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RULE OF LAW_ SEPARATION OF POWERS_ JUDICIAL INDEPENDENCE

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RULE OF LAW_ SEPARATION OF POWERS_ JUDICIAL INDEPENDENCE Powered By Docstoc
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Civil Law Property, Fall/Winter 2010-2011, Prof Veronique Belanger
With some content from Michael Shortt’s summary, and other anonymous PubDocs summaries.

PERSONS, THINGS, AND PROPERTY ................................................................................................................. 4
  Persons ....................................................................................................................................................... 4
     Physical Person ..................................................................................................................................... 4
     Legal Person ......................................................................................................................................... 4
  Property ..................................................................................................................................................... 4
PATRIMONY .................................................................................................................................................... 5
     Common Pledge .................................................................................................................................... 5
  Legal Persons ............................................................................................................................................. 5
  Patrimonies by Appropriation .................................................................................................................... 5
         Ville de Quebec v Cie d’immeubles Allard ltée. .............................................................................. 5
         Roy v Carrier s.e.n.c. ........................................................................................................................ 6
  Extrapatrimonial Rights ............................................................................................................................. 6
         Laprairie Shopping Centre Ltd. (Syndic de) v Pearl ........................................................................ 6
         Société Québécoise d’Initiatives Agro-Alimentaires v Libman ....................................................... 7
         Torrito v Fondation Lise T. .............................................................................................................. 7
         Laoun v Malo ................................................................................................................................... 7
CLASSIFICATION OF RIGHTS ............................................................................................................................ 8
  Real Right .................................................................................................................................................. 8
         Ouimet c Guilbault ........................................................................................................................... 8
  Personal Right............................................................................................................................................ 9
  Intellectual Rights ...................................................................................................................................... 9
     Droit d’Auteur/Copyright ..................................................................................................................... 9
         Tri-Tex c Gideonchem ....................................................................................................................11
         Diffusion YFB Inc c Disques Gamma ............................................................................................11
     Patent ...................................................................................................................................................12
     Trademark ............................................................................................................................................12
  Publication of Rights ............................. Error! Bookmark not defined.Error! Bookmark not defined.
CLASSIFICATION OF PROPERTY ......................................................................................................................12
  Immovables ..............................................................................................................................................12
         Bélair c Ste-Rose (ville de) .............................................................................................................14
         Nadeau c Rousseau .........................................................................................................................14
         Horne Elevator Ltd c Domaine d’Iberville Ltee ..............................................................................15
         Cablevision (Montreal) v Deputy Minister of Revenue (QC) .........................................................15
         Construtek GB c Laforge ................................................................................................................16
         Axor Construction c 3009-220 Quebec Inc .....................................................................................16
         Ville de Montreal c 2313-1326 Quebec Inc (Rock Sanna Café Bistro) ..........................................17
  Movables ..................................................................................................................................................17
  Other Distinctions .....................................................................................................................................17
     Water....................................................................................................................................................18
         Morin c Morin .................................................................................................................................18
         Larouche v Quebec (PG) .................................................................................................................19
         Quebec (PG) v Auger ......................................................................................................................19
PROPERTY IN RELATION WITH PERSONS.........................................................................................................20
  Private and Public Domain .......................................................................................................................20
         Quebec (PG) c Houde .....................................................................................................................20
         Construction DRM c Båtiments Kalad’Art .....................................................................................20
OWNERSHIP ....................................................................................................................................................21
  Limitations on the Exercise of Ownership ................................................................................................22
         Drysdale v Dugas ............................................................................................................................23
         Katz c Reitz .....................................................................................................................................23
         Lessard c Bernard ............................................................................................................................24
         Gestion Serge Lafrenière c Calvé ...................................................................................................24
                                                                                                                                                             2
         Goudreau c Lettelier de St Just .......................................................................................................24
         Ciment du St-Laurent c Barrette .....................................................................................................25
         Sula c Cité Duvernay ......................................................................................................................26
         Sutton (Ville de) c 9034-822 Quebec .............................................................................................26
   Acquisition of Ownership .........................................................................................................................26
      Possession & Prescription ....................................................................................................................27
         Bolduc c Fortier...............................................................................................................................28
         Boivin c Quebec ..............................................................................................................................29
         Malette c Sureté de Quebec .............................................................................................................29
      Occupation & Accession ......................................................................................................................30
         Tremblay c Boivin...........................................................................................................................30
         Location Fortier c Pacheco ..............................................................................................................30
   Publication of Rights ................................................................................................................................31
         Tremblay c Martel ...........................................................................................................................31
         9164-2298 Quebec c Église episcopale St James de Hull ...............................................................31
MODALITIES OF OWNERSHIP ..........................................................................................................................31
   Co-Ownership ...........................................................................................................................................31
      Undivided.............................................................................................................................................31
         RCR de la STCUM c. Bandera Investment Company ....................................................................32
         Harel c. 2760-1699 Quebec .............................................................................................................33
         Robin c. Nicole................................................................................................................................33
      Forced Indivision (Permanent Co-Ownership) ....................................................................................33
         Zambito-Orazio c. Meneghini .........................................................................................................34
         Groleau c. Société Immobilière du Patrimoine Architectural de Montréal .....................................34
      Divided (Condominium) ......................................................................................................................34
         Talbot c. Guay .................................................................................................................................35
         Amselem c. Syndicat Northcrest .....................................................................................................35
         Bergeron c. Martin ..........................................................................................................................36
         Kilzi c. Syndicat des copropriétaires ...............................................................................................36
         Wilson c. Syndicat des copropriétaires de condominum Le Champlain .........................................37
   Superficies ................................................................................................................................................37
         Morin c. Grégoire ............................................................................................................................37
         Stone-Consolidated c. Pierre Desjardins Gestion ............................................................................38
         Québec (P.G.) c. Développements de Demain ................................................................................38
         Lafontaine c. Gravel ........................................................................................................................39
DISMEMBERMENTS OF OWNERSHIP ................................................................................................................39
   Usufruct & Use .........................................................................................................................................39
         Larocque c. Beauchamps.................................................................................................................40
         Banque Nationale du Canada c. Gravel ...........................................................................................41
   Servitudes & Real Obligations .................................................................................................................41
         Whitworth c. Martin ........................................................................................................................43
         Cadieux c. Hinse, Morin .................................................................................................................44
         Zigayer v. Ruby Foo’s (Montreal) Ltd ............................................................................................44
         Standard Life Assurance Co. c. Centre commercial Victoriaville ltée ............................................45
         Hamilton v. Wall .............................................................................................................................45
         Pelletier c. Bui .................................................................................................................................45
         Davidson c. Rosaire Nadeau & Fils ................................................................................................46
   Emphyteusis..............................................................................................................................................47
         Sun Life Assurance Co. Of Canada c. 137578 Canada ...................................................................47
NUMERUS CLAUSUS .......................................................................................................................................47
         Duchaine c. Matamajaw Salmon Club Limited, Court of Appeal ...................................................48
         Duchaine c. Matamajaw Salmon Club Limited, Supreme Court of Canada ...................................48
         Duchaine c. Matamajaw Salmon Club Limited, Privy Council ......................................................49
         Quebec (P.G.) c. Club Appalache ...................................................................................................49
ABORIGINAL TITLE ........................................................................................................................................49
3
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PERSONS, THINGS, AND PROPERTY
Persons
Physical Person
   “Every human person possesses juridical personality and has the full enjoyment of civil rights” (art 1)
   “Every human being has a right to life, and to personal security, inviolability and freedom. He also
    possesses juridical personality” (Quebec Charter, s 1)
    o Juridical personality begins at birth (Tremblay c Daigle, [1989] 2 RSC 230)
    o A foetus is only treated as a person where necessary to protect rights after birth (ex. Succession,
        art 617)
Legal Person
   Endowed with juridical personality (art 298)
   Have full enjoyment of civil rights (art 301)
   Constituted “in accordance with the juridical forms provided by the law, and sometimes directly by
    law” (art 299)
   Examples
    o Corporations

Property
   Office de revision du Code civil suggested this definition (rejected by National Assembly): “All the
    personal and real rights which belong to a person constitute his property.”
   Things and the Rights associated with their use (chose vs bien)
   A thing is a material object (Prv Law Dic)
    o Not all things – some reserved for common use (art 913)
    o “Water and air not intended for public use may be appropriated if collected and placed in
         receptacles” (art 913 para 2)

“La notion des biens”, Madeline Cantin Cumyn & Michelle Cumyn  CB 30
   Two definitions of “bien”
    o Material thing subject to appropriation
    o Ensemble of patrimonial rights – only juridical sense
   Real rights are patrimonial rights, along with, and opposed to, personal rights (“aussi dits droits de
    créance” at 31), and intellectual rights
   Roman law
    o Res is a material thing, but later develops res corporales (material things), and res incorporales
         (rights)
    o Property is res corporales  it is subject to dominium
    o Res incoporales includes rights held on other people’s things (jus in re aliena) – servitudes, etc.
   Medieval law
    o Based on land, so allows for multiple uses of land, “notamment sous la forme de domains et
         tenures don’t aucun n’accorde à son titulatire un droit exclusif” (at CB 33)
    o Difference between durable things that can be passed on to maintain a family (heritages), and
         goods that are perishable or apt to be sold (chatels) – superimposed on these categories are the
         Roman categories of immoveables and moveables.
   CCLC – property is “le droit de jouir et disposer des choses” (art 406)
   CCQ – “Les droits de créance et les droits intellectuels sont meubles part détermination de la loi: en
    effet, le critère de mobilité ou fixité ne leur est pas applicable.” (at CB 37).
   CCQ uses “bien” in 3 ways
    o Synonym for patrimonial rights
    o “droits réels dits principaux”
    o “l’objet du droit de propriété our d’un de ses démembrements” (at CB 38).
                                                                                                        5


PATRIMONY
   “Universality of rights and obligations and obligations having a pecuniary value in which rights answer
    for obligations” (Prv Law Dic)
   Real rights, personal rights, intellectual rights (see below)
   Cannot be transferred between living persons (inter vivos), only after death to heirs
Common Pledge
Gage commun
 “The property of a debtor is charged with the performance of obligations and is the common pledge of
   his creditors” (art 2644)
 “Any person under a personal obligation charges, for its performance, all his property, moveable or
   immoveable, except property which is exempt from seizure or property which is the object of a
   division of patrimony permitted by law” (art 2645)

Legal Persons
Personne morale
 Corporations
 Titulary of its own patrimony, distinct from those of its shareholders
 Have a patrimony, which may be divided or appropriated (art 302)
 Also have extra-patrimonial rights (art 302, also below at Pearl, SOQUIA)
 Regulated by statute
    o Loi sur les companies, RSQ c C-38; Canada Business Corporations Act, RSC 1985, c C-44.

Patrimonies by Appropriation
Patrimoine d’affectation
 Objectivist theory of patrimony
    o Responds to criticisms of the subjectivist theory
         Impossibility to divide patrimony in subjectivist theory (despite that it must, and did, happen,
            ex. separation of patrimony between deceased and heir, art 780; hypothecs, art 2260; family
            patrimony, art 414-5)
         Leads to creation of multiple fictional corporations, so one person can do business in multiple
            areas without being held personally liable (Ghestin & Goubeaux, at CB 49-51)
         Prevented institutions like trust, foundation
    o Creates a patrimony where the titulary is the purpose, not the person
 Trust (fiducie)
    o Patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or
        beneficiary, in which none has a real right (art 1261)
         Settlor (constituant) – person who puts the property in the patrimony by appropriation
            (constituted by him, appropriated to a purpose)
         Trustee (fiduciaire) – accepts to administer the property
         Beneficiary (bénéficiare) – person for whom the trust is meant to benefit
 Foundation
 Partnership (société)
    o Created by a private agreement, in which partners work toward common benefit (art 2186)
    o No legal personality (only for humans and legal persons, art 915, see Allard below)
    o Partners are co-owners of all the partnership’s goods (share in partnership = part sociale)(see Roy
        below)
    o Partnership’s assets must be discussed before the partners’ patrimonies can be discussed in any
        claim against the partnership (art 2221, also Roy below)


Ville de Quebec v Cie d’immeubles Allard ltée.
[1996] R.J.Q. 1566  CB 52
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Facts
 Two of four partners in the partnership sell their shares in the partnership to the other two partners.
     They also sell their parts in a building owned by the partnership.
 The city tries to claim taxes on the sale of the immovable
Reasons
 Trial judge found it was not a sale, but a transfer within the partnership
 Historical analysis shows that the case could go either way
 Jurisprudence in Quebec has shown a tendency to assign partnerships a form of co-property (largely
     dependent on archaic French precedent – probably obiter)
 CCQ says legal personality only belongs to humans and corporations (CCQ 915) – meant to be
     interpreted as an exhaustive list
 Partnerships do things like sign cheques, etc, which resembles personality, but probably just a
     shorthand for all the partners signing
 The transfer was between one partner and another, therefore the transfer of a real right in an
     immoveable
Holding
For the City. Partnership is not a legal person and has no patrimony, therefore cannot own property.


Roy v Carrier s.e.n.c.
2006 QCCS 2663  CB 76
Facts
 Motion within a larger case, in which R (fired lawyer) wants to sue C (a partnership, R’s former
    employer) and simultaneously sue each of the partners individually
 C brings the motion, arguing that art 2221 CCQ implies R must first obtain judgement against the
    partnership, before suing the partners; he can’t sue them simultaneously
Reasons (Guthrie J)
 Partnership has no legal personality, so cannot own property
 But, property can be given to the partnership
 Partnership’s property is like a patrimony by appropriation, owned by the partners but separate from
    their personal patrimonies, in which they still enjoy real rights (real rights not normal for patrimony by
    appropriation)
 Must use up partnership’s assets before getting into the partners’ personal assets
Holding
For C. Must use up partnership’s assets before getting into the partners’ personal assets. Does not
establish that partnerships have patrimonies, but uses it as a conceptual framework.

Extrapatrimonial Rights
   Rights that are outside the patrimony, generally do not have pecuniary value (see exceptions below, ex.
    Malo)
    o Public and political rights – Charter
    o “Every person is the holder of personality rights, such as the right to life, the right to the
        inviolability and integrity of his person, and the right to respect of his name, reputation, and
        privacy.
        These rights are inalienable.” (art 3)
    o Rights under family law (ex. Right to alimentary support, art 585)
    o Other rights (ex. Attorney-client privilege)
   Legal persons can hold some extrapatrimonial rights (not right to life)
    o “every legal person […] has the extrapatrimonial rights and obligations flowing from its nature”
        (art 302, also SOQUIA below)


Laprairie Shopping Centre Ltd. (Syndic de) v Pearl
[1998] R.J.Q. 448 (C.A.)  CB 96
Facts
                                                                                                              7
 Shopping Centre went bankrupt, L (the union) was the trustee in bankruptcy
 L wants information from P (Centre’s lawyer), P claims info protected under privilege
 L claims, as the trustee, it inherited Shopping Centre’s legal personality, so it can waive the privilege
Reasons
 Privilege is an extrapatrimonial right
 Extrapatrimonial rights do not transfer to the trustee in bankruptcy
 Only the bankrupt party can waive its extrapatrimonial rights
Holding
For P, extrapatrimonial rights can only be transferred with the consent of the owner.


Société Québécoise d’Initiatives Agro-Alimentaires v Libman
[1998] C.A.I. 463 (C.Q.)  CB 101
Facts
 SOQUIA is a public company that had holdings in a bankrupt private company Socomer
 L, a MNA, wants SOQUIA to publicize Socomer’s records
 SOQUIA claims Socomer’s extrapatrimonial right to privacy prevents it from publicizing them
 Socomer ceased doing business, but the legal person was not dissolved
Issue
 Does a legal person have the extrapatrimonial right to privacy?
 At what point does that right cease to exist?
Reasons
 Legal persons have extrapatrimonial rights (arts 300, 301, 302 CCQ; CB 103)
 Legal persons have a right to privacy (art 5 Qc Charter)
 Financial statements are protected under the right to privacy (art 302, 35-36)
Holding
For S. Legal persons have a right to privacy, and that only ceases on their dissolution.


Torrito v Fondation Lise T.
[1995] R.D.F. 429 (C.S.)  CB 104
Facts
 F used pictures and videos in publicity of T’s deceased child (after whom the F was named)
 T says daughter’s extrapatrimonial right to privacy passed on to her heirs
 F says using the pictures/video was in the public interest (awareness of handicapped people)
Reasons
 art 653 CCQ guarantees rights of the deceased passes to heirs, incl art 35, right to privacy
Holding
For T. Right to privacy passes to the heirs.
NB
art 635 has been amended: “No one may invade the privacy of a person without the consent of the person
or his heirs unless authorized by law.” Italics removed. Right to action on a breach extends to the heirs
beyond the person’s death, but only if the breach occurred before death.


Laoun v Malo
[2003] R.J.Q. 381, [2003] R.R.A. 44 (C.A.)  107
Facts
 M is a model for Silhouette glasses
 L sells Silhouette glasses
 L gives a Silhouette promo photo of M to Larose, who publishes it in a catalogue
 M argues this is outside her agreement with Silhouette
 L argues consent was implied because he was using it to promote Silhouette glasses
Reasons
                                                                                                          8
    L’s argument fails on three grounds
     o M’s contract with S was only for in-store posters; no re-publication
     o Contract between M and S cannot transfer rights or obligations to third parties (art 1440 CCQ,
          privity of contract)
     o a 3 CCQ says right to privacy is not transferable
 Right to privacy cannot be waived or transferred, only restricted (ex. selling one’s image)  in such
     cases contract is to be interpreted narrowly
     o Therefore subject to pecuniary evaluation despite being an extrapatrimonial right
     o Breach brings damages
Holding
For M, with damages. Right to image/privacy can be restricted by contract, but not transferred, and
interpretation must be narrow. Right can be subject to pecuniary evaluation.



CLASSIFICATION OF RIGHTS
Real Right
Droit Réel
 Right of a patrimonial nature that is exercised directly upon property” (Private Law Dictionary, CB
    119)
 Direct, one-sided relationship with property
 Principal Real Rights
    o Right of ownership (droit de propriété) – most complete right available (art 947)
         Use (usus)
         Fruits and products (fructus)
         Disposition (abusus)
    o Dismemberments of right of ownership (art 1119)
         Usufruct (right to use and enjoyment) (art 1120)
         Use (limited usufruct) (art 1172)
         Servitudes (limited use) (art 1177)
         Emphryteusis (art 1195)
 Accessory Real Rights (arts 2660, 2661)
    o On immovables
         Hypothec
             Prior claims and hypothecs are the legal causes of preference (art 2647)
             Hypothecary has preference on proceeds of the sale (art 2660)
             Hypothecs rank according to date of publication (art 2945)
 Attributes of Real Rights
    o Droit de suite – “Right that bears on property permitting the holder of the right to assert it
        regardless of whose hands property may be found.” (Prv Law Dic)
         Can be exercised by hypothecary (art 2660)
    o Droit de préférence – preferential right of claim on an immovable, as granted by a hypothec
         Prior claims and hypothecs are the legal causes of preference (art 2647)
         Hypothecary has preference on proceeds of the sale (art 2660)
 Claims
    o Remedy for real action: Titulary can be placed in possession of the property (the defendant is
        expelled or the property is taken from him)(art 565 Code of Civil Procedure)
 Abandonment – holder can renounce claims to real rights
    o To a common wall (art 1006)
    o To land with a servitude (servient land)(art 1185)


Ouimet c Guilbault
[1972] CS 859  CB 165
                                                                                                              9
Facts
 1964 – Promise of sale contract between O and G for land G owns (bilaterial – G promises to sell, O
     promises to buy)
 1967 – Gov’t notices G of pending expropriation of land
 1969 – O tries to initiate a sale contract via a action de passation de titre
 1970 – land expropriated
 O claims real rights in the contract, as well as damages for breach
Issue
 What rights did the contract create?
 Were the rights extinguished with expropriation?
 Can O claim damages?
Reasons
 Promise of sale created personal rights, not extinguished by expropriation
 Promise of sale is not sale, so there are no real rights created
 Expropriation is a force majeur, making it impossible for G to transfer real rights (action pétitoire must
     fail)
 Government compensated G, allowing him to fulfil his obligation created by O’s personal rights
 O’s personal rights with respect to G cannot affect third parties (the government)
Holding
G owes damages to O. Promise of sale creates personal rights, breach of which leads to damages. Real
rights are extinguished with expropriation.


Personal Right
Droit Personnel
 “Right of a patrimonial nature that permits its holder, the creditor, to claim the performance of a
    prestation from another person, the debtor” (Private Law Dictionary, CB 119)
 Relative, two-way relationship with another person, in which each person holds part of the right
    (credit, debt)


Intellectual Rights
   “Difficult to define except in the negative” but that their objects are “incorporeal things” (Ghestin &
    Goubeaux CB 183)
   “Droits qui portent sur un produit de l’esprit humain” (Baudouin & Jobin, CB 184)
   “Monopole de l’exploitation de la création intellectuelle.” (Ghestin & Goubeaux, CB 183)

Divisions of IP (from Mike Shortt’s summary)
                                         Intellectual Property
                  Author’s Rights                                          Industrial IP
       Copyright              Moral Rights          Trade Marks               Patents         Trade Secrets

   Federal regulation per Constitution Act 1867 ss 91(22) patents, 91(23) copyright
     o Patent Act, Trademark Act, Copyright Act
   Provincial regulation per Constitution Act 1867 s 92(13), property and civil rights
     o Private law fills the statutory gaps (contracts, succession of rights)(Diffusion YFB)(Kasirer, 204)
     o CCQ hints intellectual property could be considered property
         “Capital also includes rights of intellectual or industrial property” (art 909)
         “Intellectual and industrial property are private property” (art 458)

Droit d’Auteur/Copyright
   Governed by the Copyright Act, federal legislation under 91(23), copyright.
   Includes economic rights (copyright), and moral rights.
   Protects “literary works”
                                                                                                       10
    o Only the written expression, not the idea (Tri-Tex)
    o Not chemical formulae (Tri-Tex)
   Kasirer (CB 259) – Ambiguity in Canadian copyright law
    o Civil “author’s law” = natural right, patrimonial and extra-patrimonial elements
    o Common “copyright = juridical monopoly, primarily economic
    o None of the aspects of Roman dominium
    o Private law acts as suppletive law to the statute, which has holes and ambiguities (ex contracts)
    o Western concept, too individualistic to mesh well with Aboriginal law.

Copyright
 Patrimonial rights in economic side of a work
 Monopoly on the exploitation of a clientele (Ghestin & Goubeaux, CB 183)
 “sole right to produce or reproduce the work or any substantial part thereof in any material form
   whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished,
   to publish the work or any substantial part thereof” (Copyright Act, s 3(1), CB 223)
 Term: author’s life + 50 years (s 6)
 Subject: “the author is the first owner of the copyright” (s 13(1))
    o Subject of portrait is first owner if they hire the author
    o Employer is first owner of copyright to employees’ work (exception for newspapers etc)
 Assignment: in writing, can be subjected to limitations of scope and term (s 13(4))
    o Can be assigned in advance of production (Diffusion YFB)

Moral Rights (Gendreau, CB 208)
 Extra-patrimonial rights belonging to the author
    o Give legal effect to the link between the author and his work
 Uniquely civilian concept, present mostly in Europe but adopted by Canada through international
   obligations, specifically the 1866 Bern Convention, s 6bis
    o Art 1701 of NAFTA requires adoption of the same provision
 Protects expression of the work, not the ideas in it
 Four general components
    o Right of divulgation (when work is made public)
    o Right of withdrawal or repentance (withdraw or change)
    o Right of paternity (to be identified as author)
    o Right of integrity
 Expression in the Copyright Act
    o Author has the right to claim authorship of the work, as well as the right to restrain any distortion,
        mutilation or other modification of the work that would be prejudicial to his honour or reputation
        (s 12(7))
    o Right of divulgation read into s 3(1), defining the right to publish.
        Can also be read into art 36(3) CCQ gives right to control use of manuscripts
    o Right to paternity, recognition by: real name, pseudonym, anonymous (s 14.1(1))
        Only can assert the right “where reasonable in the circumstances)
    o Right of integrity: author can prevent “distortion, mutilation or other modification”; use in
        association with a product, location, etc
        Says nothing about destruction
        Infringed only if act causes damage to author’s honour or reputation (s 28.2(1))
        Mere relocation does not trigger right of integrity (s 28.2(3)(a))
    o Ownership of rights
        Separation of copyright and moral rights more common than not (copyright usually held by
            someone other than the author)
        Owned by author, who is the creator, or maker
        Can be a legal person
    o Term: same as copyright (author’s life + 50 yrs)
    o Waiver
        Cannot be assigned (see also Laoun, above in “Extrapatrimonial Rights” at 5)
                                                                                                    11
         Waiver can be limited by scope and term, or general
         Different aspects of the right can be waived separately (ex paternity, withdrawal, etc)
         Can be oral or tacit
         This is an example of a public order exception to the prohibition on waiver of rights found in
          art 8 CCQ
     o Succession (14.2(2))
        By specific bequest
        Where economic rights bequeathed but not moral, moral follow economic
        If neither economic or moral rights are bequeathed, they both fall on “the person entitled to
          any other property”


Tri-Tex c Gideonchem
[1999] RJQ 2324 (CA)  CB 190
Facts
 G paid a T employee to steal T’s secret chemical formulas
 G made chemical compounds with the stolen secret formulas
 G also stole clients lists and other confidential information
 T found out, and seized the formulas before judgement per the Copyright Act
Issue
Does T have a right to seize under either the Copyright Act or elsewhere?
Holding
No.
Reasons (Nuss JA)
 Copyright gives the creator the sole right to reproduce and profit from works
     o Copyright extends to “literary works” per the Act
     o Only gives protection to the written expression of ideas, not the ideas themselves
          The ideas are public property
     o Chemical formulae are not literary works, even in their written expression, therefore no
          protection under the Act
 Trade secrets are not moveable property, therefore not liable to seizure per art 734 CCP
     o Confidential information does not constitute property for the purposes of theft or fraud in the
          Criminal Code
     o The similarity to property is not close enough to deem information property
     o It possesses many of the attributes of property:
          Can be sold, bequeathed, licenced, be the subject of a trust
          Product of labour, skill, and expenditure
          “unauthorized use would undermine productive efforts which ought to be encouraged”
     o Legal opinions were held to be incorporeal moveable capable of being appropriated
     o CCQ distinguishes between “property” and “information”/”intellectual property”
 Patent Act protects trade secrets
     o T didn’t apply for a patent, so no protection.
Ratio
Cannot copyright information, only its expression. Confidential information does not constitute moveable
property.


Diffusion YFB Inc c Disques Gamma
[1999] RJQ 1455  CB 221
Facts
 L licensed DG to ¾ the royalties from his songs
 Later, he licensed YFB to royalties from his future works
 DG claims L could not give his copyright in advance of making the work, therefore his contract with
    YFB is void.
Issue
                                                                                                      12
Can L cede his copyright on work that does not yet exist?
Holding
Yes.
Reasons
 Copyright Act is unclear on the point
     o Principles of civil law must therefore fill the gap
 Future property can serve as the prestation for a contract (art 1374)
     o To do so, it must be “determinate as to kind, and determinable as to quantity”
     o The future song fills these criteria.
Ratio
Copyright exists on works that have not yet been made, and can be assigned in advance of their creation.

Patent
   Governed by Patents Act, 1985
   Protection “inventions” = “any new and useful art, process, machine, manufacture or composition of
    matter”
   Application must be filed, and correctly describe the thing and the steps to make it
   No patents for abstract principles or theories
   Subject matter cannot be obvious
   Does not protect trade secrets

Trademark
   Governed by Trademarks Act, 1985
   Trademark = a mark used for the distinguishing of wares and services
     o Certification mark
     o Distinguishing guise – special shape, etc


CLASSIFICATION OF PROPERTY
   Determined by law
   Contracts cannot change the classifications (Nadeau)

Immovables
Immovables under CCLC
 Immovables by nature (art 378 CCLC)
   o The land, or a building attached to it
   o “Building” is interpreted broadly (Belair)
   o Also any moveables that are sufficiently integrated into a building (Horne, Nadeau)
       Loss of identity
       Utility to the immoveable
   o Can be a moveable attached to an immoveable, horizontally or vertically (Cablevision)
   o Attachment does not need to be permanent (Cablevision)
 Immovables by destination (art 378-9 CCLC)
   o Moveable that does not lost its individuality
   o Accessory to an immovable by nature belonging to the same owner
   o Ex. things to work the land (beehives, rabbits, cattle)

Immovables by Adherence
 “Land and any constructions and works of a permanent nature located thereon and anything forming an
   integral part thereof, are immovable.” (art 900 CCQ).
 Formerly immovables by nature in CCLC.

Immovables by Integration
                                                                                                     13
   “Movables incorporated with an immovable that lose their individuality and ensure the utility of the
    immovable for an integral part of the immovable” (art 901 CCQ)
   Formerly immovables by nature in CCLC.
   Test (Construtek)
     o Physical integration
     o Movable loses its identity
     o Ensures the utility of the immovable
           Not just utility of business or occupant (Axor; Rock Sanna Café; An Act Respecting the
              Implementation of the Civil Code, s 48)
           Most important criterion (Horne)
     o Cannot be removed without breaking the movable or immovable
           Not as important (Horne)
   Remain immovables even if detached, as long as destined to return to the immovable into which they
    were integrated (art 902 CCQ)

Immovables by Attachment
 “Movables which are permanently physically attached or joined to an immovable without losing their
   individuality and without being incorporated with the immovable are immovables as long as they
   remain there” (art 903 CCQ)
 Formerly immovables by destination in the CCLC, but with some changes.
    o Do not need to have the same owner as the immovable, do not need to be placed there by the
        owner.
    o Utility criterion is new
 Test (Axor, quoting Lafond)
    1. Presence of an immovable
    2. Attachment or joining of the movable to the immovable
    3. Conservation of the individuality of the movable (to differentiate from immovable by integration)
    4. Perpetual attachment (attachment cannot be by its nature time-limited; duration of attachment
        needs to be indefinite; does not need to be perpetual attachment)
    5. Movable ensures utility of the immovable
          Not just utility of business or occupant (Axor; Rock Sanna Café; An Act Respecting the
              Implementation of the Civil Code, s 48)
          Most important criterion (Horne)
 Attachment can be to a moveable owned by someone else (Cablevision)
 Remain immovables even if detached, as long as destined to return to the immovable into which they
   were integrated (art 902 CCQ)
 Retain their movable quality if claimed by a hypothecary creditor (art 2672)(art 571 CCP)

Immovables by Determination of Law
 Real rights in immovables and actions to claim or obtain possession of immovables are immovables
   (art 904 CCQ)
    o Ex. Servitude, usufruct
 Hypothec on rents produced by an immovable is an immovable (art 2695 CCQ)
 Rights from a forest management permit are immovables (Forest Act)
 Mining rights are immovables (Mining Act)

Accession
    “Ownership of property gives a right to what it produces and to what is united to it, naturally or
   artificially, from the time of its union. This right is called a right of accession.” (art 948 CCQ)
 Owner of the immovable becomes owner by accession of all movables used in its construction. He is
   bound to pay for them. Previous owner has no right to get them back, nor any obligation to take them
   back. (art 956 CCQ)
 Immobilization by integration automatically triggers accession (Nadeau)
 Immovables by attachment retain their movable status when claimed by a hypothecary creditor (art
   2672 CCQ)(art 571 CCP)
                                                                                                    14
Legal Hypothec
 Suppliers of construction materials for an immovable automatically have a legal hypothec on the entire
   immovable (art 2724; also Axor; Kalad’art, below in “Public Domain” at 18)
 Don’t need to publish it, but if you don’t it’s only valid for a limited amount of time, whereas if you
   publish it, valid forever.


Bélair c Ste-Rose (ville de)
[1922] 63 SCR 526 (QB)  CB 236
Facts
 B owns a toll bridge over the river, anchored to the bed by the piers
 VSR wants taxes on the bridge, as they do on all immovables
Issue
Is the bridge an immovable, subjecting B to the tax?
Holding
Yes.
Reasons
 Art 376 CCLC provides that “All land and buildings are immovables by their nature”
      o Art 377 provides “windmills and water-mills, built on piles and forming part of a building, are
           also immovable by their nature”
      o Court interprets “buildings” to mean all “structures” which are attached to the ground.
      o NB the French and English are given equal weight, so Court also considered whether “båtiment”
           had a different meaning than “building” – it doesn’t
 Servitude granted to build on the riverbed is an immovable (art 381 CCLC)
Ratio
Bridge is an immovable by nature.


Nadeau c Rousseau
[1928] 44 BR 545 (QB)  CB 238
Facts
 R installs a furnace for Proulx
 Contract states furnace remains R’s property until P pays him off
 P goes bankrupt, and presumably sells his house to N or something
 R claims the furnace as his property
Issue
Was the furnace immobilized when installed? Does R have a claim to it?
Holding
Yes. No.
Reasons
 Furnace is immobilized when it is sufficiently incorporated into an immovable by nature (house)
     o Becomes an immovable by nature
     o Sufficient integration is a subjective test
         Must be integral to the structure – structure is incomplete without it
         Furnaces are integral because of Canadian winters
         Removal would cause serious damage to the immovable
     o Not immovable by destination
         Movable that becomes immovable by destination must have the same owner as the
            immovable
 Furnace cannot remain part of R’s patrimony once it is immobilized
     o Immobilization is the same as accession here
     o Contractual stipulation cannot prevent this, immobilization is determined by the code and is an
         imperative law, not a suppletive one.
Ratio
                                                                                                        15
Codal regime cannot be altered by contract. Immobilization automatically triggers accession.
NB cases like this brought about provisions in the CCQ to protect builders (ex art 2724 CCQ)


Horne Elevator Ltd c Domaine d’Iberville Ltee
[1972] RJQ 403 (CA)  CB 240
Facts
 H installs the elevators in a tall building for D
 Contract states elevators will remain property of H until paid for, and if not contract gives H the right
    to remove them from the building
 D went bankrupt
 H tried to seize the elevators, the buttons, etc
Issue
Can H claim the elevators? (Are they immoveables by nature?)
Holding
No (Yes).
Reasons (Rivard JA)
 Cannot be immovables by destination, because those must be installed by the owner.
 Elevators are immovables by nature
     o Analogy to staircases
     o Necessary for a tall building, integral part
     o Removal would bring destruction
          Not a sufficient condition, because doors are also immovables by nature
Ratio
Necessity of the moveable to the immoveable is the most important factor for determining
immobilization.


Cablevision (Montreal) v Deputy Minister of Revenue (QC)
[1978] 2 SCR 64  CB 245
Facts
 C buys a network of antennas and wires
 The wires are attached to the antennas and to Bell Telephone poles
 The antennas are attached to the ground
 Province charges a tax on sale of movables
Issue
Are the wires and antennas immovables and therefore not subject to the tax?
Holding
Yes.
Reasons (Beetz J)
 Wires are not immoveables by destination, because the immoveable they are attached to is owned by
     someone other than the owner of the wires.
 Wires an antennas are immovable by nature
      o Must be attached physically to the ground – through poles (ruled immovable earlier by the court)
          and the building (in the case of the antenna on the building)
          Disjoint ownership is a legal, not physical distinction, so does not negate connection to the
             ground.
      o Attachment can be vertical (antenna on top) or horizontal (cable radiating from)
      o Attachment does not need to be permanent
      o Does not need to guarantee the utility of the immovable (unlike per Nadeau)
          Question is not whether a movable is being integrated, but whether an entire network is a
             construction that adheres to the ground or another immovable
Ratio
Moveables attached to the ground through an immoveable are immovable by nature.
Attachment can be vertical or horizontal.
                                                                                                    16
Attachment can be through a moveable owned by someone other than the immobilized moveable.


Construtek GB c Laforge
[1998] RDI 137 (CQ)  CB 253
Facts
 L was married to Ghilain Bédard, owner of C.
 They broke up.
 L was still living in the house.
 GB won the house in court (had to pay L for half), C got the house through him, ordered L out
 L took the chandelier, major appliances, etc, with her
Issue
Were the appliances immobilized, thereby giving C a right them when he got the house? Were the lights?
Holding
No. Yes.
Reasons
 CCLC – Except for the lights, no because the movables:
     o Do not lose their interchangeability
     o Cause no damage to be removed
     o Did not affect the functioning of the movable
 CCQ – application of articles 901 and 903. Nothing is immoveable except the lights.
     o Art 901 – immoveable by integration
         Physically integrated
         Can’t be separated without breaking
         Moveable lost quality of individuality
         Assures utility of the moveable, completes it in an indispensable way
     o Art 903 – immoveable by attachment
         Physical link
         Ensures immoveable’s utility, not just for the occupant’s comfort or business
         No loss of individuality necessary
         Immobilized while attached
Ratio
Appliances are not immobilized. Lights are by attachment. Tests for attachment and integration.


Axor Construction c 3009-220 Quebec Inc
[2002] RDI 26 (CA)  CB 257
Facts
 3009 supplied the rink boards when A built an arena
 3009 published a legal hypothec on the arena as a whole, claiming the right to do so under art 2724
    CCQ (allows hypothecs to be published by persons having taken part in the construction of an
    immoveable)
 Axor moved to have the hypothec dismissed, claiming that the boards can be detached, are movables,
    and therefore cannot be the subject of a hypothec.
Issue
Are the boards immovable? Is the hypothec valid?
Holding
Yes. Yes.
Reasons
 art 903 CCQ governs immoveables by attachment. Lafond finds five conditions for immobilization
    by attachment
     1. Presence of an immovable
     2. Attachment or joining of the movable to the immovable
     3. Conservation of the individuality of the movable (to differentiate from immovable by integration)
     4. Perpetual attachment (attachment cannot be by its nature time-limited; duration of attachment
                                                                                                        17
            needs to be indefinite; does not need to be perpetual attachment)
     5.     Movable ensures utility of the immovable
            Here, it does, because a hockey arena doesn’t serve as a hockey arena without boards
            Must ensure the utility of the immovable, not just the owner’s business or the occupant’s
                comfort
Dissent (Vallerand JA)
 Refuses to apply a subjective test
 Only applies An Act Respecting the Implementation of the Civil Code, s 48, re: utility to the owner vs
     utility to the movable.
 Finds boards to be movables.
Ratio
To be immobilized under art 903 (immovable by attachment), key criterion is whether it ensures the utility
of the immovable.


Ville de Montreal c 2313-1326 Quebec Inc (Rock Sanna Café Bistro)
(17 January 2003)(CM)  CB 260
Facts
 RSCB went bankrupt and owed back taxes
 VdeM seized its restaurant equipment
 RSCB left the seized stuff in the restaurant, and told the owner of the building it could have the stuff
     and left it to the next tenants (why didn’t the city take it right away?)
 Transaction was confirmed by the Superior Court
 RSCB and the new tenants oppose the seizure, claiming the equipment was immobilized
Issue
Was the equipment immobilized, therefore not subject to seizure?
Holding
No.
Reasons
 Some of the items are clearly moveable (ex chair, fire extinguisher)
 For the rest, Court applies of the 5 part test from Axor (above)
      o None satisfy step 4 of the test (permanent attachment), or step 5 (utility to the immovable)
Ratio
Application of the Axor test.


Movables
    “Property, whether corporeal or incorporeal, is divided into immovables and movables” (art 899)
   “Things which can be moved either by themselves or by an extrinsic force are movables” (art 905)
   Movable by determination of law: “Waves or energy harnessed and put to use by man” are corporeal
    movables (ex electricity)(art 906)
   Movable by anticipation: “Fruits and other products of the soil may be considered to be movables,
    however, when they are the object of an act of alienation” (art 900(2))
   “All other property, if not qualified by law, is movable” (residual category)(art 907)
   Rights on movables, or personal rights, are immovables per the residual category (art 907)


Other Distinctions
Consumability (Terré & Simler, CB 265)
 Consumable things are used up by the lone fact that we use them according to their destination (ex
   food)
 Even though something is subjected to prolonged use diminishing its value, it can remain non-
   consumable (ex a house)
 Only non-consumable things can be the object of rights implying, for their titulary to put them back
   afterwards in their identical individuality (ex usufruct)
                                                                                                      18
   Consumables have different regimes (ex quasi-usufruct – must return the same quantity, not the same
    exact thing, art 1127 CCQ; also loans on consumables are weird, art 2314)

Fungibility (Terré & Simler, CB 265)
 Fungible things can be employed interchangeably with one-another, being determined only by their
   weight or measure (ex money, wheat)
 Non-fungible things are “imagined in their individuality”
 Right of ownership attaches to a fungible thing at the moment it is identified and becomes non-
   fungible (art 1453)(ex when you pick out the car, it becomes yours at that point because it is no longer
   a Yaris, it is that Yaris)

Vacant Property
 Things without an owner belong to no one (wild animals, etc)(res nullius)(art 934)
 Things abandoned by their owners fall under the same regime (art 934)
 An irrebuttable presumption of abandonment applies to some things like garbage bags (art 934(2))
 A moveable without an owner can be appropriated (art 935)
    o Lost and forgotten moveables retain their ownership and cannot be appropriated (art 939)
    o Can only be acquired by prescription, which happens after a certain amount of time (arts 916,
        2910, 2917, 2919)
    o Must try to find the owner or declare the thing found (arts 940)
 An immovable without an owner belongs to the state (arts 918, 936)

Water
   “Certain things may not be appropriated; their use, common to all, is governed by general laws, and, in
    certain respects, by this Code.
    However, water and air not intended for public utility may be appropriated if collected and placed in
    receptacles” (art 913 CCQ)
   Every person has the right to access water safe for drinking, cooking, and personal hygiene (An Act to
    Affirm the Collective Nature of Water Resources and Provide for Increased Water Resource
    Protection, s 2)
   Ownership of the bed of a watercourse confers right to fish, mess with it, subject to regulation (ex
    environmental) (Cantin-Cumyn, CB 280; Morin)
   Owners of the shoreline have non-restrictive access to water (art 920; Morin; broadly defined by arts
    980-82)
     o All persons have a right to travel on water (art 920)
   State owns the bed of all navigable and floatable watercourses, up to the high water line (art 919)
     o Also owns beds of all non-navigable watercourses ceded after 1918 (art 919; see also Houde and
          Larouche, below in “Private Property and its Origins” at 17)
     o Always look at the original grant, if riverbed is in the grant, it stands
     o After 1918, presumption is that the riverbed is owned by the state
     o Before the three chain reserve, presumption of private ownership
     o After the three chain reserve, but before 1918, the nature of the three chain reserve ensured the
          government owned the riverbed


Morin c Morin
[1998] RJQ 23 (CA)
Facts
 M1 owns land with a river, which he dammed to make a lake
 M1 sold off the land around the lake in plots, with plots going all the way to the water’s edge
 M2 bought some of the land, and wants to go boating and fishing on the lake
 M1 says because he owns the lakebed, he has control over the water, and says M2 can’t go swimming
Issue
Can M2 use the lake?
                                                                                                       19
Holding
Yes, but not for fishing.
Reasons
 Art 913 says water is a common good, and can be used for common purposes (arts 920, 981)
     o Applies to floatable/navigable water as well as non-floatable/non-navigable waters
 Art 920 gives the right of non-restrictive use to anyone who owns the shoreline.
     o Because M1 didn’t maintain a strip of land around the lake, but rather sold plots to the water’s
          edge, he does not have the right to control access to the lake
 He still controls access to the fish, being an accessory to his real right of ownership of the lakebed.
Ratio
Water is a common good, and everyone owning shoreline has access to it.


Larouche v Quebec (PG)
2007 QCCS 6152  CB 302
Facts
 L owned property with a non-navigable/non-floatable river cutting across it
 L was using a backhoe to mess with the river in his project to restore an old windmill.
 MNR fined him, claiming he was messing with a public waterway.
 The land was granted in 1900
Issue
Is the riverbed public domain?
Holding
Yes.
Reasons (Gagon JCS)
 Issue revolves around the “three chain reserve” and the subsequent issues it brought up
      o In the late 19th C the government required that land grants on waterways (incl non-navigabele)
           stop three chains from the waterline, to ensure the state maintained ownership of the bank so it
           could control fishing rights
      o 1918 CCLC is amended to place beds of non-navigable waterways in the public domain
      o 1991 the three chain is abolished, and lands given to the owners from whose land the reserve was
           taken
           substituted a servitude of 10m for fishermen
      o art 919 CCQ reproduced art 400 CCLC, stating that navigable and non-navigable waterbeds are
           public domain
 Held: the 1991 devolution of the three chain reserve did not include the river bed
 The river L was messing with was public domain.
Ratio
All riverbeds and lakebeds are public domain, except where the original grant or law specify otherwise.


Quebec (PG) v Auger
[1995] RJQ 1980 (CA)  CB 322
Facts
 Ville de Laval (represented by PGQ) is expropriating land from A
 Land was originally granted in the 17th C, original grant includes the “grève” (beach)
 Amount of compensation depends on whether the original grant extends to the high-water mark or the
     low-water mark, which depends on the meaning of “grève”
Issue
Does the land grant extend to the low-water mark?
Holding
Yes.
Reasons
 The word “grève” (beach, riverbank) in the original grant is interpreted to have included the riverbank,
     which goes below the high-water mark.
                                                                                                    20

PROPERTY IN RELATION WITH PERSONS

Private and Public Domain
   1854 – beginning of abolition of feudal tenure (Marler, CB 287)
   After, land held by a form of freehold tenure (franc aleu, Marler)
   Public domain
     o Property owned by legal persons in the public interest, or directly by the state
           Not everything owned by the Crown corporations is in the public domain, only that serving
               the public good (Houde)
     o Cannot be seized (art        )
     o Cannot be prescribed (916(2))
     o Immune from taxation (Constitution Act 1867 s 125)
     o Minerals belong to the state (Mining Act)
     o River and lakebeds belong to the state in most cases (see above in “Water” at 16)
   Expropriation is a prerogative of the state (art 952; Auger above in “Water” at 17)


Quebec (PG) c Houde
[1998] RJQ 158  CB 297
Facts
 H’s ancestor Price purchased a plot of land to build a sawmill in 1852
 The original survey shows islands down the river, rendering it non-navigable
 At low tide, the river is almost dry
 There is a salmon spawning ground in the river on H’s designated land
 PGQ contends that at high tide the river is navigable, thus making the salmon part of the public domain
Issue
Are the salmon public property by virtue of living in a public watercourse?
Holding
No, the original grant indicated the river was not navigable.
Reasons
 Fishing rights go to the owner of the riverbed
 Quebec law only gives the state domain over the riverbeds of navigable waterways (art 919, also
    applies to non-navigable/non-floatable water alienated by the state after 1918)
 Original survey indicates the river was not navigable at the time of concession, so there was no public
    fishing right
 Grant does not specifically exclude fishing rights
Ratio
Terms of land grants must be decided in reference to the land at the time of concession.


Construction DRM c Båtiments Kalad’Art
[2000] RJQ 72 (CA)  CB 327
Facts
 City of Rimouski contracted DRM to build a salt storage depot (for roads)
 BKA was a supplier of materials to DRM, and registered a legal hypothec on them per art 2724 CCQ.
 DRM defaulted on its payments to BKA
 DRM claims BKA’s hypothec is invalid because the goods had been appropriated to the public good
     per art 916 CCQ.
Issue
Is the depot a public utility per art 916?
Holding
Yes.
                                                                                                         21
Reasons
 Art 916 provides that property of the state cannot be appropriated or seized.
 Two types of state property
     o Intended for the public good, essential to the functioning of the state (cannot be seized)
     o Other stuff (can be seized)
 Though the building itself is not essential to the functioning of the state, it is essential to an essential
    service (roads) therefore it cannot be seized.
Ratio
Property that is intended for public good and essential for the functioning of the state cannot be seized or
appropriated. Public utility in this sense is interpreted broadly.


OWNERSHIP
  947   Right to use, enjoy and dispose, fully and freely, limits determined by law, modes and
        dismemberments
  948   Right to what it produces and is united to it (accession)
  952   Expropriation for public utility, just and prior indemnity

Portalis, Presentation on the Proposed Title on Ownership (1804) (trans Kasirer)
 Man has a natural right to those things necessary for his subsistence
 Need and industry are the founding principles of ownership
 Communal ownership is just a way to deny rights to all
 Agriculture  ownership of land  ownership of all manner of property  wealth
 Men who own things look to the future because they know they have some sort of property to lose –
    check on cruelty and violence
 Ownership does not bring inequality, nature does
 Principle of ownership: “the right to enjoy and to dispose of things in the most absolute manner
    possible” – exception: men cannot contravene society’s laws
 Sovereign owns territory for different reasons – as administrator for the common good
 “no one may be compelled to give up his right of ownership except by reason of public utility, and for
    just and prior compensation” – state considered as an individual in negotiations
 ownership extends to movables and immovables, and all they produce

Cantin-Cumyn “Essai sur la duré des droits patrimoniaux”
 Principal real rights are the direct and immediate connections between a person and a thing
 Patrimonial character of real rights help determine duration
      o Survive original titular
      o Disappear with the thing to which they are attached
 Code says nothing on duration of real rights other than usufruct and emphryteusis
 Ownership is a perpetual right
      o Only extinctive prescription kills it, not disuse
      o Indissociable with allodial tenure/franc-alleu roturier
 Acquisitive prescription is only a transfer or ownership, not the end of one right and the creation of
   another

Pierre “Classification of Property and Conceptions of ownership in Civil and Common Law”
 Matamajaw – wrongly decided
       o JCPC thought personal servitude was not a real right
       o Thought all real rights were dismemberments of ownership
       o Confusion comes from differences between CML and CVL
 CVL Ownership = totality of power exercised over, and benefits derived from property
 CML ownership has no technical definition and is used indiscriminately
 CML has one set of rules for objects, and another for land (unlike CVL)
                                                                                                        22
   CML developed through pragmatic approach, incrementally changing the feudal system, whereas CVL
    was a clean break that drew on Roman concepts
 CML no rights, just “interests in land”
 CML moved away from feudal tenure earlier than CVL
 By the end of 17thC, estate was property held by tenant, and could use and dispose of it
 Ownership came to mean holding the land in tenure for an estate
 Equitable ownership allowed for multiple owners – beneficiary of trust, mortgagor, holder of fee tail or
    life estate  protects these people from suffering loss from acts of trustee, mortgagee and holder of fee
    simple absolute, which is allowed at common law but justice and good conscience oppose (equity)
 Because multiple people were entitled to land, title disputes not solved by finding the owner, but by
    seeing who had the best claim to the land among the claimants – ownership is relative, not absolute
 CVL – Roman concept of ownership is corporeal (res) – combines usus, fructis, abusus
 Ownership – CML property + obligation, CVL property only
 Property – CVL right is in the land, direct link between person and thing; CML right is against others,
    defined by whether it is enforceable against the whole world or not
 Object of property – CVL owner of things, corporeal; CML owner is person entitled to estate and other
    hereditaments, so always a right and therefore incorporeal
 Extent of the rights – CVL absolute; CML tenure is limited if uncertain, not absolute
 Abstraction – CVL ownership is abstract; CML no abstraction, ownership is necessarily relative
 Exclusivity – CVL exclusive, CML can have multiple owners
Patault “Introduction historique du DDB”
 Basic historic introduction to DDB


Limitations on the Exercise of Ownership
Nuisance
 Anything beyond normal annoyances, limit of tolerance (976)
 Judged relative to the neighbourhood (976, Drysdale)
 Right of action is not extinguished as long as the nuisance remains (Goudreau)
 No fault, only must prove damage (Ciment St-Laurent)
       o Abuse of right or fault can also admit fault-based liability (1457, Ciment St-Laurent)
 Cannot use private law to invalidate decisions in the public interest (Calvé)
Expropriation
 State can expropriate for public utility (952)
 Only for just and prior compensation (952)
 Regulations that restrict or prohibit use are expropriation (Sula)

         6   All rights must be exercised with good faith
         7   Rights must be exercised reasonably, in good faith, not excessive
       952   Expropriation for public utility, just and prior indemnity
       976   Must suffer “normal neighbourhood annoyances” not beyond “limit of tolerance” according
             to the nature or location of land and local custom
       978   Can compel neighbours to survey
    979-83   Water: must let it flow onto land, can divert on land, but not from its natural course
             downstream, can require destruction to keep water pure, roofs can’t drop snow on
             neighbour’s land
      987    Allow neighbours access for repairs
   990-91    Cannot let things collapse onto neighbouring land, or undermine it in construction
      992    Accidentally building on neighbour’s land – must buy the land
      993    Cannot have windows less than 1.5m from line, unless translucent
1002-1008    Fences

 Charter of Human Rights and Freedoms, RSQ c 12, s 6, 46.1
                                                                                                        23
6         Every person has a right to the peaceful enjoyment and free disposition of his property, except to
the extent provided by law
46.1      Every person has a right to live in a healthful environment in which biodiversity is preserved, to
the extent and according to the standards provided by law
 Environment Quality Act, RES c Q-2
19.1      “Every person has a right to a healthy environment and to its protection, and to the protection of
the living species inhabiting it”
19.2      Superior Court can issue injunctions to prohibit interference with 19.1
20        “No one may emit, deposit, issue or discharge or allow the emission, deposit, issuance or
discharge into the environment of a contaminant in a greater quantity or concentration than that provided
for by regulation of the Government”
 An Act Respecting the Preservation of Agricultural Land and Agricultural Activities RSQ c P-41.1
79.17 In an agricultural zone, no person shall incur liability toward a third person by reason of dust,
noise or odours resulting from agricultural activities
79.19 In an agricultural zone, the inconvenience caused by dust, noise or odours resulting from
agricultural activities does not exceed the limit of tolerance neighbours owe each other, insofar as the
activities are exercised, subject to section 100


Drysdale v Dugas
CB 52
Facts
 Drysdale built a stable next to Dugas’s house
 Shit leaked into the basement of the house, and the smell was horrible
 Drysdale took all the most modern precautions to prevent it
Issue
Is the odour a nuisance? Do D’s precautions exempt him from liability?
Holding
Yes. No.
Reasons
 The odour lessened the plaintiff’s enjoyment of his property
 It was more than the usual annoyances in the neighbourhood
Ratio
Injury caused by nuisance greater than the normal for the neighbourhood is compensable, regardless of
mitigation techniques.


Katz c Reitz
CB 55
Facts
 K built a store beside R’s property
 The careless building practices followed by the contractors caused R’s house to partially collapse
Issue
Was K responsible for the contractors? If so how?
Holding
Yes. No fault liability.
Reasons
 It is clear the contractor was at fault
 R is not an architect, so he cannot be faulted for improper supervision
 The construction was so dangerous that it created a strict liability on whoever instigated it
 R’s right to enjoyment stops where it interferes with K’s
Ratio
Nuisance is strict liability.
                                                                                                    24
Lessard c Bernard
CB 60
Facts
     B built a wood furnace that conformed to legal standards, and included smoke-mitigation techniques
 It produced massive amounts of smoke
 The smoke was so thick L couldn’t use his back yard and had to keep the windows of his house closed
Issue
Is the furnace a nuisance?
Holding
Yes. Injunction and damages to L.
Reasons
 976 doesn’t consider fault, so the only issue is the fact of the smoke
 The only thing to consider is the excessive nature of the damages, not how they came about
 The smoke deprived enjoyment in a manner that was clearly excessive, so 976 applies
Ratio
Right to enjoyment ends where neighbour’s begins. 976 is no fault.


Gestion Serge Lafrenière c Calvé
CB 63
Facts
    GSL runs a fish farm, which was authorized by the MoE in 1993 and 1996
 C lives on the same lake, sues under EQA s 19.1 for elevated levels of phosphorous resulting from the
    fish farm, attacking the validity of the MoE’s license
 GSL’s license was revoked independently of the action and is before an admin tribunal
Issue
Should the Court grant an injunction contrary to the MoE regulations?
Holding
Not really (Court limits emissions to similar amount of 1996 license pending admin tribunal decision)
Reasons
 Discretion given to the Minister by the EQA is broad
 Courts will intervene when discretion is exercised:
     o To improper ends, not foreseen by the law
     o In bad faith
     o On erroneous principles or non-pertinent considerations
     o In a fashion that is discriminatory and unjust, arbitrary, or unreasonable
 Courts will overrule decisions where procedure is not followed, but not where the result is inopportune
    or erroneous
 CCQ is suppletive law
 EQA represents public order – Minister balances between public and private interests
 EQA (public law) takes precedent over private law
 GSL is allowed to produce 80 tons of fish and emit no more than 130 kg of phosphorous (slightly less
    than allowed by the 1996 license)
Ratio
Public law limits on the enjoyment of property take precedence over private law actions.


Goudreau c Lettelier de St Just
CB 77
Facts
   L’s ancestor builds a house in 1923
 G’s ancestor builds a 3 story apartment building beside it in 1940
 L’s ancestor builds a 3 story wall beside the apartment building for privacy in 1941
 With G’s ancestor’s agreement, the wall used G’s building for support
                                                                                                       25
 G wants to demolish the wall
Issue
Is the wall a nuisance? Did G lose his right to sue over the 50 years since it was built?
Holding
Yes. No.
Reasons
 Doctrine recognizes three kinds of nuisance
      o Intentional injury of another with property rights
      o Negligent or excessive use of property rights
      o “Antisocial” exercise of rights, in which rights are exercised reasonably but there is still damage
 976 is a no fault regime because of its place in the code
 The wall is a nuisance because it completely blocks views, air, and light, and makes maintenance on
     the building difficult
 It is not a reasonable response to privacy concerns because it is so high
 Tolerance alone does not constitute prescription of rights (analogy to servitudes)
 Delay only means that G cannot force L to pay for the demolition
Ratio
976 is no fault. Gives rules for prescription of rights under 976.


Ciment du St-Laurent c Barrette
CB 83
Facts
    CSL opens a plant that annoys nearby residents with dust, noise, and odour
 B brought a class action
Issue
Is CSL liable for nuisance? Is it fault based? Is it a real right?
Holding
Yes. No. No.
Reasons
 Fault-based TDV, under 1457 (Rejected)
     o Obligation to act reasonably and within any legislative norms applying to immovable property
     o Duty of means
     o Only applies is there is fault
     o CSL didn’t commit any fault, so can’t apply here
 Right to claim under nuisance is a real right (propter rem – advanced by CA)(Rejected)
     o Right attaches to property
     o This would mean that tenants would not have right to claim
     o Never mentioned in the Minister’s comments
     o Not appropriate theory because 976 is activated by victim’s inconvenience – it is therefore a
          personal right
     o Tenants have a right to claim under 976
 No-fault based regime (Accepted)
     o 976’s location in Book Four with other no-fault regimes
     o Judicial notice must only be given to results, not conduct
     o Only question is whether the victim’s annoyance exceeds what is reasonable to expect in the
          circumstance
 Statutory exemption? (Rejected)
     o CSL claims that its establishment statute exempts it from civil liability
     o SCC rejects this: the statute wasn’t specific on the point so no exemption
 CSL cannot claim prescription
 “Neighbour” should be broadly defined
Ratio
Two liability regimes for TDV
 Fault-based (abuse of rights or violating norms of conduct – 1457)
                                                                                                       26
   No-fault (unreasonable annoyance – 976)


Sula c Cité Duvernay
CB 122
Facts
     D rezoned 3 undeveloped residential lots owned by S into parks
 S claims that effectively expropriated them because he could no longer develop them nor could he
     control access to them
 D claimed no expropriation because S remained owner.
Issue
Were the lots expropriated?
Holding
Yes.
Reasons
 Rezoning S’s property reduced his rights over it to the level of any other citizen.
 His property was effectively expropriated without compensation
 This is beyond the power of the municipality, so rezoning is illegal
Ratio
Regulations that restrict or prohibit use are expropriation.


Sutton (Ville de) c 9034-822 Quebec
CB 124
Facts

Issue

Holding

Reasons

Ratio



Acquisition of Ownership
   Occupation
   Possession
   Detention
        o Cannot acquire ownership by detention
        o Can become possession by inversion of title (2914)
   Prescription
   Accession

    913-14   Cannot appropriate res communis, can appropriate things without an owner
       916   Property acquired by: contract, succession, occupation, prescription, accession. Cannot
             appropriate State property

Carbonnier “La notion de possession”
 Possession is a factual situation that may or may not coincide with a legal situation (ownership)
   (pouvoir de fait, pouvoir de droit)
 Majority of possessors are at the same time owners, and inverse
 The thief might be the possessor, but is not the owner
                                                                                                         27
Mazeaud et al “Droit de propriété et ses démembrements”
 Owner’s juridical power (pouvoir juridique) exists independent of its exercise
 Possession is a situation of fact (pouvoir de fait), ownership and real rights are powers in law –
   possession is assessed without reference to legal situation
 Detention (détention, qu’on nomme porfois possession précaire) is different than possession
 Detention always comes from a legal situation, it supposes at its origin, a juridical title: conventional
   (farmer, renter), juridical (sequester), or legal (père usufruitier légal, spouse) – détenteur holds in the
   name and with the understanding of the owner
 Detention is a pouvoir de droit
 Détenteur cannot be the owner
 The owner can still have ownership despite the presence of a détenteur
 Apparent owner – by common error considered owner (comes from third parties’ notions)
 Apparent ownership exists to secure third parties’ reliance in a situation that may not be legally correct
 Legal effects of possession
    o Possessor can defend against all troubles attendant to possession (possessory actions)
    o Possessor is presumed owner, and is the defendant in an action of revendication
    o Possession can lead to ownership
 Ownership of immovables is difficult to prove, possession is easy to prove
    o Law presumes ownership to protect the owner
 By presuming possessor is owner, the possessor is given incentive to take care of property
 Presumption secures and facilitates transaction (136)
 Possessor can only become owner in good faith
 Possession applies to all real rights = basically is the same as acting like you legit hold the right
 Things outside commerce cannot be possessed – public domain, juridical universalities (patrimony,
   inheritance)
 Elements of possession
    o Corpus
          Material element of possession
          Exercising the attributes of the rights of ownership (usus, fructus, abusus)
          Not necessary for possessor to exercise corpus himself
          Material apprehension of the thing – acquisition of corpus
    o Animus
          Intentional element of possession
          Two theories
          Savigny
                Subjective theory
                Posessor need animus domini – intention to act like the pwoner
                Savigny does not see détenteurs as possessors
          Ihering
                Objective theory
                No distinction between possessors and détenteurs based on animus
                Law accords in principle all occupants the effects of possession
          Following Pothier, Code civil sees possession as the will to conduct oneself as owner
          Two rules for animus
                Presumption – animus is presumed, all occupants are presumed to be possessors and
                    not détenteurs
                Abstract – animus is determined based on outward appearances, from the perspective
                    of the “occupant-type placé dans la meme situation” (reasonable man?)
 Inversion of title – when the possessor becomes owner-


Possession & Prescription
                                                                                                       28
   Possession
        o Corpus – material element
        o Animus – intention to be owner
   Possession can be opposable after 1 year of good faith possession (929)
   Test for acquisitive prescription (Bolduc)
        o Property subject to prescription (not State property, res communis, etc)
        o Exercise of useful possession (possession utile)(922)
                  Peaceful – not obtained by violence
                  Continuous – regular, material acts like an owner would do; not necessary to have
                       permanent contact, just regular and not abnormal
                  Public – public exercise of possession, third parties think possessor is owner
                  Unequivocal – certain and exclusive
        o Over the period of 10 years (2917)
   Mere tolerance or facultative acts don’t found prescription (924)

Possession
       921   Possession is detention and intention. Intention is presumed.
       922   Must be peaceful, continuous, public, unequivocal
       923   Detention is presumed to continue without proof of inversion of title
       924   Tolerance does not found possession
       925   Presumption of continuous possession
       927   Thief cannot benefit from possession, but successors can if unaware of defect
       929   1 year possession creates right of revendication
       930   Prescription gives possessor the real right he possesses
       932   Possessor must believe he has the right to possess in good faith (cannot be aware of defect)

Prescription
     2875 Acquisitive prescription = getting ownership, extinctive prescription = end of ownership
     2883 Prescription can be renounced
  2910-12 Acquisitive prescription brings ownership through possession, not detention. Can be based
             on possession gained by succession
     2913 Detention is not a basis for prescription
     2914 Inversion of title: by title from another, or demonstration of animus
     2917 General period for acquisitive prescription is 10 years (also extinctive, 2922)
     2919 Period for movables is 3 years


Bolduc c Fortier
CB 142
Facts
 B claims that she has title to a parcel of land F purchased in 2004
 B claims her husband purchased the land in 1970, even though there was no registered transfer of title
 B’s husband had paid taxes on the property since 1970
 In the alternative B claims she gained ownership by acquisitive prescription
Issue
Does B have a claim to the land?
Holding
No.
Reasons
 916 says prescription is a mode of acquisition of property
 2910, 2911 say acquisitive prescription is a mode of property acquisition as an effect of possession
 921-933 say the term for acquisitive prescription is 10 years
 932 – no need to establish good faith possession
 Two conditions for acquisitive prescription (2918)
                                                                                                       29
     o   Exercise of useful possession (possession utile)(922)
         Peaceful – not obtained by violence
         Continuous – regular, material acts like an owner would do; not necessary to have permanent
             contact, just regular and not abnormal
         Public – public exercise of possession, third parties think possessor is owner
         Unequivocal – certain and exclusive
     o Over the period of 10 years
 Two elements of possession (from Lafond)
     o Corpus – material possession
     o Animus – intention du possesseur de so comporter comme le véritable propriétaire
 If the owner tolerates use, it does not count as possession (924)
     o Neighbourly tolerance – parking a car, camping, etc
 Paying taxes is not determinant of possession
Ratio
Defines possession for acquisitive prescription


Boivin c Quebec
CB 158
Facts
 B found gold bars on the bottom of a lake
 B claims ownership of the bars and all other bars discovered on the bed of the lake because it forms a
    whole treasure
     o Any other people looking there would only have been motivated by B’s discovery anyway
 PGQ argues it is the half-owner of the bars because the lakebed belongs to the state
 Several third parties found gold bars as well, claiming they were never part of the original treasure, nor
    were they treasure, but rather abandoned moveables
Issue
Are the bars treasure or abandoned movables? Does B have a claim on the other bars?
Holding
Abandoned movables. No.
Reasons
 Court highlights the importance of no-one being able to justify their rights over treasure, which would
    requires knowing the intention of the people who put the bars in the lake (did he want to get rid of
    them or hide them for later recovery?)
 Court believes bars were permanently abandoned
     o Treasure is implausible because it would be hard to recover them and the SQ would probably get
         involved because it’s Crown land
 The fact no owner came forward due to the intense media coverage means they were probably
    abandoned.
Ratio



Malette c Sureté de Quebec
CB 162
Facts
 M discovered $20,000 on the side of the road and deposited it at an SQ office
 After 1 year, M tried to recover it
Issue
Is the money a lost or forgotten movable? Does M have rights to it?
Holding
Yes.
Reasons
 Clearly has an owner
                                                                                                          30
   Likely not an abandoned movable – has not gained the inference in 934(2) and failed to prove
    abandonment by other means
 Therefore, lost or forgotten movable (938)
 Malette cannot be considered a good faith possessor unless he faces a 10 year prescription period
 He has fulfilled requirements to take possession of the money from SQ
Ratio


Occupation & Accession
       934   Wild animals belong to no one
       935   Appropriation of movables without an owner through occupation
       938   Treasure
    939-46   Lost or forgotten movables can be acquired by prescription, not occupation, finder must
             attempt to find owner, declare it to police, can sell it after 60 days (unless perishable)
       954   Voluntary accession = artificial, involuntary = natural
       956   Owner of immovable owns things he builds on it, but must pay for the materials
    965-70   Natural accession: sediment in rivers
    971-75   Movable accession: Intermingled movables impossible to separate belong to whoever
             contributed the most value


Tremblay c Boivin
CB 165
Facts
    T shot a moose on B’s land that B had shot earlier in the afternoon
 B claims the moose because mortally wounded it (so T didn’t really kill it), and because it was shot on
    his land
Issue
Can be claim the moose because it was shot on his land?
Holding
No
Reasons
 Wild animals are “biens sans maître” that can be claimed by occupation
 Ownership of land does not grant ownership of animals on it, so it doesn’t matter where it was shot
 Wild animals are occupied by the first person to exercise physical control over them
 It doesn’t matter that B shot it first because killing doesn’t mean control
 T was the first to control it, because he and his friends were butchering it when B found them
Ratio
Occupation is determined only by physical control.


Location Fortier c Pacheco
CB 168
Facts
    LF rented a truck to P
 P installed a platform that he borrowed from 2741-2824 Québec
 P stopped payments on the truck
 LF claims the truck, and claims the platform belongs to it due to moveable accession
Issue
Whose property is the truck?
Holding
LF owns the platform by movable accession, but must compensate 2741-2824 Québec.
Reasons
                                                                                                          31
   The platform is sufficiently integrated that removing it would render the truck unsuitable for normal
    use
 Art 971 applies
 Because the truck costs more than the platform, the whole thing belongs to LF
 Complexity of the case calls for application of 975 judicial discretion
 2741-2824 Québec should be compensated because it rented the platform to P in good faith and it adds
    to the value of the truck.
Ratio
Movable accession is defined by 975, but compensation must be given on an equitable basis


Publication of Rights
   Superficies must be registered (Morin, though judge gets around it there)

        2934   Publication of rights when they are registered
        2938   Immovable real rights require publication
        2941   Publication of rights allows them to be set-up, but produce their effects before publication


Tremblay c Martel
CB1
Facts
     T had a servitude with the previous owner of the land, it wasn’t registered
 M bought the land, says servitude isn’t good
Issue
Is the unregistered servitude opposable?
Holding
No
Reasons
 Real rights must be registered for them to be opposable
Ratio



9164-2298 Quebec c Église episcopale St James de Hull
CB1
Facts

Issue

Holding

Reasons
 Registered rights can be the object of prescription
Ratio




MODALITIES OF OWNERSHIP
Co-Ownership
Undivided
         487   Spousal property is presumed to be held in undivided co-ownership, half and half
                                                                                                      32
      973    Movable accession: undivided co-ownership where impossible to tell who gave the most
1002-1006    Common walls and fences
     1010    Undivided co-ownership where no physical division in property
     1012    Indivision by contract, succession, judgement
     1015    Presumption of equal shares, rights & obs of exclusive owner for share
     1016    Use cannot affect destination or right of other co-owners, exclusive use requires
             compensation for other owners
     1020    Reimbursement for upkeep costs
     1022    Other owners have right of redemption on sale of shares, up to 1 year after sale
     1026    Majority rule on admin; alienation, change of destination, substantial alterations = unanimous
  1030-31    Partition at any time unless postponed by agreement, residential exception (75% of owners
             with 90% of building can force partition)
      1520   Indivisible obligations – everyone is responsible for the whole thing

Cantin-Cumyn “L’Indivision” (CB 178)
 Indivision = multiple titularies of the same right on the same object
 Indivision can apply to any property or patrimonial right
 Co-ownership is a species of indivision, where the right of ownership is held in indivision
 Modality of ownership, movable or immovable depending on the object of the indivision
 Thinking of the owner of an undivided part as the owner of a part distracts from the fact that indivision
   means the same people exercise the same right of ownership over the whole thing (like the relationship
   between shareholders of a corporation and the corporation’s property, if every shareholder held 100%)
 Simple presumption of equality of shares in indivision (for when one owner wants to sell, etc)
 Partners in indivision have a right of preemption for any sale of another’s part
 If one person in fact has exclusive use of the property held in indivision, he must compensate the other
   owners
 Not a very viable situation in practice
 Decisions about alienation or changing value of property must be unanimous


RCR de la STCUM c. Bandera Investment Company
CB 187
Facts
    STCUM gave money to Trust General to invest in hypothecs
 TG made a $14million loan to a company
     o $10million TG
     o $4million STCUM
     o Loan is guaranteed by a $14million hypothec
 TG was bought out by BNC
 BNC sold TG’s share in the hypothec to B
 STCUM claims the hypothec is held in indivision, and as one of the co-holders of the indivision, it can
    pre-empt the sale if it matches the price being paid to the third party (B)
Issue

Holding

Reasons
 STCUM’s share in the hypothec is an accessory real right
    o S exercises a real right (904)
 STCUM’s share in the loan is a personal right
    o It can be subject to indivision (not undivided co-ownership)
    o Regime on co-ownership is broader than it appears
    o Possible for the loan (as well as the hypothec, and independently of it) to be held in indivision
 Debt was not held in indivision
                                                                                                          33
     o CCQ presumes sums of money can be divided
     o Indivision therefore must be expressly stipulated, which it was not
Ratio
Indivision and co-ownership are separate concepts. Indivision can apply to personal and real rights.


Harel c. 2760-1699 Quebec
CB 194
Facts
    H’s and her husband are undivided co-owners of their family home
 H never published her address at the registry, so she did not learn of the sale until after it took place
 Husband had debts to 2760, who sold his share in the undivided property at auction
 H is claiming rights under 1022 on the share 2760 was selling
Issue
Can 1022 be invoked after sale? Does 1023 prevent her from using 1022?
Holding
Yes. No, they are separate regimes.
Reasons
 1022 and 1023 target different fact situations, but are not mutually exclusive
     o 1022 applies if the person becomes aware of the sale after it takes effect
     o 1023 applies if the person is aware before the sale is made.
 Sale is acquisition of the share by onerous title, so 1022 applies.
Ratio
1022 and 1023 are complementary regimes


Robin c. Nicole
CB 196
Facts
     R and N bought a farm, each paid half (R loaned N some of the money for his half), and held it in
     indivision
 They also did some improvements on the property
 They broke up, and R moved out
 R is claiming for compensation for N’s exclusive use, and her half of the shit
Issue
Is R entitled to indemnity for N’s exclusive use?
Holding

Reasons
 Indemnity is provided for by 1016
 Person enjoying the use must pay all the taxes, etc
 As far as improvements, court found R contributed ¼ and N ¾
 R gets what she put in (half of the purchase, ¼ of the improvements)
Ratio



Forced Indivision (Permanent Co-Ownership)
   Immovable serves as an accessory to two or more immovables = wall, fence, courtyard, well
   Property cannot be subject to partition because it has a durable purpose (1030)
   Co-ownership can be involuntary (neighbor builds wall, other one automatically has rights and costs)
   1002-1008 = provisions on walls, no general provisions
   3 types of forced indivision
         o Shared property (things)
                                                                                                       34
        o    Land and certain parts of buildings divided into apartments where each part has a different
             owner
        o    Certain property where an agreement or state of facts makes them destined to perpetual
             service of two or more immovables either b/c there are indispensable accessories to the
             immovables they serve


Zambito-Orazio c. Meneghini
CB 205
Facts
     M renounced his right in a common wall he shares with his neighbor ZO
 ZO had the wall repaired and sent M a bill for half the expenses
 M refused to pay, pointing to his renunciation
 ZO had M’s goods seized for payment
Issue
Can M renounce rights of undivided co-ownership?
Holding
Yes.
Reasons
 M renounced his right in the wall before the repairs were, so it was not M’s property ZO repaired
 M had never claimed any rights in the wall, and only renounced his rights after a previous judgment
     said he had them
Ratio
Renunciation of right of ownership absolves liability for the common property from the moment of
renunciation.


Groleau c. Société Immobilière du Patrimoine Architectural de Montréal
CB 209
Facts
     G and SI share a wall
 They were having discussions to repair it for a while
 It collapsed
 G advised SI of the need for repair and asked to share costs
 SI refused and published a notice to abandon its right to the wall per 1006
 City required G to fix the wall, which it did
 G is claiming SI did not exercise its right to renunciation in good faith, so should still be liable
Issue
Is SI liable for the repairs?
Holding
Yes, but only for 25%
Reasons
 Both parties acknowledged the need for repairs
 Given the urgency, it was reasonable G acted without SI’s consent
 SI’s renunciation was in bad faith
 It was liable for its share
Ratio
Right of renunciation must be exercised in good faith. Urgent repairs do not need consent, paid for by both
parties in proportion to their shares.

Divided (Condominium)
   Test to determine destination (Wilson)
     o Objective elements: situation, quality of materials, distribution of condos, comfort, luxury
                                                                                                            35
     o    Subjective elements: the expectations the co-owner had when buying his part
     o    Collective elements: manner in which destination represents a safeguard of the general interests
          of the co-owners

     1010     Divided co-ownership where ownership is divided in physically distinct fractions
     1038     Established by publication
     1039     Co-owners are a legal person (syndicate), and goods for common utility are owned by it
  1042-46     Common portions
  1052-53     Declaration sets bylaws, destination
     1056     Restrictions must be justified by destination, characteristics, or location
     1058     No time shares unless allowed by declaration of co-ownership
     1059     Declaration must be notarized
     1063     Co-owners have free use of their part and common ones; cannot impair others or destination
     1064     Proportional contribution to renovations
  1096-98     Syndicate decisions are by majority, except some require ¾ majority
     1108     Ending co-ownership requires 75% of owners holding 90% of shares


Talbot c. Guay
CB 213
Facts
 T put an awning over his balcony restricting G’s view of the river
 G got an injunction under the condo’s bylaws forcing T to remove it
 T claims the bylaw is unfair, since it is not related to the destination, characteristics or location of the
     immovable
Issue
Is T’s awning an unjustified restriction of G’s property rights?
Holding
Yes.
Reasons
 G’s view was not common to all co-owners
 Not sufficient reason for T to interfere with G’s rights
 The restriction placed on T is minor compared to the harm he inflicts on G
Ratio
Unique benefits are protected by the divided co-property regime. Disputes between co-owners will involve
balancing rights of enjoyment.


Amselem c. Syndicat Northcrest
CB 216
From a DDB standpoint, this case is pretty boring, since the Supreme Court is concerned only with the
constitutional aspects of the case. The trial and appeal judges (but not the SCC) use CCQ a1039 (and find
that the restriction on succahs had a rational link to the syndicate’s objective), a1056 (and find that the
restrictions were applied uniformly and in good faith to preserve the destination of the immovable) and
a1063 (this one is used to justify the harsh restrictions on aesthetics, since it is argued that condo-owners
were buying not just property but a "lifestyle" and this necessitated conformance to the bylaws).
          Trial Judge: "The legislature has restated the classic triptych of the right of ownership: the right to
          use, enjoy and dispose of property freely (art. 947 C.C.Q.)."
     Binnie (SCC, dissenting): Il existe selon moi une énorme différence entre le fait d’utiliser la liberté de
     religion comme un bouclier contre les atteintes portées par l’État…et le fait de l’utiliser comme une
     épée contre des cocontractants dans un immeuble privé. Il appartenait aux appelants et non aux autres
     copropriétaires de déterminer, avant d’acheter leur appartement, quelles exigences étaient liées à leurs
     croyances religieuses. Il y avait plusieurs immeubles où ils pouvaient acheter. Ils se sont engagés par
     contrat envers les propriétaires de cet immeuble à respecter les règles de cet immeuble, même si
     (comme c’est apparemment le cas) ils ont accepté les règles sans les avoir lues. Ils ont ensuite rejeté la
                                                                                                       36
    mesure d’accommodement proposée par les copropriétaires, en l’occurrence l’utilisation d’une souccah
    commune dans les jardins de l’immeuble, parce que cette proposition ne satisfaisait pas entièrement
    leurs opinions religieuses


Bergeron c. Martin
CB 245
Facts
     M opened a daycare in her condo
 B bought a condo a few months later and was told there would only be a few children present
 The daycare is noisy and disruptive for most the day
 M also built structures used for the daycare in the common space, depriving B of their full use and
     enjoyment during the day
Issue
Is m infringing on B’s rights under the divided co-ownership?
Holding
Yes.
Reasons
 Applies Wilson test to determine destination of the building
      o Objective factors suggest it is purely residential (location, structural design)
      o Subjectively, B bought the property in order to enjoy tranquility and was told there would only be
          a few children present
      o Declaration of co-propriety: all condos but be inhabited “bourgeoisement” and cannot be used for
          commerce
          Occupants are required to avoid disturbing the tranquility of the building
 M’s business is therefore an infringement on the destination of the building
Ratio
Destination is determined by objective, subjective, collective factors. None of the factors is determinative
alone. Destination as set out in declaration of copropriety is not determinative either.


Kilzi c. Syndicat des copropriétaires
CB 250
Facts
 K bought several units in the condo and rented them out for profit
 The S passed bylaws restricting K’s ability to rent units
 K challenges bylaw
Issue
Do the bylaws change the destination of the immovable? If yes, were they passed with the appropriate
majority?
Holding
Most of the bylaws are invalid, except those restricting short-term lease. Yes.
Reasons
 Destination is a residential building
 There is nothing inherent in the residential purpose that would prevent K from renting units for long
    time periods or for owning more than three
     o Bylaws restricting this are invalid
 Short term leases suggest a commercial, not residential, purpose
     o Lawful for bylaws to restrict this
     o Court is not competent to determine what constitutes “short term” so the majority of the co-
          owners will decide.
Ratio
Confirms Wilson test. Declaration of co-ownership is not the definitive source of a condo’s destination.
                                                                                                         37
Wilson c. Syndicat des copropriétaires de condominum Le Champlain
CB 257
Facts
     W lives in LC
 A majority of LC owners banned pets, which had been allowed for 13 years
 W opposes th ebylaw
Issue
Is the regulation justified by the immovable’s destination? Which voting regime is required to ban pets?
Holding
No. Art 1098.
Reasons
 Test to determine destination
      o Objective elements: situation, quality of materials, distribution of condos, comfort, luxury
      o Subjective elements: the expectations the co-owner had when buying his part
      o Collective elements: manner in which destination represents a safeguard of the general interests
           of the co-owners
 Destination is residential
 Rights in co-ownership are absolute, just like regular property rights
      o Except to the extent hat restrictions are justified by the co-property regime
 No clear reasons to justify banning pets (13 years without incident)
 Keeping pets is part of the residential nature of the bilding
 Banning pets is not only unjustified by the destination of the building, it effectively changes the
     destination.
 If pets were banned from the start, it would not be possible to say keeping pets is part of the building’s
     destination
      o An incident with pets might have changed the outcome as well
Ratio
Test for destination of immovable


Superficies
    One person owns the building (superficiary), another owns the subsoil (1011)
    Superficiary has all servitudes necessary to exercise his right (1111)

        955   Presumption constructions belong to bare owner – can be rebutted by superficies
       1009   Superficies is a special mode of ownership
       1011   Ownership of constructions, works, plantations, when someone else owns subsoil
       1110   Division of right of ownership, transfer or renunciation of right of accession
       1111   Comes with any servitudes necessary to exercise superficies
       1113   Can be perpetual or have a term attached
       1114   Termination by: union (or confusion) of owners, fulfillment of condition, expiry of term
       1115   Loss of construction terminates superficies, expropriation does not
    1116-18   Termination: subsoil owner gets the stuff back, has to pay



Morin c. Grégoire
CB 280
Facts
 M allowed G to build a house on his land
 Relationship soured, M demands transfer of title of the house by accession
 G claims he has a right to the house due to prescription, or at least compensation
Issue
Who owns the house?
                                                                                                        38
Holding
G.
Reasons
 Difference between tolerance and permission
     o Tolerance cannot found prescription
     o This was a deliberate granting of permission
 There was a verbal contract granting G a superficiary right
     o Either perpetual or lasted at least as long as the buildings stood.
Ratio
Renouncing the right of accession to create a superficie is permissible. Superficiary rights can be
perpetual.
NB: superficies must be registered, judge gets around it here (exceptional)


Stone-Consolidated c. Pierre Desjardins Gestion
CB 283
Facts
     SC had a logging contract with the government that gave them permission to build a garage on Crown
     land.
 The contractor for the garage sub-contracted to PDG
 PDG gets a construction hypothec on the garage
 General contractor went bankrupt before playing PDG
 SC claims PDG cannot exercise the hypothec because it claims it is state property by accession, and so
     cannot be subject to a hypothec
Issue
Is the garage state property by accession?
Holding
No.
Reasons
 The permission given to build the garage legally resembles a superficie
      o Never expressly stated
      o Building had to be removed at the end of SC’s contract
 Effectively this is a superficie limited in duration
 SC is the superficiary owner, the government is not the owner, so PDG can claim its hypothec
Ratio
Superficies can be read into contracts. Right created in a contract depends on the nature of the legal rights
created, not the precise words used by the parties.


Québec (P.G.) c. Développements de Demain
CB 285
Facts
    By mutual agreement CN and Quebec built a walkway, some sidewalks, and lampposts which
    partially encroached on CN’s land
 No formal transfer of property nor was there expropriation.
 CN is privatized and sells land to DD
 DD realized that there were encroachments and demands an indemnity from the government
Issue
Did CN grant Quebec a superficie? Is the right opposable without being published?
Holding
Yes. Yes.
Reasons
 Creation of superficie
     o CN and QC did not consider ownership because it was a joint project
     o No document specifying transfer of rights
                                                                                                       39
     o    Clearly tacit permission by CN for QC to build on its land  renunciation of accession and hence
          creates superficie
 Opposability of unpublished superficies
     o Distinction between
          superficiary ownership (created by express agreement) and
          superficiary rights (created by implied renunciation of accession)
     o Rights are acquired by prescription, so no need for them to be published
Ratio
Superficiary rights established when the right of accession is implicitly renounced. Superficies need not be
published to be opposable to third parties.


Lafontaine c. Gravel
CB 288
Facts
    G sold land to L but reserved the right to cut timber for himself and his heirs
 G sold his timer rights to FG
 FG sold them to his brother YG
 After buying the land, L revendicates the timber rights and wants both sales of the right to cut timber
    declared invalid.
 YG and FG claim the timber rights are superficiary.
Issue
Who owns the land? Who holds rights to the timber? What kind of rights are the timber rights?
Holding
L. YG (passed down from G and FG, unclear if FG acquired them by contract or prescription).
Superficiary.
Reasons
 FG clearly cannot own the land since it was already sold to L
 Timber rights can take many forms
     o Personal right (contrat de louage), real servitude, personal servitude, or superficiary right
 First two can be eliminated immediately in this case (no contract, no mention of dominant land)
 Court must analyse intention of parties
 Past contracts suggest this is a superficiary right.
 Prescriptive period was filled, so either way the timber rights were legitimately held by FG and
    transferred to YG
Ratio




DISMEMBERMENTS OF OWNERSHIP
Usufruct & Use
Usufruct
 Principal obligations
    o Inventory (1142)
    o Insurance (1144)
    o Conservation (1120)
 Accessory obligations (propter rem)
    o 1142+
    o Assurance (1148)
                                                                                                        40
      o   Maintenance (1151-52)
      o   Charges (1154)

Quasi-Usufruct
 If return of property is impossible, cash is allowed (1127)
 Cash value of consumed or deteriorated property is due at end of usufruct (1128)

Usufruct
     1119    Dismembers are real rights: usufruct, use, servitude, emphyteusis
  1120-23    Usufruct: right to use and enjoy, must preserve substance; established by contract, will, or
             law; cannot last longer than 100 years; no term=life, legal persons=30 years
      1125   Bare owner’s alienation does not affect usufructuary
      1126   Usufructuary gets fruits and revenues
      1135   Can be transferred, property included in usufruct can be leased
      1136   Usufruct can be seized and sold by creditors; seizure of bare ownership does not affect
             usufruct
  1139-41    Usufructuary cannot fell trees or mine, but can farm and tree farm
  1142-61    Usufructuary is responsible for: inventory, maintenance, charges, insurance
     1162    Extinguished: end of term, death, union of rights, forfeiture or renunciation, non-use for 10 yr
     1168    Forfeiture of usufruct if depreciation or endangerment of bare owner’s rights
  1169-70    Renunciation
     1171    Difficulty performing obligations? Usufruct becomes annuity

Use
      1172   Right to use and enjoy, and take fruits and revenues to the extent of user’s needs
      1176   Provisions for usufruct apply to use

Mignault, Usufruct (CB 359)
 Usufruct is a real right
 Usufructuary has the same right to enjoyment as an owner
 Obligation on owner is negative: must respect the right to enjoyment he has ceded to the usufructuary
 Usufructuary has an immediate relationship with the thing, no personal right as in a lease
 Usufructuary must not degrade the property
 If there is damage, usufructuary cannot force the owner to fix it, the inverse is true
 Usufruct is movable or immovable based on whether the property on which it is exercised is movable
   or immovable
 Usufructuary has a real action to revendicate his usufruct against anyone who takes it

Cantin-Cumyn, Usufruct (CB 360)
 Usufructuary has a real right opposable to everyone including the owner (unlike the tenant)
 Usufructuary ensure the property’s management, and collects profits
 Usufructuary is in a better place than the beneficiary of the trust because he can manage and exploit the
   property
 Usufruct is opposable against third parties

Cantin-Cumyn, Quasi-Usufruct (CB 365)
 Quasi-usufructuary assumes the risk of losing the thing, and does not have the obligation to conserve it
 Quasi-usufruct applies to things like food, combustables, anything consumable
 Consumability by nature or by destination (ex real estate portfolio)


Larocque c. Beauchamps
CB 363
Facts
                                                                                                       41
    R dies and leaves his house to his relatives
   Also granted B a usufruct in the house house for as long as she lived and paid certain upkeep costs on
    the house
 Relatives secure a loan from L with a hypothec on the house
 They default on the loan
 L has the house transferred to her ownership by judicial declaration and wants B to leave
 L also claims B stopped paying for upkeep
 B claims her usufruct allows her to stay
Issue
Is B’s hypothec opposable to L? Was B’s right extinguished when she stopped paying costs?
Holding
Yes. No.
Reasons
 B’s usufruct predates L’s acquisition of the house
 Judgment doesn’t extinguish the usufruct
 L can only seize the rights held by her debtors, which means the house less the usufructuary rights
 B not paying costs is not sufficient to extinguish the usufruct
     o Failure to uphold usufructuary obligations creates a personal right for missed payments
     o Does not extinguish real rights in usufruct
Ratio



Banque Nationale du Canada c. Gravel
CB 367
Facts
    B owed BN money
 BN had B’s house seized and sold
 B’s mother, G, objected
 She produced a document by which she had sold the house to B for $1 in exchange for a right to live in
    the house for the rest of her life
 B also promised to pay all the upkeep of the house
 G wants the bank to recognize her real rights in the building
Issue
Does G have a real right to live in the house? Does B’s promise to pay the upkeep and taxes constitute part
of G’s real right?
Holding
Yes. Yes.
Reasons
 Use is a real right recognized by the CCLC and thus BNC’s seizure of the house must accept the
    charge upon it (G’s right to use)
 Payment by B for upkeep is not necessarily part of G’s right, because CCLC’s definition of use makes
    no mention of it
 In the context of this contract, which was motivated by generosity on B’s part, the promise to let G live
    in the house “for free” must be interpreted as such.
 The owner of B’s house must pay all the upkeep and taxes
 BNC cannot seize or remove elements of the house that are essential to G’s use of it (light fixtures, etc)
    since that would violate B’s promise to let G live in the house in a normal and modern manner
Ratio
The core element of use – right to enjoyment – should be interpreted generously. Rights are not severable.


Servitudes & Real Obligations
                                                                                                        42
     Real servitude (Davidson)
       o Two pieces of land
       o Different owners
       o Neighbours
       o Advantage for one piece of land
       o Other owner must suffer something or not do something
       o Perpetual
     Personal servitude
       o Not actually in the code, only found in jurisprudence and doctrine
           Basically one of the other dismemberments, but set up like a real servitude
       o Test (Davidson)
           Real right on a property
           In favour of a person, independent of his immovables
           Limited period
     Legal servitudes
       o Not created by parties, but by law
       o Ex. Arts 976-87 on trees, 993-96 on views
     Cannot be established by prescription (1181)
       o Location and nature of right of way can be established by 10 years’ use (Whitworth)
       o If something looks like either a servitude or co-ownership, do a title search because servitude
           can’t be prescribed
     Must include three things in title (Marler)
       o Description of the dominant land
       o Description of the servient land (more important)
       o Description of the service to be rendered

    997-1001   Must give a servitude to access enclosed land by most natural way, repairs by beneficiary
        1177   Charge imposed on a movable, owner must tolerate acts or abstain from exercising rights;
               extends to everything necessary for its exercise
       1178    Obligations can be attached for service or exploitation of servitude
       1179    Continuous: view, abstain from building; discontinuous: right of way, requires intervention of
               holder
       1181    Established by contract, will, destination, law; cannot be established by possession
       1182    Not affected by transfer of ownership
       1184    Dominant land can do work for exploitation, must return it to original state when serv is done
       1188    Division of servient land does not affect servitude
       1189    Can be redeemed (bought) if benefit doesn’t outweigh detriment to servient land
       1191    Extinguished: union of owners, renunciation (dominant), expiry, redemption, non-use (10yr)




Mignault, Servitudes (1896)(CB 302)
 Real servitudes are to distinguish from personal servitudes, which are imposed on an immovable in
   favour of a person, like use, usufruct, emphryteusis, etc
 Real servitude is a charge imposed on an immovable for the utility of another immovable belonging to
   a different owner
 Servitude has the same aspects as a usual obligation (benefit, debtor, creditor): service, servient land,
   dominant land
 Real servitudes are opposable to everyone, not just the debtor
 Servitude is a dismemberment of the right of ownership
 Never involves a positive obligation, just to suffer something
 Real servitude is for the advantage of a property, personal servitude is for the advantage of a person

Marler “Acquisition of Servitude by Title” (CB 315)
                                                                                                          43
   Servitudes must be established by title, possession is not enough
   Title must not be written, can be an oral contract
   Must include three things in title
         o Description of the dominant land
         o Description of the servient land (more important)
         o Description of the service to be rendered
   Description, esp of the servient land, must be very detailed
   Code presumes when a servitude is granted, all that is necessary for its exercise is also granted
   Otherwise, servitude is interpreted strictly
   Ambiguities are resolved in favour of liberating the servient land
   Destination by the proprietor (destination du père de famille)
         o “Person establishes between two properties which belong to him a state of fact which would
             constitute a servitude, if it concerned two properties belong to different owners”
         o As soon as one of the pieces of land is sold to someone else, the servitude comes into being

Terré & Simler, Dismemberments of ownership and propter rem obligations (CB 336)
 Obligations falling on the owner of property are real obligations (ex those of the usufructuary, owner
    of servient land, concessionaire of a mine)
 For the dominant land, a real servitude is a real right, for the servient land it is a dismemberment of
    ownership
 Servitude is a state of property (état du bien), suffered by the owner of the servient land, but it is not an
    obligation
 Servitude imposes real obligations on the servient land to ensure the servitude can be exercised
    (upkeep, etc)

Scapel, “La notion d’obligation réelle” (CB 337)
 Real obligations are personal obligations
 Accessories to real rights
 Only exists as long as the real right to which it is an accessory (unless renounced or stipulated
    otherwise)
 Can be freely formed by convention
 Servitudes, because they are real rights, are have a unilateral structure
 Real obligations, due to their personal nature, are bilateral
 Real obligation attached to a servitude functions to assure the efficacy of the exploitation of the
    servient land
 Real obligations are not a principal mode of exploiting property, rather they necessarily complement
    the chosen mode of exploitation
 They create a “lien de droit” between the debtor (owner of the servient land) and the creditor (holder of
    the real right of servitude)
 Can be renounced


Whitworth c. Martin
CB 305
Facts
 W’s land has no road access, and to get home he takes a private road that crosses M’s land (some
     neighbours must do the same)
 M stops access to his land, making W park his car and walk home down a trail
Issue
Does W have a servitude?
Holding
Yes.
Reasons
 People need to have car access to their property
                                                                                                           44
   Because the road touches a public road, and is used by the public, it is a public road for the purposes of
    997 CCQ
 Forcing other neighbours to build another access road is unreasonable
 A right of passage can’t be acquired by prescription
 art 2917 says location of a servitude can be acquired after 10 years of use
 Passage here had been used since 1946
 Servitude is to be enforce, M pays damages for blocking W’s access to his land
Ratio

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


Cadieux c. Hinse, Morin
CB 308
Facts
      C and L were neighbours with adjacent property
 They signed an agreement where they agreed to offer their property to eachother for sale before they
      offered it to anyone else
 Agreement was described as a “servitude de preference d’achat” in the contract
 L signed a 99 year lease to his property to M
 C claims this violates the servitude
Issue
Is it a real servitude? Is the lease a disguised sale?
Holding
No. N/A
Reasons
 Court decides whether it is a servitude, parties cannot define it in a contract
 Contract specifies that sale offers must be made to the parties personally – beneficiaries of the
      servitude are people, not immovabes
 Any benefit to an immovable is indirect, and only comes through the benefit of the owner
 Agreement cannot be a real servitude because there is no benefit to an immovable, and no relationship
      between immovables, only immovable – person
 Sales agreement imposes a positive obligation (to offer the land to the other party)
       o Real servitudes cannot impose positive obligations because they are unenforceable (slavery)
 The preference is only a personal right, not a real one, so is not opposable against anyone but the other
      party to the contract, not M
Ratio
Existence of servitude is determined by juridical content, not the parties. Ambiguity is to be interpreted
against the existence of a servitude.


Zigayer v. Ruby Foo’s (Montreal) Ltd
CB 317
Facts
    R sold plots of land in a neighbourhood to various parties and imposed servitudes on them not to build
    or operate a restaurant. Servitude was very detailed
 Z bought one of the lots and disputes the servitude’s legality
Issue
Are non-competition servitudes against public order?
Holding
Only exceptionally. This is not an exceptional case.
Reasons
 Definition of public order “public order includes everything in which the interest of society is more
                                                                                                          45
     directly involved than the interest of particular individuals [this includes criminal, constitutional, and
     administrative law] … but public order is not limited to public law. In private law, everything which
     interests primarily society at large falls into this notion.”
 Judge formulates question: “is society deprived or affected by these servitudes?”  No, they affect
     only a small portion of land and other restaurants exist in the neighbourhood
Ratio
Servitudes can be nullified for public order. Non-competition servitudes are not against public order unless
their restrictions are exceptional.


Standard Life Assurance Co. c. Centre commercial Victoriaville ltée
CB 325
Facts
 M leased a spot in CCV, which included a clause restricting the mall to having only one grocery store
 SL claims it is not a real servitude
Issue
Is the non-competition clause a real servitude?
Holding
No
Reasons
 1177, 1191, 1440 CCQ
 Real servitude must benefit the immovable
 This servitude only benefits the owner of the immovable, so it must be personal
 Real servitudes cannot contain positive obligations
 Personal servitudes are not opposable (relativity of contracts, 1440)
Ratio
Real servitudes must benefit the immovable. Non-competition clauses are personal, not real servitudes


Hamilton v. Wall
CB 339
Facts
     H sold a plot of land next to his house to P
 Deed of sale stipulated that if P built a house he would build it in like with H’s dwelling
 P sold the land to W, and the contract stated W would comply with all the stipulations in the original
     deed to P
 W built a hose closer to the road than H’s house
 H sues to have the building demolished, claiming the location violates the original servitude
Issue
Was the original agreement a real right?
Holding
Yes.
Reasons
 Personal right – personal advantage of the creditor without reference to his property, will not follow
     property
 Real right – effects only beneficial to immovable
 Two properties are adequately described in the agreement, so it is a real right  servitude
Ratio
Even without the servitude, contract of sale could have created a real obligation.
NB: The claim that


Pelletier c. Bui
CB 341
Facts
                                                                                                            46
     P owns property next to B, and a woodlot behind B’s property
    The only way to access the woodlot is through a road across B’s property
    B bought the property, and the title stipulated that there was a servitude for the road across 2 of the lots
     it crosses, but not across a third
 P has been using the road for 60 years
 B claims the road is not a real servitude, but rather a personal one, which did not transfer to P when he
     bought his land a long time ago (before B)
Issue
Is the road a real servitude? Does the servitude apply to the third lot? Is the woodlot an enclave?
Holding
Yes. Yes. Yes.
Reasons
 Real servitude is charged on servient land for the benefit of dominant land, personal servitude is only
     for the benefit of a person
 Conditions for a real servitude (Lafond)
      o Two pieces of land
      o Different owners
      o Land is neighbouring
      o Servitude is for the advantage of one piece of land
      o Obliges owner of other land to suffer or not do something
      o Perpetual
 Characteristics: immovable right, accessory to land, perpetual, indivisible, confers non-exclusive usus,
     charge is passive
 Real servitude cannot be established without title or by prescription
 Woodlot is an enclave, and the road is the most natural way there, building another would bring
     unreasonable costs
 “assiette de la servitude et son mode d’exercise le peuvent par prescription”
Ratio



Davidson c. Rosaire Nadeau & Fils
CB 355
Facts
      LT owned two pieces of land, house on one, spring on the other
 When he sold the piece of land to RN, he created a servitude to access the spring
 D bought LT’s house, and wants to enforce the servitude to the spring as a real one
Issue
Is it a real servitude?
Holding
No.
Reasons
 Epicier Metro reviewed doctrine and established the criteria for real and personal servitudes:
 Real servitude
       o Two pieces of land
       o Different owners
       o Neighbours
       o Advantage for one piece of land
       o Other owner must suffer something or not do something
       o Perpetual
 Personal servitude
       o Real right on a property
       o In favour of a person, independent of his immovables
       o Limited period
 The agreement that established the servitude for LT makes it clear that it was for LT personally, not for
                                                                                                             47
    his land, so it’s a personal servitude.
Ratio



Emphyteusis
   Emphyteutic lease, but unlike a lease, is a real right
   Long lease, where the lessor promises to make improvements to the property
   Usus, fructus, some abusus
   Can change destination of immovable (unlike usufruct)
   Can sell rights, or take out an emphyteusis on emphyteusis
     1195 Use and enjoyment in exchange for constructions that increase immovable’s value
     1197 Term must be between 10 and 100 years
     1199 Can be seized and sold
     1200 All the rights and obligations of an owner, but can be limited in agreement
     1203 Bound to make repairs
     1204 Can be forfeited by massive deterioration or endangering rights of owner
     1208 Termination: expiry, loss or expropriation of immov, resiliation, union in same person, non-
              use for 10 year, abandonment


Sun Life Assurance Co. Of Canada c. 137578 Canada
CB 297
Facts
 Metro had an emphryteotic lease with 137578 on a building
 Obligation to build a building worth $1.6M
 SL seized the building from M
 SL claims it seized only the rights under the lease and not the obligations
 137578 claims by seizing M’s emph lease, SL is under an obligation to build a $1.6M building
Issue
Are the obligations and rights of an emphreyteotic lease divisible?
Holding
No.
Reasons
 Emph leases are a real right
 Metro had a real right over the immovable only due to its emph lease
 SL chose to seize the right and must accept all aspects of the lease because CCQ doesn’t allow
    selective seizure, or prejudice to the emph lessor’s rights (1199)
Ratio
Anyone acquiring an emph lease acquires all aspects of the lease, including rent and improvement
obligations.


NUMERUS CLAUSUS
The question asked in this section is whether there is a definitive list of real rights (a numerous clauses).
The answer is allegedly unsettled, but based on the case law, I think that there is definitely no numerus
clausus in Québec.

i) Code Articles and Legislation
a1119 “Ususfruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are
real rights.” [Note the phrasing of the article. It does not clearly designate the list as a closed/exhaustive
definition of real rights. Yet neither does it use clear language, like “includes,” to show that the list is open.
The use of “are” in this context seems permissive, but is still somewhat ambiguous. The French version of
the article is equally unclear.]
                                                                                                         48
Mining Act [CB1.171]: “The mining rights conferred by the following titles are immovable real rights”

ii) Doctrine

Private Law Dictionary and Bilingual Lexicon: Obligations (2003) [C1.125]: The issue is [allegedly –
Mike] not settled in QC, and the Code leaves open the possibility of new real rights via a.947 and a.1119.
Legislation sometimes creates new real rights.

Planiol and Ripert, Traité Pratique de droit civil français: Les biens [C2.248]: No text prohibits the
creation of new real rights or modifications of existing ones, as long as they do not contradict public order
(trying to reimpose feudal-style property rights, for example). The only limit to the types of rights which
can be created is that since they are dismemberments of property, they cannot exceed the content of
property rights. Lastly, in order to be opposable to third parties, real rights must generally be published.
This is problematic if the rules for publication do not recognize innominate real rights. [I skimmed Book 9
of the CCQ and it seems general enough to allow publication of innominate rights – Mike]


Duchaine c. Matamajaw Salmon Club Limited, Court of Appeal
Facts
     B sold G the fishing rights in a river, but not (explicitly) property in the river-bed itself
 G sold these rights, eventually being sold to M
 D ought B’s property on which the river was located
 D claims the original fishing rights were personal not real, so they couldn’t have been transferred from
     G to M
Issue
Is there a numerous clausus of real rights? Did the agreement create a real right?
Holding
Unclear. Yes.
Reasons
 Seigneurial court recognized fishing rights as a kind of real rights
 Transfer of fishing rights carries with it the transfer of the river bed as long as it is used for fishing
 Fishing rights are more than a right of use, nothing in law to prevent it and it’s the will of the parties
 Fishing rights must be either property right, usufruct, or personal servitude
 In any case it is transferrable to third parties while G is alive
Ratio
Contradictory, though they agree in outcome


Duchaine c. Matamajaw Salmon Club Limited, Supreme Court of Canada
CB 380
Facts
     Same as above
Issue
Is there a numerus clausus? Is the fishing right a real right? How long does it last?
Holding
Yes. Yes. Until G dies.
Reasons
 There was clearly no transfer of rights in the river bed
 It was a usufruct or servitude of some kind
 These are limited by the life of their holder, so extinguished when G dies
Ratio
There is a numerus clausus of real rights in Quebec. Transfer of usufructuary rights does not transfer rights
in property beyond the usufruct. All non-ownership rights must last for a fixed period of time.
                                                                                                            49

Duchaine c. Matamajaw Salmon Club Limited, Privy Council
CB 390
Facts
     Same as above
Issue
Is there a numerus clausus? Is the fishing right a real right? How long does it last?
Holding
No. Yes (innominate real right). Perpetual.
Reasons
 Fishing rights are distinct real rights which can be sold
 479 CCLC should not be interpreted as imposing a limit on the duration of rights,since the clear
     grammatical construction o fthe article shows that “if for life” applies only to usufructs which are
     designated as life-long usufructs
 it is possible to create a perpetual real right to fish
 this is a separable subject or incident of property  innominate real right
Ratio
There is no numerus clausus in Quebec


Quebec (P.G.) c. Club Appalache
CB 395
Facts
    G sold land to DL in 1951, and in 1955 transferred hunting and fishing rights to CA
 government expropriated part of DL’s land in 1953, and bought what was left in 1955
 1964, G dies
 Later, CA blocked access of the public to the land, claiming they could do so as part of their (real)
    hunting rights and the accessory rights acquired from G
 Government seeks injunction, while challenging CA’s right to the land
Issue
Does CA have a real right to hunt and fish? Can it restrict access to the land subject to the right?
Holding
Yes. No.
Reasons
 Hunting rights are a dismemberment of ownership
 1951 agreement created perpetual hunting and fishing rights
 real rights were transferrable and survived G
 expropriation did not extinguish the rights, because CA didn’t receive an expropriation notice
 Non-hunting rights are either accessory of superficiary, neither of which justify limiting access.
Ratio
Real rights can be created (no numerus clausus)
NB: right to passage is included as an accessory to the hunting rights.


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