt from seizure, sale, hypothecation (1215, 2668 CCQ)**                   but the inability to seize or charge lands is largely intact.
property rights
                                            3- Immunity from Taxation: (s.125, BNA Act) Although in some places with large                   ***Crown corporations existing in competitive markets are generally taxed
                                            government presence (e.g. Ottawa), the government make "gracious payments" as a                  similarly to their private competitors.
                                            matter of convention.***
3.4.4 - Dualite Domaniale: le domaine public de l'etat et le domaine prive de l'etat
le domaine public de l'etat         Property that is in essence "of the public".                                                             Res communes = part of the public domain, inalienable.
le domaine prive de l'etat          Property that is owned much as a private citizen would.                                                  This property can be alienated.
Concrete Column Clamps v. City      CCC built a reservoir on the aqueduct of the Plains of Abraham, federally owned land.                    Held: The tank, having been connected to the municipal water system, was
                                    The city of Quebec didn't pay, and CCC tried to act on their hypothec against the                        no longer a distinct thing and is not subject to hypothecation. It was part of
of Quebec [1940] S.C.R.
                                            reservoir.                                                                                       the public domain by destination.
J. Serrentino v. Laval sur le Lac           JS built a curling rink and was not paid, so tried to take a privilege on the rink.              Held: The rink is an object of commerce, and so is seizable.
                                            Issue: Is a curling rink owned by the municipality part of the public domain?
[1966] C.S.
City of Montreal v. Hill-Clark-             Work was done for Montreal partly on its aqueduct and partly on garages the city used            Held: The aqueduct and garages are two different types of property. The
                                            for storage. H-C-F tried to invoke a privilege on the properties.                                aqueduct is for general and public use, and is not seizable. The garages,
Francis [1968] V.R.
                                                                                                                                             however, were inaccessible to the public and formed part of the city's private
                                                                                                                                             domain. The garages were seizable.

Concordia Concrete Floors Ltd v.            Issue: Are changing houses at a municipal pool subject to a charge by a creditor?                Held: Yes. They are used only for enjoyment and are not essential for
                                                                                                                                             municipal purposes. They are not public but private domain.
? [1980]
Sherbrooke v. Capital [1983]                Similar to facts above, but with parks instead of pools.                                         Held: Parks are part of the public domain, and are immune from seizure.


3.5 - Rights of Native People to land
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                               COMMENTS
1 - INTRODUCTION
Sources defining relations                  1- Aboriginal Rights and Title                                                             Use and application of these sources is usually very specific to each case.
                                            2- Legislative Acts of Parliaments (Federal and Provincial)
between European and Aboriginal
                                            3- Treaties and Agreements
land rights                                 4- Constitution
Ste Catherine Milling and Lumber                                                                                                       Held: Tenure of Indians were usufructory subject to the goodwill of the
                                                                                                                                       Crown. The underlying title vests with the province. Indians have a
[1899] JCPC
                                                                                                                                       "personal and usufructory right", not title.
Aboriginal Usufruct                         1- Inalienable
                                            2- Land reverts to the Crown should the Natives relinquish this right
                                            3- Mining rights not included in the usufruct.
Guerin v. the Queen [1984]                  Indians surrendered valuable surplus land to the Crown under unfavorable terms. The        Held: Indians have a sui generis interest, which is personal and gives rise
                                            Crown then leased it to a golf club. Pertinent information was withheld from the Indians   to a distinctive fiduciary obligation on the part of the Crown. The Crown has
Vancouver S.C.C.
                                            when the land was surrendered.                                                             the obligation to protect the Indians' best interest, and failed in that obligation
                                                                                                                                       here.
Van der Peet v. the Queen [1996]            Indian caught selling 10 salmon caught under authority of an Indian Food Fish Licence , Held: The Constitution does not create rights for aboriginals, just used to
                                            under which it was illegal to sell the fish by regulation. She claimed the regulation   protect existing rights. To qualify for protection, the right must be integral to
S.C.C.
                                            infringed on her aboriginal right to exchange fish for money or goods.                  the distinctive culture of the group, and must have existed pre-contact to
                                                                                                                                    qualify (criticized in dissent). Exchange was not an integral part of the
                                                                                                                                    culture, so not protected by s. 35(1) of Const. Act.

R. v. Adams [1996]                          Does an Indian need a permit to fish?                                                      Held: Using Van der Peet test, it qualifies as a protected aboriginal right.

R. v. Cote [1996]                           Does an Indian need a permit to fish in controlled zones?                                  Held: The right to fish is protected, but the failure to obtain a permit was a
                                                                                                                                       breach of an administrative regulation which did not encroach on the right.


Delgamuukw v. B.C. [1997]                   Are aboriginal oral histories admissible in determining land claims?                       Court attempts to blend concept of title and traditional history. Aboriginal title
                                                                                                                                       lies somewhere between the two. Confers the right to use land for a variety
                                                                                                                                       of integral traditional activities that do not constitute the right per se , but are
                                                                                                                                       parasiticon the title.
4 - OWNERSHIP
4.1.1 - Articles 405 CCLC and 911 CCQ
911 CCQ                             A person, alone or with others, may hold a right of ownership or other real right in               Modern day concept of ownership in Quebec stems from the time of the
                                            a property, or have possession of the property. (2) A person also may hold or              French Revolution (1789), when feudal society was completely reorganized.
                                            administer the property of others or be trustee of property appropriated to a              Transfer from domaine eminent to domaine utile allowed a return to the
                                            particular purpose.                                                                        Roman concept of property.
4.1.2 - Articles 406 CCLC and 947 CCQ
947 CCQ                             Ownership is the right to use, enjoy and dispose of property fully and freely,                     Same concept as CCLC, "absolute" right.
                                            subject to the limits and conditions for doing so determined by law. (2) Ownership
                                            may be in various modes and dismemberments.
952 CCQ                                     No owner may be compelled to transfer his ownership except by expropriation                Rights of the individual are clearly paramount.
                                            according to law for public utility and in consideration of a just and prior
                                            indemnity.
4.1.3 - "…most absolute manner…" and "… fully and freely…"
4.1.4 - Global considerations
4.2 - Characteristics of the right of ownership
4 Characteristics of ownership         Absolute (952 CCQ) - Ownership is the most powerful right one can exercise.           It is
                                            opposable.
                                            Total - Usus, Fructus, Abusus - right to use/enjoy, enjoy/derive fruits from and dispose
                                            of.
                                            Exclusive - Specific to the individual.
                                            Perpetual - Does not depend on use and is not lost on non-usage. The right lasts as
                                            long as the thing lasts.

4.3 - Limitations and restrictions on the right of ownership
4.3.2 - notion of voisinage : "natural" and "legal" servitudes under the CCLC and the concept of "neighbours" under the CCQ…
    ARTICLE, CASE, TERM                                             TEXT/SUMMARY                                                                           COMMENTS
1 - INTRODUCTION
976 CCQ                               Neighbours shall suffer the normal neighbourhood annoyances that are not                Phrased more as an obligation than a right. Sets tone for following articles
                                      beyond the limit of tolerance they owe each other, according to the nature or           (tolerance) and acts as a standalone provision for dispute-resolution
                                      location of their land or local custom.                                                 between neighbors.
Who is my neighbour? How to           977-978 CCQ, Boundaries                                                                 All used to be covered under "Servitudes" in CCLC.
                                      979-983 CCQ, Water
define?
                                      984-986 CCQ, Trees
                                      987-992 CCQ, Access to and Protection of Another's Land
                                      993-996 CCQ, Views
                                      997-1001 CCQ, Right of Way
                                      1002-1008 CCQ, Common Walls and Fences
913 CCQ                               ...water and air not intended for public utility may be appropriated if collected and
                                      placed in receptacles.
980 CCQ                               An owner who has a spring on his land may use it and dispose of it…
Morin v. Morin [1998]                 M1 owned property surrounding a lake and divided it into lots. When he couldn‘t pay     Held: The water is res communes , and the other property owners may go
                                      his taxes, the land was seized by the municipality and sold to various buyers. M1       on the lake. Court grants M1 exclusive fishing rights in lake, as owner of the
                                      retained ownership of the lake bed. M2 went out fishing on lake and M1 sued to keep     bed.
                                      him off the lake.
979 CCQ                               Lower land is subject to receiving water flowing onto it naturally from higher
                                      land…
981 CCQ                               A riparian owner may, for his needs, make use of a lake... or any other
                                      watercourse bordering or crossing his land. As the water leaves his land, he shall
                                      direct it, not substantially changed in quality or quantity, into its regular course.
                                      (2) No riparian owner may by his use of the water prevent other riparian owners
                                      from exercising the same right.
982 CCQ                               Unless it is contrary to the general interest, a person having a right to use a
                                      spring, lake, sheet of water, underground stream or any running water may, to
                                      prevent the water from being polluted or used up, require the destruction or
                                      modification of any works by which the water is being polluted or dried up.


CASE (Parties unknown)                A fish farm had a license to dump phosphates into a (shared) lake, and the lake was     Held: An interim injunction prevented the fish farm from obtaining an
                                      dying. Neighbors sued.                                                                  expansion of its pollution rights. Judge encouraged trial court to consider
                                                                                                                              the "balance of inconveniences" and said that the "general interest" should
                                                                                                                              override the private law.
984 CCQ                               Fruit that falls from a tree onto neighbouring land belongs to the owner of the tree.

985 CCQ                               If branches or roots extend over or upon an owner's land from the neighbouring
                                      land and seriously obstruct its use, the owner may request his neighbour to cut
                                      them and, if he refuses, compel him to do so. (2) If a tree on the neighbouring land
                                      is in danger of falling on the owner's land, he may compel his neighbour to fell the
                                      tree, or to right it.


Provost v. Racine [1996] R.D.I. 115                                                                                           Held: He who wants to cut the roots from his land, he first has to prove a
                                                                                                                              serious nuisance. Then he must consult with the nieghbor. The plaintiff
                                                                                                                              cannot take unilateral action.
987 CCQ                               Every owner of land, after having been notified verbally or in writing, shall allow
                                      his neighbour access to it if that is necessary to make or maintain a construction,
                                      works or plantation on the neighbouring land.
988 CCQ                               An owner bound to give access to his land is entitled to compensation for any
                                      damage he sustains as a result of that sole fact and to the restoration of his land
                                      to its former condition.
993 CCQ                               Direct views.
997-1001 CCQ                           Right of way.
4.3.3 - brief consideration of the notion of abus de droit de propriete
Abus de droit de propriete, CCLC 1- Damage must be real, identifiable.                                                        6, 7 CCQ - Good faith often argued in cases of abus de droit de propriete
                                      2- Damage must be caused as a result of the exercise of the right of ownership.
                                      3- The context of the neighborhood, local custom must be considered.
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                               COMMENTS
1 - INTRODUCTIONGolf & Country
Pilon v. St-Janvier                          Golf balls were flying onto P's property from neighboring club. Sometimes people would Held: No abuse. There's no quantifiable damage. The golf club is
                                             come onto his land to retrieve them. P sued, although he only used his land in the     exercising their right of ownership.
Club [1975] S.C.
                                             winter.
Katz v. Reitz [1978] C.A.                    An owner was excavating his property to build on it, and his neighbor's property began   Held: Katz is liable. Although he wasn't at fault, he violated the integrity of
                                             to sink into the hole.                                                                   R's property. Exercise of the right of ownership includes the obligation to
                                                                                                                                      compensate neighbors who suffer excessive harms as a result.


Kristopolis v. Restaurant [1980s]            Damage caused by a neighbor's construction.                                              Held: Court does not follow Katz v. Reitz , migrates back to the idea of fault.
                                                                                                                                      Follows a 1985 SCC case (with much different facts) that said no liability
C.A.
                                                                                                                                      without fault. **Court of Appeal today tends to refrain from awarding
Goudreau v. Letellier-St-Juste               Damage caused by a neighbor, not his fault.                                              damages where 976 CCQ fault, but will weigh the degree of
                                                                                                                                      Held: Court says there's nosays nothing about fault, and is contained in the
                                                                                                                                      rules of property, not civil liability. Rejects applicability of the notion of fault.
[2002] R.J.Q. 1195
                                                                                                                                      **Courts are generally moving away from the notion of fault in cases of
                                                                                                                                      abus de droit de propriete. **


990, 991 CCQ                                 New codal provisions protecting owners from damage resulting from neighbor's
                                             construction.
LeSalle v. Bernard [1996] S.C.               Bernard's wood stove, for which he had a permit, was sending noxious smoke onto          Held: Bernard's right to use his stove in accordance with regulations does
                                             LeSalle's land.                                                                          not negate LeSalle's right to enjoy his property. Judgment for Plaintiff.


4.3.4 - limitations in the public interest: expropriation and municipal regulations
Roy v. Tring-Jonction [2001]            Roy - farmer using a stream as a water source for his animals. TJ had a sewage                Held: The certificate held by TJ confirms their right to carry on their sewage
                                        treatment plant that was polluting the water and causing his animals to become sick.          treatment in the "general interest", so Roy cannot demand the destruction of
R.R.A. 806
                                             Roy sued under 981 and 982 CCQ.                                                          the works. Court does, however, award damages to Roy. **Generally,
                                                                                                                                      courts are reluctant to use 'general interest' to allow one neighbor to
                                                                                                                                      violate another neighbor's rights.**

4.3.5 - Other limitations
4.4 - Physical content of the object of ownership
4.4.1 - Boundaries (bornage ): Articles 977 and 978
977 CCQ                               The limits of land are determined by the titles, the cadastral plan and the                     All evidence that can be brought will be considered.
                                             boundary lines of the land, and by any other useful indication or document, if
                                             need be.
978 CCQ                                      Every owner may compel his neighbour to have the boundaries between their
                                             contiguous lands determined in order to fix the boundary markers…


Bornage extra-judicaire                      Determination of boundaries between two cooperative parties.
Bornage judicaire                            Determination of boundaries initiated by a boundary action (action en bornage )
992 CCQ                                      Where an owner has, in good faith, built beyond the limits of his land on a parcel       If a neighbor builds beyond the boundary without having consulted the
                                             of land belonging to another, he shall, as the owner of the land he has                  registry or cadastre, this can be evidence of bad faith.
                                             encroached upon elects, acquire the parcel by paying him its value, or pay him
                                             compensation for the temporary loss of use of the parcel...


4.4.2 - Above the surface and the sub-surface
951 CCQ                              Ownership of the soil carries with it ownership of what is above and what is below
                                             the surface…
985 CCQ                                      If branches or roots extend over or upon an owner's land from the neighbouring
                                             land and seriously obstruct its use, the owner may request his neighbour to cut
                                             them and, if he refuses, compel him to do so…


LaCroix v. the Queen [1952]                  State regulated height of buildings on lands near airport. LaCroix claimed he owned      Held: No indemnification awarded. The owner of land does not own the air
                                             what was above his land under 951 CCQ and asked for indemnification.                     above his land, but only the construction he builds up into it. The space
                                                                                                                                      itself is hors commerce .
4.5 - Acquisition of ownership by accession, possession and acquisitive prescription
   ARTICLE, CASE, TERM                                               TEXT/SUMMARY                                                                             COMMENTS
1 - INTRODUCTION
934 CCQ                               Animals in the wild, or formerly in captivity but returned to the wild, aquatic fauna      Appropriation by occupation. **Important distinction between res nullius and
                                      and things abandoned by their owner, are things without an owner. (2)                      lost or stolen things, which have an owner and cannot be appropriated by
                                      Abandoned things.                                                                          occupation.
935 CCQ                               A movable without an owner belongs to the person who appropriates it for
                                      himself by occupation. (2) An abandoned movable, if no one appropriates it for
                                      himself, belongs to the municipality that collects it in its territory, or to the State.


4.5.1 - Accession - Article 948 CCQ
948 CCQ                               Ownership of property gives a right to what it produces and to what is united to it,       Includes ownership of what is produced by a property and ownership of what
                                      naturally or artificially, from the time of union. This right is called a right of         is united to a property.
                                      accession.
949 CCQ                               The fruits and revenues of property belong to the owner, who bears the costs he
                                      incurred to produce them.
955 CCQ                               Constructions, works or plantations on an immovable are presumed to have been              Artificial accession.
                                      made by the owner of the immovable at his own expense and to belong to him.                3 presumptions (can be rebutted):
                                                                                                                                 1- Improvements made by owner,
                                                                                                                                 2- made at his expense,
                                                                                                                                 3- belong to owner.
1110 CCQ                              Superficies results from division of the object of the right of ownership of an            If the owner renouces the right of accession, another person can retain
                                      immovable, transfer of the right of accession or renunciation of the benefit of            ownership of constructions on another's land.
                                      accession.
1507.2 CCQ                            The fulfillment of a resolutory condition obliges each party to return to the other        Vendor can reclaim property if payment in full isn't made.
                                      the prestations he has received pursuant to the obligation, as though the
                                      obligation had never existed.
957 CCQ                               The owner of an immovable acquires by accession ownership of the                           Owner acquires by accession improvements made by a possessor.
                                      constructions, works or plantations made on his immovable by a possessor,
                                      whether the disbursements were necessary, useful or for amenities.


958 CCQ                               The owner shall reimburse the possessor for the necessary disbursements, even Necessary improvements.
                                      if the constructions, works or plantations no longer exist. (2) If the possessor is in
                                      bad faith, however, compensation may be claimed for the fruits and revenues
                                      collected, after deducting the costs incurred to produce them.


959 CCQ                               Owner will pay good faith possessor for costs incurred for making useful improvements. Useful improvements.
                                      Owner may keep improvements made by bad faith possessor without compensating the
                                      possessor, or may compel the possessor to remove them.


960 CCQ                               The owner may compel the possessor to acquire the immovable and to pay him
                                      its value if the useful disbursements made are costly and represent a
                                      considerable proportion of that value.
961 CCQ                               Good faith possessor may either remove the amenities or abandon them. If                   Amenities.
                                      abandoned, the owner must reimburse him for cost, or for the increase in value to the      This is of benefit to the owner, since the increase in pecuniary value to the
                                      immovable (whichever is less).                                                             immovable is often small.
962 CCQ                               Bad faith possessor can be compelled to remove amenities, or the owner may keep          Amenities.
                                      them without reimbursing the possessor.
963 CCQ                               Good faith possessor can retain the immovable until he has been reimbursed for           Right of retention.
                                      necessary or useful improvements.
                                      Bad faith possessor has no rights under the article, except for necessary disbursements.


964 CCQ                               Disbursements made by a person detaining property are dealt with according to              **NOTE** - Rules on detenteurs are contradictory to other provisions in the
                                      the rules prescribed for disbursements made by a possessor in bad faith. (2) The           code. Usufructor (1137 CCQ), emphyteutic lessees (1210 CCQ) are as
                                      person detaining the property is under no obligation to acquire it, however.               possessors in good faith. Tenants (1891 CCQ) are as possessors in bad
                                                                                                                                 faith.
    ARTICLE, CASE, TERM                                             TEXT/SUMMARY                                                                                   COMMENTS
1 - INTRODUCTION
971 CCQ                             Where movables belonging to several owners have been intermingled or united in Where there are several contributors to a construction on an immovable,
                                    such a way as to be no longer separable without deterioration or without         and they can't be reasonably separated, the new thing belongs to the owner
                                    excessive labour and cost, the new thing belongs to the owner having contributed who contributed most.
                                    most to its creation by the value of the original thing or by his work.


975 CCQ                             In unforeseen circumstances, the right of accession in respect of movable                      Catch-all residual provision.
                                    property is entirely subordinate to the principles of equity.
Location Fortier v. Paccio          Fortier leased a truck to Paccio. Alliance Auto installed equipment on it to convert it into   Held: 971 CCQ provides that the movable belongs to the owner who
                                    a tow truck. Paccio defaulted on his lease payments and Fortier seized the truck. AA           contributed the most to the movable's value (Fortier), but AA gets
                                    tries to get indemnified for equipment.                                                        indemnified anyway.
4.5.2 - Possession and detention
921 CCQ                             Possession is the exercise in fact, by a person himself or by another person                   Two parts of possession, the Corpus (physical possession of the thing) and
                                    having detention of the property, of a real right, with the intention of acting as the         the Animus (the intention of acting as owner).
                                    holder of that right. (2) The intention is presumed. Where it is lacking, there is
                                    merely detention.
Possessor                           One who believes he is the owner of a property and carries on as if he is.
Detenteur                           Someone in physical (not legal) possession, under a title other than ownership i.e.
                                    lease, usufructory, emphyteusis, exercising a servitude.
Corpus                              The physical, direct element of possession (exercise property rights i.e. use, fruits,
                                    abuse); relationship with a thing ―exercise in fact‖ = objective concept of physical aspect.


Animus                              The intent; intellectual and subjective element. It is the intent to behave or be
                                    considered the owner, if this intent is lacking, the mere physical element (corpus)
                                    amounts to detention. Note: this intention is presumed by CCQ 921
922 CCQ                             Only peaceful, continuous, public and unequivocal possession produces effects
                                    in law.
925 CCQ                             The present possessor is presumed to have been in continuous possession from                   Presumption of Continuity.
                                    the time he came into possession; he may join his possession to that of his
                                    predecessors. (2) Possession is continuous even if its exercise is temporarily
                                    prevented or interrupted.
927 CCQ                             No thief, receiver of stolen goods or defrauder may invoke the effects of                      Possession in violence.
                                    possession, but his successors by whatever title may do so if they were unaware
                                    of the defect.
928 CCQ                             A possessor is presumed to hold the real right he is exercising…
929 CCQ                             A possessor in continuous possession for more than a year has a right of action                Possessory Action.
                                    against any person who disturbs his possession or dispossesses him in order to                 -Must be instituted by the possessor.
                                    put an end to the disturbance or be put back into possession.                                  -Must relate to an immovable.
                                                                                                                                   -Possession must be effective.
                                                                                                                                   -Possessor must have been in possession for 1 year + 1 day.
                                                                                                                                   -Possessor must institute action within 1 year of the disturbance.

931 CCQ                             A possessor in good faith need not render account of the fruits and revenues of                Possession in good faith.
                                    the property, and he bears the costs he incurred to produce them. (2) A                        Possession in bad faith.
                                    possessor in bad faith shall, after compensating for the costs, return the fruits
                                    and revenues from the time he began to be in bad faith.


932 CCQ                             A possessor is in good faith if, when his possession begins, he is justified in           Good faith goes bad.
                                    believing he holds the real right he is exercising. His good faith ceases from the
                                    time his lack of title or the defects of his possession or title are notified to him by
                                    a civil proceeding.
Valier v. ?                         Purchaser of land knew his title was "precarious" (I.e., that the previous owner, who had Held: Owner with "precarious title" was in good faith until he was notified
                                    lost the land through tax default, could reclaim the land within a year).                 that the previous owner was acting to reclaim the property. He may retain
                                                                                                                              fruits and revenues.
Quebec (Sous-Ministre) c.           Standard Life had a hypothec on some immovables. When loan was defaulted, they                 Held: Possession is equivalent to a real right (controversial). Even though
                                    took possession (in good faith) of some properties not secured by the hypothec.                SL had no published right, they are recognized as having the quasi-real right
Propriete Metro Industriel [1999]
                                                                                                                                   of possession.
R.D.I. 248
4.5.3 - Acquisitive prescription
    ARTICLE, CASE, TERM                                                  TEXT/SUMMARY                                                                             COMMENTS
1 - INTRODUCTION
2875 CCQ                                 Prescription is a means of acquiring or of being released by the lapse of time and Definition of prescription.
                                         according to the conditions fixed by law: prescription is called acquisitive in the
                                         first case and extinctive in the second.
2910 CCQ                                 Acquisitive prescription is a means of acquiring a right of ownership, or one of its Acquisitive prescription.
                                         dismemberments, through the effect of possession.


2911 CCQ                                 Acquisitive prescription requires possession in accordance with the conditions             Prescription requires possession.
                                         laid down in the Book on Property.
930 CCQ                                  Possession vests the possessor with the real right he is exercising if he complies         Acquisitive prescription.
                                         with the rules on prescription.
4.5.4 - Extinctive prescription
2876 CCQ                                 That which is not an object of commerce, not transferable or not susceptible of            Things that are hors commerce cannot be prescribed.
                                         appropriation by reason of its nature or appropriation may not be prescribed.


2880 CCQ                                 Dispossession fixes the beginning of the period of acquisitive prescription.               Dispossession is easier to establish.

2921 CCQ                                 Extinctive prescription is a means of extinguishing a right which has not been             Extinctive prescription.
                                         used or of pleading the non-admissibility of an action.
2922-2925 CCQ                            Conditions for extinctive prescription.
4.5.5 - Renunciation, Interruption and Suspension
Renunciation
2883 CCQ                             Prescription may not be renounced in advance, but prescription which has been                  Renunciation in advance would be against public order.
                                         acquired or any benefit of time elapsed by which prescription has begun may be
                                         renounced.
2884 CCQ                                 No prescriptive period other than that provided by law may be agreed upon.

Interruption
2889 CCQ                                 Prescription may be interrupted naturally or civilly.
2890-2903 CCQ                            Conditions for interruption of prescription.
2903 CCQ                                 Following interruption, prescription begins to run again for the same period.              Note: with an interruption, you must start all over again, with suspension,
                                                                                                                                    you pick up where left off.
2957 CCQ                                 Publication does not interrupt prescription.
Suspension
2904 CCQ                                 Prescription does not run against persons if it is impossible in fact for them to act Note: with an interruption, you must start all over again, with suspension,
                                         by themselves or to be represented by others.                                         you pick up where left off.
2905 CCQ                                 Prescription does not run against persons yet unborn, Nor does it run against a minor
                                         or a person of full age under curatorship or tutorship with respect to remedies he
                                         may have against his representative or against the person entrusted with his
                                         custody.
5 - SPECIAL MODES OF OWNERSHIP
5.1 - Introduction
1009 CCQ                     Ownership has two principal special modes, co-ownership and superficies.                               Note: This does not seem exhaustive, and could therefore include others,
                                                                                                                                    e.g. conditional ownership.
5.2 - Co-ownership
Co-ownership                             A sharing of ownership where each owner has full rights of absolute ownership regarding their fractional inters in the thing. Each owner can use their fraction for its
                                         customary or designated use, so long as it neither prevents the other owner from also using it in that manner no restricts access to the thing. To make changes, the
                                         unanimous consent of all owners is needed.
5.2.1 - Indivision
Indivision vs. Partnerships              Partnerships are entered into intentionally and create personal rights. Undivided co-      Undivided co-ownership vs. Partnership.
                                         ownership is a real right, and it can be implied by circumstance, even where no implicit
                                         intention to enter into it exists.
1010 CCQ                                 ...Co-ownership is called undivided where the right of ownership is not                    Undivided co-ownership.
                                         accompanied with a physical division of the property….
1012 CCQ                                 Indivision arises from a contract, succession or judgment or by operation of law.          Establishing indivision.
   ARTICLE, CASE, TERM                                          TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
1013 CCQ                         The undivided co-owners may agree, in writing, to postpone partition of a                   Postponement of partition.
                                 property on expiry of the provided period of indivision. (2) Such an agreement
                                 may not exceed thirty years, but is renewable. An agreement exceeding thirty
                                 years is reduced to that term.


1014 CCQ                         Indivision by agreement in respect of an immovable shall be published if it is to be
                                 set up against third persons…
1030 CCQ                         No one is bound to remain in indivision; partition may be demanded at any time
                                 unless it has been postponed by agreement, a testamentary disposition, a
                                 judgment, or operation of law, or unless it has become impossible because the
                                 property has been appropriated to a durable purpose.


Garber v. Lake [1916]            Many people owned property in indivision, and one or two wanted to get out. Court            It is a rule of public order that someone who is co-owner of undivided
                                 ruled it was a rule of public order that people could get out of indivision if and when they property may renounce such ownership at any time he chooses.
                                 wanted.
1015 CCQ                         The shares of undivided co-owners are presumed equal. (2) Each undivided co-                Shares presumed equal.
                                 owner has the rights and obligations of an exclusive owner as regards his share.            Co-owners may alienate, hypothecate shares.
                                 Thus, each may alienate or hypothecate his share and his creditors may seize it.


1016 CCQ                         Each undivided co-owner may make use of the undivided property provided he
                                 does not affect its destination or the rights of the other co-owners. (2) If one of
                                 the co-owners has exclusive use and enjoyment of the property, he is liable for
                                 compensation.
1017 CCQ                         The right of accession operates to the benefit of all the undivided co-owners       Godin: Unnecessary/redundant article?
                                 proportionately to their shares in the indivision. Nevertheless, where a co-owner
                                 holds a right of exclusive use or enjoyment of a portion of the undivided property,
                                 he also has exclusive use or enjoyment of property joined or incorporated with
                                 that portion.
1018 CCQ                         The fruits and revenues of the undivided property accrue to the indivision, where
                                 there is no provisional partition and where no other agreement exists with respect
                                 to their periodic distribution. They also accrue to the indivision if they are not
                                 claimed within three years from their due date.


1021 CCQ                         Partition which takes place before the time fixed by the indivision agreement may Early partition and creditors' security in share of the property.
                                 not be set up against a creditor holding a hypothec on an undivided portion of the (Reference to 2679 CCQ.)
                                 property unless he has consented to the partition or unless his debtor preserves
                                 a right of ownership over some part of the property.


1022 CCQ                         Any undivided co-owner, within sixty days of learning that a third person has, by  New provision designed to protect co-owners from the actions of their fellow
                                 onerous title, acquired the share of an undivided co-owner, may exclude him from co-owners.
                                 the indivision by reimbursing him for the transfer price and the expenses he has
                                 paid. This right may be exercised only within one year from the acquisition of the
                                 share... except where otherwise stipulated in the indivision agreement.


Pension Fund for the Employees   The issue was whether a syndicated loan portfolio could qualify as indivision or not. It  Non-physical things can be the object of undivided co-owndership.
                                 was held that syndicated loans could be considered as indivision (see notes for details).
of STCUM Community v. Bander
Investments [1997]
Administration
1025 CCQ                         Undivided co-owners of property administer it jointly.
Stem Corporation v.              One of two co-owners of movie theater tried to lease it without the other's consent.        (Under CCLC.)
                                 Held: Unanimous consent is required. In simple indivision there is no presumed
Koutsogiannopoulos (a.k.a.
                                 mandate as in partnership.
Poulos) [1959]
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                        COMMENTS
1 - INTRODUCTION
1026 CCQ                                    Administrative decisions are taken by a majority in number and shares of the
                                            undivided co-owners. (2) Decisions in view of alienating or partitioning the
                                            undivided property, charging it with a real right, changing its destination or
                                            making substantial alterations to it require unanimous approval.


Allice v. Potashner [1988]                  Allice and Potashner, co-owners of a two-apartment house, had an agreement that        Held: Although changes usually require unanimous consent, in this case the
                                            each was responsible for the maintenance of their own apartments and both paid for     parties had agreed that each should administer her portion of the indivision
                                            the common upkeep. Allice moved and rented her apartment to others without             in a semi-autonomous fashion. Allice allowed to induce liquidation and
                                            Potashner's consent.                                                                   partition of the proceeds.
End of Indivision and Partition
1030 CCQ                                    No one is bound to remain in indivision; partition may be demanded at any time
                                            unless it has been postponed by agreement, a testamentary disposition, a
                                            judgment, or operation of law, or unless it has become impossible because the
                                            property has been appropriated to a durable purpose.


1031 CCQ                                    ...[T]hree-quarters of the undivided co-owners representing ninety per cent of the     This was done to facilitate the conversion from undivided co-ownership to
                                            shares may terminate the undivided co-ownership of a mainly residential                divided co-ownership (condominium).
                                            immovable in order to establish divided co-ownership of it [condominiumize]. (2)
                                            The majority may "expropriate" objecting parties' share by paying them for it.


1032 CCQ                                    On a motion by an undivided co-owner, the court, to avoid a loss, may postpone       Postponement of partition.
                                            the partition of the whole or part of the property and continue the indivision for
                                            not over two years…
1033 CCQ                                    If one of the undivided co-owners objects to continuing in indivision, the others
                                            may satisfy him at any time by apportioning his share to him in kind, provided it is
                                            easily detachable from the rest of the undivided property, or in money, as he
                                            chooses…
1034 CCQ                                    If the undivided co-owners fail to agree on the share in kind or in money to be      Appraisal for partition.
                                            apportioned to one of them, an expert appraisal or a valuation is made by a
                                            person designated by all the undivided co-owners or, if they cannot agree among
                                            themselves, by the court.
1037 CCQ                                    Indivision ends by the partition or alienation of the property… (3) However, the act After partition, previous owner deemed "never to have owned", subject to
                                            of partition which terminates indivision, other than indivision by succession, is an the provisions on successions, below.
                                            act of attribution of the right of ownership.


Special rules applicable to indivision resulting from a succession
836 CCQ                               Partition may not take place or be applied for before the liquidation is terminated.

837 CCQ                                     The testator, for a serious and legitimate reason, may order partition wholly or
                                            partly deferred for a limited time…
839 CCQ                                     Allows for continuation of the undivided co-ownership of a family enterprise.          Undivided co-ownership of a family enterprise may continue.
840-841 CCQ                                 Allow for continuation of the undivided co-ownership of a family residence.            Undivided co-ownership of a family residence may continue.
842 CCQ                                     When adjudicating upon an application for the continuance of undivided             New provision for court to have this jurisdiction.
                                            ownership, the court takes into account the testamentary dispositions, as well as
                                            the existing interests and means of livelihood which the family and the heirs draw
                                            from the undivided property...
843 CCQ                                     On the application of an heir, the court may, to avoid a loss, stay the immediate
                                            partition of the whole or part of the property and continue the undivided
                                            ownership of it.
844 CCQ                                     Continuance of undivided ownership takes place upon the conditions fixed by the Court can't continue undivided co-ownership for more than 5 years unless all
                                            court but may not be granted for a duration of more than five years except with   parties agree.
                                            the agreement of all the interested persons…


845 CCQ                                     The court may order partition where the causes that justified the continuance of
                                            undivided ownership have ceased or where undivided ownership has become
                                            intolerable or presents too great a risk for the heirs.
    ARTICLE, CASE, TERM                                            TEXT/SUMMARY                                                                             COMMENTS
1 - INTRODUCTION
846 CCQ                             ...Furthermore, the heirs may always satisfy an heir who objects to the
                                    continuance of undivided ownership by paying his share themselves or granting
                                    him, after evaluation, other property of the succession.
884 CCQ                             Partition is declaratory of ownership. (2) Each co-partitioner is deemed to have After partition, each co-partitioner is deemed "always to have owned" his
                                    inherited, alone and directly, all the property included in his share or which   share 100%, and never to have owned a portion of the other partitions.
                                    devolves to him through any partial or complete partition. He is deemed to have
                                    owned the property from the death, and never to have owned the other property of
                                    the succession.
Forced Indivision
Mitoyen (Common Wall)               A common wall, owned in indivision between two owners of neighboring properties, and Form of forced indivision. Partition not possible.
                                    resting on the dividing line between the properties.
1002 CCQ                            Any owner of land may fence it, at his own expense, with walls, ditches, hedges or Note: One neighbour may renounce his right to use the wall, relieving
                                    any other kind of fence. (2) He may also require his neighbour to make one-half of himself of the obligation to contribute to its upkeep.
                                    or share the cost of making a fence which is suited to the situation and use made
                                    of the premises, on the dividing line to divide his land from his neighbour's land.


1003 CCQ                            A fence on the dividing line is presumed to be common. Similarly, a wall
                                    supporting buildings on either side is presumed to be common up to the point of
                                    disjunction.
1004 CCQ                            Any owner may cause a private wall directly adjacent to the dividing line to be
                                    rendered common by reimbursing the owner of the wall for one-half of the cost of
                                    the section rendered common and, where applicable, one-half of the value of the
                                    ground used. The cost of the wall is estimated on the date on which it was
                                    rendered common, and account is taken of its state.


1005 CCQ                            Each owner may build against a common wall and set beams and joists against it.
                                    He shall obtain the concurrence of the other owner on how to proceed. (2) In case
                                    of disagreement, the owner may apply to the court to determine the means
                                    necessary to ensure that the new works infringe the rights of the other owner as
                                    little as possible.
Corveille v. Proulx [1995]          Neighbour builds a dividing fence and sends neighbour a bill for half. They hadn't         Held: Although a neighbour is bound to pay for half of the fence, if
                                    agreed beforehand what kind of fence to build.                                             agreement is not reached on what kind of fence is to be built, they must go
                                                                                                                               to the courts to have it determined.
1006 CCQ                            The maintenance, repair and rebuilding of a common wall are at the expense of              Maintenance obligations of mitoyen.
                                    each owner in proportion to his right. (2) An owner who does not use the common            If one neighbour renounces his right, he cannot use the wall. Must buy the
                                    wall may renounce his right and thereby be relieved of his obligation to share the         right to use his half back.
                                    expenses…
Zambito-Orazio c. Meneghini [CA     M owed Z-O money for maintenance costs on common wall, so he renounced his right           Court of Appeal reversed original Superior Court ruling ordering M to pay,
                                    in the wall and claimed he didn't have to pay the back maintenance costs.                  saying once M had renounced his real right in the wall, there was no
1999]
                                                                                                                               personal right to Z-O. Holding not followed in Groleau.
Groleau v. Société Immobilière du   Common wall between G and SI's property collapsed and needed repair. G asked SI to Held: SI did not follow required formalities of renunciation, since they had
                                    share costs, SI refused and published notice of abandonment. G fixed wall and filed acknowledged and investigated need for repairs prior to renunciation. Ruled
Patrimoine Architectural de
                                    claim against SI for half of costs.                                                 that renunciation is not opposable to prior claims for repairs. Directly
Montréal [CS 1999]                                                                                                      contradicted C.A. ruling in Zambito-Orazio, and C.A. refused leave to appeal
                                                                                                                        in this case. Holding not followed in Riendeau.


Riendeau c. Lambert [2001 RDI       Follows C.A.'s previous ruling in Zambito, holding that renunciation is retroactive, and
                                    relieves renouncing party of obligation for repairs needed prior to renunciation.
545]

Conditions for abandonment          1. Deterioration of wall must not be a result of the abandoning party's fault.
                                    2. Abandoning party cannot be using the wall.
                                    3. Ditches, fences, etc. cannot be abandoned, as their very presence indicates that
                                    they are being used as a divider.
1030 CCQ                            No one is bound to remain in indivision... unless [division of the shared property]        Things destined to the perpetual service of several immovables.
                                    has become impossible because the property has been appropriated to a durable
                                    purpose.
    ARTICLE, CASE, TERM                                                  TEXT/SUMMARY                                                                                COMMENTS
1 - INTRODUCTION
Michon v. Leduc [1890]                    Partition of an aqueduct owned in indivision cannot be forced, since it is appropriated to
                                          a durable purpose. It is a necessary component of both owners' buildings.


5.2.2 - Divided co-ownership ("condominium")
1010 CCQ                            (3) [Co-ownership] is called divided where the right of ownership is apportioned                   Ownership of private and common portions is always considered together,
                                          among the co-owners in fractions, each comprising a physically divided private               never separated. (see 1048 CCQ)
                                          portion and a share of the common portions.
1041 CCQ                                  The relative value of each of the fractions of a divided co-ownership with
                                          reference to the value of all the fractions together is determined in consideration
                                          of the nature, destination, dimensions and location of the private portion of each
                                          fraction, but not of its use...
1042 CCQ                                  Those portions of the buildings and land that are the property of a specific co-             Private portions.
                                          owner and that are for his use alone are called the private portions.


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


1044 CCQ                                  Lists areas presumed to be common portions: the ground, yards, verandas or                   Presumed common portions.
                                          balconies, parks and gardens, access ways, stairways and elevators,
                                          passageways and halls, etc…
1045 CCQ                                  Partitions or walls that are not part of the foundations and main walls of a
                                          building but which separate a private portion from a common portion or from
                                          another private portion are presumed common. (i.e., presumed "mitoyen", not
                                          common to all co-owners.
1046 CCQ                                  Each co-owner has an undivided right of ownership in the common portions. His        Share of common portions.
                                          share of the common portions is proportionate to the relative value of his fraction.


1038 CCQ                                  Divided co-ownership of an immovable is established by publication of a                      Establishing divided co-ownership. (see 1052 CCQ)
                                          declaration under which ownership of the immovable is divided into fractions
                                          belonging to one or several persons.
3030 CCQ                                  Property being condominiumized must be in the cadastre.
1048 CCQ                                  The share of a fraction in the common portions may not, separately from the
                                          private portion of the fraction, be the object of alienation or an action in partition.


Declaration of divided co-ownership
1052 CCQ                            A declaration of co-ownership comprises the act constituting the co-ownership,
                                          the by-laws of the immovable and a description of the fractions.


1053 CCQ                                  A constituting act of co-ownership defines the destination of the immovable, of              Required info in constituting act.
                                          the exclusive parts and of the common parts. (2) Declaration must also specify
                                          relative values of the fractions, and specify the formula by which those values were
                                          determined. Also, must specify the powers of the various administrators.


1054 CCQ                                  The by-laws of an immovable contain the rules on the enjoyment, use and upkeep               By-laws requirements.
                                          of the private and common portions, and those on the operation and
                                          administration of the co-ownership. (2) The by-laws also deal with the procedure
                                          of assessment and collection of contributions to the common expenses.


1056 CCQ                                  No declaration of co-ownership may impose any restriction on the rights of the co- Rights of co-owners.
                                          owners except restrictions justified by the destination, characteristics or location
                                          of the immovable.
1063 CCQ                                  Each co-owner has the disposal of his fraction; he has free use and enjoyment of Rights of co-owners.
                                          his private portion and of the common portions, provided he observes the by-laws
                                          of the immovable and does not impair the rights of the other co-owners or the
                                          destination of the immovable.
    ARTICLE, CASE, TERM                                                  TEXT/SUMMARY                                                                                COMMENTS
1 - INTRODUCTION
Renda v. Investissements                 Co-owner's car was vandalized, and he brought in a second car, parking it in a visitor      Held: Management cannot restrict the co-owners' use of common areas,
                                         spot. Management of condo towed co-owner's car without notice.                              unless such restriction is stated in the declaration, or unless the co-owner's
Contempra Ltée [CS 1982]
                                                                                                                                     use of the common area infringes on the rights of other co-owners.


Bergeron v. Martin [1997]                One co-owner began to run a day-care center out of his unit. Other co-owners                Held: The operation of a day-care center enterprise is not allowed, being
                                         complained of crowds, noise and traffic.                                                    inconsistent with the destination of the property stated in the declaration
                                                                                                                                     ("residential").
Wilson c. Syndicate de Co-               Co-owners adopted a new by-law restricting animals permitted in the building to fish,       Held: Dog-owners won. Ratio: CCQ 1042 should be given a broad
                                         birds and cats. Dog-owning co-owners complained the by-law discriminated against            interpretation in favour of the co-owners taken individually.
Proprietaires…[1996] RJQ 1019
                                         dog-owners.
Syndicat de Co-Proprietaires les         A co-owner put wire mesh around her veranda to prevent her kids from falling. The           Held: The restriction of balcony-modification was valid and consistent with
                                         declaration explicitly forbade modifications to balconies. Fencing co-owner claimed the     the destination, in maintaining the aesthetic of a residential building.
Immeubles les Cascades St.
                                         restriction was invalid, as it did not pertain to destination.
Laurent v. Zrihen [CS 1999]
Banque Laurentienne c. 200               Bank sold all of its units in a condo and sought to abandon its remaining parking and       Held: Yes. Co-ownership declarations do not imply a renunciation of the
                                         storage spaces. Issue: Can the bank abandon its common co-owned portions after              right to abandon, which is part of the right of ownership. Abandonment is a
Lansdowne Condo Ass’n [CS 1996]
                                         alienating all of its divided fractions?                                                    unilateral act of will and requires only registration.

Kilzi c. Syndicat 1400 L’Acadie          Kilzi owned 8 apartments in a condo, and rented them out on a short-term basis. In          Held: The short-term rental ban is valid, as it is more a commercial than a
                                         response, the syndicate passed a new by-law forbidding short-term sublets and               residential use, but the restriction on rentals to family members is invalid, as
[2001 CA]
                                         forbidding owners of more than 3 units to rent to anyone except family.                     it violates K's right of ownership. The constituting act's ban on commercial
                                                                                                                                     activity should be interpreted as banning commercial activity inside any of
                                                                                                                                     the private portions, not as prohibiting business activity vis-à-vis the
                                                                                                                                     ownership and disposal of the units.

Syndicat Northcrest c. Amselem           Amselem built a souccah on his balcony, in contravention of the condo's constituting        Held: Co-ownership agreements cannot discriminate against the practices
                                         act. Claimed disallowing him to do it would violate his freedom of religion under the       of a given religion, but they may legitimately be incompatible with certain
[CS 1998]
                                         Charter.                                                                                    man infestations of religious practice. (Ruling affirmed by C.A. Now
                                                                                                                                     awaiting leave to appeal to SCC.)
Syndicat…Aristocrate v. Morgan           In 1981, condos were established with a condition in the declaration that any units         Held: Morgan may keep his dish, as the declaration does not expressly
                                         subscribing to cable TV would use a specific carrier. The declaration prohibited the        forbid dishes, and the technology was available at the time of the
[2000]
                                         installation of exterior radio or TV antennas. Morgan installed a satellite dish, and the   declaration. The exclusivity contract did not apply to satellite TV, and if it
                                         directors seek an injunction to order it removed.                                           did, it would be abusive.
1062 CCQ                                 The declaration of co-ownership binds the co-owners, their successors and the               Real rights of successors are usually not affected by agreements of
                                         persons who signed it, and produces its effects towards them from the time of its           predecessors. This is an exception to absoluteness of ownership rights.
                                         registration.
Significant reforms to condominium law in CCQ
1052 CCQ                           A declaration of co-ownership comprises the act constituting the co-ownership,                    Formal requirement. Under CCLC, there was none.
                                         the by-laws of the immovable and a description of the fractions.


The Syndicate
1039 CCQ                                 Upon the publication of the declaration of co-ownership, the co-owners as a body Syndicate as legal person.
                                         constitute a legal person, the objects of which are to preserve the immovable, to Significant reform, improvement made to condo law in CCQ.
                                         maintain and manage the common portions, to protect the rights appurtenant to
                                         the immovable or the co-ownership and to take all measures of common interest.
                                         (2) The legal person is called a syndicate.


1071 CCQ                                 The syndicate can have a contingency fund. The syndicate is the owner of this fund.

1073 CCQ                                 The syndicate has an insurable interest in the whole immovable, including the               Huge improvement over CCLC.
                                         private portions…
1076 CCQ                                 The syndicate may, if authorized to do so, acquire or alienate fractions, common
                                         portions or other real rights…
1081 CCQ                                 The syndicate may institute any action…
1109 CCQ                                 The syndicate is liquidated according to the rules of Book One on the liquidation           Liquidation of the Syndicate.
                                         of legal persons.
Relative Value
    ARTICLE, CASE, TERM                                                  TEXT/SUMMARY                                                                               COMMENTS
1 - INTRODUCTION
1046 CCQ                                  Each co-owner has an undivided right of ownership in the common portions. His
                                          share of the common portions is proportionate to the relative value of his fraction.


1053 CCQ                                  Declaration must specify how the relative values of fractions were determined.
1068 CCQ                                  Co-owners may contest the relative value of their fraction within 5 years of registration
                                          (not retroactive).
Gareau v. Syndicate 415 St-               Gareau contested the relative value of his fraction. Gareau claimed that the                Held: The current declaration was not adequate in terms of articulation a
                                          determination was based on an arbitrary division into percentages which bore no             method for establishing the respective interests of the unit-owners. The
Gabriel [1998]
                                          relation to the value or amenities of any particular fraction. The notaries involved in     expenses must be distributed according to the relative value of the fraction
                                          preparing the declaration were unable to provide any explanation as to how the              which must be determined according to CCQ 1041 and 1053.
                                          respective percentages were arrived at.
1078 CCQ                                  If the syndicate must pay a sum of money, the co-owners are liable by their relative
                                          value.
Rules with respect to tenants
1056 CCQ                                  No declaration of co-ownership may impose any restriction on the rights of the co- This provision allows co-owners to rent their private portion to a tenant.
                                          owners except restrictions justified by the destination, characteristics or location
                                          of the immovable.
1057 CCQ                                  The by-laws of the immovable may be set up against the lessee or occupant of a
                                          private portion upon his being given a copy of the by-laws…


1065 CCQ                                  A co-owner who gives a lease on his private portion shall notify the syndicate and
                                          give the name of the lessee.
1079 CCQ                                  If a tenant fails to abide by the obligations set out in the by-laws, the syndicate may
                                          demand the resiliation of the lease.
Time-sharing
1058 CCQ                                  Unless express provision is made therefor in the act constituting the co-                   Basically, time-sharing is generally not allowed. This article mentions it, but
                                          ownership, no fraction may be held by several persons each having a right of                provides no structure or guidelines to how such an arrangement should be
                                          enjoyment periodically and successively in the fraction, nor may a fraction be              worked out under the CCQ.
                                          alienated for that purpose.
Transition from the original developer to the individual owners
1102 CCQ                             Any decision of the syndicate which, contrary to the declaration of co-ownership,                Rules in this section protect owners from domination by the developers as a
                                          imposes on a co-owner a change in the relative value of his fraction, a change of           controlling interest, and allow a smooth transition into the hands of the
                                          destination of his private portion or a change in the use he may make of it is null.        owners.


1104 CCQ                                  Within ninety days from the day on which the promoter of a co-ownership ceases              Election of a new board.
                                          to hold a majority of voting rights in the general meeting of the co-owners, the
                                          board of directors shall call a special meeting of the co-owners to elect a new
                                          board of directors...
1105-1106 CCQ                             Guarantees that all financial information be made available to co-owners.
1107 CCQ                                  The new board of directors may, within sixty days of the election, terminate,               Prevents developers from setting up "sweetheart contracts" when they have
                                          without penalty, a contract for the maintenance of the immovable or for other               a controlling interest in the syndicate.
                                          services entered into before the election by the syndicate, where the term of the
                                          contract exceeds one year.
Disclosures
1787 CCQ and ff.                          Sets out disclosure requirements by sellers of units.
Liquidation of Syndicate
356 CCQ                                   A legal person may also be dissolved by consent of not less than two-thirds of the
                                          votes given at a general meeting convened expressly for that purpose…


357 CCQ                                   The juridical personality of the legal person continues to exist for the purposes of
                                          the liquidation.
358 CCQ                                   [I]f the legal person is a syndicate of co-owners, apply for the registration of such
                                          a notice in the land register, and appoint a liquidator, according to the by-laws,
                                          who shall proceed immediately with the liquidation…
    ARTICLE, CASE, TERM                                      TEXT/SUMMARY                                                                                COMMENTS
1 - INTRODUCTION
1080 CCQ                      Where the refusal of a co-owner to comply with the declaration of co-ownership               Amselem v. Northcrest Syndicate : C.A. confirms reading of 1080 where
                              causes serious and irreparable prejudice to the syndicate or to one of the co-               "serious and irreparable prejudice" is necessary before the property can be
                              owners, either of them may apply to the court for an injunction ordering the co-             appropriated , but not before an injunction against the co-owner can be
                              owner to comply with the declaration. (2) If the co-owner violates the injunction or         sought.
                              refuses to obey it, the court may, in addition to the other penalties it may impose,         Syndicate le Bourdages v. Fortin , court ruled that you need "serious and
                              order the sale of the co-owner's fraction, in accordance with the provisions of the          irreparable prejudice" just to get an injunction!
                              Code of Civil Procedure regarding the sale of the property of others.


Other changes
1092 CCQ                      No promoter of a co-ownership comprising five or more fractions is entitled, in
                              addition to the voting rights attached to the fraction serving as his residence, to
                              over sixty per cent of all the votes of the co-owners at the end of the second and
                              third years after the date of registration of the declaration of co-ownership. (2)
                              The limit is subsequently reduced to twenty-five per cent.


1094 CCQ                      Any co-owner who has not paid his share of the common expenses or his               Voting rights.
                              contribution to the contingency fund for more than three months is deprived of
                              his voting rights.
1098 CCQ                      Decisions on the following matters require a majority vote of three-quarters of the
                              co-owners representing ninety per cent of the voting rights of all the co-owners:
                              (1) to change the destination of the immovable; (2) to authorize the alienation of
                              common portions the retention of which is necessary to the destination of the
                              immovable; (3) to amend the declaration of co-ownership in order to permit the
                              holding of a fraction by several persons having a right of periodical and
                              successive enjoyment.


1073 CCQ                      The syndicate has an insurable interest in the whole immovable, including the                Huge improvement over CCLC.
                              private portions…
1075 CCQ                      If the immovable is damaged, the indemnity is to be used to rebuild it unless the
                              syndicate decides to terminate the co-ownership and in that case, the proceeds are
                              divided b/w them according to their relative values.
1081 CCQ                      The syndicate may institute any action on the grounds of latent defects, faulty
                              design or structural defects of the immovable or defects in the ground. In a case
                              where the faults or defects affect the private portions, the syndicate may not
                              proceed until it has obtained the authorization of the co-owners of those portions.
                              (2) Buyer must give notice of the defect within a reasonable time. Clock starts ticking
                              when new board of directors takes over.


1077 CCQ                      The syndicate is liable for damage caused to the co-owners or third persons by               More important later in building's life, when liability of developers has
                              faulty design, structural defects or lack of maintenance of the common portions,             become extinguished (see 1081 CCQ).
                              without prejudice to any counterclaim.
5.3 - Superficies
1009 CCQ                      Ownership has two principal special modes, co-ownership and superficies.

1011 CCQ                      Superficies is ownership of the constructions, works or plantations situated on
                              an immovable belonging to another person, the owner of the subsoil.


Bellerance v. Reid [1909]     A hypothec on land did not extend to the building situated on it but owned by another.       Decided under CCLC.

Morin v. Gregoire [SC 1967]   M gave G permission to build a chalet on his land. M later filed a petitory action against   Held: G has a right of superficie, and cannot be kicked off the land.
                              G to get him off the land, and G counterclaims seeking $5000 for good faith
                              improvements made to the property.
Boily c. Tremblay [1976 CS]   B acquired a piece of land and sought to demolish a hotel on it. The superficie was          Registration of a superficie is not required for it to be opposable to an owner
                              held to be valid, though not registered.                                                     of the land. The only way to extinguish a superficie is the complete
                                                                                                                           destruction of the structure(s).
    ARTICLE, CASE, TERM                                                     TEXT/SUMMARY                                                                             COMMENTS
1 - INTRODUCTION [CS 1997]
LaFontaine c. Gravel                        In 1929, G's father sold land to R but retained logging rights. In 1952, G's father sold   Held: A right of superficie was created in 1929, and as a real immovable
                                            the logging rights to his son F, who later sold them to G. LaF acquired the land and       right it is subject to all forms of transfer and hypothecation. The sale of that
                                            claims the logging rights were registered without right and should be annulled.            right is therefore valid. Moreover, F had acquired it by prescription, even if
                                                                                                                                       his title was previously faulty.
Belair v. Ville Ste Rose                    Court acknowledges separate ownership of the bridge that rested on public domain.

1110 CCQ                                    Superficies results from division of the object of the right of ownership of an            Should be: renunciation of the right to occupy the construction's space, not
                                            immovable, transfer of the right of accession or renunciation of the benefit of            renunciation of the benefit of accession.
                                            accession.
1111 CCQ                                    The right of the superficiary to use the subsoil is governed by an agreement.
                                            Failing agreement, the subsoil is charged with the servitudes necessary for the
                                            exercise of the right. These servitudes are extinguished upon termination of the
                                            right.
1113 CCQ                                    Superficies may be perpetual, but a term may be fixed by the agreement
                                            establishing its conditions.
1114 CCQ                                    Superficies is terminated (1) by the union of the qualities of subsoil owner and           Termination of superficies.
                                            superficiary in the same person, subject to the rights of third persons; (2) by the
                                            fulfilment of a resolutive condition; (3) by the expiry of the term.


1116 CCQ                                    At the termination of superficies, the subsoil owner acquires by accession                 Unclear on timing of the transfer of rights. Who owns what when?
                                            ownership of the constructions, works or plantations by paying their value to the
                                            superficiary. (2) If, however, the constructions, works or plantations are equal in
                                            value to the subsoil or of greater value, the superficiary has a right to acquire
                                            ownership of the subsoil by paying its value to the subsoil owner, unless he
                                            prefers to remove, at his own expense, the constructions, works and plantations
                                            he has made and return the subsoil to its former condition.


1118 CCQ                                    A subsoil owner and a superficiary who do not agree on the price and other terms
                                            and conditions of acquisition of the subsoil or of the constructions, works or
                                            plantations may apply to the court to fix the price and the terms and conditions of
                                            acquisition...
Stone-Consolidated c. Pierre                S-C was granted permission to build a garage on government land, and hired PDG to       Held: Yes. Landowner ceded his right of accession to the holder of the
                                            build it. PDG published a legal hypothec on the building. Issue: Is the hypothec valid? superficie, who then owns the building with true and valid title. The building
Desjardins Gestion [CS 1998]
                                                                                                                                    may be hypothecated.
Dupont-Lemite c. Notre-Dame-du-             In 1958, the city received written permission from DL‘s husband to install a sewer pipe    The right of superficie was implicitly granted. DL knew that more was being
                                            on their land. In 1960 they installed not only the sewer but also a water main and a       installed and never complained. Also, the situation has persisted for 30
Bon-Conseil (Village de) [CS 1999]
                                            connection for the neighbour. DL now wants the latter 2 removed.                           years, so the right of superficie has been prescribed to the city. Rule: One
                                                                                                                                       can give tacit consent to a superficie by not protesting its existence in fact.
                                                                                                                                       Superficie can be prescribed.


QC (Procurer Général) c.            Min. de T and CN jointly planned and carried out the construction of those works—and               PG has superficie. Dd worked with PG to create constructions and implicitly
                                    then CN was privatized and a part of its land sold to Dd. Dd is claiming ownership, PG             granted right of superficie. Right need not be registered to be opposable.
Developpements du demain [CS
                                    is claiming superficie.
2001]
5.4 - Note on Conditional Ownership
Suspensive condition                Condition which, until fulfilled, suspends right of ownership.
Resolutory condition                Condition which, once fulfilled, ends right of ownership.                                          e.g., resolutory clause in a loan. If default occurs, ownership remits to
                                                                                                                                       creditor.
1742 CCQ                                    The seller of immovable property may not apply for resolution of the sale for              Resolutory clauses.
                                            failure by the buyer to perform one of his obligations unless the contract specially
                                            stipulates that right. (2) If the seller meets the conditions for applying for
                                            resolution, he is bound to exercise his right within five years after the sale.


1750-1751 CCQ                               A sale with a right of redemption is a sale under a resolutory condition by which    Sale with a right of redemption. If seller returns payment, he can reacquire
                                            the seller transfers ownership of property to the buyer while reserving the right to the sold property.
                                            redeem it…
    ARTICLE, CASE, TERM                                              TEXT/SUMMARY                                                                                COMMENTS
1 - INTRODUCTION
Droit de retrait                      The right of the original owner of a property claimed and sold in a tax sale to repurchase
                                      the property within one year of such sale.
1504 CCQ                              The creditor, pending fulfillment of the condition, may take any useful measures           Can take action even though not the owner. Treated as possessor in good
                                      to preserve his rights.                                                                    faith.
1506 CCQ                              The fulfillment of a condition has a retroactive effect, between the parties and with
                                      respect to third persons, to the day on which the debtor obligated himself
                                      conditionally.
1507 CCQ                              The fulfillment of a suspensive condition obliges the debtor to perform the
                                      obligation, as though it had existed from the day on which he obligated himself
                                      under that condition. (2) The fulfillment of a resolutory condition obliges each
                                      party to return to the other the prestations he has received pursuant to the
                                      obligation, as though the obligation had never existed.


Vachon v. Deschenes [1935 BR]         V worked on Demers' house, and took out a hypothec on the building to secure                Held: The resolution of a sale entails the extinction of a privilege set up
                                      payment. Demers had bought the house from Deschenes, under a resolutory condition           between the purchaser and a third party because its effect is such as if the
                                      of payment. Demers defaulted, and house remits to Deschenes. Can V count on the             sale never existed. A hypothec must be instituted by an owner, and a
                                      hypothec to guarantee payment from Demers?                                                  privilege binds only the person who contracted it.
                                                                                                                                  Rule: The legal effects of resolution are absolutely retro-active, to the
                                                                                                                                  detriment of third parties.

Sousa c. Ville de Montréal [1999      Between time Sousa viewed building and bought it, it had burned down. Sousa seeks           Held: The obligation to deliver the goods Sousa bought was impossible to
                                      annulment of the sale.                                                                      fulfill, so annulment is valid. Sousa is entitled to restitution of his payment.
C.S.]
                                                                                                                                  Note: Failure to deliver building was not a resolutory condition, since it
                                                                                                                                  wasn't an external contingency. Rather, the contract had an impossible
                                                                                                                                  object and is therefore null.

6 - DISMEMBERMENTS AND OTHER MODIFICATIONS OF OWNERSHIP
6.1 - Introduction
1119 CCQ                    Usufruct, use, servitude and emphyteusis are dismemberments of the right of                           Components are separated and could be enjoyed by different people
                                      ownership and are real rights.                                                              concurrently. Dismemberments are real rights in tangible immovables,
                                                                                                                                  opposable to everybody.
6.2 - Traditional Dismemberments
6.2.1 - Usufruct
1120 CCQ                              Usufruct is the right of use and enjoyment, for a certain time, of property owned           –usufructory/usufrutier: right to use and enjoy
                                      by another as one's own, subject to the obligation of preserving its substance.             –bare owner/nu-propriétaire: right of abusis
                                                                                                                                  Both have real rights in the property.
                                                                         REAL SERVITUDE                                                                      PERSONAL SERVITUDE
 Distinguishing characteristics of
                                      Real right established in favour of property.                                               Real right established in favour of a person.
      REAL SERVITUDES vs.
                                      Only done on immovable property.                                                            Done on immovable or movable property.
     PERSONAL SERVITUDES              Could be perpetual, lasting as long as immovable.                                           Temporary – attached to the person and last as long as the person.
1124 CCQ                              The usufructuary has the use and enjoyment of the property subject to usufruct;
                                      he takes the property in the condition in which he finds it…
1125 CCQ                              The usufructuary may require the bare owner to cease any act which prevents him
                                      from fully exercising his right. (2) The bare owner's alienation of his right does not
                                      affect the right of the usufructuary.


Simone LaRocque c. Beauchamps         B inherited the usufruct in a building, for which she paid $100/mo. SL loaned the bare     Held: B's usufruct is still valid. It was in place before the loan was granted,
                                      owners some $, then exercised her hypothecary right, and got a court order declaring       therefore none of those proceedings affect it, and there is no other reason
[CS 1975]
                                      her sole and unique owner, retroactive to the date of the loan. She‘s now trying to kick B that it should be denied. Usufruct is opposable.
                                      out.
Quasi-usufruct                        A usufruct bearing on a consumable.
1127 CCQ                              The usufructuary may dispose, as though he were its owner, of all the property              The obligation is then converted from a real obligation to a personal
                                      under his usufruct which cannot be used without being consumed, subject to the              obligation where you are required to pay for what you have depleted.
                                      obligation of returning similar property in the same quantity and of the same
                                      quality at the end of the usufruct. (2) Where the usufructuary is unable to return
                                      similar property he shall pay the value thereof in cash.
   ARTICLE, CASE, TERM                                            TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
1121 CCQ                          Usufruct is established by contract, by will or by law; it may also be established           How established.
                                  by judgment in the cases prescribed by law.
                                                                    BARE OWNER                                                                              USUFRUCTUARY
                                  Can sell/transfer his right (cannot transfer more than he has).                              Real right, subject to publication and registration.
                                  No personal obligation to the usufructuary even if deterioration occurs, he has no           Can sell/transfer his right (cannot transfer more than has)
Respective Rights of Bare Owner   obligation to fix it CCQ 1160. He has only a passive obligation, not to interfere with the   Can lease his right CCQ 1886 - protection.
        vs. Usufructuary          rights of the usufructuary.                                                                  Exempted from replacing any property that perishes due to superior force
                                                                                                                               (CCQ 1160).
                                                                                                                               Rights limited to fruits and revenues. 908, 910 CCQ distinguish b/n capital
                                                                                                                               and fruits & revenues.

1160 CCQ                          Neither the bare owner nor the usufructuary is under any obligation to replace
                                  anything that has fallen into decay. (2) A usufructuary exempted from insuring the
                                  property is under no obligation to replace or pay the value of any property that
                                  perishes by superior force.
New provisions under the CCQ
908 CCQ                           Property, according to its relation to other property, is divided into capital, and
                                  fruits and revenues.
910 CCQ                           Definition of capital, fruits & revenues.
1123 CCQ                          No usufruct may last longer than one hundred years even if the act granting it               Duration of usufruct.
                                  provides a longer term or creates a successive usufruct. (2) Usufruct granted
                                  without a term is granted for life or, if the usufructuary is a legal person, for thirty
                                  years.
Financial Issues
1130 CCQ                          Revenues are counted, between the usufructuary and the bare owner, day by day. How to count revenues.
                                  They belong to the usufructuary from the day his right begins to the day it
                                  terminates, regardless of when they are exigible or paid, except dividends, which
                                  belong to the usufructuary only if they are declared during the usufruct.


1131 CCQ                          Extraordinary income derived from ownership of the property subject to usufruct,             Extraordinary revenues.
                                  such as premiums granted upon the redemption of securities, are paid to the
                                  usufructuary, who is accountable for them to the bare owner at the end of the
                                  usufruct.
1132 CCQ                          If a debt subject to a usufruct becomes payable during the usufruct, the price is            Debt paid to usufruct.
                                  paid to the usufructuary, who gives an acquittance for it. (2) The usufructuary is
                                  accountable for the debt to the bare owner at the end of the usufruct.


1133 CCQ                          The right to increase the capital subject to the usufruct, such as the right to
                                  subscribe for securities, belongs to the bare owner, but the right of the
                                  usufructuary extends to the increase. (2) Where the bare owner elects to alienate
                                  his right, the proceeds of the alienation are remitted to the usufructuary, who is
                                  accountable for it at the end of the usufruct.


1137 CCQ                          Necessary disbursements made by the usufructuary are treated, in relation to the             Note that this seems contradictory because really he is a détenteur, not in
                                  bare owner, as those made by a possessor in good faith.                                      GF because he knows that his title is precarious.


Rules on Insurance
1148 CCQ                          The usufructuary is bound to insure the property against ordinary risks such as              Payment of insurance premiums.
                                  fire and theft and to pay the insurance premiums while the usufruct lasts. He is,
                                  however, exempt from that obligation where the insurance premium is too high in
                                  relation to the risks.
1149 CCQ                          In the case of a loss, the indemnity is paid to the usufructuary, who gives an               Use of premiums paid to usufructuary.
                                  acquittance therefor to the insurer. (2) The usufructuary is bound to use the
                                  indemnity for the repair of the property, except in the case of total loss, where he
                                  may have enjoyment of the indemnity.
1150 CCQ                          The usufructuary or the bare owner may take out insurance on his own account to
                                  secure his rights. (2) The indemnity belongs to the usufructuary or the bare
                                  owner, as the case may be.
    ARTICLE, CASE, TERM                                        TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
Rules on Termination
1162 CCQ                        Usufruct is extinguished                                                                   Termination of usufruct.
                                (1) by the expiry of the term;
                                (2) by the death of the usufructuary or the dissolution of the legal person;
                                (3) by the union of the qualities of usufructuary and bare owner in the same
                                person, subject to the rights of third persons;
                                (4) by the forfeiture or renunciation of the right or its conversion into an annuity;
                                (5) by non-user for ten years.



1169 CCQ                        A usufructuary may renounce his right, in whole or in part. (2) Where part only of         Renunciation of usufruct in whole or part.
                                the right is renounced and failing an agreement, the court fixes the new
                                obligations of the usufructuary, taking into account, in particular, the scope and
                                duration of the right, and the fruits and revenues derived therefrom.


1171 CCQ                        A usufructuary having serious difficulty in performing his obligations is entitled to Instead of having usufructuary, the NP takes back the usufructuary and is
                                require the bare owner or joint or successive usufructuary to convert his right to    bound to provide an annuity, i.e. alternative capital to provide the
                                an annuity. (2) Failing agreement, the court, if it confirms the right of the         usufructuary with income.
                                usufructuary, fixes the annuity, taking into account, in particular, the scope and
                                duration of the right and the fruits and revenues derived from it.


6.2.2 - Right of Use
1172 CCQ                        A right of use is the right to enjoy the property of another for a time and to take        Definition of right of use.
                                the fruits and revenues thereof, to the extent of the needs of the user and the
                                persons living with him or his dependants.
1173 CCQ                        The right of use may not be assigned or seized unless the agreement or the act             Assignment or seizure of right of use.
                                establishing the right of use provides otherwise…
1176 CCQ                        The provisions governing usufruct, adapted as required, are, in all other respects,
                                applicable to the right of use. (2) However, the rules relating to conversion of the
                                usufruct into an annuity do not apply to the right of use unless that right may be
                                assigned and seized.
Laroche v. Beauchamps [1975]    Def. received usufruct in will. Deceased's sons received bare ownership. One of bare       Held: Plaintiff's request denied. The loss of the immovable by the bare-
                                owner uses the house as security for a loan, and the sons demand the def make the          owners does not have the effect of dispossessing the df of her rights of
                                payments as part of the usufruct's upkeep. She refuses and plaintiff seeks sole            usufruct. She could only have been made to pay if the hypothec had been
                                ownership of the house.                                                                    created before the creation of the usufruct (otherwise, not a legitimate
                                                                                                                           upkeep cost of the usufruct). Rules: A usufructuary is protected in
                                                                                                                           transactions b/w bare owners and 3rd parties. You cannot set up a hypothec
                                                                                                                           to the detriment of the usufructuary.

Banque Nationale du Canada v.   G buys house from her mother for $1, agreeing to pay all costs and granting her right of   Held: Yes. Bank recognizes the opposability of the right of habitation, but
                                free habitation. G hypothecates the house, defaults, and the house is forced into sale.    claims everything else is a personal right.
Gravel [CS 1984]
                                The mother intervenes on the grounds of her right of habitation. Must the mother's
                                usufruct be respected?
6.2.3 - Real Servitudes
911 CCQ                         A person, alone or with others, may hold a right of ownership or other real right in "other real right" is never defined in the Code.
                                a property, or have possession of the property.
1119 CCQ                        Usufruct, use, servitude and emphyteusis are dismemberments of the right of
                                ownership and are real rights.
1177 CCQ                        A servitude is a charge imposed on an immovable, the servient land, in favour of       Definition of servitude. It is a charge between two immovables, not between
                                another immovable, the dominant land, belonging to a different owner. (2) Under        two persons or between persons and immovables.
                                the charge the owner of the servient land is required to tolerate certain acts of
                                use by the owner of the dominant land or himself abstain from exercising certain
                                rights inherent in ownership. (3) A servitude extends to all that is necessary for its
                                exercise.
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
1178 CCQ                                    An obligation to perform an act may be attached to a servitude and imposed on       Positive obligations may be attached to servitudes.
                                            the owner of the servient land. The obligation is an accessory to the servitude and
                                            can only be stipulated for the service or exploitation of the immovable.


Dorion v. Les Échésiasties du               Right of way was established in favor of dominant owner. In the agreement, servient         Held: Yes. There must be a principle servitude that meets the requirements
                                            owner was bound to maintain the roadway, a positive obligation! Is this obligation          for establishing a real right. Attached to this may be positive obligations for
Selenaire du Montreal [1880]
                                            enforceable?                                                                                the servicing of the servitude. (Now in 1178 CCQ.)

                                                                               REAL SERVITUDE                                                                     PERSONAL SERVITUDE
 Distinguishing characteristics of
                                            Real right established in favour of property.                                               Real right established in favour of a person.
      REAL SERVITUDES vs.
                                            Only done on immovable property.                                                            Done on immovable or movable property.
     PERSONAL SERVITUDES                    Could be perpetual, lasting as long as immovable.                                           Temporary – attached to the person and last as long as the person.
1179 CCQ                                    Servitudes are either continuous or discontinuous. (2) Continuous servitudes,        Discontinous servitudes require the actual intervention of the holder, or the
                                            such as servitudes of view or of no building, do not require the actual intervention right can be lost by prescription.
                                            of the holder. (3) Discontinuous servitudes, such as pedestrian or vehicular rights
                                            of way, require the actual intervention of the holder.


1180 CCQ                                    Servitudes are either apparent or unapparent. (2) A servitude is apparent if it is          Mostly irrelevant.
                                            manifested by an external sign; otherwise it is unapparent.


1185 CCQ                                    The owner of the servient land, charged by the title with making the necessary              Servient owner may abandon the land charged with the servitude to the
                                            works for the exercise and preservation of the servitude, may free himself of the           dominant owner.
                                            charge by abandoning the entire servient land or any part of it sufficient for the
                                            exercise of the servitude to the owner of the dominant land.


1185 CCQ                                    The owner of the servient land, charged by the title with making the necessary              Servient owner may abandon the land charged with the servitude to the
                                            works for the exercise and preservation of the servitude, may free himself of the           dominant owner.
                                            charge by abandoning the entire servient land or any part of it sufficient for the
                                            exercise of the servitude to the owner of the dominant land.


Real nature of the "charge" bearing on one immovable for the benefit of another immovable
Coulombe v. La Société              Can‘t modify by agreement the essence of servitudes (e.g. can‘t call a personal
Cooperative Agricole [1950] S.C.C. obligation a servitude)
313
Wasserman et al. c. Édifice 9500    Heating plant was sold with a servitude to provide heat by steam.                                   Held: This obligation is not a servitude. No real right here.
Inc. [SC Nov. 2002]
Cadieux v. Morin [1989] S.C         Cadieux and Morin enter into an agreement for right of first refusal which represents a               Held: This is a personal obligation (between people), not a servitude
                                            promise to offer the property to the other party before the other party decides to sell it to (between immovables). Can't bind successive owners to it.
                                            a 3rd party. They tried to secure successive owners by creating a servitude to secure
                                            the obligation.
Auger v. Grenier [1985], C.A                A purchaser of land sought to say it an agreement between previous owners was not a         Although perpetual, these obligations were not between immovables, but
                                            servitude because the clause in the agreement had restricted the use of vehicles, the       between people. Just because an obligation is perpetual does not mean
                                            presence of commercial, industrial or social organizations and the disposal of pollutants   that it is automatically considered a servitude. It is possible to create
                                            in the waters.                                                                              personal obligations that are perpetual: in K the parties bind themselves to
                                                                                                                                        include the charges in any subsequent sale.


Hamilton v. Wall [1879]                     Hamilton sold part of his land to Perrault and included a clause prohibiting him from       Held: Servitude. The condition will benefit the immovable and successive
                                            building beyond a 30‘ limit. Perrault subsequently sold the land to Wall, and Wall built    owners. If the charge is necessary to the enjoyment of the property of the
                                            beyond the limit. Hamilton is suing Wall saying that he had established a servitude with    obligee, or confers on it some substantial advantage sufficient to indicate
                                            Perrault. Servitude or personal obligation?                                                 that it was for the property and not for the person then it could be considered
                                                                                                                                        a servitude.
"Commercial" restrictions and obligations to "do"
Segal v. Ross [1962]               Steinberg‘s bought and resold huge plots of land around its stores.         The resold land          Held: Yes. This restraint of trade benefits the immovable (and not the
                                            came with a clause prohibiting the sale of good or development of parking lots for a        owner) because there will always be a high utility value for a grocery store
                                            grocery store. Steinberg‘s land was dominant and the resold land was servient. Valid        on this piece of land. Servitude is valid despite it not being neighboring.
                                            servitude?                                                                                  (Godin: BAD JUDGMENT)
    ARTICLE, CASE, TERM                                                    TEXT/SUMMARY                                                                                   COMMENTS
Zigayer v. Ruby Foo’s [1976]
1 - INTRODUCTION                          Ruby Foo‘s claims that they have a valid servitude which prevents the owner of the                Held: Yes. Non-competition clause upheld because it met the servitude
                                          servient neighboring land from using it to sell food. Valid servitude?                            requirements (mentioned dominant/servient lands, benefits immovable,
                                                                                                                                            passive obligations. (Godin: AWFUL JUDGMENT)
Standard Life Co. v. Centre               Standard Life looking for an order declaring that a non-competition clause in an                  Held: Not a servitude! Personal obligation! Judgment restores
                                          agreement between the Commercial Centre and 310555 Canada was not applicable.                     fundamental CIVLAW idea of the real nature of servitudes. Must benefit
Commerciale Victoriaville [1999]
                                          Servitude or personal obligation?                                                                 the land regardless of who occupied it, and regardless of what occupation or
                                                                                                                                            business is carried on, on the dominant land.
Leveillé v.Cooperation Funéraille         Property sold had a restriction that it could not be used as a funeral parlor. Was this a         Held: No. This is a personal obligation, and should not be opposable to
                                          valid servitude?                                                                                  successive owners. The benefit is only for commercial parties and not for
… [1998]
                                                                                                                                            the benefit of the property (no objective benefit).
Establishment: What is title?
1181 CCQ                                  A servitude is established by contract, by will, by destination of proprietor or by               How servitudes are established. Must have title!
                                          the effect of law. It may not be established without title, and possession, even                  *Cannot be established by prescription!
                                          immemorial, is insufficient for this purpose.


1182 CCQ                                  Servitudes are not affected by the transfer of ownership of the servient or                       Servitudes follow the immovable.
                                          dominant land. They remain attached to the immovables through changes of
                                          ownership, subject to the provisions relating to the publication of rights.


1183 CCQ                                  Servitude by destination of proprietor is evidenced in writing by the owner of the                When owner divides land, he must declare servitudes at time properties are
                                          land who, in contemplation of its future parcelling, immediately establishes the                  separated.
                                          nature, scope and situation of the servitude on one part of the land in favour of
                                          other parts.
Roberge v. Martin [1926]                  Roberge owned 2 plots of land b/n which he created a lane-way. The lane-way was                   Held: Yes. A servitude ―par destination du pere de famille" over the strip of
                                          included in the description of the property. Roberge subsequently sold one of the lots to         land had been created and the plan and book of reference were a sufficient
                                          Martin, without in express terms having granted a right-of-way over the lane to the               specification in writing of the nature, extent and the situation of the servitude.
                                          purchaser, and used the lane-way. Valid servitude?
Girard c. Ménard [CA QC 1995]             A third party partitioned his land and sold it off, and the appellant‘s purchase contract         Held: Valid servitude. Need not be fully described in the deed, can be
                                          had a clause which stipulated that they‘d be granted a right of passage through what              denoted in various ways, as long as the land in question is well described.
                                          was then his land. This was registered. A subsequent owner then closed the passage,               Not necessary to explicitly state perpetuity because the servitude is an
                                          claiming the act of sale did not create a real servitude.                                         accessory of ownership, which is inherently perpetual.
Standard Life Assurance c. Centre-        SL has a hypothec on CC‘s buildings since 1991. In 1996, CC consented to a servitude              Held: Not a valid servitude. Servitude benefits property, not people, and
                                          in favour of the neighbouring land of the Co-D, a servitude which prohibited the use of           cannot be used to satisfy a personal interest. No relation between the object
Commercial Victoriaville [SC 1999]
                                          the building for food sales. In 1997, SL became owner of CC‘s building, and is invoking           of the ‗servitude‘ and the utility of the land itself. It is therefore merely a
                                          the inopposability of the servitude on grounds of ‗fraude de ses droits‖.                         personal exclusivity clause, NOT opposable. THIS CASE SETTLES THIS
                                                                                                                                            ISSUE!
Société Rivières Distribution v.          Nullified a commercial non-concurrence clause on the ground that, as a personal                   Note this case and the next are FRENCH CASES and do not affect
                                          obligation claiming no temporal limit, and having aim to protect commercial activity,             Canadian law!
Mayoux [France, March 1987]
                                          cannot be opposable.
Brusquand v. Guiguet [France,             Upholds a commercial non-concurrence clause, provided that it‘s not contrary to public            In 1993 the Cour de Cassation upheld this ruling, holding that the
                                          order, and that though not temporally limited, is designated with respect to a specific           mechanism of real servitude can be used to restrain concurrence.
July 1987]
                                          place, and is opposable.
Cadieux v. Hinse [CS 1989]                Several adjoining properties, owners establish various ‗servitudes‘ to force preferences          Held: No. This is a personal and positive obligation, and should not be
                                          if the land is sold (i.e. first refusal options). 1 party leases the land for 99 yrs. Are these   opposable to successive owners.
                                          valid servitudes?
Caisse Populaire de Victoriaville c.      Judgment rendered on G, an injunction forcing her to stop dumping contaminants and                Held: Yes. It is a servitude administrative, or servitude au profit de la
                                          forcing her to clean up the mess. The injunction was registered. CP had a hypothec on             collectivite .
Gagné
                                          Gagné‘s property. And exercised its hypothec --> forced sale. Is this obligation a                Godin: Strange application of servitude. There's no dominant land, and
                                          servitude? Does it pass to the next owner?                                                        there are positive and onerous obligations on the owner.


Exercise and notion of "aggravation"
1177 CCQ                            …(3) A servitude extends to all that is necessary for its exercise.                                     Although the court will always look to the constituting act when applying
                                                                                                                                            servitudes, this wording in the CCQ broadens the potential application of
                                                                                                                                            servitudes.
    ARTICLE, CASE, TERM                                                   TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
1184 CCQ                                   The owner of the dominant land may, at his own expense, take the measures or
                                           make all the works necessary for the exercise and preservation of the servitude
                                           unless otherwise stipulated in the act establishing the servitude. (2) At the end of
                                           the servitude he shall, at the request of the owner of the servient land, restore the
                                           place to its former condition.


1186 CCQ                                   In no case may the owner of the dominant land make any change that would
                                           aggravate the situation of the servient land. (2) In no case may the owner of the
                                           servient land do anything that would tend to diminish the exercise of the
                                           servitude or to render it less convenient. However, he may, at his own expense,
                                           provided he has an interest in doing so, transfer the site of the servitude to
                                           another place where its exercise will be no less convenient to the owner of the
                                           dominant land.
D’allaire v. Companie Broton               The original servitude was used for farm animals. Then over the years---A right of way    The owner of the servitude was given damages.
                                           became used by big trucks transporting gravel, and the nice residential servitude was
Saguenay [1973] C.A. 862
                                           declared aggravated because of the way it was exercised. It became a much more
                                           onerous servitude. So at what point does this become intolerable?


Questions of procedure
Action confessoire                 Action taken by dominant owner to have a servitude affirmed by the court.
Action negatoire                   Action taken by servient owner to have a servitude denied by the court.
Extinction: confusion, redemption and non-user
1191 CCQ                           A servitude is extinguished                                                                       Extinction of servitudes.
                                           (1) by the union of the qualities of owner of the servient land and owner of the
                                           dominant land in the same person;
                                           (2) by the express renunciation of the owner of the dominant land;
                                           (3) by the expiry of the term for which it was established;
                                           (4) by redemption;
                                           (5) by non-user for ten years.
1189 CCQ                                   Except in the case of land enclosed by that of others, a servitude of right of way        Redemption is a new concept introduced by the CCQ.
                                           may be redeemed where its usefulness to the dominant land is out of proportion
                                           to the inconvenience or depreciation it entails for the servient land…


1190 CCQ                                   The parties may, in writing, exclude the possibility of redeeming a servitude for a       Postponement of redemption.
                                           period of not over thirty years.
1192 CCQ                                   In the case of discontinuous servitudes, prescription begins to run from the day          Non-user extinction of servitude.
                                           the owner of the dominant land ceases to exercise the servitude and in the case
                                           of continuous servitudes, from the day any act contrary to their exercise is done.


1193 CCQ                                   The mode of exercising a servitude may be prescribed just as the servitude itself,        e.g., dominant owner uses slightly different route through servient land.
                                           and in the same manner.                                                                   New route becomes part of servitude and servient owner reclaims unused
                                                                                                                                     land formerly part of servitude.
1194 CCQ                                   Prescription runs even where the dominant land or the servient land undergoes a           Dominant owner cannot use the excuse that, during the prescription period,
                                           change of such a kind as to render exercise of the servitude impossible.                  it was impossible for him to exercise the servitude.


695-696 CPC                                Purchasers take immovable as is, with all servitudes, even if not mentioned in the sale   Judicial sale of servitudes.
                                           agreement. Forced sale of land will not erase servitudes.
6.2.4 - Emphyteusis
1119 CCQ                                   Usufruct, use, servitude and emphyteusis are dismemberments of the right of               Emphyteusis is a dismemberment of the right of ownership.
                                           ownership and are real rights.                                                            (Under CCLC, it was considered a temporary conveyance of ownership.)


Cohen v. Minister of National              Cohen signed an emphyteutic lease with TSB Co. who promised to build a $500,000            Held: Owner. Their real rights are complete. The lease is not emphyteusis
                                           building. It contained a number of unusual clauses for such a lease, including (a) default rather it is superficie.
Revenue [1968 Ex Ct]
                                           of lease --> lessor becomes owner (b) at end of term, lessor entitled to purchase
                                           building. Issue: For tax purposes, is emphyteutic lessee an owner or a lessee?
   ARTICLE, CASE, TERM                                             TEXT/SUMMARY                                                                               COMMENTS
1 - INTRODUCTION Canada c.
Procurer Général du                 Canada leased land to a 3rd party for 40 yrs. MIS signed a contract with the contractor     Held: Lease is emphyteutic. The effect of non-registration is simply non-
                                    hired by the lessee to build a hangar that was stipulated in the emphyteutic lease. MIS     opposability, there is no change in the character of the right transferred. The
Constuction MIS Inc. [CS QC 1989]
                                    instituted a privilege after not being paid. Canada is demanding that it be cancelled       possibility of resiliation does not preclude emphyteusis because Art 567
                                    because the lease is not emphyteutic because (a) it is not registered as such (b)           CCLC permits other charges and restrictions to be added. Rules: (1)
                                    contains restrictions contrary to Art 569 CCLC (c) some clauses foresee resiliation prior   Leaser may make restrictions with the aim of protecting her interests without
                                    to end of term.                                                                             precluding the existence of emphyteusis. (2) Non-registration does not
                                                                                                                                change the character of a real right, but merely renders it inopposable.


Weissbourd c. Prot School Board     W et al had an arrangement with complex layered leases that was called and                  Held: Leases not emphyteutic. In the meantime, the NA amended the
                                    emphyteutic lease, and they wish to make a claim on that ground.                            CCLC retroactively to apply even to the pending case.
[1984 CA]
Emphyteusis under the CCQ
1195 CCQ                            Emphyteusis is the right which, for a certain time, grants a person the full benefit Definition of emphyteusis, and note on establishment.
                                    and enjoyment of an immovable owned by another provided he does not
                                    endanger its existence and undertakes to make constructions, works or
                                    plantations thereon that durably increase its value. (2) Emphyteusis is established
                                    by contract or by will.
1199 CCQ                            The creditor of the emphyteutic lessee may cause the latter's rights to be seized           Illustrates emphyteusis as dismemberment.
                                    and sold, subject to the rights of the owner of the immovable. (2)The creditor of
                                    the owner may also cause the latter's rights to be seized and sold, subject to the
                                    rights of the emphyteutic lessee.


1200 CCQ                            The emphyteutic lessee has all the rights in the immovable that are attached to             Defines rights of emphyteutic lessee.
                                    the quality of owner, subject to the restrictions contained in this chapter and in
                                    the act constituting emphyteusis. (2) The constituting act may limit the exercise
                                    of the rights of the parties...


1204 CCQ                            A lessee who endangers immovable may be declared forfeited of his rights.
1205 CCQ                            The emphyteutic lessee is liable for all real property charges affecting the
                                    immovable.
1206 CCQ                            The owner has the same obligations towards the emphyteutic lessee as a vendor.              e.g. warranty under sale of goods law.

1208 CCQ                            Emphyteusis is terminated                                                                   Termination of emphyteusis.
                                    (1) by the expiry of the term stipulated in the constituting act;
                                    (2) by the total loss or expropriation of the immovable;                                    Note: Unclear what "non-user" means here. What constitutes use?
                                    (3) by the resiliation of the constituting act;
                                    (4) by the union of the qualities of owner and emphyteutic lessee in the same
                                    person;
                                    (5) by non-user for ten years;
                                    (6) by abandonment.
1209 CCQ                            Upon termination of the emphyteusis, the owner resumes the immovable free of                Purpose of this is to prevent conspiratory defraud of creditors.
                                    all the rights and charges granted by the emphyteutic lessee, unless the
                                    termination of the emphyteusis results from resiliation by agreement or from the
                                    union of the qualities of owner and emphyteutic lessee in the same person.


1210 CCQ                            Upon termination of the emphyteusis, the emphyteutic lessee shall return the                Godin: Not good. Emphyteutic lessee should not be treated like possessor
                                    immovable in a good state of repair with the constructions, works or plantations            in good faith. He knows he is not the owner.
                                    stipulated in the constituting act, unless they have perished by superior force. (2)
                                    Any additions made to the immovable by the emphyteutic lessee which he is
                                    under no obligation to make are treated as disbursements made by a possessor
                                    in good faith.
Sun Life Assurance Co. of Canada    13 ceded its property in emphyteusis, and the lessees built something with a loan from      Held: Yes. The act, here, allows hypothecation, without prejudice to the
                                    SL. SL seized the property and 13 is claiming payment of the emphyteutic rent. Issue:       lessor‘s interests. SL became owner, no longer creditor, obtaining the rights
c. 137598 Can Inc. [2002 CA QC]
                                    Does SL take over the obligations of the emphyteutic lessee?                                and obligations of the debtor, including the obligations to the
                                                                                                                                lessor—especially since the act of taking in payment recognized the
                                                                                                                                emphyteutic lease. Rule: The obligations of the lessee are transferred
                                                                                                                                when her real rights qua emphyteutic lessee are transferred.

Compatibility of emphyteusis and divided co-ownership
    ARTICLE, CASE, TERM                                                      TEXT/SUMMARY                                                                              COMMENTS
1 - INTRODUCTION
Roy c. Société immobilière du                Court held that emphyteusis and divided co-ownership are incompatible. Emphyteutic         Note: Legislature passed law legalizing condos on emphyteutic land. The
                                             lessees cannot create condos on their land.                                                syndicate gets first option on sale of the interest by the emphyteutic lessor.
Cour Le Royer [1987] R.J.Q. 1539
                                                                                                                                        Godin: Not a desirable combination. At end of term, all units revert to land
                                                                                                                                        owner!


1040 CCQ                                     Creates minimum emphyteutic term of 50 years for condos to be built on emphyteutic
                                             land.
1082 CCQ                                     The syndicate, within six months of being notified by the owner of an immovable
                                             under emphyteusis or superficies that he intends to transfer by onerous title his
                                             rights in the immovable, may acquire such rights in preference to any other
                                             potential acquirer during that period...
6.3 - Is there a Numerous Clausus of real rights?
Duchaine v. The Matamajaw           J sold property on a non-navigable river to B. B sold fishing rights to S. S sold fishing           Held, SCC: Certain aspects of the right of ownership can be dismembered.
Fishing Club [BR 1917] *see notes rights to R Salmon Club. B went bankrupt. RSC sold fishing rights to MFC. Bank sold                   The fishing rights are of the nature of a usufruct. Being a usufruct, it is a
                                    property to widow, who sold to D. D is disputing the right of MFC to fish. Issue: What              personal right and is not perpetual. It can be validly transferred, but ends
for full summary                    is the nature of the fishing rights?                                                                with the death of S (the original contractor).
                                                                                                                                        JCPC: It is a "perpetual usufruct" (invented term), and does not become
                                                                                                                                        extinguished with the death of the original contractor. This ruling has been
                                                                                                                                        followed with regard to fishing rights. But other cases have classified
                                                                                                                                        hunting rights as personal rights.

O’Brien v. Ross [1984 CA]                    Clause in agreement is ambiguous as to whether hunting rights granted to vendor of         Held: Because the rights are not in favor of a dominant immovable, they are
                                             land were personal rights or a servitude.                                                  not a servitude. They are personal rights.
911 CCQ                                      Refers to real rights, but does not define them or list them exhaustively.
1119 CCQ                                     Usufruct, use, servitude and emphyteusis are dismemberments of the right of                No implication that this list is exhaustive.
                                             ownership and are real rights.
2938 CCQ                                     The acquisition, creation, recognition, modification, transmission or extinction of        Real rights are not limited. Can be created by legislature (e.g. mining rights
                                             an immovable real right requires publication. (2) Renunciation of a succession,            in Mining Act), or specified in agreements as specific dismemberments of
                                             legacy, community of property, partition of the value of acquests or of the family         ownership.
                                             patrimony, and the judgment annulling renunciation, also require publication. (3)
                                             Other personal rights and movable real rights require publication to the extent
                                             prescribed or expressly authorized by law. Modification or extinction of a
                                             published right shall also be published.


PG du QC c. Club Appalaches                  QC expropriated some land on which CA had been granted hunting and fishing rights          Held: Yes. Taking account of the terms used in the act of sale that created
                                             and the necessary access rights. Did CA retain hunting and fishing rights after            them, they are clearly real rights and were intended as a dismemberment of
[1999 CA]
                                             acquisition by QC?                                                                         their right of ownership. Subsequent conduct affirms this.


Duchense v. Duchense [CS 2000]               When a pleasure ranch went into liquidation and sold itself off, it became unclear         Held: They are innominate real rights, and are perpetual. Doctrine
                                             whether the fishing rights and concomitant access rights acquired by Dc were personal      (including CC) endorses treating fishing rights as non-enumerated real
                                             servitudes or real rights.                                                                 rights, depending on the intentions expressed in the terms of the contract.


Lacroix c. Blackburn [CA 1999]               A SC judgment declared that B‘s right to log was a personal servitude opposable to 3rd     Held: Logging rights are indeed opposable personal servitude. Although a
                                             parties.                                                                                   personal right, the text used could not signify that the right would lapse if the
                                                                                                                                        land passed to a 3rd party. Since it was published before the 3rd party
                                                                                                                                        acquired the land, it‘s opposable. i.e. it was a personal right by its subject,
                                                                                                                                        but real by its object.
Real obligation                              Distinct from servitude, the real obligation is one to which a person is bound only by
                                             reason of her quality as titulary of a real right, in particular the right or ownership.


7 - RESTRICTIONS ON THE FREE DISPOSITION OF PROPERTY
7.1 - Fiduciary substitutions
1218 CCQ                       Substitution exists where a person receives property by a liberality with the                            Godin: Substitutions not really useful any more. Trusts are a much better
                                             obligation of delivering it over to a third person after a certain period. (2)             tool.
                                             Substitution is established by gift or by will; it shall be evidenced in writing and
                                             published in the registry office.
    ARTICLE, CASE, TERM                                                     TEXT/SUMMARY                                                                                  COMMENTS
1 - INTRODUCTION
1223 CCQ                                   Before the opening of a substitution, the institute is the owner of the substituted              Formation of separate sub-patrimony in patrimony of the institute.
                                           property, which forms, within his personal patrimony, a separate patrimony
                                           intended for the substitute.
1229 CCQ                                   An institute may alienate the substituted property by onerous title or lease it. He              Institute may sell property and when substitution opens, transfer value to the
                                           may also charge it with a hypothec if that is required for its upkeep and                        substitute.
                                           conservation or to make an investment in the name of the substitution. (2) The
                                           rights of the acquirer, creditor or lessee are unaffected by the rights of the
                                           substitute at the opening of the substitution.


7.2 - Stipulations of inalienability
1212 CCQ                                   No restriction on the exercise of the right to dispose of property may be              Such stipulations attach to the property.
                                           stipulated, except by gift or will. (2) A stipulation of inalienability is made in
                                           writing at the time of transfer of ownership of the property or a dismembered right
                                           of ownership in it to a person or to a trust. (3) The stipulation of inalienability is
                                           valid only if it is temporary and justified by a serious and legitimate interest.
                                           Nevertheless, it may be valid for the duration of a substitution or trust.



8 - PATRIMONY BY APPROPRIATION - TRUSTS
8.1 - The concept of "Trusts" under the CCLC
La Liberte c. Larue [1931]           A corporate trust for the purpose of investment was set up.          Under CCLC, trust could be Held: Not a valid trust under QC law. Trustee was just an "agent", and
                                           created by gift or will, but not in a commercial context. "Trustee" had managed assets    could be liable for mismanaging assets.
                                           in such a way that the value plummeted. Was he liable?


Curran v. Davis [SCC 1933]                 A trust created by a trust deed under Art 981a CCLC is perfect and complete after it has been accepted by the trustee; acceptance by the beneficiary is not necessary
                                           to make the stipulation in his favour effective and irrevocable, unlike cases of donation. From that moment, trustees are invested with all rights and powers possible
                                           on the property except the title of ownership itself. The property leaves the settlor‘s patrimony absolutely. He is no longer master of them, from that moment it is
                                           subject to the appropriation to which he put it.
Crown Trust v. Higher [SCC 1977]           Developers had created a real estate investment trust. Investors sought damages from             Trusts are NOT allowed in commercial contexts in QC law—Art 981a applies
                                           appellant.                                                                                       only to testamentary and inter vivos gifts. The appellant cannot relieve
                                                                                                                                            himself because he was acting under an innominate contractual obligation
                                                                                                                                            and not as trustee.
Royal Trust Co. v. Tucker [SCC             In the context of determining whether a trust for a grantor‘s sisters and some unborn            Held: Beetz: The trustee is the owner.
                                           descendants is valid, it fell to Beetz to try to define the ownership of the trust properties.   (Poorly received in legal community. Theoretically unsound ruling.)
1982]

8.2 - New concept introduced by the CCQ: Patrimoine d'affectation
1256-1298 CCQ                       CCQ articles on Trust, Patrimony by Appropriation
1260 CCQ                            A trust results from an act whereby a person, the settlor, transfers property from      Definition, establishment of trust.
                                           his patrimony to another patrimony constituted by him which he appropriates to a CCQ had to be amended in several places to allow for the concept of a
                                           particular purpose and which a trustee undertakes, by his acceptance, to hold    patrimony "appropriated to a purpose".
                                           and administer.
1261 CCQ                                   The trust patrimony, consisting of the property transferred in trust, constitutes a
                                           patrimony by appropriation, autonomous and distinct from that of the settlor,
                                           trustee or beneficiary and in which none of them has any real right.


1265 CCQ                                   Acceptance of the trust divests the settlor of the property, charges the trustee
                                           with seeing to the appropriation of the property and the administration of the trust
                                           patrimony and is sufficient to establish the right of the beneficiary with certainty.


Three types of trusts under CCQ - Personal, Private, Social
1267 CCQ                            A personal trust is constituted gratuitously for the purpose of securing a benefit                      Personal trust.
                                           for a determinate or determinable person.
1268 CCQ                                   A private trust is a trust created for the object of erecting, maintaining or                    Private (commercial) trust.
                                           preserving a thing or of using a property appropriated to a specific use, whether
                                           for the indirect benefit of a person or in his memory, or for some other private
                                           purpose.
   ARTICLE, CASE, TERM                                 TEXT/SUMMARY                                                                             COMMENTS
1 - INTRODUCTION
1270 CCQ                 A social trust is a trust constituted for a purpose of general interest, such as a       Social trust (e.g. trust for cancer research).
                         cultural, educational, philanthropic, religious or scientific purpose. (2) It does not
                         have the making of profit or the operation of an enterprise as its main object.


1274 CCQ                 Any natural person having the full exercise of his civil rights, and any legal person Who can be a trustee.
                         authorized by law, may act as a trustee.
1275 CCQ                 The settlor or the beneficiary may be a trustee but he shall act jointly with a       Settlor alone cannot be trustee.
                         trustee who is neither the settlor nor a beneficiary.
1278 CCQ                 A trustee has the control and the exclusive administration of the trust patrimony, Rights and duties of trustee.
                         and the titles relating to the property of which it is composed are drawn up in his
                         name; he has the exercise of all the rights pertaining to the patrimony and may
                         take any proper measure to secure its appropriation. (2) A trustee acts as the
                         administrator of the property of others charged with full administration.


1298 CCQ                 The property of a social trust that terminates by the impossibility of its fulfilment    Social trust, once purpose is fulfilled, can be directed to a new, similar
                         devolves to a trust, to a legal person or to any other group of persons devoted to       purpose.
                         a purpose as nearly like that of the trust as possible, designated by the court on
                         the recommendation of the trustee...


1263 CCQ                 An onerous trust may be established to secure an obligation.                             Established to prevent using trust to get around hypothecary recourse, but
                                                                                                                  seems to do the opposite because the property necessarily leaves the
                                                                                                                  settlor‘s patrimony, so it cannot properly operate as security.
1306 CCQ                 A person charged with full administration shall preserve the property and make it
                         productive, increase the patrimony or appropriate it to a purpose, where the
                         interest of the beneficiary or the pursuit of the purpose of the trust requires it.


1307 CCQ                 An administrator may, to perform his obligations, alienate the property by
                         onerous title, charge it with a real right or change its destination and perform any
                         other necessary or useful act, including any form of investment.


1297 CCQ                 At the termination of a trust, the trustee shall deliver the property to those who       Termination of trust.
                         are entitled to it. (2) Where there is no beneficiary, any property remaining when
                         the trust is terminated devolves to the settlor or his heirs.
French          English          Definition
                                 The habeas corpus of land: way for immovable real-rights-holder to have
action petitoire petitory action
                                 that right recognized. Need not be preceded by bornage.
action          possessory      Action taken by continuous possessor (>1y) against disturbers of
possessoire     action          possession, dispossessors.
CCQ Cases
912,
953
     Sivret v
 929 Giroux
     (1997)
                          old                                            new
owner                     domaine éminent                                nu-propriétaire
carved out                potentially permanent servitudes               temporary servitudes
temporary?                permanent until droit de retrait exercised     necessarily temporary

rights (proprio)          cens
                          droit de retrait
                          droit de banalité


free and common soccage   rent only is due
franc aleu roturier


                          pre-1854                                       post-1854
domaine éminent           State                                          (extinguished)
domaine direct            seigneur                                       creditor
domaine utile             concessionnaires (or censitaires)              debtor

2 pays 3                  dues & services                                money & rent



Franc aleu rotier:        situated in seigneurie, subject to annual constitutive rent until redeemed
franc & commun socage     situated in township, subject to letters patent but not rent (and to mining rights post-1880)
             post-1935
             (extinguished)
             municipality
             taxpayer

             pay-off to creditors; taxes



until redeemed
(and to mining rights post-1880)

				
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