Droit des Biens (DDB) – PUB2-101 – 2011–12Professor: Pierre-Emmanuel MoyseSummary: Mark Phillips (integrating also previous summaries, especially Michael Shortt’s)

Legend: Doctrine Cases Legislation

Overall Concept Map............................................................................................................................... 1Introduction............................................................................................................................................. 2

Culture and History of Quebec Civil Law........................................................................................................................2The Civil Code.....................................................................................................................................................................2Property in the Code..........................................................................................................................................................3

Basis and Philosophical Issues...............................................................................................................4Basic Classification of Property.......................................................................................................................................4Things, Human Bodies, Commons, and Commodities..................................................................................................5Real Rights vs. Personal Rights........................................................................................................................................5Movables vs. Immovables.................................................................................................................................................7Duality of Domain.............................................................................................................................................................12Structure and Characteristics of Property...................................................................................................................13

Limits of the “Absolute” Right of Property.......................................................................................13Site......................................................................................................................................................................................13Expropriation....................................................................................................................................................................14Reimbursement for Accession.......................................................................................................................................15Abuse of Rights and Nuisance........................................................................................................................................16

Past Midterm Exams............................................................................................................................. 20Modes of Acquisition............................................................................................................................ 23

Possession and its Effects................................................................................................................................................23Acquisitive Prescription..................................................................................................................................................25Occupation.........................................................................................................................................................................26Accession...........................................................................................................................................................................26

Modes of Ownership............................................................................................................................. 26Indivision...........................................................................................................................................................................27Permanent Co-ownership...............................................................................................................................................30Divided Co-ownership (Condominiums)......................................................................................................................31Superficies.........................................................................................................................................................................35

Dismemberments of the Right of Ownership....................................................................................38Emphyteusis......................................................................................................................................................................39Servitudes..........................................................................................................................................................................40Propter Rem Obligations.................................................................................................................................................43Usufruct.............................................................................................................................................................................45Right of Use.......................................................................................................................................................................46Innominate Real Rights...................................................................................................................................................47

Stipulations of Inalienability............................................................................................................... 48Recent Developments........................................................................................................................... 49

Intellectual Property (IP)................................................................................................................................................49The Trust............................................................................................................................................................................51

Final Exam Quick Reference................................................................................................................ 57

Overall Concept Map

For a broad overview of the organization of Québec CVL and rights see n° 1–10 in Baudouin & Jobin’s Les obligations. See also the Layout of the CCQ Book of Property. Note that dismemberments break down not only into nominate and innominate (based on whether they are stipulated in the code), but also into personal servitudes and real servitudes (based on whether they exist between a person and a property or two properties). The CCQ, CCLC, and CCF never mention personal servitudes (“servitudes” is used to mean only real servitudes). But the distinction still appears in doctrine & jurisprudence.

Abbreviations

art articleCA Court of AppealCB Casebook (CBII for 2d CB)CCLC Civil Code of Lower Canada (1864–1993)CCQ Civil Code of Quebec (1994–)CCF Civil Code of France/Code NapoléonCJ Chief Justice (usually of the SCC)CML Common lawCVL Civil lawJ Justice/Judgek thousandKB/QB Court of King’s Bench (CA pre-1974)m millionPC Privy CouncilQC Québecs sectionss sectionsSCC Supreme Court of Canada

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IntroductionCulture and History of Quebec Civil LawSir John Georges Bourinot, Lord Elgin (Toronto: Morang, 1906) 171—82 (CBI 287)France’s feudal system was transferred to New France, the most “successful” effort by a European power to do so in North America. Nobles wouldn’t leave France, so a landed gentry was created from commoners as a shadowy reflection of the French nobility. Under this system, the seigneurs had to pay homage to the king; there were restrictions on the transfer of ownership; they undertook to quickly settle the land; and restrictions were imposed if natural resources were found. Seigneurs had the right of dispensing justice, as in France, which they rarely exercised. A censure or roture was a land on which commoners had to pay dues. Serfs called themselves habitants. Each censure was shaped like a parallelogram, with a narrow frontage on the river. These farms came to form continuous settlements on the river, which became known in local phraseology as côtes: Côte des Neiges, Côte St. Luc, etc. Government induced officers and soldiers to settle lands to build walled villages for defence against the “war-like” Iroquois. The habitant/censitaire’s conditions were “exceedingly easy during the greater part of the French regime.” Shopkeepers, farmers, sailors, even mechanics who had a little money could become minor nobles. Titled seigneurs were very rare. Britain still recognizes the Baron de Longueuil. Shiploads of “virtuous young women”, “machandises mélée” were sent to the St. Lawrence to become wives of the “forlorn bachelors,” and production of children was encouraged by bounties. Royal officials generally favoured the habitants in disputes with the seigneurs.

Résumé du jugement de la Cour spéciale (WebCT) New France adopted the Customs of Paris in 1664 (customary law used in France before the Napoleonic Code of 1804). In 1866 Lower Canada adopted the Civil Code of Lower Canada (CCLC). The CCLC’s rules still derived mostly from the Customs of Paris. A 1711 royal proclamation gave the seigneurs the domaine direct, rights to the land, creating obligations on the part of the censitaires. The censitaire had the domaine utile, the set of rights of those who work the land and reap the fruits, including most of the harvest. Forests and waterways are part of the domaine utile. Seigneurs had restrictions such as fees imposed to sell their land. Censitaires owed fees to the seigneurs.

The Fundamental Constitutions of Carolina (1669) (link)[An attempt to set out a full feudal system:] “that we may avoid erecting a numerous democracy, we, the lords and proprietors of the province aforesaid, have agreed to this following form of government, to be perpetually established amongst us, unto which we do oblige ourselves, our heirs and successors, In the most binding ways that can be devised.”

Déclaration des droits de l'homme et du citoyen de 1789, art 2 [emphasis added]Le but de toute association politique est la conservation des droits naturels et imprescriptibles de l’homme. Ces droits sont la liberté, la propriété, la sûreté et la résistance à l’oppression.

Compare this CVL perspective with Jeremy Bentham (CML): “We shall see no such thing as natural property, … the law of property consists merely in an established expectation, in the persuasion of being able to draw such or such advantage from the thing possessed”.

Charter of human rights and freedoms, RSQ, c C-12, art 6Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law.

The Civil CodeJEC Brierley & RA Macdonald, Quebec Civil Law (Toronto: Edmond Montgomery Publications, 1993) (CBI 3)Legislation is the prime source of law, and the code has a unique place in civilian systems. It’s inferior to the constitution, and technically equal to other enactments (it can be amended by them, e.g.), but some see it as having a heightened, almost quasi-constitutional place. Other sources of law include custom, decided cases, and expert scholarly opinion (doctrine), “general principles of law,” and contracts.

La Bibliothèque du Code Civil de Québec, Introduction, (CBI 15) When Quebec adopted the CCLC, based on the CCF, “[l]e pays tout entier a accepté, avec joie, le nouveau régime, comme l’aurore d’une ère de progrès et de prospérité.”

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JEC Brierley, “The Renewal of Québec’s Distinct Legal Culture: The New Civil Code of Québec” (1992) 42 UTLJ 484, (CBI 20)The CCQ, in 1994, replaced the 1866 CCLC. (1) Scope—codification aimed to reduce all private law to a single authoritative bilingual document, consolidating legislation, cases, and doctrine. It may harmonize with other other legal systems, e.g. Human Rights Code of Ontario. All kinds of people are involved: special interests, law professors, judges, government, the public. Fundamental principles may even be reexamined. (2) How—it deals with every stage (birth, marriage, death, etc.) of your private (not public) life; the Romans and Napoleon were never that interested in the public side, left to constitutions and Charters. A code is made up of books: persons, things, and transactions. The CCLC added a fourth, commercial laws. The CCQ now has ten. The style is general, using “open-textured” ideas like good faith, public order, equity, abuse of rights, abusive clauses, general interest, etc. It tends to be articulated through taxonomization. (i) Imperative rules often public order, are those people cannot change using contracts, often preceded by the words “notwithstanding any agreement to the contrary.” (ii) Suppletive rules are default rules that apply unless expressly excluded, allowing the code to be permissive rather than always calling for obedience. Most rules fit in one or the other. (3) Hazards—It’s a long process: initiated in 1955, an office created in the mid-1960s during the quiet revolution, a draft produced in 1978. Codification and nationalism sometimes march together. Judges are normally seen to have a small role, but are given leeway to apply the law in the context of contemporary social conditions. The CCQ has no more reference to the crown or sovereign, only the state. Corporations are merged with legal persons. There’s no reference to socage, although it is still the law. There’s no acknowledgement of federal law, nor law of nations. The Roman Catholic canon is removed. “Public order” has replaced “public order and good morals.” Is this now a free-standing, autonomous, monist code of a new nation-state, or just cosmetic change?

CCQ, Preliminary Provision (link)The Civil Code of Québec, in harmony with the Charter of human rights and freedoms (chapter C-12) and the general principles of law, governs persons, relations between persons, and property.

The Civil Code comprises a body of rules which, in all matters within the letter, spirit or object of its provisions, lays down the jus commune, expressly or by implication. In these matters, the Code is the foundation of all other laws, although other laws may complement the Code or make exceptions to it.

Property in the CodeConsider reading 899–910 CCQ.

Madeleine Cantin Cumyn & Michelle Cumyn, “La notion de biens”, in Mélanges François Frénette (Québec) (CBI 30)Property (“un bien”) is usually something that has a value attached to it. Historically a real right of property had to be a link to some physical object. Increasingly, property rights are over incorporeal things, and the tendency now is becoming to always see property as a person’s right rather than the object itself. Real rights describe an immediate and autonomous relation between a person and a material thing which authorizes the titulary to enjoy full use of the thing.

733–34 CCP (link) [significant for Tri-Tex, unimportant for the course in general]733. The plaintiff may, with the authorization of a judge, seize before judgment the property of the defendant, when there is reason to fear that without this remedy the recovery of his debt may be put in jeopardy.

734. The plaintiff may also seize before judgment … the movable property which he has a right to revendicate.

Tri-Tex Co inc c Ghaly [sometimes Tri-Tex Co inc c Gideon] (1998), JE 98-1680 (SC) (CBI 185) and [1999] RJQ 2324 (CA) (CBI 190)Facts—Ghaly’s company infiltrated Tri-Tex and stole unpatented chemical formulae Tri-Tex produced at great expense.

Judicial history—Dalphond J at the SC held the formulae couldn’t be reclaimed by 734¶1 CCP. The Patent Act doesn’t protect them (they weren’t patented). Nor the Copyright Act, since they’re ideas, not manifestations in literary works, computer programs, or tables. Even the paper on which they’re written isn’t subject to copyright. As movable property, it might be seized by 734¶1, but what was requested was Gideon’s boxes and computers, which can’t be seized, as this might expose Gideon’s private information. An inventory is ordered so that and some documents may be returned.

Issue— Can Tri-Tex “seize” their formulae back from Ghaly under 734¶1 CCQ’s interlocutory provision? No.

CA unanimous reasons (Nuss JA)—The SC was right that the Copyright Act does not protect ideas (Moreau v. St-Vincent), which are public property, only a particular expression of them. Instructions for making chemicals are not “literary works,” and even if they were, Tri-tex can’t seize barrels of chemicals produced using them, as it seeks to do. If that were the case, anyone who baked a pie based on a recipe book would be infringing copyright (SCC in Cuisenaire). This

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information might be trade secrets, protected by contract (non-competition covenants), legal concepts (employee loyalty, unfair trade practices, good faith), or the Patent Act, but they can’t be protected merely for being trade secrets. Goudreau says this kind of ownership might be an incomplete sui generis one, but the code implies information cannot be assimilated with property, and hence a rejection of property right theory. 734¶1 thus doesn’t allow the seizure of Gideon’s boxes and computer.

Ratio—Chemical formulae are not subject to copyright.

Basis and Philosophical IssuesBasic Classification of PropertyBoivin c Québec (PG), [2000] RJQ 687 (CA) (CBII 158)Facts—Boivin found gold bars on the bed of a lake. Others found more a year later. Boivin claims them all, arguing that that together they form an indivisible whole. Québec says it is ½ owner of the bars, as the lake-bed belongs to the State.

Judicial history—The trial judge found the bars were treasure and were separate properties, so Boivin had no claim on the others, and only half of his own. The judge said no reasonable person would abandon, lose, or forget $16k worth of gold bars, and that the serial numbers and their physical locations show they were separate.

Issue—(1) Were they treasure, abandoned, or lost? Abandoned. (2) If treasure, are they separate? N/A. (3) Does Boivin have a claim on the other bars? No.

Reasoning—They weren’t “lost,” since then the owner would have come forward to retrieve them once the discovery was announced. So were they abandoned, or just hidden for later retrieval? The trial judge thought they couldn’t possibly be abandoned, but there could be lots of reasons the person who left them might not want to recover them, including potentially having to answer uncomfortable questions by the SQ if they were seen fooling around in the lake.

Ratio—Found movables may be considered abandoned even if they are valuable.

Malette c Sureté du Québec, [1994] RJQ 2963 (CS) (CBII 162)Facts—Malette discovered $20k by the side of the road. He declared his discovery to the SQ and deposited the money. After one year the SQ was unable to locate the owner of the money and Malette claimed it.

Issue—(1) Is the money lost, treasure, or abandoned? Lost. (2) What rights does Malette have by virtue of this regime? Possession (not ownership—yet).

Reasoning—The money is either without an owner (934¶1 CCQ) or abandoned (934¶2). It’s not “of slight value” (934¶2) so we can’t presume it’s abandoned, and it must be either lost or forgotten (939 CCQ). Malette has fulfilled the legal requirements for possession, but is not a good faith possessor, so the prescription period is ten years.

Malette (CS) seems to say valuable movables will not be considered abandoned, but Boivin (CA) probably reverses this rule.

Madeleine Cantin Cumyn “Recent Developments to the Law of Water in Quebec” (2010) 34 Vt L Rev 859 (CB 280)The availability, quality, and perennity of freshwater are undoubtedly the primary concerns of any environmental analysis or policy, since no life is sustainable without water. The concept of res communis, which applies to water and air in the Civil Law tradition, embodies this reality. Both public and private law deal with water. In the CCQ it’s in Book on Property, mainly to exclude water from property. Use limited to those with direct access. Navigation is a federal power. Recreational navigation, fishing, riverbed mining, wharves, and hydro are provincial. Ownership grants these rights subject to conservation. The province owns navigable watercourses, and non-navigable ones that weren’t transferred before 1918. Water is res communis, whereas minerals belong to the owner, wild animals are res nullius until captured. The Act to Affirm the Collectie Nature of Water Resources and Provide for Increased Water Protection clarified res communis extends to groundwater. Even if only one person has access to a body of water, and therefore exclusive use, it’s res communis, and they have a duty, eg., not to pollute it, not to substantially alter its quantity or quality. The history of feudal Quebec had fairly absolute property rights based on Roman law. The state’s expropriation power doesn’t come from any title in the land, but its mission as a public authority through public order, TDV, and the common good. Agriculture is the last major pollutant that has not been adequately regulated. The Water Act is the key water legislation, and provides for the establishment of a non-binding master plan. We must identify legitimate uses with current uses and future requirements in mind. The first legitimate uses are human needs. Agriculture is beyond question, though modern irrigation practices are not. Industrial uses are also legit. The fourth use, different in character,

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is selling water wholesale or bottling it. Quebec has been moving slightly towards allowing this unneccessary use, but it may now be turning that around.

Things, Human Bodies, Commons, and Commodities1, 2, 3, 10-49, 913 CCQ1. Every human being possesses juridical personality and has the full enjoyment of civil rights.

2. Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.

3. 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 the respect of his name, reputation and privacy.

These rights are inalienable.

10. Every person is inviolable and is entitled to the integrity of his person.

Except in cases provided for by law, no one may interfere with his person without his free and enlightened consent.

11–25. [Issues around consent to medical procedures.]

26–31. [“Confinement in an institution and psychiatric assessment.”]

32–34. [“Respect of children’s rights.”]

35–49. [“Respect of the body after death.”]

913. 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.

E Deleury & D Goubau, Le droit des personnes physiques (CB 89)The law protects the infringement and commercialization of people’s bodies, above all dignity tied to the essence of the person. We shouldn’t take this too far, because it could prevent anyone from selling their labour, threatening capitalism. With modern developments in biotechnology, and changes in morality, we should even consider opening up the commercialization of the human body parts. Human beings and their bodies are in fact, already both subjects and objects of the law. But it is a problem that corpses can no more be considered property than can living bodies. Their heirs cannot then hold a right of property in them.

Real Rights vs. Personal RightsDictionnaire de droit privée et lexique bilingues: Les obligations (Montréal: Yvon Blais, 2003) (CB 119)Real Right: “Right of a patrimonial nature that is exercised directly on property… Within the category of real rights, a distinction is generally made between principle real rights and accessory real rights. The accessory real right differs from the principal real right in that the former constitutes security that is necessarily attached to a claim for which it guarantees performance.”

Personal Right: “Right of a patrimonial nature that permits its holder, the creditor, to claim the performance of a prestation from another person, the debtor… a personal right is… an obligation.” Any rights over the property of the debtor apply to the entirety of his patrimony, and not to specific objects. Personal rights are created via contract between two parties and have no effects on third parties. Creditors by virtue of personal rights are known as créanciers chirographaires.

J Ghestin, Traité de droit civil: Introduction générale, 4th ed by Ghestin & Goubeaux (Paris: LGDJ, 1994) ¶223, 224 (CB 120)Patrimonies contain an active (rights) and a passive (obligations). Rights are patrimonial (monetized, seizable) or extra-patrimonial (inalienable, outside commerce). Patrimonial rights include property rights and creditor rights. Creditor rights and the right to exploit artwork are patrimonial. Extra-patrimonial rights aren’t transferable for money, like name rights, right to honour, to physical integrity. For droit d’auteur or the artist over their work, there’s a schism: the right to exploit it is patrimonial, but the “moral rights” to faithful reproduction, the right to modify, are extra-patrimonial. But unfortunately the distinction between extra & patrimonial rights are not this clean. A dietary pension,

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eg., is extra-patrimonial since it’s unseizable and not transferable, but is easy to put into dollar terms. Personality rights are the best example of extra-patrimonial rights, but even the right to name rights turn patrimonial when it’s used as a professional name, droit à l'image can be moneyed in authorizing reproductions of a portrait. Civil responsibility is usually the law to pursue infringements of personality rights. There are actually degrees of patrimoniality.

F Terré & P Simler, Droit civil: Les biens, 6ème éd., (Paris: Dalloz, 2002) at no 36 (CB 122)Real rights are sometimes seen simply as a type of personal rights, but this can’t be: (1) in the legal relationship between a person and a thing, the thing is simply a passive subject of rights (to be active it would need an obligation imposed directly upon it), (2) it would be paradoxical to imagine such a universal passive obligation: since real rights can be set up against anyone, it would mean that for each item of property, everyone else would have an obligation in their patrimony, and (3) when it’s said that a real right can be set up against anyone, this has two different meanings: even though personal rights only create obligations for the debtor, who alone is bound, passive obligations can sometimes be created for third parties, e.g. in an employment contract, another employer can’t knowingly hire the employee in violation of the first contract without engaging his responsibility toward the other employer. The two types have begun to resemble each other more: real rights are now often held by partnerships, not individual people, and personal rights have essentially become transferable between creditors. At this point, it’s impossible to categorize, e.g., a renter’s righs as either real or personal. Principal real rights allow direct use of the thing, with all the attributes of property, and allow dismemberments of those attributes. Accessory real rights are used as guarantees against the debtor’s insolvency. For example, real sureties allow multiple people to be jointly responsible for a debt [QC CVL does not have sureties, but does have the accessory real right of hypothec and of pledge]. A question that comes up is whether new real rights not in the Civil Code can be created by contract, which seems possible. [In QC CVL they can, see the § Innominate Real Rights.]

J Carbonnier, Droit civil: Les biens, t 3 (Paris: Presses Universitaires de France, 2000) at 67 no 38 (CB 125)Personal rights are between two people, and only exist between those two. They cannot be abandoned. Real rights are between a person and a thing, and they allow abandonment. Unlike personal rights, (1) real rights can’t exist over things that don’t yet exist, or that haven’t been individuated, (2) they give the right to follow and the right of preference. Right to follow says that the owner can exercise their right no matter whose hands the property is in (it can be set up against third parties). The clearest example is a hypothec: the owner of the hypothec can seize property even from a new owner. The right of preference says that if a person becomes insolvent and their property is seized to pay off their debts, those holding real rights over property get to exercise them first, and then the rest of the person’s property is divided up between creditors of personal rights. Plainol invented the idea that a real right creates a universal, passive obligation, i.e. not to interfere with the owner’s property right. The idea of propter rem obligations is related: these are obligations holders of real rights lose with ownership, and that transfer to a new owner.

Following the French revolution it seemed that new forms of real rights couldn’t be created by contract. There was a French case in 1984 in which sellers of immovable property had reserved for themselves the right to advertise using their former property’s billboard. The CA said this was a type of usufruct [which is described in the Civil Code]. The cour de cassation [highest court in France], said it couldn’t be a right of usufruct, because it wasn’t limited to the life of the holder, nor a [real] servitude, because it was tied to a person rather than to property, nor still a right of ownership (including co-property) because it was incomplete, so it must be an unknown sui generis real right.

JL Baudouin & PG Jobin, Les obligations, 5th ed, (Cowansville: Yvon Blais, 1998) at n° 7-9 (CB 131)Real & personal rights work in the same way in QC as in France. There are some nuances, especially with the new CCQ: (1) immovable leases, even non-residential, can be set up by the renter against new owners of the property; (2) hypothecs can be held even on creditor rights, mostly losing the right to follow; and (3) in some cases a third party who makes a debtor lose her expected benefit from a contractual right may be held responsible. These are but a few examples. We should now recognize there is a third category: intellectual rights.

Gaius, Institutes of Roman Law, §§2–4 (ca. 160 CE) (link, page 148)§ 2. The leading division of things is into two classes: things subjects of divine, and things subjects of human right.

§ 3. Subjects of divine right are things sacred and things religious.

§ 4. Sacred things are those consecrated to the gods above; religious, those devoted to the gods below.

Québec (PG) c Club Appalaches, [1999] RJQ 2260 (CA) (CBII 395)Facts—Garneau sold land to D’Auteuil Lumber and transferred the hunting and fishing rights in it to Appalache. Québec later acquired D’Auteuil’s rights in the land. Appalache then blocked public access based on their rights.

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Issue—(1) Does Appalache have a real right to hunt and fish? Yes. (2) Can it block public access to the land? No.

Reasoning—Hunting rights are an innominate dismemberment of ownership, and the agreement with Garneau created the perpetual real right to hunt and fish. As real rights, they are transferable and continued to exist after Garneau’s death. Appalache never received notice of their expropriation. It does not, however, have the right to restrict public access as its non-hunting rights are either accessory or superficiary rights, neither of which justify this.

Ratio—(1) Innominate real rights can be created by contract. (2) Real rights can be set up against third parties. (3) Acquisition/expropriation of (bare) ownership does not in itself extinguish other real rights in a property.

Club Appalaches answers the question asked at the end of the articles we just saw by Carbonnier, Terré and Simler, and is taken up in more detail next term in the section on Innominate Real Rights.

Ouimet c Guibault, [1972] CS (CB 165)Facts—The parties signed an options contract in which Guibault promised to sell and buy land. Ouimet later got an expropriation notice from the government and tried to initiate the sale to Guibault, but the land was expropriated.

Issues—(1) What rights did the contract create? Personal. (2) Did expropriation extinguish these rights? No. (3) Does Ouimet have a right to damages? Yes.

Reasons—Ouimet did not renounce his right to the promise of sale just by remaining silent for five years, and remains the creditor of a personal right from Guibault. A promise of sale is not an actual sale contract; there was no transfer of real rights. The government’s actions count as force majeure (act of God), since they made it impossible for Guibault to fulfill the obligation to transfer real rights. However, the personal rights involved in the sales contract (the promise to sell) remain valid. The rights that the government left to Guibault would have been held by Ouimet, and Ouimet would have received compensation for the expropriated lands. Since a personal obligation cannot affect third parties (the government) and since specific performance is impossible here, damages are assessed at the value of $10,700 dollars.

Ratio—A real right created by contract can become a personal right giving right to damages in case of force majeure.

Tremblay c Martel, 2009 QCCQ 2465 (CB 170) [Moyse refers to this as “l’affaire du camping.”]Facts—Tremblay sold a campground with buildings to Charest, reserving a portion for himself, and establishing a right to use it for snowmobiling and a servitude from Charest not to build in a section of the land near his portion. The right was not published. When Charest sold to a new owner, he said Tremblay’s rights no longer applied.

Issue—Does Tremblay have a personal or real right? Personal, and therefore it cannot be set up against the new owner.

Reasoning—To be a real right, it must be published, and its nature must be specified. It wasn’t published, so it’s not a personal servitude, but rather a personal/contractual/creditor right which cannot be set up against third parties.

Ratio—When publication requirements are not observed, no real rights are created.

At ¶34 they say that personal servitudes are essentially temporary, but I believe this is contradicted in Matamajaw, etc.

Movables vs. ImmovablesConsider reading 899–907 CCQ, “Kinds of Property.”

Bélair c Ste Rose (ville de), [1922] 63 SCR 526 (CBI 236)Facts—Belair owned a bridge, and claimed it was immune from taxes on immovables because it was not an immovable.

Issue—Is the bridge immovable by nature (376–77 CCLC)? Yes.

Reasoning—The English and French versions of the CCLC have equal weight, so bâtiment/building is interpreted to mean all structures attached to the ground. The bridge is thus immovable by nature (376 CCLC). What could it possibly be if not immovable, since it is certainly not a movable, and it must either be movable or immovable?

Ratio—All structures attached to the ground are presumed to be immovable by nature.

The servitude on the riverbed (the right to build a bridge resting on it) is itself an immovable, even though it’s an incorporeal right, because rights relating to immovables are immovable (see 904 CCQ).

Nadeau c Rousseau, [1928] 44 BR 545 (238)Facts—Rousseau installed furnaces in a house. It was agreed they remained his until the house’s owner finished paying

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for them. The homeowner went bankrupt, and his house was auctioned. Nadeau, the new owner, claimed the furnaces.

Issue—Is the furnace movable or immovable? Immovable, thus part of Nadeau’s house. Rousseau has no rights in them.

Reasoning—Because the furnace has been physically integrated in to the house, removal would result in serious damage to it and the house, and heating is a necessity in Canada, the furnaces were immobilized by nature, meaning they were absorbed into the the house, disappearing as items in Rousseau’s patrimony. Rousseau’s contract cannot prevent the change in status of the furnaces, since DDB is not under the control of individuals – it results from facts as determined by the Code. Thus he has no rights over the furnaces. The judge considers and rejects immobilization by destination, pointing out that this works only if both movable and immovable have the same owner, which cannot be the case here.

Ratio—(1) The definition of immovable in the code cannot be altered by contract. (2) Immobilization triggers accession.

Cases like this led to 2724¶2 CCQ, which protects those who contribute to immovable property. Rousseau couldn’t sue the original owner, because of bankruptcy, and couldn’t sue Nadeau, because he had no real right, so no right to follow.

Horn Elevator Limited v Domain d’Iberville, [1972] RJQ 403 (CBI 240)Facts—Horn installed elevators in Iberville’s building, agreeing they would remain Horn’s until fully paid for. The contractor who had hired Horn went bankrupt and Horn attempted to seize the elevators, including doors and buttons.

Issue—Are the elevators and related property immovable by nature? Yes.

Reasons—The elevators cannot be immovable by destination because they were not placed in the building by its owner, but rather by the contractor. By analogy to stairways (which in doctrine are clearly immovables), using classical attempts to define immovables, elevators are also immovables. The building isn’t only a foundation walls, a roof and floors, but all that’s permanently attached or affixed, and necessary for it to be complete. Elevators are clearly attached to the structure of the building, are very necessary for skyscrapers, and removing them would involve the destruction of large parts of the building’s superstructure. This last point is not of prime importance, because doors can be removed without damage, but are part of an immovable.

Ratio—Necessity of the movable object to the immovable is the most important criteria for immobilization.

Cablevision Montréal Inc v Deputy Minister of Revenue of the Province of Québec, [1978] SCR 64 (CBI 245)Facts—Cablevision’s network of poles, ducts and conduits extends from an antenna on the ground to another bolted to a skyscraper. Bell Canada and Hydro-Québec have wires and cables so closely intermingled that only an expert can tell them apart. Cablevision says their network is not subject to a tax on movables, beacuse it’s immovable.

Judicial history—The trial judge found it was immovable, but the CA reversed (except for the ground-based antenna).

Issue—Is the cable distribution network immovable? Yes, in its entirely.

Reasons—They cannot be immovable by destination because the wires and antenna are owned by Quebec, but the poles and the land they are built on belong to others. Thus the network can only be immovable by nature, if at all. The court distinguishes between horizontal attachment (to the structures from which the network radiates – the antennas) and vertical attachment (to the structures which physically support the network – the poles). Either is sufficient to render the network immovable, since: “The general principle is that a construction that adheres to the land is immovable, even if it is not fixed with permanency.” “The criterion for being an immovable by nature is met when a structure that may be described as a building adheres to something that is immovable by nature, whether land or a building.” The Hydro/Bell networks were previously declared immovable by the courts, thus the CV network is immovable too. Disjoint ownership of the network from the poles and the antenna from the skyscraper is a legal, not physical, characteristic and hence irrelevant.

Ratio—Any construction permanently attached to the ground, even indirectly, is an immovable.

Construtek GB Inc c Laforge, [1998] RDI 137 (CBI 253)Facts—The owner of Construtek Laforge broke up with Laforge, and won a court battle for possession of the house they co-owned, though she has to pay Laforge half its value. Laforge took the curtains, chandeliers, light fixtures, appliances.

Issue—Are these movable or immovable? The appliances, curtains, and shelves are movables, the lights immovables.

Reasons—The appliances, curtains and blinds never lost their individuality, since they were easily removed by unplugging them or unscrewing their attachments. They are also not necessary to the utility of the building. While they might have been immovable under the CCLC, they are still movable under CCQ. The lights, however, are necessary to the

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use of the building and are physically integrated into it. Laforge has to reimburse Construtek for the lights.

Ratio—Movables will be immovable if they serve to ensure the utility of the building or the comfort of its occupants (903 CCQ), mere attachment is no longer enough under the CCQ.

Axor Construction c 3099-220 Québec Inc, [2002] RDI 26 (CA) (257)Facts—Axor hired 3099-220 to install rinkboards in an arena they were building by. 3099-220 published a legal hypothec on the whole arena, claiming it had contributed to its construction or renovation (2724(2) CCQ). Axor challenged this.

Judicial history—The trial judge upheld the hypothec.

Issue—(1) Are the boards movable or immovable? Immovable, so the hypothec on the arena is valid.

Majority reasons (Rochon J)—Pierre-Claude Lafond gives five factors to determine immobilization: Is there (1) an immovable? the arena; (2) a movable that’s been attached or joined to it? yes; (3) individuality retained by the movable? yes, it could be removed; (4) perpetual attachment? yes, indefinitely, if not forever; (5) assurance by the movable of the utility of the immovable (would it be incomplete without them)? yes, the arena would be useless without boards. In the case of buildings with specialized functions, the response is often self-evident. So they are immovable by attachment.

Dissent reasons (Vallerand J)—The boards are just equipment they supplied. They have nothing to do with construction, and Rochon J undermines 2724 CCQ. They are removable and contribute to the business of running the arena, contrary to 903 CCQ and article 48 of the Transitional Provisions. So they are movables, and the hypothec does not apply.

Ratio—Lafond’s factors can be used to determine immobilization by attachment (903 CCQ).

Ville de Montréal v 2313-1329 Québec, JE 2003-511 (Cour Municipale) (CB 260)Facts—A café went bankrupt, and left all appliances, furniture, equipment, etc. behind, agreeing with the landlord to pass it on to the next tenant, in a homologated (registered) transaction. The city seized it all anyway. 2313-1329 became the next tenant and challenged the seizure.

Issue—Are the goods movable or immovable? Movable, and hence subject to seizure.

Reasons (Boisvert J)—The furniture is clearly movable. Other things are screwed in or attached to plumbing. Axor used Lafond’s five conditions for immobilization by attachment (903 CCQ, see Axor). Attachment was insufficiently permanent (factor 4), and the building would retain its usefulness even if they were removed (factor 5).

Theory of PatrimonyAubry & Rau, Cours de droit civil français d’après la méthode de Zachariae, 5 ed, E Bartin at ¶. 573-574 (CB 43)The CVL notion of patrimony says that each person has a patrimony holding their property, as well as their debts.

AN Yiannopoulos, “Civil Law Property”, ¶ 122 The Classical Theory: Aubry and Rau 2nd ed. 1980 (WebCT)Aubry and Rau proposed last century that a patrimony is an inherent consequence of personality: “the idea of patrimony is deduced logically from the idea of personality … The patrimony is the projection (emanation) of personality and the expression of the juridical capacity with which a person is invested.” Several conclusions follow: (1) Everyone has a patrimony (though it can be empty or contain only debts). (2) Only persons can have a patrimony. (3) Patrimonies are indivisible/a person can have only one patrimony. (4) Patrimonies are intransmissible (but not their contents!) while the subject is alive. However, the theory leads to practical difficulties, e.g. personal liability for professional debts and the difficulty of classifying certain rights as either patrimonial or extra-patrimonial. Plus there are often de facto divisions within the patrimony (some goods cannot be seized or may be inherited with conditions of inalienability attached).

J Ghestin, Traité de droit civil: Introduction générale, 4 ed, J Ghestin & G Goubeaux, (Paris: LGDJ, 1994) at ¶ 204–213, CB 46Patrimony is the set of rights and charges, present and future, in which rights answer for charges. It includes the set of rights that the given person could transfer to another for money. There are some exceptions or weakenings: (1) some patrimonial rights can be declared unseizable, and so cease to universally guarantee the person’s debts, (2) legal persons (i.e. corporations) now exist which have their own patrimonies without being what we would traditionally think of as a person, (3) heirs instantly have the person’s personality transferred, as well as everything in the person’s patrimony into their own, and (4) the modern conception allows patrimonies by appropriation, which are attached to no person in particular. But the classical conception is still the foundation.

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Ville de Québec c Cie d’immeubles Allard Ltée, [1996] RJQ 1566 (CA) (CBI 52)Facts—Two members of a partnership which owned a $981k building sold their shares to Allard for $100k, paying no tax.

Judicial history—The trial judge ruled that partnerships have patrimonies, so the transaction was fine.

Issue—Were shares in the partnership sold, or shares in undivided co-property? Undivided co-property, i.e. real rights in the shareholders’ personal patrimonies.

Majority reasons (Brossard J)—In CVL, partnerships were historically co-property with a contract. Some Quebec jurisprudence held that partnerships have juridical personality (albeit a restrained one), but even if they had not, those cases would have been decided the same way, so they’re obiter, and the question is still open. The CCQ lists only corporations and humans as having juridical personality. Partnerships often act as de facto legal persons (signing cheques, opening bank accounts, etc.) but this is just legal shorthand. 2188 CCQ says joint-stock partnerships have legal personality, implying that other partnerships do not, thus no patrimony either. So an unincorporated association formed by a group of individuals has some but not all the attributes of a juridical personality: it has no patrimony.

Dissenting reasons (Biron J)—The CCLC seems to say partnerships have patrimonies: 1899 CCLC says: “The property of the partnership … ”, 115 CCP says seizure against a partnership applies “only to the property of the partnership.”

Ratio—Partnerships do not have a patrimony [careful—Moyse says this question is still open, see e.g. the next case].

Roy c Boivin-Carrier, 2006 QCCS 2663, CB 76Facts—Roy sued Boivin and Carrier’s law partnership after being fired.

Issue—What is the nature of the partnership’s patrimony? It’s a patrimony by appropriation (not attached to a person).

Reasons—Even though CCQ 2208, 2221, 2246, 2248 speak of the “property of the partnership,” this is just a figure of speech, because partnerships have no juridical personality or true patrimony, so can’t own anything. This is a patrimony by appropriation, the first priority for the partnership’s creditors. Partners only become liable for payment when the partnership’s patrimony runs out. With CCQ 2221–25, it’s now redundant to sue both a partnership and its members.

Ratio—Partnerships have a patrimony by appropriation tied to the patrimonies of its members.

A patrimony by appropriation, at least as it’s used in the trust, is, like any other patrimony, meant to be completely autonomous, so how it can be tied to a personal patrimony is unclear.

Wilhelmson, Nature of the Québec Partnership, (1992) (WebCT or HeinOnline) (à survoler)“Partnership has characteristics of both organized indivision and the corporation.” Many authors have concluded that partnerships have an imperfect or “restrained” moral personality, but Wilhelmson thinks this is needlessly complicated. He argues that partnerships have a patrimony, since ambiguities in the Code are generally interpreted in favour of the distinct patrimony (partners cannot sell undivided shares in property held by the partnership to third parties). However, partnerships still lack many aspects of moral personality: they cannot sue in their own name (changed with CCQ) and contracts between partner and the partnership are of uncertain status. Thus partnerships may have a patrimony but no moral personality. [The debate surrounding 1899 CCQ (pp.1001-02) is an example of CVL interpretation of ambiguous articles in the Code using the organization of the code and other articles to illuminate them.]

Effects and Extra-patrimonial Rights

Charter of human rights and freedoms, RSQ, c C-12, s 5Every person has a right to respect for his private life.

Société Québécoise d’initiatives Agro-alimentaire c Libman, [1998] CAI 463, CB 101 Facts—Libman, a member of the National Assembly, wanted access to the financial records of Socomer, a bankrupt business. Agro-alimentaire refused to provide them, citing Socomer’s extra-patrimonial right to private life.

Issue: (1) Do legal persons have a right to private life? Yes. (2) Is it extinguished when the company ceases operation? No.

Reasons—The end of Socomer’s commercial activities did not remove the objectively confidential nature of the financial records it provided to SOQUIA. The confidentiality of these records is protected not only by 302, 35, 36 CCQ, but also by 301 CCQ’s guarantee of civil rights for moral persons, since this allows Quebec Charter s. 5 to apply. Thus the records are protected under Socomer’s right to private life.

Ratio—Legal persons have extrapatrimonial rights (e.g. right to private life) not invalidated by the end of their activities.

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Laprairie Shopping Centre Ltd c Pearl, [1998] RJQ 448 (CB 96)Facts—Laprairie made suspiciously large payments to Pearl, its attorney, before going bankrupt. A trustee stepped into Laprairie’s shoes, and Pearl refused to give it information on the payments citing attorney-client privilege.

Issue—Can the trustee renounce attorney-client privilege? No, it does not take over Laprairie’s juridical personality.

Reasons—The trustee’s role is to protect Laprairie’s patrimonial (economic) obligations to its creditors, so it’s only transferred patrimonial rights. Laprairie’s right to professional secrets can’t pass to a trustee following bankruptcy, so the trustee can’t renounce it without consent of the bankrupted.

Ratio—Extrapatrimonial rights cannot be transferred or extinguished without the consent of the holder [but see Torrito].

35 CCQEvery person has a right to the respect of his reputation and privacy.

No one may invade the privacy of a person without the consent of the person unless authorized by law.

Torrito c Fondation Lise T, [1995] RDF 429, CB 104 Facts—The Foundation published the name, picture and video footage of Torritos’ deceased child without Torritos’ consent to raise funds/awareness for severely disabled children. Torrito sue to prevent Foundation’s use of her likeness.

Issue—Did Lise Torrito’s right to privacy pass to her parents after her death? Yes.

Reasons—Lise’s succession passed to her parents as per 653 CCQ, including her right to privacy in 35 CCQ. This clearly includes the right to decline publicity. The Foundation’s goals may be in the public interest, bit it didn’t act in it: there’s no excuse for not obtaining permission.

At the time, 35 CCQ¶2 read differently: “ ... person without the consent of the person or his heirs unless ... ” See also 625¶3 and 1610 CCQ, which allow heirs sue for breach of personality rights if the breach occurred prior to the holder’s death.

Laoun c Malo, [2003] RJQ 381 (CA) (CBI 107)Facts—Silhouette gave Laoun advertising posters to display which pictured Malo that they had produced. Laoun published the ad in the phone book obtaining Malo’s consent. Laoun said Malo transferred her rights to Silhouette.

Issue—(1) Can a person transfer the right to their image? No. (2) What damages can result from unauthorized use of a person’s likeness? Patrimonial (actual loss and lost future profits) and extrapatrimonial moral damages.

Reasons—Malo’s contract with Silhouette included no clause allowing publication or re-use of her likeness by third parties beyond in-store posters. Malo and Silhouette’s contract has no legal effect on third parties (1440 CCQ). 3 CCQ prohibits transfer of the right to privacy, which includes right to one’s imeg. Thus, Laoun used Malo’s image illegally.

Ratio—Right to one’s image is not transferable, only renounceable.

The same object is subject to Malo’s right to her image and private life, to Silhouette’s copyright, and Laoun’s ownership.

Aubry v Éditions Vice-Versa, [1998] 1 SCR 591, at paras 22-24 (WebCT) Facts—Vice-Versa published a photo of Aubry sitting in public in an arts magazine, taken without her consent.

Issue—(1) Did this infringe her right to privacy or to her image? Yes. (2) Is it justified, e.g., by her consent? No.

Majority reasons (L’Heureux-Dubé & Bastarache JJ)—“In our view, the right to one’s image, which has an extrapatrimonial and a patrimonial aspect, is an element of the right to privacy under s. 5 of the Quebec Charter” (¶51). Publication of Aubry’s image without consent constitutes fault. Invoking freedom of expression is not enough to excuse the fault. There are no extenuating circumstances that would reduce her right to privacy: Aubry was neither engaged in a public activity when the photo was taken, nor is she a person of notoriety. Nor was she an incidental figure in the background of a photo. Compensation was given for patrimonial damages (money she should have been paid to renounce her droit à l’image so that her photo could be published) and extrapatrimonial damages (invasion of privacy).

Dissenting reasons (Lamer CJ)—The right to privacy is distinct from the right to one’s image. There is no evidence of prejudice.

Dissenting reasons (Major J)—There is no evidence of prejudice.

Ratio—Right to one’s image is part of the right to privacy and protected by the CCQ. It has both patrimonial and extra-

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patrimonial aspects.

Ysolde Gendreau, “Moral Rights”, Copyright and Confidential Information Law of Canada (Scarborough: Carswell, 1994) at 208Copyright protects the economic interests of the author of a work. Only the copyright holder may profit from the work or authorize others to profit from it. Copyright protects the expression of ideas as embodied in the literary work itself. It does not protect the ideas or information behind the work (if you publish a table of statistics, someone else can turn that table in to a graph) nor the effects of the ideas (if you copyright a cookbook you do not have rights over the food people make with it).

Moral rights are protection of the integrity of the literary work because it represents an extension of the author’s personality and reputation. Civilian systems see this as a natural conclusion; the common law was reluctant to recognize moral rights, so they are granted via statute. Moral rights cannot be transferred after the work is completed, but can be assigned before completion. They can, however, be renounced against monetary consideration at any time. Moral rights have 4 components, of which only the first two are recognized in Canada: (1) Paternity (Right to be identified as the work’s author by name or pseudonym or to remain anonymous) (2) Integrity (Right to ensure that the work remains in the state in which it was released to the public. Consists of objective+subjective test. Does the author feel the integrity was violated? Do experts/other artists agree?) (3) Divulgation (right to determine how the work will be revealed to the public) (4) Withdrawal/repentance (right to remove work from public circulation, either permanently or to make corrections/updates)

Duality of DomainPortalis, “Discours prononcé devant le Corps législatif” in Locré, La législation civile... (1827), vol 8 (CB II 6 et 12)Public domain isn’t really a domain in the feudal sense; there are no simultaneous property rights. Instead, it consists of the power to govern: to pass laws influencing the use of property, to tax owners of property, and, in exceptional cases, to expropriate property for public utility. “Quand on jette les yeux sur ce qui se passe dans le monde, on est frappé de voir que les divers peuples connus prospèrent biens moins en raison de la fertilité naturelle du sol qui les nourrit, qu’en raison de la sagesse des maximes qui les gouvernent. D’immense contrées dans lesquelles la nature semble, d’une main libérale, répandre tous ses bienfaits sont condamnées à la stérilité… parce que les propriétés n’y sont point assurées.” “Au citoyen appartient la propriété et au souverain l’empire.”

Bâtiments kalad’art inc c Construction DRM inc, [2000] RJQ 72 (CA) (CB 327) Facts—Kalad’art sold DRM materials to build a sand and salt warehouse for the city of Rimouski. Kalad’art secured DRM’s payment with a legal hypothec on the building, and when they didn’t pay, moved to seize the building.

Issue—Is the warehouse not subject to seizure because it’s “appropriated to public utility” (916¶2 CCQ)? Yes.

Majority reasons (Mailhot J)—Duality of domain divides all municipal property between that which is in the private and public domains. Property in the public domain cannot be seized, which means it cannot be hypothecated (2668 CCQ). 916¶2 CCQ was not intended to modify 2220 CCLC, whose French and English versions differed: “possessed for the general use of the public” vs. “possédés pour l'usage général et public” . The more restrictive English versions at some point lost the favour of the courts. Even if the public doesn’t directly use the property, and even if the property isn’t directly essential to the functioning of the municipality, it can still be in the public domain if it is tied to the provision of a service that is essential to the functioning of the municipality. This warehouse is tied to road maintenance, an essential serivce.

Concurring reasons (Biron J)—Mailhot is correct, and this means the law does not allow contractors indirectly involved in municipal projects any mechanism to secure payment. The legislator must intervene to fix this problem or municipalities will no longer be able to find companies willing to work for them.

Ratio—The public domain in 916¶2 CCQ’s “established in the public interest” should be interpreted broadly.

Québec (PG) c Houde, [1998] RJQ 1358 (CBI 297)Facts—Houde’s ancestor ran a sawmill on land he got from the Crown on the Petit-Saguenay River. A salmon spawning pond is found 200 meters from the mill’s dock, and 450 meters from the federal dock. At low tide, the river is almost dry. In the 19th century the waterway was not considered navigable, but Quebec claims it now is at high tide.

Issue—Who owns the riverbed (and with it, the salmon spawning area)? Houde owns the riverbed and fishing rights.

Reasons—The navigability of a waterway is a question of fact, answered with reference to ordinary commercial shipping

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(canoes could navigate anything). The river was then clearly non-navigable at the time of the concession. Quebec law only recognizes res communis of navigable waterways, so there are no public fishing rights here. Since fishing and riparian rights weren’t expressly excluded from the letters patent, they are part of the concession by the law of the time.

Ratio—Property rights under letters patent are assessed according to the conditions at the time of the grant.

Structure and Characteristics of PropertyB Pierre, “Classification of Property & Conceptions of Ownership in CVL and CML” (1997) 28 RGD 235, 237-257, CBII 20 Property is the area of law that has had the least written about it comparatively (CVL/CML). Focusing too much on similarities in the purpose of different concepts (e.g. between hypothec in CVL and mortgage in CML, or between trusts in the two systems) can hide the fact that they operate differently based on the broader tradition they’re part of. This causes problems, e.g. (1) when Québec tries to introduce property legislation that conforms to English CML principles, and (2) when courts, like in Matamajaw, are unfamiliar with the legal system. In that case, England’s Privy Council interpreted a contractually-created property right in Quebec. Since a personal servitude was thought not to be a real right, they decided the right must be a real servitude, and essentially equated the right to fish with the CML notion of profit à prendre. They essentially distorted the CVL by bringing in the CML notion that a plurality of owners could have rights in one parcel of land. The law in these cases is undermined, and uncertainty is introduced. Essentially the CML has no integrated notion of ownership, so “owner” is used to mean a number of different, limited things.

Banque Laurentienne c 200 Lansdowne, [1995] RJQ 1148 (WebCT)Facts—The bank sold 8 condo units, and still had 5 unsold parking spaces. The bank’s condo sales contracts said the bank wouldn’t sell or transfer these parking spaces to anyone who didn’t own one of the condos. The bank has no use for them. The condo syndicate wouldn’t buy them for $1.

Issue—(1) Can the bank abandon them without consent of the syndicate? Yes. (2) Is this abuse of rights? No.

Reasoning—(1) Abandon unilaterally makes a real right disappear from the holder’s patrimony, which the bank needs no consent from anyone to do. The State automatically takes ownership of abandoned immovables. Abandonment removes any real charges/propter rem obligations on the immovable from the patrimony of the person who abandoned, although they can still be enforced over a subsequent owner. Abandonment doesn’t extinguish personal obligations, but any new extra-contractual liability stops at the moment of abandonment. (2) The bank has no use for the parking spots given it doesn’t own any of the condos. The offer to sell them to the syndicate for $1 undermines arguments about bad faith.

M Cantin Cumyn, “Essai sur la durée des droits patrimoniaux” (1998) 48 R. CB II 17)The code contains articles specifying the duration of usufruct and emphyteusis (1123, 1197 CCQ), but not ownership itself. Ownership is the only real right that does not extinguish by non-use (except servitudes, 1191 CCQ). Only the total destruction of the object extinguishes ownership.

Limits of the “Absolute” Right of PropertyConsider reading 947–53 CCQ, “Nature and Extent of the Right of Ownership.” There are also limits not touched on here relevant to the class in 976–1008 CCQ, “Special Rules on the Ownership of Immovables,” including rights of way imposed by courts (997–98 CCQ), laws on views (e.g. 995 CCQ), and the quaint tour d’échelle (987 CCQ).

SiteImmovable property’s site (“assiete”) sets its horizontal limits using published boundaries (consider reading 787–84 CCP).

Themens c Royer, [1937] KBFacts—Themens constructed a building which encroached six feet onto Royer’s lot. When the encroachment came to their attention fifteen years later, Themens offered to buy either that part of the land or the whole lot. Royer refused and demanded demolition. Themens argues good faith, acquiescence by Royer, and claims immunity under 417–18 CCLC.

Judicial history—The trial judge ordered demolition.

Issue—(1) Does good faith encroachment allow a property owner to be forced to sell some or all of the land? No. (2) Did Royer give tacit consent to the encroachment? No.

Reasoning—(1) Property rights are absolute. No one can be compelled to sell their land to another except in the interest

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of public utility. Forcing Royer to sell would fatally undermine Royer’s right to her property, even if the encroachment was in good faith. 417–18 CCQ do not apply because the building is not an improvement on Royer’s land—it benefits only Themens. Good faith should be interpreted narrowly, as applying to possession of an immovable with an unknown defect as to its title. (2) Royer can’t have given tacit consent before even being aware of the encroachment.

Ratio—Encroachment onto property, even in good faith, gives no recourse.

This case took the absolute nature of property rights to extremes, so a CCQ article was introduced to override it:

992 CCQWhere an owner has, in good faith, built beyond the limits of his land on a parcel of land belonging to another, he shall, as the owner of the land he has encroached upon elects, acquire the parcel by paying him its value, or pay him compensation for the temporary loss of use of the parcel.

If the encroachment is a considerable one, causes serious damage or is made in bad faith, the owner of the land encroached upon may compel the builder to acquire his immovable and to pay him its value, or to remove the constructions and to restore the place to its former condition.

Vertical property rights are similarly expressed in absolute, sweeping terms:

CCQ 951¶1 [see also ¶2, 952, 992]Ownership of the soil carries with it ownership of what is above and what is below the surface.

In practice this is restricted by, e.g., the res communis of air, by mining laws, and by municipal by-laws (zoning, etc.)

Lacroix c R, [1953] QB (CBII 41)Facts—The government compensated Lacroix to install lights and cables on his land to guide planes, near Dorval airport. He also wanted compensation for allowing planes to fly over it, which he said was a servitude expropriated from him.

Issue—Does ownership over land extend to ownership of the airspace above by accession? No.

Reasoning—414 CCLC (951¶1 CCQ) grants an owner “what is above and what is below” their property. This principle goes back to French customary law of the Middle Ages. When it was created, no one could foresee modern technological developments. Modern doctrine and jurisprudence in other countries has tended to restrict it. In addition, air is res communis and thus not susceptible to ownership by anyone, let alone accession or expropriation. Airspace occupied by a building is part of a person’s property, but only by virtue of its physical incorporation in to an immovable.

Ratio—(1) Air and space are not susceptible to ownership and fall in to the category of res communis. (2) Ownership of airspace over land is limited to that which he can possess or occupy for the enjoyment of his land, such as the airspace occupied by erecting a building.

Mining Act, RSQ, c M-13.1, ss 8–9 (CBI 163)8. The mining rights conferred by the following titles are immovable real rights: — claims; — mining exploration licences; — mining leases; — mining concessions; — seabed exploration licences; — seabed mining leases; — exploration licences for surface mineral substances; — leases to mine surface mineral substances; — licences to explore for petroleum, natural gas and underground reservoirs; — leases to produce petroleum and natural gas; — authorizations to produce brine; — leases to operate an underground reservoir.

9. Every real and immovable mining right constitutes a separate property.

ExpropriationCCQ 952 [see also 953, 947 CCQ]No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in consideration of a just and prior indemnity.

Public utility here means the government must justify any expropriation in these terms. We will look at how it is defined.

Expropriation Act, RSC 1985, c E-21 s 4(1)Any interest in land or immovable real right … that, in the opinion of the Minister, is required by the Crown for a public work or other public purpose may be expropriated by the Crown in accordance with the provisions of this Part.

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Expropriation Act, RSQ, c E-24[This act, similar to others, imposes strict conditions and formalities on expropriation (notice, consultation, etc.) It requires compensation, raising it almost to a constitutional level. It requires the expropriation must serve public utility.]

This is another example of shared competency (like incorporation), both levels can expropriate land. Authorson v. Canada (AG), 2003 SCC 39 held the CML can expropriate without compensation if this is done in clear language. In Leiriao v. Val-Bélair, [1991] 3 SCR 349, the SCC held expropriation of Leirao’s property for a “land reserve” was not for public utility.

Sula v Cité de Duvernay, [1970] CA 234 (CBII 122)Facts—Sula owns property that is re-zoned as a park.

Issue—Is this a de facto expropriation? Yes.

Reasons—After re-zoning, his rights in the property were no different than anyone else’s, which goes against the concept of ownership, so this has the same practical effect as expropriation and should be subject to its laws.

Ratio—Re-zoning that makes the owner’s rights in their property no different than anyone else’s is de facto expropriation

9034-8822 c Sutton (Ville de), 2010 QCCA 858 (CBII 124)Facts—Sutton enacted forestry zoning regulations. The defendant owns large woodland properties they exploit.

Judicial history—The trial judge struck down a number of provisions, but not the regulation as a whole.

Issue—(1) Are the regulations entirely invalid? No. (2) What about specific provisions restricting steep incline cutting, prohibiting high altitude cutting, or stipulating annual cutting area limits per lot? No.

Unanimous Reasons (the Court)—(1) The appellants’ own expert recognized that restrictions requiring selective cutting were valid. (2) It’s not the judiciary’s role to rewrite these laws. Even if owners of large lots are disproportionately affected, it’s not discriminatory as it was adopted in good faith, and is to be applied equally. The whole point of regulations is to be discriminatory. Environmental protection is important, and the appellants didn’t disprove that the regulations serve sustainable development. The provisions don’t prevent all cutting in the municipality, nor even on the appellant’s property (¶42). The restrictions, though they are real and may decrease the property value, remain valid unless they equate to confiscation as in Sula (¶47–49).

Ratio—The mere fact a law decreases a property’s value does not make it invalid. (The CA may even have restored the provisions struck down by the trial judge if there had been a cross-appeal.)

Reimbursement for AccessionLocation Fortier c Pacheco (5 December 1997), Montreal 500-17-000480-973, JE 98-197 (CS) (CBII 168)Fact—Fortier rented Pacheco a pickup truck, who later ceased payments. 2741-2824 Québec Inc had loaned Pacheco a platform, which he incorporated in to the pickup truck at a cost of $3.5k. Fortier claims ownership of the platform by movable accession and claims removal of the platform would irreparably damage the truck ($16k). 2741-2824 claims that its platform ($6–10k) remains its property and wants compensation.

Issue—(1) Who owns the truck and the platform? Fortier. (2) Is compensation owed? Yes, $6k for the loss of the platform.

Reasoning—Removing the platform would render the pickup truck unsuitable for normal use, so 971 CCQ applies, and since the truck is worth more than the platform, Fortier is its owner. This case triggers 975 CCQ, which allows the discretion to order compensation to be paid to 2741-2824, since they rented it in good faith and it improves the truck.

Ratio—This case is an application of 975 CCQ which allows flexibility in “unforeseen circumstances” of accession.

Fiducie Enfants-Marier c 2955-9754 Québec Inc, [2002] JE 2002-169 (WebCT)Facts—Marier reclaims a house under the Cities and Towns Act it had sold earlier, which had been acquired by 2955-9754.

Issues—(1) Can Marier reclaim the house? Yes. (2) Does 2955-9754 have a right to be reimbursed for expenditures? Yes.

Reasons—The Act allows reclamation. The expenditures were necessary maintenance or repairs and taxes, which Marier would have had to pay anyway.

Ratio—This case used the general reimbursement rules (958–59 CCQ), dividing costs into necessary, useful, or for amenities.

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Inkel v Lambert, [2004] CanLII 48115 (CS) (WebCT)Facts—Inkel planted trees on what she thought was her land, but it turned out to actually be on Lambert’s.

Issues—(1) Is Inkel entitled to compensation under 957–58 CCQ? Yes. (2) Under unjust enrichment? No.

Reasoning—(1) The trees are useful, as they increase the value of the land, so 957 CCQ says the trees belong to Lambert by accession. Inkel, until now possessor of the trees, was in good faith, so 958 CCQ says she is entitled to reimbursement. (2) Unjust Enrichment only applies in the absence of all other remedies.

Ratio—Straightforward application of 957–58 CCQ.

Abuse of Rights and NuisanceCCQ 7, 9767. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.

976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

Abuse of rights is not specific to DDB. It is a limit on rights given to individuals by the state, prohibiting them from being used to harm others. It’s seen by some as paternalist. Abuse of rights is related to public utility as a limit on the “right” of expropriation. It’s difficult to find a definition people can agree on.

Drysdale c Dugas, [1896] 26 SCR 20 (CBII 52)Facts—Drysdale’s Montreal stable was noisy, odourous, and allowed urine to seep next door. It was constructed according to all regulations and by-laws and was “provided with the best possible system of drainage and ventilation.”

Issue—Was Drysdale’s stable an abuse of property rights for which he is liable in damages? Yes.

Majority reasons (Strong CJ)—Article 1058 CCLC’s “damages caused … to another” “of course includes all abuses of proprietary rights, even the most absolute.” He provides precedent in CML’s tort of nuisance.

Concurring reasons (Taschereau J)—[CVL has more difficulty finding liability, as the need for fault is central. Taschereau had to write a lengthy concurring judgment with Strong CJ’s straightforward finding of liability to give a CVL justification:] “Cette cause m’a paru d’abord devoir présenter quelque difficulté, mais j’en suis depuis venu à la conclusion qu’après tout, elle est, telle qu’elle nous a été soumise sur cet appel, bien simple.”

Dissent reasons (Gwynne J)—Allowing this action effectively makes it illegal to keep a stable anywhere in Montreal.

Ratio—The first time the SCC uses the expression “abuse of property rights,” a step away from the idea it’s an oxymoron.

The historical context of Drysdale v. Dugas is that Taschereau J & Strong CJ are from CVL & CML backgrounds respectively, and sought their harmonization. Some feel there was a dialogue, others that CML did little to accommodate CVL. In the following generation, SCC judge Mignault took a radically different stance, seeking purity and independence for the CVL.

Katz v Reitz, [1973] CA 230 (CBII 55)Facts—Reitz’s home partially collapsed after contractors excavated Katz’s building’s foundation.

Judicial history—The trial judge found Katz and the contractors liable using no-fault liability.

Issue—(1) Was Katz responsible for the harm caused by his contractors? Yes. (2) On what basis? No-fault liability.

Reasoning—Katz was not an architect, so he could not personally determine whether the contractors were taking reasonable steps to prevent damage to Reitz, thus there was no fault in his supervision. The contractors’ work wasn’t so dangerous that it creates an absolute duty. So the trial judge’s basis for liability is wrong. But a no-fault obligation exists under 406 CCLC, which says that “[o]wnership is the right of enjoying and of disposing of things in the most absolute manner, provided that no use be made of them which is prohibited by law or by regulation.” Reitz had the same right to enjoy his property absolutely and without interference and the rights of Katz cease where those of Reitz begin.

Ratio—Exercise of property rights, though absolute, carries the obligation not to harm one’s neighbour, and to compensate damages caused. Even when fault is absent, this obligation arises from the neighbour’s right to the integrity of their property.

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Houle v Canadian National Bank, [1990] 3 SCR 122Facts—The Houle brothers’ company took out a demand loan from CNB, and later began negotiating the sale of their company. CNB suddenly demanded payment, and three hours later liquidated the company’s assets. The Houles’ company later sold at a low price. The Houles sued the bank for the drop in price for abuse of rights.

Issues—Does “abuse of contractual rights” exist in QC CVL? Yes, based on unreasonableness, not just malice or bad faith.

Unanimous reasons (L’Heureux-Dubé J)—Individualist theories of rights say abuse of rights is an oxymoron, especially beyond malice or bad faith. A theory of social function, as proposed by Josserand, defines abuse of rights as their use contrary to the social function they’re meant to serve, irrespective of the intent and reasonableness of the behaviour. The goal is to respect the spirit of the right. The SCC rejects this as (i) it confuses the judiciary and legislature (Baudouin), and (ii) it creates uncertainty (Ripert). Neither of those theories should be adopted for abuse of contractual rights, we instead choose reasonable exercise of rights: abuse of rights occurs when the right is not exercised in a reasonable manner or in a manner consistent with the conduct of a prudent and diligent individual. This is already used by QC ECO.

Ratio—Contractual rights are abused when they are used unreasonably.

Abuse of rights is problematic because it allows sanction of acts which are otherwise completely legal. In Houle the bank was clearly within its explicit rights. This difficulty is why legislators give explicit remedies in particular areas (e.g. 976 CCQ/TDV). The next question that came up was whether fault was required by 976 CCQ (addressed in Ciment St-Laurent).

Houle hints at an important debate between French doctrinaires Ripert and Josserand. For Ripert, a right is absolute, and abuse of rights an oxymoron: if we allow limits on rights they’re actually just permissions, which would resurrect the ancien régime of arbitrary state power and politicize the courts. For Josserand, a right is abused when it contradicts the goal or spirit of the right itself. When Ripert challenged Josserand to give a clear definition, some threshold beyond which use of a right is tainted, Josserand couldn’t. He came closest to a definition in saying a right is abused if its use is economically or socially undesirable. But this conception changes and evolves over time, and differs among people. Moyse feels that the SCC’s metric of “reasonableness” in Houle is more individualistic and capitalistic than Josserand’s perspective. When courts analyzed non-concurrence provisions, they injected economic factors into Josserand’s theory. Ripert’s individualism was irreconcilable with Josserand’s belief that law should be sensitive to social concerns. French jurists rejected Josserand, seeing his as a vague sociological approach. His masterwork was never translated, but is a fascinating piece on abuse of rights. Québecois doctrine had always refused abuse of rights because of fears over where it leads. The debate engages judicial activism, morality vs. law, positivism vs. natural law, certainty vs. justice.

Euro-Excellence Inc v Kraft Canada Inc, 2007 SCC 37 [McGill LJ Article by Moyse on this case]Facts—Kraft distributed Toblerone and other candy in Canada, and copyrighted the logos to prevent competitor imports.

Issue—Is Kraft misusing/abusing copyright? No [but they lost they case based on other issues we’re not interested in].

Concurring reasoning (Fish J, appearing to dissent on this issue)—“I express grave doubt whether the law governing the protection of intellectual property rights in Canada can be transformed in this way into an instrument of trade control”.

[The rest of the judges seem to feel the Copyright Act should be upheld as written until the legislator intervenes.]

Ratio—Copyright holders can choose to use their rights purely to prevent competitors from importing goods.

Note: Moyse represented Euro-Excellence. Ripert would be fine with using copyright to control imports. Josserand would say it violates the spirit of copyright, as it has nothing to do with its goal of providing incentive to creators of artwork.

Minister’s comments on CCQ 6, 7, 976 (CBII 47)6. Every person is bound to exercise his civil rights in good faith.

Comments—Inspired by CCF 1134, a corollary to this article is prohibition of abuse of rights, meaning one must follow the requirements of good faith, not be in good faith. The former requires the intention and the act to correspond, the latter, only apparent conformity between the act and what’s generally expected for good faith. This prevents a right from being used against its intrinsic social purpose or the moral norms generally recognized in our society. [Josserand?]

7. No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith.

Comments—The scope of abuse of rights is malicious or unreasonable and excessive use. It is distinct from civil responsibility (even if often applied making reference its principles) as abuse is not just error or negligence but use of a right contrary to the requirements of good faith, because this unbalances the relationship to the rights of others.

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976. Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

Comments—Codifies a general principle of tolerance owed in neighbourly relations. TDV is based above all on abuse of property rights and establishes its frame of application.

This argument for abuse of rights is a bit circular, as wrongfulness is still implied.

Lessard c Bernard, [1996] RDI 210 (CBII 60)Facts—Bernard’s wood-burning heating system produced so much smoke, even though he built a tall chimney and that it conformed to the legal technical standards, that Lessard’s family couldn’t use their lawn or swimming pool, and even with their windows closed at all times, the odour of the fumes seeped in to their house.

Issue—Is Bernard’s system a nuisance (976 CCQ)? Yes, an injunction and damages are ordered.

Reasons—There is no need to consider fault, 976 CCQ depends on an abnormal and excessive character of damage, not how or why they came about. The smoke prevented Lessard from enjoying his property, in a clearly excessive manner.

Ratio—(1) The right to enjoy one’s property ends where one’s neighbour’s right begins. (2) 976 CCQ is a no-fault regime.

976 CCQ is referred to as troubles de voisinage (TDV) a.k.a nuisance.

Gourdeau c Letellier De St-Just, [2002] RJQ 1195 (CA) (CBII 77)Facts—Letellier’s ancestor built a house on his land. Gourdeau’s ancestor built a 3-story apartment with balconies overlooking the house. Letellier’s ancestor then built a wall as tall as the apartment to protect his privacy.

Issue: (1) Is the wall an intolerable annoyance under 976 CCQ? Yes. (2) If yes, were Gourdeau’s rights prescribed? No.

Majority reasons (Thibault J)—(1) Doctrine has three thresholds for nuisance: (a) intentional, (b) negligent or excessive, and (c) antisocial (exercised reasonably, but still leading to damage). The last one is no-fault, which makes the most sense, because 976 CCQ is not in the ECO section, the Minister’s comments, and Katz v. Reitz. Using this measure, the wall is an abnormal and intolerable annoyance since it completely blocks the balconies’ views, their air, and their light, and prevents maintenance work on the building. It cannot be seen as a reasonable response to privacy concerns due to its height. For these reasons, it’s based on the inconvenience suffered rather than demonstrating fault (¶44). Goudreau can have it demolished. (2) By analogy to the creation of servitudes, tolerance alone does not constitute prescription. Furthermore, since the damage is ongoing, prescription does not work. But the 50 year delay does mean Goudreau cannot force Letellier to pay for the demolition.

Dissenting reasons (Beauregard J)—Letellier’s wall cannot be an abuse of rights, since if a 3-story apartment building was built on Letellier’s property, Goudreau’s balconies would be also be shaded and hard to repair, but there would be no question of invoking 976 CCQ. So it is not fair to qualify the wall as an abuse of rights. “Ce qui peut plus, peut moins.”

Ratio—Further indication 976 CCQ is a no-fault regime.

Ciment Saint-Laurent v Barrette, 2008 SCC 64 (CBII 83)Facts—Ciment’s permitted plant spewed dust, odour and noise, so Barrette brought a class action for the inconveniences.

Judicial history—The trial judge found Ciment liable in spite of not having committed a fault by holding 976 CCQ is a no-fault nuisance regime. The CA ruled that 976 gives rise to real rights and found Ciment liable under 1457 CCQ.

Issue—(1) What is the relationship of abuse of rights (7 CCQ) to TDV? Abuse of a right gives rise to fault. (2) What is the relationship of 1457–58 CCQ to TDV? Fault-based liability. (3) Is there perhaps a no-fault regime? Yes, in 976 CCQ itself based on victims suffering beyond reasonable limits. (4) What is the relationship of propter rem obligations to TDV? None. (5) Does the law establishing the cement plant grant immunity? No.

Majority reasons (Lebel & Deschamps JJ)—(1) 7 CCQ is fault-based, but given the sphere of autonomy a right grants, courts must consider the nature of the right at issue and the circumstances in which it is exercised, because abuse of rights must be proven to show a fault (not the other way around). (2) 1457–58 CCQ, contractual and civil liability, apply to TDV and will be used whenever possible, but both require fault. ECO’s is based on reasonable behaviour, a duty of means. Neither apply here. (3) Drysdale, Canada Paper, and Katz are jurisprudence showing no-fault TDV liability under the CCLC (though thrown into doubt by Lapierre). It’s in the book of property, not ECO, adding to the idea it might not be fault-based [although it’s not property law either, see the next issue]. (4) 976 CCQ is activated by inconvenience, so it’s designed to protect people, not property, and can’t attaches to the immovable (real right) rather than the occupant

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(personal right). This would give no recourse to tenants and occupiers, and class action lawsuits would be virtually impossible. This approach also wasn’t discussed in drafting the CCQ. (5) It’s not precise enough.

Ratio—TDV liability can fall under the fault-based regimes of 7, 1457, 1458 CCQ, or its own independent no-fault regime under 976 CCQ, triggered by a victim’s abnormal annoyance, even if the defendant makes best efforts to prevent injury.

It was hard to find the company liable because the government had permitted them to be there. If we then find them liable, people worry it could threaten the broader economic and political system. Moyse feels the SCC thought this solution could reconcile those two factors. St Laurent used the fact that 976 CCQ is in the book on property to argue that renters do not qualify as “neighbours” in the meaning of that article. The SCC disagreed. 976 CCQ is in that section because the people involved are usually owners. It is based on abuse of rights. So why do we need it when we already have 7 CCQ? Abuse of rights is both broader and narrower than TDV. It’s broader in that it deals with all kinds of rights, not just ones around expectations of neighbours, and narrower because it only attaches to rights. TDV applies even to non-owner occupants who have no property rights. 976 was adopted without reference to rights or to property, only a norm of behaviour: “Neighbours can’t annoy to a degree that exceeds certain limits.” Abuse is still an open theory in Canada.

Gestion Lafrenière c Calvé, [1999] RJQ 1313 (CA) (CBII 63)Facts—Lafrenière had a permit to release waste water from its fish farm into a spring. Calvé and others complained of pollution and asked for an injunction. The Environment Quality Act s. 19.2 allows interlocutory injunctions to stop waterway pollution, but CCQ articles 991–92 CCQ seem to not. The government declined to participate in the action.

Judicial history—The trial judge allowed an injunction against all dumping, and damages, relying on the Act and the CCQ.

Issue—Is an injunction fair? Yes, but only limiting how many fish they can produce, and phosphorus levels in the water.

Reasoning (Gendrault JA)—Calvé must show (1) he appears to have a right, (2) that an irreparable prejudice may occur, and (3) he is more inconvenienced than would be the other party. The Environment Quality Act establishes a right to environmental quality and imposes a duty not to pollute, but says permits can justify certain activities. The permit makes this hard because tribunals can strike down government action as arbitrary, unreasonable, or illegal, but never erroneous or inopportune. But there’s also the public interest in the right of enjoyment of property. The government has behaved contradictorily, funding a study on the viability of the lake, and then issuing permits it knew would have a chance of ruining the ecosystem. Nullification the 1996 permit is (prima facie?) accepted based on the serious effects of an unreasonable decision combined with legitimate expectations and estoppel. Since damage could be irreversible, the Act takes on a mandatory—not suppletive—public order quality, which the permit cannot override. It’s not nullified, but made inoperative.

Could the following article be seen to prevent abuse of rights specific to water? It could certainly could be read that way, but it was written before abuse of rights existed, and the courts would likely not accept that interpretation.

982 CCQUnless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or used up, require the destruction or modification of any works by which the water is being polluted or dried up.

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Past Midterm ExamsDecember 2011 Exam (Open book, 3 hours, answers below)A. (15 min, 10 points) Vrai ou Faux. Justifiez en indiquant des articles du CCQ ou la jurisprudence du recueil.

1. Puisque l’article 903 C.c.Q. ne contient pas la précision selon laquelle le meuble doit assurer « l’utilité de l’immeuble » - comme cela est prévu à l’article 901 C.c.Q. - il faut en déduire qu’un meuble peut être immobilisé en vertu de 903 C.c.Q. même s’il ne sert pas à l’immeuble. Vrai ou faux, justifiez.

2. La renonciation à un droit extra-patrimonial est un bien. Vrai ou faux, justifiez.3. Celui qui trouve un trésor en creusant le sol dans un terrain abandonné est seul propriétaire du trésor. Vrai ou

faux, justifiez.4. L’hypothèque confère à son titulaire un droit de suite. Vrai ou faux, justifiez.5. Un immeuble ne peut jamais être un intangible. Vrai ou faux, justifiez.

B. (45 min, 10 points) Répondez en vous référant aux articles du CCQ ou à la jurisprudence et en développant.

1. (5 points – 30 lignes maximum) Précisez en quoi la publicité des droits est une formalité essentielle pour les droits réels. Quels sont les problèmes juridiques principaux que le défaut de publicité peut engendrer? Donner des exemples en utilisant la jurisprudence que vous avez lue ou en citant les articles pertinents du Code civil du Québec.

2. (5 points – 30 lignes maximum) Quelle aurait été la situation patrimoniale des associés (c’est-à-dire examinée à partir du patrimoine de chacun des associés) vis-à-vis de l’immeuble si le juge avait conclu à l’existence d’un patrimoine pour la société (partnership) dans l’affaire Ville de Québec c. Cie d’immeubles Allard (CB, p. 52)? Quels arguments aurait-il pu employer pour arriver à une telle conclusion?

C. (10 min de préparation, 50 min de rédaction, 10 points) – Voici ce que les auteurs Madeleine et Michelle Cantin Cumyn écrivent (CB, p. 41):

« Dans notre tradition juridique, le droit réel décrit le rapport immédiat et autonome entre une personne et une chose matérielle, lequel rapport autorise le titulaire du droit à tirer lui-même directement toutes les utilités de la chose, s’il s’agit du droit de propriété, ou certains usages ou utilités seulement, s’il s’agit de démembrement… ». Faisant la distinction avec l’ancien système seigneurial, elles poursuivent : « L’idée d’un rapport direct personne-chose pouvait fleurir à l’intérieur d’un système qui répartit ses utilités au moyen de rapports interpersonnels. Dans le Code civil du Québec, la catégorie des droits réels a opportunément acquis une visibilité qu’elle n’avait pas dans le code antérieur. Décrit comme un droit sur un bien cependant, on ne sait plus quelles situations juridiques le droit réel recouvre ».

Essayez d’expliquer pourquoi, si on définit le droit réel comme un droit sur un bien, la cohérence du système civiliste - et donc du droit des biens – est compromise. La difficulté vient-elle de l’imprécision terminologique qui entoure la notion de bien? Serait-ce plutôt une conséquence de la théorie du patrimoine ? Vous pouvez bien entendu replacer cet extrait dans le contexte de l’article dont il est tiré pour répondre à la question.

December (2010?) Exam (Open book, 3 hours, answers below)A. (~20 min, 10 points) Vrai ou Faux. Justifiez en indiquant des articles du CCQ ou encore à la jurisprudence du recueil.

1. La notion de « patrimoine » est équivalente à celle de « gage commun ».2. Un meuble immobilisé en vertu de l’article 903 C.c.Q. ne peut pas être saisi.3. Le droit d’action en revendication de l’article 947 qui porte sur un immeuble est un immeuble.4. Les biens d’une municipalité sont toujours insaisissables.5. L’usufruit est un bien. Vrai ou faux, justifiez.

B. (~1h, 15 points) Répondez en vous référant au Code ou à la jurisprudence et en développant lorsque nécessaire.

« Comme éléments réels du monde extérieur bien délimités et caractérisés par un ensemble de qualités et de propriétés, les choses peuvent être différenciées en fonction de nombreux critères. Du droit romain aux droits civils modernes, les juristes ont coutume de diviser ainsi les choses […] en fonction de leur nature même, […].

Si toutes ces distinctions ont leur importance dans la réglementation du droit des obligations comme dans celle des droits réels, la plus fondamentale qui découle de la nature même est incontestablement aujourd’hui celle qui procède de la fixité ou de la mobilité des choses. La summa divisio, qui commande de manière générale

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l’articulation de la réglementation du droit des choses des grandes codifications civiles modernes, est en effet la division des choses en meubles et immeubles »

—A. Dufour, Notion et division des choses en droit germanique, dans « Les biens et les choses en droit », (1979) 24 Archives de philosophie du droit 95.

1. Quelles sont les divisions ou classifications des choses en fonction de leur nature que vous connaissez, comment et où ces divisions apparaissent-elles dans le Code civil du Québec ? (8 points)

2. L’auteur Dufour semble indiquer que les divisions ou classifications des choses est importante pour le droit des obligations. Donnez un exemple et expliquez votre choix ? (3 points)

3. Est-ce que les commentaires de l’auteur quant à l’importance de la summa divisio dans la réglementation des biens des grandes codifications vous semblent encore pertinents aujourd’hui ? Commentez (4 points)

C. (~40min, 8 points) – Nombreux sont les auteurs qui reconnaissent que la notion de bien devient problématique depuis que l’on a tendance à voir dans le bien non plus la chose elle-même, la chose corporelle, mais la relation entretenue entre le sujet de droit et l’objet. Dès lors, les biens deviennent les droits. Le questionnement ne s’arrête pas là. L’auteur Battifol, juriste français, écrira notamment que « si la notion de biens s’éloigne de la chose corporelle, ses frontières sont aussi mises en cause du côté de la notion de personne », et plus loin, « la notion de bien engage celle de personne ».

Que veut-il dire ? Expliquez ces formules de Battifol en donnant des exemples concrets tirés du recueil de textes, du cours ou du Code civil du Québec.

December 2011 Exam AnswersA.

1. Faux—Même si la condition d’utilité n’est pas expressément mentionnée au Code, elle doit être rencontrée. Voir l’article 48 des dispositions transitoires et les commentaires du Ministre à cet effet.

2. Faux—Il ne s’agit pas du droit lui-même mais bien de la renonciation. On voit mal comment on pourrait aliéner la renonciation qui semble être une faculté – ou permission donnée à une personne. En admettant que l’on parle ici non pas de la renonciation mais du droit lui-même, la réponse aurait été la même : même si il peut y avoir des aspects pécuniaires aux droit extr-patrimoniaux il demeure inaliénable et on doit leur refuser le qualificatif de bien.

3. Faux—Un terrain ne peut pas être abandonné au sens juridique ou sinon il appartient à l’État. Quelque soit la solution, la personne qui trouve le trésor aura droit à la moitié. Art. 915, 918, 938 C.c.Q.

4. Vrai—Il suffit de lire des articles du Code relativement aux hypothèques. Art. 2660 C.c.Q.5. Faux—Le Code a créé certaines fictions et en particulier celle des droits immobiliers : 904 c.cQ.

B.

1. On pensera ici, comme point de départ, à l’affaire Tremblay c. Martel, 2009 QCCQ 2465 qui apportait déjà certains éléments de réflexions. Les affaires Ouimet également et bien d’autres décisions du recueil pouvaient être utilisées, comme celle mentionnée lors du dernier cours avant l’examen (traitant de l’abandon mais comportant des éléments intéressants sur la notion de publication Banque Laurentienne c. 200 Lansdowne, [1995] R.J.Q 1148 (WebCT)). Une fois le problème mis en contexte, il s’agissait de discuter des dispositions pertinentes du Code 1455, 2938, 2941, 2943, etc…) et de leur raison d’être (ordre public).

2. Bien évidemment la conséquence la plus importante aurait été que les associés auraient eu dans leur patrimoine respectif une créance vis-à-vis de la société, créance que se matérialise par l’existence d’une part sociale, et non une partie indivise de la propriété de l’immeuble. Pas de droit de mutation à payer donc. Les arguments sont largement développés dans la décision elle-même – notion de biens et langage des articles 2208, 2221, 2246, 2199 C.c.Q. etc….

C.

Il s’agit ici d’une composition ouverte sur la notion de bien. Si l’on considère que les biens sont les droits on perd le rapport immédiat entre la personne et la chose matérielle… On perd aussi le bénéfice de la distinction entre droit réel et droit personnel…

December 2010 Exam AnswersA.

1. Faux—la notion de patrimoine est inclusive de celle de gage commun et donc elle se juxtapose mais celle de gage

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commun vise uniquement la garantie prise sur les biens, c’est-à-dire l’actif. La notion de patrimoine est plus large et concerne également le passif.

2. Faux—le meuble immobilisé peut, par exception au mécanisme d’incorporation, être saisi seul, de manière isolée en vertu de l’article 561 du Code de procédure civile.

3. Vrai—l’action qui fonde le recours principal du propriétaire, l’article 947 C.c.Q. servant de base à 953 C.c.Q., prend la couleur de l’objet revendiqué en vertu de l’article 904.

4. Faux—On reconnaît ici le principe de la dualité domaniale. Par raisonnement a contrario, c’est l’article 916 in fine qui permet de déduire qu’en dehors des cas où ils servent à l’utilité publique, les biens de la municipalité pourront être saisis.

5. Vrai—1119 : l’usufruit est un droit réel et comme les droits sont les biens – ils peuvent être transférés, d’où leur valeur – l’usufruit est un bien également.

B.

1. Il s’agit ici de répertorier les différentes classifications civilistes qui ont été dégagées de la nature particulière des biens. C’est toute l’ambivalence et les hésitations du langage civiliste qui hésite entre chose et bien, entre bien et droit. Certaine de ces distinctions sont expressément prévues au Code, notamment :

899 – les biens corporels et incorporels, une distinction peut-être obsolète si l’on considère l’approche moderne selon laquelle les biens sont les droits.

899 – meubles – immeubles

908 – revenus et fruits, éventuellement, auxquels s’ajoutent les droits intellectuels (458 C.c.Q.) si l’on veut aller encore plus loin mais on sort ici d’une classification sur la nature des choses.

D’autres sont plus discrètes :

1453 C.c.Q. - Fongible – non-fongible

1127 C.c.Q. Consomptible – non consomptibles

2. L’effet de la vente sur le transfert des risques est un exemple (1453 C.c.Q.)

La vente d’un immeuble par un mineur doit être autorisée par le tribunal (174 C.c.Q.)

Inopposabilité du transfert de certains droits réels non publiés…

Etc…

3. Dès lors que l’on traite la notion de bien à partir de l’idée de droit, les classifications traditionnelles fondées sur la nature de l’objet deviennent en partie inutiles. Ceci est particulièrement vrai pour la distinction biens corporels-incorporels. Nous avions aussi noté que la distinction fondamentale meuble-immeuble semble désormais moins pertinente qu’autrefois.

C. Il fallait comprendre qu’une fois la notion de droit est dégagée de l’emprise des discours matérialistes, on retrouve le titulaire et un ensemble d’intérêts très variés, ne se limitant pas aux objets extérieurs ou aux objets physiques à partir desquels le droit des biens a été érigé. Dès lors les limites du droit des biens, et donc des richesses qu’il organise, deviennent plus floues. On ne réfléchit plus à partir d’une représentation matérielle de ce que l’individu peut posséder, ce qui a pu être possible par le passé à une époque où l’on disposait de moins de chose – où nous étions soit disant moins riches?, mais d’une vision marchande des avantages que nos situations juridiques peuvent nous donner. Ce n’est plus tant l’utilité de l’objet que le droit va alors saisir, mais la valorisation des droits en eux-mêmes de sorte que toute chose ou toute situation à partir de laquelle un individu peut obtenir un avantage pourra faire l’objet d’une transaction – y compris le corps humain et ses richesses? La disparition progressive de l’objet comme mesure de notre richesse nous ramène donc vers l’individu lui-même. La distance objet-sujet semble se réduire, elle évolue. La distinction droit patrimonial (bien) et extra-patrimonial (non-bien) est remise en cause. On s’interroge alors sur d’autres formes de valeur, sur la notion de bien elle-même : l’image, la mise à disposition de son corps, de ses cellules, etc… ces éléments relèvent-ils de la notion du régime des biens? L’État intervenait facilement à l’endroit des meubles et immeubles traditionnels, mais à distance, pour coordonner et organiser le marché des biens. Peut-il maintenant intervenir plus directement sur la volonté des individus – une volonté monnayable - qui souhaite se départir de certains droits contre rémunération ? L’État doit-il intervenir et limiter la liberté de l’individu quant au commerce de ses droits plus intrinsèquement liés à sa personne ? Ou est désormais la démarcation entre le droit des biens et les libertés ou droits fondamentaux ? Le droit des biens c’est une certaine représentation des individus en société, une certaine idée des richesses.

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Modes of AcquisitionPossession and its EffectsConsider reading 921–33 CCQ, on possession.

CCQ 916Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law.

No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.

(1) contract—all property, 1396, 1710 CCQ, Ouimet c. Guibault’s trouble between sale and promise of sale, 1453 CCQ, for real rights with publication 1455 CCQ, Tremblay c. Martel, 2663 CCQ for movable real rights; (2) occupation—res nullius (vacant property) and 935 CCQ, Tremblay v. Boivin; (3) prescription, after possession over time of all real rights (except ownership, servitudes 1181 CCQ, and those established by contract) and res derelictae (lost or forgotten movables); (4) accession—only ownership, by vis attractiva 956–57 CCQ; and (5) by law, when ordered by a court, for example.

CCQ 921Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right.

The intention is presumed. Where it is lacking, there is merely detention.

Possession must have both an animus (intent, presumed in the CCQ) and corpus (physical element). Corpus is obvious for movables. For immovables, the person can’t be expected to be there 24/7. It can be solo animo, based on (1) discrete broken periods when the person is there, and (2) performance of acts that the owner would: cultivating the fields, eg. animus domini. In Morin c. Grégoire, e.g. acts of pure tolerance don’t form the basis of possession (924 CCQ).

The possessor can either be the owner, believe he’s the owner (ignorant=good faith), or simply want the title (bad faith). Remember bad faith means the possessor doubts or knows he is the true owner. CCQ 2918 says prescription can only be granted by a court. CCQ 928 says the person claiming to be the owner of something possessed by another has the burden of proof. 953 CCQ says the owner has the right to make a claim against the possessor. Municipalities keep these registered for immovables. 957–63 provides that disbursements by a possessor will be reimbursed, including taxes paid, increasing its value, etc. Right to revendicate is imprescribtible.

Jean Carbonnier, Droit civil: Les biens, t.3 (Paris: Presses universitaires de France, 2000) at para 118 (CBII 133, pdf 34)Do not confuse possession and property. Generally, property is the right; possession is the fact, or the “shadow of property.” Most commonly the possessor and owner are the same person, but they will not be in cases like (1) stolen property, (2) a peasant who farms encroaching on his neighbour’s land for several years, and (3) someone who buys an immovable from someone who is not its owner and takes possession. [In this text: « preuve diabolique » means it’s hard to know ownership, so possession brings some stability.]

A person has detention of an object when they know they are not the true owner or possessor. The holder has use of a thing. This applies not only to property, but all real rights, (though primarily property). You could possess as usufructuary, and acting as such, would grant the real right of usufruct in time. The wording in 921 tells us the will to possess as holder is presumed. This is a rebutable presumption, for example it’s not extended to renters because having a lease indicates they don’t intend to act as owners. For movables it’s harder to prove ownership, and possession has a lot of weight. It emerged to address cases of defective title. Its justification was (1) stability of transactions, and protection of those who acquire in good faith, (2) a sanction against inept, inattentive, or lazy owners, as a way to optimise distribution of resources, and (3) as a probationary measure. It avoids the difficulties of proving ownership.

CCQ 927No thief, receiver of stolen goods or defrauder may invoke the effects of possession, but his successors by whatever title may do so if they were unaware of the defect.

In Quebec, a servitude cannot be established through possession, according to 1181 CCQ.

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A holder (« détenteur »), is quite different from a possessor. 2306¶2, 2702 CCQ, 2192 CCLC define it. Property cannot be prescribed on the mere basis of having been held. Right of retention is provided by CCQ 1592, and says that when you take something for repairs, it can be held until you pay. See also 939 CCQ, which says a person detains lost property until they declare their intention to the authorities. 932/2913 CCQ’s recognition prevents you from becoming the owner. Inversion of title in 923 CCQ means transformation from holder into possessor.

Cass civ 3e, 17 October 2007 (France)Facts—Mr X had permission to cultivate land for 30 years as holder. X decided to publish notice of his intent to act as possessor, invert title, and to declare himself owner by prescription.

Issue—Can he become the owner? No.

Reasons—It takes 30 years from the time you become possessor, from the day of publication, not simply for being the possessor and having held it for 30 years.

His possession appears to be in bad faith: he knew it wasn’t his property since he had been given permission to farm there.

CCQ 922Only peaceful, continuous, public and unequivocal possession produces effects in law.

Possession must be useful to give rise to effects. It is effective the moment the true owner learns of this situation. Peaceful means, e.g., non-violent (927 CCQ). Continuous means uninterrupted. Public means not clandestine. Unequivocal means no hesitation, contradiction, or confusion about whether the person is a usufructuary or whatever, it has to be clear.

CCQ 924Merely facultative acts or acts of sufferance do not found possession.

Léon Mazeaud, Jean Mazeaud & François Chabas, Leçons de droit civil, t.II, vol.2 Biens: Droit de propriété (CBII 134, pdf 35)Possession is justified by (1) the interest of the owner in proving his right (Ihering), (2) need to protect protect public peace against acts of violence (Savigny), (3) the general economic interest to not allow property to rest unproductive. Possession is about complete ownership. For dismemberments, etc., it’s quasi-possession. It needs two elements: corpus and animus. Corpus is simple exercise, animus intention. Savigny says the possessor must have animus domini, the intention to act like an owner. Ihering says all occupiers, even holders, have the same animus, animus tenendi. French law requires domini. German law is tenendi. France’s rules: (1) Animus domini is always presumed. (2) Assessed in abstracto, as a reasonable occupant in their position. (3) Presumption you kept the animus you started with as occupant. (4) The presumption falls with an “interversion de titre” from a third party, or a manifest contradiction with owner’s rights. Corpus only can be through an intermediary. A holder is someone who acknowledges the owner’s right. The “apparent owner” is someone mistaken for owner. The possessor can revendicate possessory actions.

AM Patault, Introduction historique au droit des biens (Paris: Presse Universitaires de France, 1989) at ¶¶ 114-127, (CBII 31) Quasi-possession, in Roman law, is possession when the right sought is a dismemberment rather than ownership itself. Only corporal property could then be possessed, but it used this notion to protect also servitudes.

Bolduc c Fortier, 2008 QCCS 3799 (CBII 142)Facts—Fontaine sold Bolduc’s deceased husband a piece of land at the start of the 1970s, and they used it since then. Fontaine later sold the same property to Fortier.

Issue—(1) Is the sale to Bolduc accepted as valid? No. (2) Did Bolduc acquire it by prescription? No.

Reasons (Tessier-Couture J)—(1) Fontaine registered many other sales, but this one never was, and Bolduc doesn’t have the sale paperwork, so their agreement probably wasn’t a contract of sale. A deed/title is the best proof of ownership (though not absolute, since then prescription would be impossible). (2) Under the CCLC prescription required title, good faith, and 10 years, but in the CCQ it’s just 10 years of useful possession (921 CCQ). Possession must include both a (a) corpus (be useful), meaning acts of use, occupation, enjoyment, or transformation of the property must have been carried out, and it cannot be based only on acts of sufferance (924 CCQ), i.e. not encroaching the owner’s right, or tolerated because he didn’t think they could form the basis of prescription, an (b) animus, intent to act as the owner, shown through being “peaceful, continuous, public and unequivocal” (922 CCQ). This is sought objectively looking at the person’s conduct. Bolduc has the burden of proof. Her husband paid the taxes, which is one factor. Their brush-clearing was for making campfires, not clearing the whole property, and Fortier says he’s also cleared brush there. This kind of activity is simple tolerance. They put up a notice not to litter, but it didn’t say “owner’s notice.” Their parking spot wasn’t

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even made of gravel, so it proves nothing. The fence they built was irrelevant. They went camping with friends, but if everyone who put up a tent on vacant property possessed it, our system of publicizing rights would be useless.

Ratio—Possession requires an animus (factors in 922 CCQ), to be evaluated objectively, and a corpus, requiring acts of use, occupation, enjoyment, or transformation of the property that go beyond acts of sufferance (924 CCQ).

Acquisitive PrescriptionPrescription is a change in rights through the passage of time. Acquisitive prescription is the acquisition of a property right through the effects of possession over time.

CCP 805–06 (CBII 157)805. A person who, in accordance with the rules of the Book on Prescription of the Civil Code, has possessed an immovable as owner may acquire the ownership of that immovable by applying to the court of the district in which it is situated.

The application is accompanied with

(1) a recent statement, certified by the registrar, of the rights registered in the land register in respect of the immovable;

(2) a copy of or abstract from the cadastral plan of the immovable; in the case of a part of lot or of an immovable that it not immatriculated, a technical description accompanied with the relevant plan drawn up by a land surveyor is sufficient;

(3) a location certificate, if a construction has been erected on the immovable.

806. The court called upon to establish the right of ownership may, even of its own motion, order

(1) that the motion be served on the owners of the contiguous immovables, if they have not consented in writing to the introduction of the motion;

(2) that the boundaries of the immovable be determined if the accuracy of the plan is contested by the owners of the contiguous immovables.

Someone who has detention of an object recognizes they don’t have the right of ownership. The law doesn’t like vacant property, so we’ll allow people a means to acquire it. Because the law is distrustful of people who find property, they have to declare it. Renters have detention because the lease makes clear he’s not acting with the intent to be the owner.

CCQ 929, 931–33, 958929. A possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession.

931. A possessor in good faith need not render account of the fruits and revenues of the property, and he bears the costs he incurred to produce them.

A possessor in bad faith shall, after compensating for the costs, return the fruits and revenues from the time he began to be in bad faith.

932. A possessor is in good faith if, when his possession begins, he is justified in believing he holds the real right he is exercising. His good faith ceases from the time his lack of title or the defects of his possession or title are notified to him by a civil proceeding.

933. A possessor may be reimbursed or indemnified according to the rules in the chapter on accession for the constructions, plantations and works he has made.

958. The owner shall reimburse the possessor for the necessary disbursements, even if the constructions, works or plantations no longer exist.

If the possessor is in bad faith, however, compensation may be claimed for the fruits and revenues collected, after deducting the costs incurred to produce them.

Review Boivin c Québec (PG) and Malette c Sureté du Québec from first term.

Sivret c Giroux (1997), 1997 CanLII 10472 (QCCA)Facts—Sivret and Giroux built a cottage together and later broke up, at which point Sivret changed the locks and took

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up residence in it. Giroux asked to be declared co-possessor through superficiary rights, and for a right of passage.

Judicial history—The trial judge felt possession and superficies were mutually exclusive given 772 CCP, and addressed only the request for possession. Giroux’s possession was unequivocal so they were found to be common possessors, and Sivret was ordered to allow access and common possession.

Issues—(1) Does Giroux have superficie rights? No. (2) Does he have the right to possession? No.

Unanimuos reasons—(1) There’s no evidence of a superficiary right was granted to allow him to build the cottage. (2) Giroux undermines his own position by claiming both possession through superficies as well as an ownership right in the lot itself. Quebec jurisprudence only in exceptional cases grants possession to both parties prior to resolution of a property dispute, and they can be distinguished from this case. The evidence shows there was not useful, exclusive, and unequivocal (922 CCQ) possession by Giroux. He can’t be the possessor “pending” another claim to be settled, because possession is a question of fact. It can’t be contingent on a still undetermined question of law. Plus dividing the property equally would force Sivret to either live with her ex or move out, and Giroux already has another place to live. The trial judge also implicitly recognized Sivret’s ownership by ordering her to grant Givret access to what he called “her” land.

Ratio—(1) Possession must be unequivocal (922 CCQ). (2) Courts should avoid forcing ex-couples to live together.

Extinctive prescription is set out in 2921 CCQ. Acquisitive (2910). CCQ 2917 says the period is 10 years, generally. 2918 says it’s 10 years for immovables. 2919 says it’s 3 years for good faith owners of movables.

OccupationConsider reading 934–46 CCQ, “Acquisition of Vacant Property.”

Tremblay c Boivin, [1960] CS 235 (CBII 165)Facts—Tremblay shot and killed a moose on land owned by Boivin. Boivin claimed it because it was killed on his land and because he said his shot earlier had been the true (but slow) cause of its death. Ballistics evidence indicated Boivin had shot the moose 1½ miles from where it died.

Issue—(1) Is the moose Boivin’s because it was on his property? No. (2) Who appropriated the moose? Tremblay.

Reasoning—(1) Wild animals are ownerless property (934¶1 CCQ) and can be appropriated by occupation (935¶1 CCQ). Since they’re ownerless, the land on which they’re found is irrelevant; it does not entail ownership of the animals on it: “le gibier, tant qu’il est en liberté, n’est pas la propriété de personne.” (2) Wild animals are occupied by the first person to exercise clear physical control over them, in this case, Tremblay, even if Boivin shot the moose first. The wound was clearly not fatal, since the moose walked for 1½ miles before being killed by Tremblay, who was the first to exercise physical control over the carcass.

Ratio—Occupation is determined by physical control of the property.

AccessionConsider reading 954–75 CCQ, on this topic.

CCQ 971, 975971. Where movables belonging to several owners have been intermingled or united in such a way as to be no longer separable without deterioration or without excessive labour and cost, the new thing belongs to the owner having contributed most to its creation by the value of the original thing or by his work.

975. In unforeseen circumstances, the right of accession in respect of movable property is entirely subordinate to the principles of equity.

Revisit Location Fortier c. Pacheco from last term.

Modes of OwnershipConsider reading 1009–11 CCQ, the general provisions on this topic.

1010¶1-2 CCQCo-ownership is ownership of the same property, jointly and at the same time, by several persons each of whom is

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privately vested with a share of the right of ownership.

Co-ownership is called undivided where the right of ownership is not accompanied with a physical division of the property.

1. Co-property in indivision—the biggest form of co-property. Not detailed in the code. There is no division as to who owns what. 1010¶2. Several owners have the same rights in a property. They have all of the rights, but they must be shared. See 1009–37 CCQ. Each has usus, abusus, fructus du tout.

2. Permanent co-property—rare cases where the code forces co-ownership on two adjacent owners for public interest reasons, eg « mur mitoyen ».

3. Divided co-property—The most detailed, with very sophisticated mechanisms and rules (« syndicat », etc). It refers to physical, material splitting of the property into private areas and common areas, and includes condos.

IndivisionConsider reading 1012–37 CCQ, on this topic.

William de Montmollin Marler & Georges C Marler, The Law of Real Property (Toronto: Burroughs, 1932) ¶ 98 (CBII 177)“A thing belonging to several persons is stated to be in indivision when the right of each of them is in the whole and each part of the thing, and not in a definite portion of the thing itself. The right of each of the several persons is expressed as a fraction, such as a half, or a third, etc. It is the right of property which is divided between the co-owners; the thing itself is undivided.” “Things that are destined to the perpetual service of two or more immovables (by reason of an agreement or operation of the law) because they are indispensable accessories of the immovables they serve … are object of forced indivision and partition may not be demanded”

The CCLC treats indivision very briefly, the CCQ somewhat more.

689, 690, 710 CCLC (CBII 177)689. No one can be compelled to remain in undivided ownership; a partition may always be demanded notwithstanding any prohibition or agreement to the contrary.

It may however be agreed or ordered that the partition shall be deferred during a limited time, if there be any reason of utility which justifies this delay.

690. Partition may be demanded even though one of the coheirs enjoys separately a part of the property of the succession, if there have been no act of partition, nor a sufficient possession to acquire prescription.

710. Every person, even a relation, who is not entitled to succeed the deceased, and to whom one of the coheirs has assigned his right in the succession, may be excluded from the partition, either by all the coheirs or by one of them, on being reimbursed the price of such assignment.

The Copyright Act’s “works of joint authorship” are also a type of undivided co-property. The law is generally sceptical of indivision (e.g. 689 CCQ, Brierley & Macdonald, Cantin-Cumyn), seen as a throwback to the feudal era of uncertain, contingent property rights. If co-owners can’t decide how to partition in 689 CCQ, the building will be sold.

CCQ 1018, 1025–271018. The fruits and revenues of the undivided property accrue to the indivision, where there is no provisional partition and where no other agreement exists with respect to their periodic distribution. They also accrue to the indivision if they are not claimed within three years from their due date.

1025. Undivided co-owners of property administer it jointly.

1026. Administrative decisions are taken by a majority in number and shares of the undivided co-owners.

Decisions in view of alienating or partitioning the undivided property, charging it with a real right, changing its destination or making substantial alterations to it require unanimous approval.

1027. The undivided co-owners may appoint one of their number or another person as manager and entrust him with the administration of the undivided property.

The court may designate the manager on the motion of one of the undivided co-owners and determine his responsibilities where a majority in number and shares of the undivided co-owners cannot agree on whom to appoint, or where it is impossible to appoint or replace the manager.

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1022 CCQ’s right of redemption allows a pre-emptive “buy back” for up to one year. The situation is precarious until then. It is difficult in indivision to determine what rights and obligations exist between co-owners, so what’s usually used is...

1015 CCQThe shares of undivided co-owners are presumed equal.

Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it.

This is a conceptual, not physical, partition. It can be applied to things other than immovables, like intellectual property or oeuvres d’esprit when their creation was so integrated that it can’t be separated. Divided property only applies to immovables. An agreement can modify the relative value of shares.

1012 CCQIndivision arises from a contract, succession or judgment or by operation of law .

(1) Contract, e.g. Harel, (2) succession (653, 733 CCQ), (3) judgment, or (4) operation of law, including 973 CCQ on movable accession and 487 CCQ claiming property in a marriage. Indivision leads to free market problems like the feudalist structures we saw earlier, so the law allows people to get out of it. Unlike dismemberments, indivision doesn’t affect the essence of concurrent rights of ownership, only their administration (it’s not a lower caliber right). This causes problems for hypothecs, since a co-owner may already have hypotheced it, and you might have a higher lending rate when you try to do it again. You can get around it a bit by dealing with the same bank (1015¶2 CCQ).

1030 CCQNo one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.

You can either divide the property, requiring notarial assent, etc., or if you go through a break-up and can’t agree, can have the court sell the property.

Madeleine Cantyn Cumyn, “L’indivision” in Ernest Caparros, dir, Mélanges Germain Brière (Montréal) 325 (CBII 178)Indivision can apply to any patrimonial right (¶4). Undivided co-ownership is merely one kind of indivision. Use of the two terms as synonyms is incorrect. Indivision has approached the judicial regime for partnerships in many ways, (management, duration, representation, etc.) but a fundamental difference between the two remains: the partnership has a positive goal. Indivision has as its goal only the joint enjoyment of property. It is conceivable that large portions of the regime on indivision can be avoided by contractual stipulation. Criticizes 1018, 1125-27 CCQ. “On peut douter que la réglementation suffise alors à contrer la mauvaise volonté de l’indivisaire qui n’a plus personnellement intérêt à rester en indivision.”

Indivision is like a de facto partnership, one for a goal, the other about common rights. The CCQ is basically unhappy with indivision. Allard implies property acquired by a society may create indivision. Bandera is about whether a hypothecary credit is susceptible to co-ownership. 1022 provides a right of redemption, a pre-emptive right designed to protect owners in indivision from the alienation of their rights through a co-owner’s transaction with a third party.

2186 CCQA contract of partnership is a contract by which the parties, in a spirit of cooperation, agree to carry on an activity, including the operation of an enterprise, to contribute thereto by combining property, knowledge or activities and to share any resulting pecuniary profits.

A contract of association is a contract by which the parties agree to pursue a common goal other than the making of pecuniary profits to be shared between the members of the association.

Régime complémentaire de la retraite de la STCUM c Bandera Investment Company, [1977] RJQ 1906 (SC) (CBII 187)Facts—Trust General loaned $14m, guaranteed by hypothec, to a company, $4m of which had been loaned to it by STCUM. The company defaulted when their property plummeted in value. Banque Nationale du Canada obtained the hypothec when they bought out Trust, but then sold the $10m portion of the loan to Bandera, a speculator, for $4m. STCUM seeks to pre-empt the sale, claiming that the hypothec was held in indivision and that 1022 CCQ’s right of redemption allows them to pre-emptively buy it for $4m.

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Issue—(1) Can indivision apply to personal rights? Yes. (2) Is this particular loan held in indivision? No, STCUM doesn’t have priority.

Reasoning (Bishop J)—(1) The loan from was a personal right, the hypothec an accessory real right. Thus under 904 CCQ STCUM exercises a real right. However, the loan itself (not the hypothec) can also be subject to indivision (though cannot be undivided co-property). The solution, provided by the law, is partition, but if not, we have 1022/23. The right of the creditors creating the debt is a personal right. A hypothec is a real right. The right of a hypothecary creditor to take a pure hypothecary action against the immovable hypothecated is an immovable real right. (2) STCUM pled that the contract of hypothec and the obligation of the debtor was indivisible but an undivided obligation does not mean an undivided loan. Each loan is a separate relationship, so the debt was divided. Debts in indivision must be stipulated, as the CCQ presumes that sums of money are divisible.

Ratio—(1) Indivision and co-ownership are separate concepts. (2) Indivision can apply to both personal and real rights.

Indivision has other glitches/uncertainties, both temporal (1026) and administrative (1013, 1030). There is, for example, only one bill of taxes for the property, and as we saw hypothecs are harder to get. Harel deals with 1022 and problems related to marriage. 1022 CCQ and 1023 CCQ are the instruments most commonly used on indivision:

1022–23 CCQ1022. Any undivided co-owner, within 60 days of learning that a third person has, by onerous title, acquired the share of an undivided co-owner, may exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid. This right may be exercised only within one year from the acquisition of the share.

The right of redemption may not be exercised where the co-owners have stipulated pre-emptive rights in the indivision agreement and where such rights, if they are rights in an immovable, have been published.

Minister’s comments—[1022 CCQ’s goal is, because of the fragile bonds between undivided co-owners, to conserve the undivided portions of a sub-group of undivided co-owners and to avoid useless litigation and eventual actions to share.]

1023. An undivided co-owner having caused his address to be registered at the registry office may, within 60 days of being notified of the intention of a creditor to sell the share of an undivided co-owner or to take it in payment of an obligation, be subrogated to the rights of the creditor by paying him the debt of the undivided co-owner, with costs.

An undivided co-owner not having caused his address to be registered has no right of redemption against a creditor or the successors of the creditor.

1030 CCQ says no one has to stay in indivision, but compensation is provided to the others. In forced indivision, the right of redemption and pre-emptive rights (1022—23 CCQ) are there to protect undivided owners, to conserve the undivided exclusive character. 1022 CCQ applies when the share is already sold, and allows any undivided owner to intervene and buy the share for the same price. 1023 CCQ uses the same principle, but is in the case where the sale has not yet been made, allowing them to seize the other co-owner’s share, within 60 days of notice. I believe these are rights of subrogation (1651, 1024 CCQ).

Harel c 2760-1699 Quebec, [2000] RDI 650 (SC) (CBII 194)Facts—Harel’s husband owed money to 2760-1699. As a result, his (undivided) part of the family home was seized and auctioned. Harel had never published her address at the registry, so she did not learn of the sale until after it took place.

Issue—Does 1023 CCQ prevent invocation of 1022 CCQ after the sale? 1023 is an independent regime, so 1022 applies.

Reasoning—1022 and 1023 are not mutually exclusive, and in fact they each target different factual situations. 1022 applies if the person becomes aware of the sale after it takes effect, while 1023 applies before the sale is made. 1022 not 1023 applies to this case, since sale by law is still acquisition of the share via onerous title.

Ratio—1022 CCQ and 1023 CCQ are complementary regimes.

Robin c Nicole, 2006 QCCS 1418 (CBII 196)Facts—Sweethearts Robin and Nicole owned a house in indivision, Nicole registered a hypothec, and Robin agreed to owe for half of it. They split up. Robin asked for divided ownership, and $250 a month for Nicole’s exclusive use of it, and for him to pay the costs. Nicole asked for interest on the loan, and compensation work he did that raised the property value.

Issue—(1) Can Robin claim $250/month and have Nicole pay taxes, insurance, heat, etc.? Yes. (2) Can Nicole get interest on the loan? Yes (they had no agreement on this). (3) Can Nicole get compensation for his work? Yes.

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Reasons (Taschereau J)—They are equal owners, since 1015 CCQ presumes this, they have no agreement on it, and it’s supported by the facts. 1030 CCQ says Robin is not required to remain an undivided co-owner, and the parties have no agreement on this matter. Nicole will buy Robin’s portion. (1) Nicole can continue to exclusively live in the co-owned house until he buys Robin’s part, and will pay the $250/month until then, as well as taxes and costs. Nicole has the right to $5000 for disbursements to improve the immovable. (2) Robin has to pay back the loan with interest. (3) Landscaping costs were poorly recorded. Since their agreement didn’t mention this either, they are equally responsible for those costs, so Nicole is entitled to $5k. If he chooses not to acquire Robin’s share within 45 days, the immovable will be sold.

Ratio—(1) Indivision is a bad idea. (2) Seems to imply 1015, 1030 are suppletive provisions.

Robin c. Nicole is about them not being able to agree on a price, so the whole house is sold, i.e. indivision is not ideal.

1016, 1031 CCQ1016. Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners.

If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation.

1020. Each undivided co-owner is entitled to be reimbursed for necessary disbursements he has made to preserve the undivided property. For other authorized disbursements, he is entitled, at partition, to compensation equal to the increase in value given to the property.

Conversely, each undivided co-owner is accountable for any loss which by his doing decreases the value of the undivided property.

1031. Notwithstanding any agreement to the contrary, 3/4 of the undivided co-owners representing 90% of the shares may terminate the undivided co-ownership of a mainly residential immovable in order to establish divided co-ownership of it.

Permanent Co-ownershipConsider reading 1002–08 CCQ, on common fences and works.

Pierre-Basile Mignault, Le droit civil canadien basé sur « les répétitions écrites sur le code civil » de Frédéric Mourlon (CBII 212)“Mitoyenneté” is a broad concept, even if the Code itself only speaks of common walls and hedges. It can be applied to any immovable whose destination is “mitoyen”.

“Mitoyenneté” is simply property which divides two immovables, like common walls. Pierre-Claude Lafond’s conception appears to differ from Mignault’s. He sees “mitoyenneté” as one of many kinds of permanent a.k.a. forced indivision (the other kind of indivision is voluntary), along with common parts of divided property, and property “appropriated to a durable purpose” (1030 CCQ, e.g. yards, alleys, passageways, private aqueducts) i.e. by destination.

1006 CCQThe maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right.

An owner who does not use a common wall may renounce his right and thereby be relieved of his obligation to share the expenses by producing a notice to that effect at the registry office and transmitting a copy of the notice to the other owners without delay. The notice entails renunciation of the right to make use of the wall.

512–13 CCLC512. The repairing and rebuilding of a common wall are chargeable to all those who have any right in it, in proportion to the right of each.

513. Nevertheless every proprietor of a common wall may avoid contributing to its repair and building by abandoning his share in the wall and renouncing his right of making use of it.

When a common wall is abandoned (1006¶2), the two following cases appear to disagree about whether the duty for “repairs and rebuilding” (1006¶1 CCQ, 513 CCLC) is lifted only for future repairs, or also for those currently necessary.

Zambito-Orazio c Meneghini, [1999] RDI 173 (CA) (CBII 205)Facts—Zambito and Meneghini were neighbours sharing a common wall which requires repairs. Meneghini renounced his right to the wall. Zambito had the wall repaired and sent Meneghini half the bill. When Meneghini refused to pay.

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Issue—Does Meneghini’s renunciation absolve him of these costs? Yes.

Reasoning—Meneghini renounced his right to the wall before the repairs were made. Thus at the time they were undertaken, they were not repairs to Meneghini’s property, so Zambito does not have a claim on Meneghini’s goods.

Ratio—When a co-owner renounces her right, the obligations to maintain, repair, or rebuild disappear [but see Groleau].

Groleau c Société Immobilière du Patrimoine Architecturale de Montréal, [1999] RDI 328 (CQ) (CBII 209)Facts—Groleau advised the Société that their common wall needed repair and asked to share the costs. Société refused, and published a notice abandoning its right in the wall (CCQ 1006). Eventually the wall collapsed. The city forced Groleau to fix the wall. Groleau argue Société exercised their right to renounce in bad faith, and should pay their share.

Issue—Does Société’s renunciation absolve it of these costs? No (Société forced to pay 25% of the cost for some reason).

Reasoning—The need for repairs was acknowledged by both parties, and given the urgency in which Groleau acted, it was reasonable that he did so without Société’s consent.

Ratio—When a co-owner renounces her right, some obligations to maintain, repair, or rebuild remain [but see Zambito].

Ironically, these completely contradictory cases each justify their “ratio” on the exact same doctrinal source:

Denis Vincelette, Au pied du mur, en quête de la solution mitoyenne (Montreal: Wilson & Lafleur, 1985) at n 781, 789¶789. Abandonment lifts all propter rem obligations, both pending and potential. 513 CCLC has the same scope as 512 CCLC, which clearly includes already necessary “repair and rebuilding” obligations. Only purely personal obligations remain after abandonment, both past and future. This flows naturally from the general rule of abandonment. (Meneghini)

¶791. Another approach says « mitoyenneté »’s propter rem obligation gives rise to personal obligations, so those which have already been created are not lifted by abandonment. (Groleau)

Possible ways to distinguish the two cases: (1) Meneghini denied he owned the wall from the beginning and only attempted to abandon it after a decision stating the wall was common property. (2) You could argue that Société did not follow the proper procedure for renunciation in some way. The debate appears to be about whether the obligations to repair are propter rem (lifted when the real right is abandoned) or scripta in rem (not lifted), but we never spoke about it in this context, except that later when the issue came up it was said that permanent co-property has propter rem obligations.

William de Montmollin Marler (& Georges C Marler), The Law of Real Property (Burroughs, 1932) ¶104,107 (CBII 212)In permanent indivision where a partition is impractical, it is called forced. Forced indivision falls in to three groups: (1) common walls/hedges/ditches, (2) apartments owned by different owners in the same building, and (3) immovables perpetually destined to serve multiple other immovables like irrigation works, courtyards, wells, lanes and private roads. Expenses are divided between the co-owners in proportion to their rights in the common property. An owner may renounce his rights and thereby liberate himself from (propter rem) obligations. Since the situation arises from the common property’s relationship to other immovables, only the owners of those immovables are co-owners (not their tenants, etc). The right cannot be transferred to another immovable.

Divided Co-ownership (Condominiums)Consider reading 1038–1109 CCQ, on this topic.

Divided co-property is a modality of property that gives each owner a right on a private portion (physically determined) and a share (« quote-part ») of common portions. It only applies to immovables, whereas indivision has a broader scope. The main differences with indivision are that there is a material division and it only applies to immovables.

1010¶3, 1042, 1043 1047 CCQ1010¶3. It [co-ownership] is called divided where the right of ownership is apportioned among the co-owners in fractions, each comprising a physically divided private portion and a share of the common portions.

1042. Those portions of the buildings and land that are the property of a specific co-owner and that are for his use alone are called the private portions.

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

1047. Each fraction constitutes a distinct entity and may be alienated in whole or in part; the alienation includes, in

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each case, the share of the common portions appurtenant to the fraction, as well as the right to use the common portions for restricted use, where applicable.

Historical Background

Until 1969, the CCLC only had only one article on divided co-property:

521 CCLC (pre-1969, based in 664 CCF)When the different stories of a house belong to different proprietors, if their titles do not regulate the mode of repairing and rebuilding, it must be done as follows:

All the proprietors contribute to the main walls and the roof, each in proportion to the value of the storey which belongs to him;

The proprietor of each storey makes the floor under him;

The proprietor of the first storey makes the stairs which lead to it; the proprietor of the second storey makes the stairs which lead from the first to his, and so on.

Landords at that point had seen their profits drastically reduced by social struggles for rent control, but law came to the rescue of the wealthy, who turned to the idea of condo sales to restore their earnings. Western countries in the 1960s began enacting condominium property regimes (France in 1964, e.g.), which has fed homelessness and gentrification to benefit developers. In 1969, 521 CCLC was repealed and replaced by a new chapter and regime in 441b–z, 442a-p CCLC:

441b CCLCThe provisions of this chapter govern every immoveable made subject thereto by the registration of a declaration of co-ownership whereby the ownership of the immoveable is apportioned between its proprietors in fractions …

Declaration of Divided Co-ownership

1038 CCQDivided co-ownership of an immovable is established by publication of a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons.

This declaration must be notarized (1059¶1 CCQ), set out a constitution & bylaws, describe the fractions (1052 CCQ) and their relative value, the proportion each owner pays toward expenses, and the number of votes for each fraction (1053¶2 CCQ). By-laws must contain rules on enjoyment, use and upkeep; and operation and administration (1054 CCQ). We can infer by default that contribution to expenses is based on the fraction (the same as for common walls) (1064 CCQ).

Limits on Rights in Divided Co-Property: The By-laws and the Destination

1063 CCQ [emphasis added]Each co-owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he observes the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable.

The by-laws are contracts imposing obligations on co-owners to do or not do things, e.g. no wild animals allowed in your apartment. The destination limits both the individual co-owners (1063 CCQ) as well as the collectivity/syndicate:

1056 CCQ [441o CCLC was nearly identical]No declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable.

Legal Personhood of the Syndicate

1039 CCQUpon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.

This legal person is called a syndicate, which can make claims against co-owners, e.g. Amselem. It also pays for the common parts of the immovable. The advantages of this approach is permanance/immortality: fewer hassles when people move in

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or out, as shares can be bought, sold, or hypotheced easily, as administrators change or rotate. Indivision’s right of redemption makes that regime highly unstable. Syndicate meetings hold majority votes with quorum set at

1. none for most decisions, which 1096 CCQ says includes “a decision to correct a clerical error in the declaration”;2. ¾ of the voting rights for decisions in 1097 CCQ, i.e. (a) buying/selling immovables, (b) work on common portions,

(c) construction of bulidings, or (d) amendment of the constituting act or description of the fractions; and3. ¾ of the co-owners representing 90% of the voting rights for decisions in 1098 CCQ, i.e. (a) changing the destination,

(b) alienating common portions necessary to the destination, or (c) changing the declaration to allow timeshares

Wilson c Syndicat des copropriétaires de condominiums Le Champlain, [1996] RJQ 1019 (CS) (CBII 257)Facts—Wilson had a pet in her condo. By majority vote the syndicate banned pets, which had been allowed for 13 years.

Issue—(1) Is the regulation unjustified by the destination of the immovable (1056)? Yes. (2) Which voting regime would be required to ban pets? 1098 CCQ, as this would change the destination.

Reasoning (Marcelin J)—Property rights, which are absolute, are limited in their co-property modality by the destination. The building’s destination is residential. The destination is to be determined using objective, subjective, and collective factors. “[S]elon les éléments de la destination de l'immeuble, pris ensemble ou séparément, ne justifie la prohibition des animaux domestiques.” Banning pets is not only unjustified by the destination, making it a “petless” building effectively changes the destination, which requires the procedure in 1098 CCQ.

Ratio—To determine an immovable’s destination, consider (1) objective elements—situation, environment, quality of materials, distribution of apartments, comfort, luxury; (2) subjective elements—the set of conditions that led a co-owner to buy their share (e.g. “an artist’s village”); and (3) collective elements—protection of the general interests of co-owners.

This decision may not be as far reaching as it first seems: if pets had been banned from the start, pet-keeping would have been inconsistent with the destination. If pets had caused problems, it appears banning them would be justified. What justifies the courts in changing a legal agreement between parties based on a statute (1098 CCQ)?

Talbot c Guay, [1992] RDI 656 (CA) (CBII 213)Facts—Talbot put an awning over his balcony, blocking Guay’s view of the river. Guay got an injunction under clause 10.14 of the condo’s by-laws to force Talbot to remove it. Talbot challenged the bylaws for violating 441o CCLC/1056 CCQ.

Issue—Is clause 10.14 invalid because its reach is unjustified by the immovable’s destination, character or situation? No.

Reasoning—One of the characteristics of the condo is its proximity to the river and the potential to have (at least visual) access. So the limit is justified by the destination (1056 CCQ).

Ratio—A forerunner to the “objective elements” factor of the Wilson test.

Bergeron c Martin, [1997] RDI 241 (CS) (CBII 245)Facts—Martin opened a noisy daycare in her condo and built structures for it in common areas. Bergeron is a co-owner.

Issue—Does the daycare “impair the rights of the other co-owners or the destination of the immovable” (1063 CCQ)? Yes.

Reasoning—Using the test in Wilson, (1) objective factors such as location and structural design suggest the building is purely residential, (2) Bergeron subjectively bought the property to enjoy tranquillity and was told only a few children would be present, and (3) the declaration of co-property specifies that apartments cannot be used for any commerce.

Ratio—The factors in Wilson, rather than the destination given in the declaration of co-property, are determinative.

In Bergeron the destination limited a co-owner’s action (1063 CCQ) while in Wilson and Talbot the destination limited the syndicate’s action (1056 CCQ). In Amselem, the lower courts analyzed both, while the SCC used s 2(a) of the Charter.

Amselem c Syndicat Northcrest, [2002] RJQ 906 (CA), 2004 SCC 47 (CBII 216)Facts—Amselem put up a temporary religious succah on his balcony, violating his condo agreement with Northcrest.

Judicial history—The trial and CA judges found the restriction was rationally connected to the syndicate’s objective (1039 CCQ), applied uniformly and in good faith to preserve the destination of the immovable (1056 CCQ) and, although harsh, was justified by 1063 CCQ as co-owners were not just buying property but a “lifestyle,” so the restriction is necessary.

Issue—is the provision of the condo agreement invalid for violating Amselem’s freedom of religion? Yes.

Dissent reasons (Binnie J)—“There is a vast difference, it seems to me, between using freedom of religion as a shield

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against interference with religious freedoms by the State and as a sword against co-contractors in a private building. It was for the appellants, not the other co-owners, to determine in advance of their unit purchase what the appellants’ particular religious beliefs required. They had a choice of buildings in which to invest. They undertook by contract to the owners of this building to abide by the rules of this building even if (as is apparently the case) they accepted the rules without reading them. They thereafter rejected the accommodation offered by their co-owners of a communal succah in the garden because it did not fully satisfy their religious views” [emphasis added]

Ratio—As far as property law, this case just opens up questions rather than providing answers.

Meanwhile, in France: a case with identical facts. It’s rumored that the plaintiff’s name was even Amsellem (with two l’s).

Cass civ 3e, 8 June 2006, Époux X c Syndicat des copropriétaires Les jardins de Gorbella (France) (CBII 214)Facts—The sydicate passed an order to have X’s temporary balcony succah removed.

Issue—Is the order of the general assembly of the syndicate valid? No.

Reasons—The regulation can’t impose any restrictions on their ownership other than those justified by the property’s destination, character, or situation. A temporary succah allowing them to observe their faith without causing nuisance or risk to other co-owners is in conformity with the destination of the immovable. The action of the general assembly is invalid as it constrains their freedom of religion. The clauses of an agreement of co-property can’t deprive an owner of the ability to practice their faith when it is a nuisance to none of the others. This violates 9 CCF and the EU Convention.

Can signing a contract restrict your religious practices? Is it a renunciation of fundamental rights in the Charter? This is very difficult to answer because it involves two different orders of law: private law (Wilson test) and constitutional law (can you act so as bind yourself from exercising your rights?)

Kilzi c Syndicat des copropriétaires, [2001] RJQ 2401 (CA) (CBII 250)Facts—Kilzi bought eight units in the condo and rented them out short term. The syndicate passed restrictive by-laws by simple majority requiring rentals to be for at least one year, that for-profit companies can only rent long-term, and that co-owners who own more than three appartments can only rent them to family members.

Judicial history—The trial judge felt the regulations were valid because they didn’t change the destination.

Issue—Are the bylaws invalid due to the destination of the immovable? The one year minimum is valid, not the others.

Reasoning—There are two schools in determining destination: (1) using the set of factors in Wilson test factors (¶51) and (2) those who feel that and the wording of 1056, which distinguishes between destination and characteristics, mean the latter cannot be a factor. The first school is supported by Gagnon and the CCF, so is preferred. This is a residential building, which in no way prevents renting units over long time periods, or from owning more than three units, so those bylaws are invalid. Short-term leasing suggests commercial purposes, so the syndicate can restrict that. The court is not to substitute its assessment of what “short term” means for that of the majority of co-owners. 1053¶1, 1063, 1098.

Ratio—Confirmation at the appeal level that the Wilson test trumps the declaration of co-property in determining destination, though they delineate decisions that fall outside the destination that the courts have no power to change.

A newer way law is working to accommodate affluent peoples’ banal desires is with respect to timeshares:

Christine Gagnon, La copropriété divise, 2d ed (Cowansville, QC: Yvon Blais, 2007) 211–39 (CBII 264)The CCQ’s timeshare vacation property provisions (1058, 1098, 1787¶2, 2974 CCQ) have enormous lacunae jurists will have to fill in. (1) France first used a real right, which was not ideal as it’s perpetual, unlike usufruct (dies with its holder) and indivision (limited to 5 years or an indeterminate period), but now uses a regime using a legal person whose by-laws grant each owner access for part of the year (drawbacks: it’s personal right, which makes financing and matrimonial regimes difficult, and doesn’t allow shareholders who live far away the same participation). (2) Belgium has each acquirer buy a share in indivision of a divided immovable, with a co-property regulation and an act of acquisition which gives co-proprietors a real right and an annual period of full enjoyment. They can do this as they have 3 types of indivision: ordinary, forced, and voluntary, and the latter persists until either the group’s goal is reached or becomes impossible: so it’s indefinite but not permanent. (3) Québec should follow the Belgian model, using appropriation to a durable purpose as owners in indivision to remain in indivision for up to 30 years (1013, 1030 CCQ), a real right set up against third parties, transmissible, and hypothecable. Usufruct could also work as it can last for up to 100 years (unlike in France), in either case rapidly depreciating as the term expires either way. Admittedly there will be some red tape, like a surveyor’s report, with this solution. Normand prefers to create a new mode of property, of division by time, which would be

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perpetual, but limited by space and time. Its object, not the right, would only exist at specific times of the year. We don’t recommend this solution since it would increase fincial instability as it has not been proven or admitted by courts to exist, and the legislator in fact seems against it. 1058 CCQ says certain things must be stipulated: the number of fractions which can be held, the periods of occupation, the maximum number of people who can hold a fraction, maximum occupants in a fraction, rights and obligations of occupants, modification of the declaration of co-property, and the relative value of the fractions. 1058¶1 seems to say that an improperly-formed act of incorporation is a nullity. There are also some serious implications for the dissolution of the divided co-property.

SuperficiesConsider reading 1110–18 CCQ, on this topic. Revisit also Lacroix.

William de Montmollin Marler (& Georges C Marler), The Law of Real Property (Burroughs, 1932) ¶130–33 (CBII 279)The right of superficies is a right of ownership in the buildings, trees or plants, on the surface of an immovable of which the soil belongs to another. This right is a derogation from CCLC 414 and largely a judicial creation. Note that the owner of the soil retains full property rights, which he may exercise as long as he does not interfere with the superficiary. The same applies to the superficiary. [Marler calls it a “dismemberment” but it is in fact a mode of property.]

1011, 1111–13 CCQ1011. Superficies is ownership of the constructions, works or plantations situated on an immovable belonging to another person, the owner of the subsoil.

1111. The right of the superficiary to use the subsoil is governed by an agreement. Failing agreement, the subsoil is charged with the servitudes necessary for the exercise of the right. These servitudes are extinguished upon termination of the right.

1112. The superficiary and the owner of the subsoil each bear the charges encumbering what constitutes the object of their respective rights of ownership.

1113. Superficies may be perpetual, but a term may be fixed by the agreement establishing its conditions.

Creation through Alienation of Accession

995 CCQConstructions, works or plantations on an immovable are presumed to have been made by the owner of the immovable at his own expense and to belong to him.

Accession is the rebutable presumption in 995 CCQ that the owner of the ground owns any constructions on it. (See also 948 CCQ.) The presumption can be overcome, for example, is if accession is transferred, or if its benefit is renounced.

Minister’s comments on CCQ 1110 (CBII 279)1110. Superficies results from division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession.

Comments—Doctrine and jurisprudence evolved superficies from 414, 415 CCLC. Division of the object occurs when the owner of land sells either a building, the subsoil, or an underground volume. The originating object of property is then permanently divided and the rights of each owner are exercised on objects situated on different planes. The other two modes for establishing superficies result from a modification of the normal functioning of the rule of accession through its temporary alienation by the owner. In either case constructions, permanent works, or plantations established on the territory are the property of the person who enjoyed the right of accession or who benefited from its renunciation. This property often has as its object underground passageways, either for the métro, water distribution services, trains, or other permanent underground installations.

Morin c Grégoire (1967), [1969] 15 MLJ 103 (SC) (CBII 280)Facts—Morin allowed Grégoire, his brother-in-law, to build a house on his land. Their relationship soured and Morin said the house belonged to him by accession. Grégoire claimed the house by prescription, or at least compensation.

Issue—Who owns the house? Grégoire, by superficies.

Reasoning (Mayrand J)—There is a difference between tolerance and permission. Tolerance cannot found prescription. But this was a deliberate granting of permission. Furthermore this permission was contained in a verbal contract that

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granted Grégoire a superficiary right that was either perpetual or lasted as long as the buildings themselves.

Moyse is uncomfortable with this “paradoxical, extreme rupture” with principal accession: Morin doesn’t own the ground his own house is sitting on. Does he need to litigate a right of passage to go home? Morin can’t argue that Grégoire gave him the ground along with it, because gifts of immovable property require a notarial deed (1824 CCQ). It may be that judges simply use this trick with accession when they feel the situation would otherwise result in injustice.

François Frenette, “La Propriété Superficiaire” ¶1–49 (WebCT)Superficies evolved through jurisprudence and doctrine using the reversal of presumption of accession in 415 CCLC. 1011 CCQ’s list (“constructions, works or plantations”) of classes (« espèces ») (not types/« genres », eg. immovables) is open. The ground is excluded (though underground passageways are included). Creation of superficies through 1110 CCQ’s transfer of the right of accession has become an innominate dismemberment, a real right (948, 911¶1 CCQ). It’s not a transfer of property, since none yet exists. It works the same way as for an emphyteutic lessee, who is temporarily invested with “all the rights in the immovable ... attached to the quality of owner” (1200 CCQ) including accession. When judges speak of “abandoning” accession, they mean renunciation, since there is no way to permanently renounce it without abandoning the underlying property right or vis attractiva. Renunciation of the benefit (unlike transfer) of accession creates a personal right. Renunciation can be tacit, but must be certain, reversing the presumptions in 955 CCQ. Superficies can result from (1) lease or (2) a real right (dismemberment, e.g.), whether (a) real enjoyment of subsoil as a dismemberment of property in the subsoil, for example, as emphyteutic lessees’ immovable works distinct from the subsoil become her property (1200¶1) to be returned to the bare owner at the end of the term (1210 CCQ), or (b) real enjoyment of subsoil through participation in subsoil property, if the superficiary owner has rights in the subsoil by being either (i) an undividied co-owner of the subsoil, or (ii) a divided co-owner of some part of the subsoil.

Superficies is a “rupture” of the link between accesory and principal. Moyse disagrees about the emphyteutic lessee (used to illustrate disposal of the right of accession, ¶23): she can’t own her constructions, since this would make her a temporary owner, an absurdity. Although the “emphyteutic lessee has all the rights in the immovable that are attached to the quality of owner” (1200 CCQ) (apart from abusus), at the end of the term the improvements belong wholly to the owner, and Emphyteusis is a dismemberment—not a modality—of property.

The following case imlpies transfer of the right of accession usually happens through emptheusis, seemingly confurmed by Gauthier c. Perreault (2003) (¶27).

Stone-Consolidated c Pierre Desjardins Gestion, [1998] RDI 126 (SC) (CBII 283)Facts—The Forest Act allowed permit-holding companies to build on Crown land. Stone had such a permit and hired a contractor to build a garage, who in turn hired Gestion. The contractor went bankrupt before paying Gestion, who had placed a legal hypothec on the garage. Stone claims the garage is owned by the government by accession and thus cannot be subject to hypothec, as it’s state property (916¶2 + 2688¶1 CCQ).

Issue—Who owns the garage? Stone.

Reasoning—Superificies were never explicitly mentioned, but the documents resemble renouncing the benefits of accession, although the building has to be removed at the end of Stone’s contract. This is effectively temporary superficies. Stone is the owner, and thus the government is not, so Gestion can place a hypothec on it.

Is this division or alienation of accession? Express or implicit? A counterargument to the court could potentially be raised by asking whether Stone could rebuild in the same conditions (perhaps using 1115¶1 CCQ). Renunciation does not require publication/formalities; it’s a question of fact.

Creation through Division of the Object

Division of the object is more static than alienating accession. If a tree grows eg, it belongs to the beneficiary of accession.

Lafontaine c Gravel, [1997] RDI 39 (SC) (CBII 288)Facts—Gravel sold land to Lafontaine and reserved the timber rights for himself and his heirs. He sold the timber rights and the land (which he had already sold) to his son, YG. Lafontaine revendicated the land and timber cutting rights and wanted the sale of the right to cut timber declared invalid. YG claimed a valid right of superficies to cut timber.

Issue—(1) Who has the timber rights? YG. (2) What kind of right are the timber cutting rights? Superficies.

Reasoning—Timber cutting rights can take many forms: personal right (contract of lease), real servitude, personal servitude, or superficiary right. The first two clearly do not apply: it is not a contract of lease, and there is no mention of

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dominant land. The intention of the parties will determine which of the last two options the right fits into. Past cases with contracts similar to this one suggest that it is a superficiary right. The period for prescription had also ended, so either way the timber rights were legitimately held by YG.

Ratio—Moyse says Gravel created a right that goes beyond a simple personal servitude, and like in Lacroix, timber rights may also be superficies. As such, they can be set up against third parties.

Veronneau v IBIS (2000), AZ-00022006 Facts—Joachim Veronneau (uncle) sold his land to Rule Corp, reserving the buildings until payment was completed. He then sold the buildings to Carrière, who sold it to Veronneau (plaintiff). Rule Corp sold the land to IBIS. When IBIS finally completed payment it had never heard of Verroneau. It rented to him for a time and eventually asked him to leave.

Issue—Does Veronneau have a superficiary right? No.

Reasons (Chabot J)—A temporary superficiary right was created, but only until payment was completed, Verroneau then remained through tolerance of IBIS, who gave up no rights by renting to him. 1116–17 CCQ are suppletive, and don’t apply if the contract explicitly contradicts them.

Usually superficies are permanent, because accession/vis attractiva gives a right of ownership, with all attributes. When created by contract, Superficies begin too look like divided co-ownership. With superficies, though, you cannot have common parts, no notary is involved, and there is no syndicate, just two people with property rights. Superficies are consistent with the theory of subjective/absolute rights (but see 1112 CCQ).

Can the fourth floor of an apartment be sold as a superficiary right before it’s built? Moyse thinks no. Maybe you have an option contract for something that does not yet exist, but you have no property right. Or maybe renouncing accession.

Publication

François Frenette, “La Propriété Superficiaire” ¶50–53 (WebCT)As superficies are real immovable rights, they are subject to publication (2938 CCQ). Some jurisprudence has denied this, saying this demands the impossible as superficies result from a factual situation, but this is wrong: the three scenarios in 1110 CCQ are all juridical acts. The transfer of right of accession does not itself constitute superificies, but as 2938¶1’s wording includes transmission of a real immovable right, publication must be respected. No further publication is necessary when the superficies come into existence. This doesn’t work for renunciation, but that is a personal right, so it doesn’t require publication anyway. Requirements for distinct cadastral numbers (3030, 3054 CCQ) will use the subsoil’s number because no other property yet exists at the time of publication.

When renunciation is tacit there’s no publication, so this has consequences on accession. When it’s express, it’s hard to distinguish from transfer (Morin v. Grégoire); the Code is unclear in this respect. What exactly is alienated? Is accession a right, as Frenette says? It’s an active principle, part of the property. There’s doctrine that questions its nature.

Québec (PG) c Développements de Demain, [2001] RDI 436 (SC) aff’d (6 Mar 2003) (CBII 285)Facts—CN and Québec built walkways and lampposts which partially encroached on CN’s land. There was no formal transfer of property nor expropriation. CN was later privatized and sold this land to Demain. Demain realized that there were encroachments on its land and demanded an indemnity from the government of Québec.

Issue—(1) Did CN grant a superificiary to Québec? Yes. (2) Can it be set up against others without being published? Yes.

Reasoning (Vézina J)—(1) Because it was a joint project, no thought was given to ownership, and there is no document specifying a transfer of rights by CN. Nonetheless, there was clearly tacit permission by CN for the government to build on its land, constituting renunciation of accession and hence a superficiary right. (2) Judgments on this issue are few and contradictory. Superficiary property, created by express agreements, is distnct from superficiary rights, created by implied renunciation of accession. The latter are acquired by prescription, so there is no need for them to be published.

Ratio—A tacit superficiary right is gained when the right of accession is implicitly renounced; this right need not be published to be set up against third parties.

696 CCP (CBII 279)A sheriff's sale [public auction to satisfy judgments] discharges the immovable from all real rights not mentioned in the conditions of sale except … [e.g.] rights of emphyteusis, the rights necessary for the exercise of superficies and rights of substitution not yet open, except when it appears in the record of the case that there exists a prior or preferable claim ...

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Termination of Superficies

1114–15 CCQ1114. Superficies is terminated

(1) by the union of the qualities of subsoil owner and superficiary in the same person, subject to the rights of third persons;

(2) by the fulfilment of a resolutive condition;

(3) by the expiry of the term.

1115. The total loss of the constructions, works or plantations terminates superficies only if superficies is a result of the division of the object of the right of ownership.

Expropriation of the constructions, works or plantations or expropriation of the subsoil does not terminate superficies.

1114 CCQ says when it ends. 1115 CCQ says total loss only terminates it in cases of division.

François Frenette, “La Propriété Superficiaire” ¶54–61 (WebCT)1113 CCQ recognizes temporary superficiary modalities, though they can also be perpetual. This does not make the underlying property temporary. Superficies arising from division are permanent, as are their corresponding servitudes, while those coming from transfer of accession rights or renunciation of the benefits of accession are temporary. The subsoil owner cannot be permanently deprived of accession. See 1114–15 CCQ for ways to end superficies. 1116–17 CCQ are suppletive when there is no agreement [see Veronneau].

Under division, if one person’s property (floor, etc.) disappears/is destroyed, the property right is extinguished with it. Under renunciation, if it disappears, your property does not disappear. When trees grow back, etc. Recent developments of superficie surround mining & building development projects.

Dismemberments of the Right of Ownership543 CCF (CBII 295)On peut avoir sur les biens, ou un droit de propriété, ou un simple droit de jouissance, ou simplement des services fonciers à prétendre.

405 CCLC (CBII 295)A person may have on property either a right of ownership, or a simple right of enjoyment, or servitude to exercise.

Whether divided co-property, superficiary rights, etc., the owner of property rights remains owner of a right that has all the attributes (usus, fructus, abusus, accessio). Though it is limited, e.g. by a by-law for divided co-property, in principle the owner has all the rights. The holder of a dismemberment can use an object without being its owner. This real right is subtracted from and explained by the right of ownership. Dismemberments give an immediate right or power over a thing. They are either real or personal servitudes. Doctrine is troubled by the latter and by whether the legislator has created an enumeration of all dismemberments, or whether we can create innominate ones by contract. We’ve seen timber rights: is it personal, real, superficiary? Think of the advantages of making it either a personal or a real right.

Quebec Minster of Justice, Commentaires du ministre de la Justice: le Code civil du Québec (1993) arts 911, 1119 (CBII 295)911. A person, alone or with others, may hold a right of ownership or other real right in a property, or have possession of the property.

A person also may hold or administer the property of others or be trustee of property appropriated to a particular purpose.

Comments—This article takes up the substance of 405 CCLC in terms of the relations that can exist between the person and the property. It provides that one can be the titulary of another real right than that of property, like a right of usufruct, or a real surety, and that one can be titulary of enumerated rights alone or with others, to cover the case of co-property.

1119. Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights.

Comments—This new article states the four nominate dismemberments of the right of ownership which are real rights.

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EmphyteusisConsider reading 1195–1211 CCQ, on this topic. Emphyteusis gives its holder nearly all of the attributes of ownership.

567 CCLC (CBII 296)Emphytheusis or emphytheutic lease is a contract by which a proprietor of an immovable conveys it for a time or another, the lessee subjecting himself to make improvements, to pay the lessor an annual rent, and to such other changes as may be agreed upon.

1195 CCQ (CBII 296)Emphyteusis is the right which, for a certain time, grants a person the full benefit and enjoyment of an immovable owned by another provided he does not endanger its existence and undertakes to make constructions, works or plantations thereon that durably increase its value.

Emphyteusis is established by contract or by will.

It’s similar to a long-term rent, hence emphyteutic lease, but fusioned into DDB as a real right. The lessee has to increase the value of the land by making constructions, and pay all taxes and (usually) an annual rent (« le canon »).

Sun Life Assurance Co Of Canada c 137578 Canada, [2000] RDI 563 (CA) (CBII 297)Facts—Metro leased a building from 137578 under emphyteusis. The lease required construction of a $500k building. Metro took out a loan from Sun, secured by a hypothec on its emphyteutic rights. It defaulted and Sun executed the hypothec. 137578 claimed that Sun now had to build the $500k building. Sun only wanted to seize rights, not obligations.

Issue—Are the obligations and rights of an emphyteutic lease divisible? No.

Reasoning (Rochette J)—Metro’s only right on the immovable was emphytheutic. Sun seized it using 1799 CCQ and must accept all aspects of the lease, since the CCQ does not allow selective seizure, and 1199 CCQ protects the emphyteutic lessor’s rights. Emphyteusis, a real right, can generally be abandoned, but the lease states that this one cannot.

Ratio—Seizure of emphyteusis includes all its aspects, including rental and improvement obligations.

The court isn’t explicit, but implies that even without the clause against abandonment, Sun would have to pay future rent. Once you fulfil your present obligations, you can abandon the right to avoid future ones.

1207¶1 CCQWhere a price payable in a lump sum or by instalments is fixed in the constituting act and the emphyteutic lessee fails to pay it for three years, the owner is entitled, after at least 90 days’ notice, to apply for resiliation of the constituting act.

1197, 1200, 1210¶1 CCQ1197. The term of the emphyteusis shall be stipulated in the constituting act and be not less than 10 nor more than 100 years. If it is longer, it is reduced to 100 years.

1200. The emphyteutic lessee has all the rights in the immovable that are attached to the quality of owner, subject to the restrictions contained in this chapter and in the act constituting emphyteusis.

1210¶1. Upon termination of the emphyteusis, the emphyteutic lessee shall return the immovable in a good state of repair with the constructions, works or plantations stipulated in the constituting act, unless they have perished by superior force.

1200 CCQ does not include abusus. It appears to include accession. Superficies can be perpetual, emphyteusis cannot. Both can be on an immovable. Frenette says the emphyteutic lessee owns the constructions, Moyse says that’s not true. The lessee can hypothec their rights, but perhaps not the buildings themselves.

Article L451-1¶1 Rural Code (France)Le bail emphytéotique de biens immeubles confère au preneur un droit réel susceptible d'hypothèque ; ce droit peut être cédé et saisi dans les formes prescrites pour la saisie immobilière.

Article L451-6 Rural Code (France)Le preneur ne peut se libérer de la redevance, ni se soustraire à l’exécution des conditions du bail emphytéotique en délaissant le fonds.

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1208 CCQEmphyteusis is terminated (1) by the expiry of the term stipulated in the constituting act; (2) by the total loss or expropriation of the immovable; (3) by the resiliation of the constituting act; (4) by the union of the qualities of owner and emphyteutic lessee in the same person; (5) by non-user for 10 years; (6) by abandonment.

ServitudesConsider reading 1177–94 CCQ, on this topic.

General

A servitude grants a reduced form of usus, an attribute of ownership allowing use of the property.

1177 CCQA servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner.

Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.

A servitude extends to all that is necessary for its exercise.

A (real) servitude needs two immovables with different owners and creates a charge and a right. Because it acts on immovables instead of people, it has the potential to be perpetual. The owner of the servient land keeps all her rights, and isn’t saddled with any positive obligation (apart from accessory obligations, e.g. snow must be cleared for a right of way), she simply has to suffer the need to abstain from exercising some of her rights.

Pierre-Basile Mignault, Le droit civil canadien basé sur « les répétitions écrites sur le code civil » (1896) (CBII 302)Servitudes generally do not force anyone to do anything, but to not do, to suffer. They don’t attach to people. The idea of obligating or binding a person was seen as feudal enslavement. The latin servitudus means slave, charge. A charge not to plant daisies because of an owner’s allergies cannot be a real servitude, as it’s for the benefit of the current owner, not the immovable. On the other hand, a right of passage increases the value of the dominant immovable no matter the owner. Servitudes consist of a charge (on the owner of the servient land) and a right (of the owner of dominant land). The CCLC & CCQ use servitude to mean a real servitude. Roman law recognized emphyteusis, etc., as personal servitudes, a term removed to distance the law from the feudal obligations Québec abolished [though it is still widely used in doctrine]. Servitudes do not require property to be contiguous.

For Moyse, the servient and dominant lands are fictions to avoid feudal connotations.

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

This is subject to the law on publication (2938¶1 CCQ).

Creation by Destination

1181¶1 CCQA servitude is established by contract, by will, by destination of proprietor or by the effect of law.

Servitude by destination is less common, but conveniently allows an owner to publish a servitude before there are two owners, e.g., a developer who plans to divide and then sell land. It takes effect when the parcel is sold:

1183 CCQServitude by destination of proprietor is evidenced in writing by the owner of the land who, in contemplation of its future parcelling, immediately establishes the nature, scope and situation of the servitude on one part of the land in favour of other parts.

Creation by Law

997 CCQThe owner of land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or

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impassable access to it from the public road may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with the necessary right of way to use and exploit his land.

Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause.

Whitworth c Martin, [1995] RJQ 2388 (CA) (CBII 305)Facts—Martin used Whitworth’s private road to get to his property, until Whitworth prevented it, and he was forced hike uphill on a neighbour’s property to get there.

Judicial history—The trial judge held that Martin had a servitude of right of passage on Whitworth’s road (997–99 CCQ).

Issue—Does Martin have a servitude of right of passage on Whitworth’s property to access his own? Yes.

Unanimous reasoning (Baudouin J)—Martin’s property is enclosed in the sense of 997 CCQ. It would be hard to imagine forcing him to hike there or build his own road rather than use Whitworth’s. Even though Martin used Whitworth’s road for decades, servitudes can’t be prescribed (1181 CCQ), though ownership in the site can be (2917 CCQ). Here, historical use gives rise to a presumption that Martin is enclosed, and that Whitworth’s road is the least damaging path.

Ratio—Use of a given access route can give rise to a presumption it is the most natural and convenient access point.

A servitude cannot be acquired through prescription (1181¶2), though it is subject to extinctive prescription (1193 CCQ). I have a hard time seeing how Martin would prescribe ownership of the path, since he lacks animus (i.e. knows he’s not its owner) required for possession, and Whitworth presumably also has continued to use the road.

Creation by Contract

William de Montmollin Marler (& Georges Marler), The Law of Real Property (Burroughs, 1932) at 122–24 (CBII 315)No servitude (apart from legal servitudes) can be established without title; possession, even immemorial, is insufficient, though the title can be oral and even tacitly established. A title requires (1) a precise description of the dominant land (“servitude to take water for use on his premises” is too imprecise), (2) an even more precise description of the servient land (almost no ambiguity acceptable), and (3) the content of the servitude. Courts construct its meaning without extrinsic aid, whatever its imperfections, so long as the intentions of the parties can be ascertained. The servitude includes whatever is necessary for its use, e.g. the right to draw water from a well includes the right to get to it.

In Whitworth, a servitude of right of way (997 CCQ) was created by process of law. It can also be created by contract, as can the other legal servitudes provided for in the code. But innominate servitues can also be created, within some limits, like:

1178 CCQ [emphasis added]An obligation to perform an act may be attached to a servitude and imposed on the owner of the servient land. The obligation is an accessory to the servitude and can only be stipulated for the service or exploitation of the immovable.

Cadieux c Hinse [sometimes Cadieux c Morin], [1989] RJQ 353 (SC) (CBII 308)Facts—Cadieux and Letourneau owned adjacent property. They signed an agreement to offer their property to each other before selling it to anyone else, and described it as a servitude. Cadieux alleged Letourneau violated the servitude.

Issue—Can the right of preference of sale be a real servitude? No.

Reasoning (Steinberg J)—Whatever the parties choose to call their contract, courts determine if it creates a servitude. The contract specifies that offers of sale must be made to Cadieux or Letourneau; so the beneficiaries are natural persons not immovables. Benefit to the immovable is indirect, through benefit to the owner, so this cannot be a real servitude. It also imposes positive obligations, which no servitude can do, so it’s merely a personal right (contract), not a real right.

Ratio—(1) The existence of a servitude depends on the juridicial content of an act, rather than the name the parties give to it. (2) In case of doubt, contracts create personal obligations, not servitudes (granting a real right).

Pelletier c Bui, 2010 QCCS 657 (CBII 341)Facts—Pelletier’s family had long accessed his woodlot by a path crossing Bui’s property. Bui’s purchase contract included a right of way which had been transferred with the title several times since it was created. Bui prohibited Pelletier from crossing through his property, as he claims the right of way cannot be set up against him.

Issue—Is this a real or personal servitude? Real.

Reasons (Émond J)—The original right of way fulfills the conditions for the creation of a real servitude: There are two

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neighbouing properties with different owners, it allows the exploitation of one of them, it obliges the servient owner to permit certain acts of usage by the owner of the dominant land, and was not established for a limited time nor for personal advantage. It has no juridical significance that the property titles didn’t mention a published servitude. What’s more, Pelletier’s property is surrounded, and his long history means he knows the best path. Pelletier is awarded damages, exemplary damages, and a permanent injunction since Bui disobeyed an interlocutory injunction to abusively intimidate Pelletier, infringing his fundamental right to enjoy property in articles 6 & 49 of the Quebec Charter.

Davidson c Rosaire Nadeau & Fils, 2007 QCCS 2928 (CBII 355)Facts—Trépanier bought property and made it his primary residence, drawing water from the only source of potable water around, owned by Nadeau. Trépanier sold part of his land to Nadeau, reserving the right to draw water, along with a right of way to fix the aqueduct. Trépanier then sold his land including these rights to Davidson, and published them.

Issue—Is Nadeau’s immovable subject to a servitude in favour of Davidson? No, Trépanier’s servitude was personal.

Reasons (Barakett J)—A conventional real servitude requires two neighbouring pieces of land with different owners, that the servitude is an advantage to one of them, that it obligates the owner of the other to suffer or not do something, and that it is perpetual. A personal servitude is a real right on a property in favour of a person independent of immovables they may or may not possess established for a limited time. For personal servitudes, right to follow applies to the property, but not the person. Trépanier’s original purchase didn’t specify that it applied to his representatives and heirs, nor that it applied to a particular property. The clause “se réserve le droit de prendre l’eau d’une source” seems to imply il or je. If Trépanier’s sale to Nadeau intended conditions to apply to future owners, it should have been explicit.

Ratio—For personal servitudes, right to follow applies to the property but not the person who enjoys it.

Tremblay v. Martel should also be reviewed in this section.

Non-concurrence

Some servitudes created by contract are generally accepted (e.g. right of way). Servitudes of non-concurrence are controversial. If not indicated in a contract, servitudes are perpetual. They can be set up against third parties, unlike personal rights. Public order is the main limiting factor (on all contracts): some articles in the code are suppletive, meaning they apply unless a contract specifies otherwise, others are imperative, meaning contracts cannot override them.

Such real obligations are a confusing mix of real and personal rights: a real right centred on a single person.

Zigayer v Ruby Foo’s (Montreal) Ltd, [1976] CS 1362 (CBII 317)Facts—Ruby sold land and imposed a no restaurants servitude. Zigayer bought some of it and challenged the servitude.

Issue—Are non-competition servitudes against public order? No (apart from in exceptional cases, and this isn’t one).

Reasoning (Trépanier J)—Traité de droit civil du Québec says public order is that in which the interest of society outweighs that of particular individuals (e.g. criminal, constitutional, administrative law). Is society deprived or affected by these servitudes? They affect only a small portion of land, and other restaurants exist in the neighbourhood, so no.

Ratio—(1) Public order may limit servitudes. (2) Non-competition servitudes are only exceptionally against public order.

This was controversial in doctrine & jurisprudence: how does a non-concurrence clause benefit the immovable?

E Moreau, “La « servitude de non-concurrence », étude critique” in Recueil Dalloz Sirey, 40ième cahier, 1994 (CBII 319)In 1993, the French Cour de cassation ruled that a conventional servitude can make a non-concurrence obligation perpetual, in a case of a contract of sale prohibiting all future owners from opening an automobile service station. This restricts commerce and allows servitudes to benefit a person rather than a property. In this case, especially if they’re not limited in time or space, they should be against public order. Traditionally a servitude should create an intrinsic property improvement, not eliminate competition of other gas stations. Though some argue perpetuity promotes stability, commercial activity is inherently ephemeral, adapting to changing situations. Three problems: (1) difficult extinguishment—(i) The CA of Pau said the rarely-invoked doctrine impossibility of use could extinguish it. It’s hard to imagine how this would happen for the gas station; abuse of rights was attempted. (ii) Prescription only works if a gas station illegally operates there for 30 years. (2) uncertainty—Subsequent owners might have difficulty learning of the servitude, and might even build a gas station in good faith. (3) economic consequences—Freezing economic use of a property recreates the “biens de main morte” of the ancien régime, potentially ruining regional economies of France, like the vineyards, its national pride!

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Standard Life Assurance Co c Centre commercial Victoriaville ltée, [2001] RJQ 587 (CA) (CBII 325)Facts—Victoriaville imposed a no food sales servitude on its mall. Standard Life seized it by hypothec on it, and claimed they are not subject to the servitude as it isn’t a proper servitude (1177 CCQ), Standard Life are a third party, and for fraudulent use of rights (1631 CCQ) because it decreases the property value (2734 CCQ).

Judicial history—The trial judge held the agreement was an exclusivity clause, not a real servitude, and hence cannot be set up against Standard Life. Victoriaville says the trial judge misunderstood 1177 CCQ, that 1191 CCQ now allows a fixed-term servitude, and that the right to invoke 1631, 2734 CCQ was extinguished when the hypothec was executed.

Issue—(1) Is this a real servitude? No. (2) A personal servitude? No, it’s a simple personal obligation.

Reasons (Rochette J)—The CCQ did not change the earlier law of servitudes. 1177 CCQ does not say that duties on the servient land restrict usage, only that they obligate the owner of the servient property to permit acts of usage by the owner of the dominant property. This is not a real servitude because it doesn’t benefit a dominant property. It does not benefit the renter directly, as it ends with the lease or the closing of the business. Servitudes are perpetual (1182 CCQ). No servitude can principally impose an active role on the owner of the servient property. It’s a simple personal obligation, a non-concurrence clause, and cannot be set up against third parties.

Ratio—A non-concurrence clause benefiting the lessor of a property is not a servitude.

Apparently Atiyah used an economic argument to justify the servitude of non-concurrence. This argument tends to say that it gives owners certainty about the future, to better channel certain commercial risks.

Hamilton v Wall, [1879] 24 LCJ 49 (BR) (CBII 339)Facts—Hamilton sold land next to his house, stipulating a “servitude” that any house built on it must be in line with his own. Wall later bought the land, agreeing to comply, but started building a house closer to the road than Hamilton’s.

Issue—Is the limit on construction a real—rather than personal—right, and hence a servitude set up against Wall? Yes.

Reasoning (Dorion CJ)—Whether the condition can be set up against subsequent owners depends on whether the benefits are to the immovable or to the particular owner. The effects in this case are beneficial to the immovable only, and the two properties were adequately described, so it is a servitude.

Ratio—The nature of a right is determined by its quality rather than the determination given.

Dorion J seems to say that the deed can create a servitude by just saying it does, or that it’s for the benefit of an immovable, but this is no longer an accepted principle of Québec law. Courts today are very suspicious of contractually-created real rights, and find any lacuna or way to refuse passing on a real right. Very few real rights will be allowed to be created. Doctrine is not far from being unanimous on the question of real obligations. The formalists argue that the only obligations are the ones created by the law, and there can be no accessory obligations apart from those provided by the code (obligation to not to, insure, etc.) So courts should refuse additional obligations.

Extinguishment

1191 CCQA servitude is extinguished (1) by the union of the qualities of owner of the servient land and owner of the dominant land in the same person; (2) by the express renunciation of the owner of the dominant land; (3) by the expiry of the term for which it was established; (4) by redemption; (5) by non-user for 10 years.

Like any real right, it can be abandoned (1191¶2), but only directly by the owner of the dominant land. However...

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

As a propter rem obligation, abandoning the associated right liberates the titulary from past and future obligations.

Propter Rem ObligationsThese are not a dismemberment (even if they’re under that heading in this summary). They’re related to servitudes.

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Jean Carbonnier, Droit civil: les biens, 7th ed (Paris: Presses Universitaires de France, 2000) at para 41 (CBII 335)Propter rem a.k.a. real obligations are personal obligations attached to a real right. They are duties that might arise from someone else’s servitude on your land [e.g. plowing a road for their right of way]. Servitudes are supposed to be relationships only between property, and yet this is a personal obligation. If you acquire an immovable that is hypotheced to a third party you have no obligation to repay the debt it secures; your whole patrimony isn’t at stake, only the building can be seized. Propter rem are personal rights with real aspects, e.g.: (1) When you sign a lease, your righs can be set up against anyone who buys the building from its current owner, and (2) the right of retention means that when you come into possession of property that belongs to someone who owes you money, you don’t have to return it until they pay. Their whole patrimony is still responsible for the debt, but you have an even stronger right. Sometimes real rights also have personal aspects: abuse or abnormal use of property rights gives rise to a personal obligation to repair the damage done to neighbours. The expenses incurred by possessors must be paid by owners.

Propter rem obligations are accessory obligations on immovables that bind future owners. They are a type of real charge, the other one being scripta in rem, which are not lifted by abandoning the real right they attach to. All obligations arising from servitudes are propter rem (1178 CCQ), as well as those tied to TDV, permanent co-property, abuse of rights, tour d’échelle, views, and respect for neighbours’ property boundaries. They’re by definition transmissible, and 1182 CCQ explicitly says they are for servitudes. Positive accessory obligations on the servient owner, such as snow removal to allow enjoyment of a right of way, are also propter rem. A hypothec is an example of a scripta in rem obligation: the debtor is liable both as owner of the hypotheced property and through her common pledge. Abandoning the hypothecated good, although leaves an obligation on the subsequent acquirer, does not rid the original owner of her patrimonial obligation.

Propter rem obligations can arise in law or in the code (e.g. obligation to get insurance on property that’s the object of usufruct), but it’s when they’re defined by contract that problems can arise. The code imposes certain obligations (e.g. insuring property in usufruct), but courts avoid allowing further obligations, especially ones that would burden property owners. We can obligate an owner to tidy the path, but propter rem obligations can’t be created that go beyond what’s necessary as an accessory to the right. Suppose someone contracts for a servitude of right of way, that includes not only maintenance, but also that I sing you a song every time you pass by. This would be a valid contract, but won’t create a propter rem obligation, and won’t transfer to a new owner when sold. If this were allowed, we’d have obligations that permanently bind not property, but people. Accessory obligations follow a real right. They can be set up against people that didn’t contract into the regime. This is the difficulty. We see real rights as binding on third parties and perpetual (with exceptions, usufruct, emphyteusis). They’re self-contained to avoid jamming up the regime of DDB. These contractual creations can be set up against third parties.

(Review Ciment Saint-Laurent, where the SCC reversed the QCCA, which held that 976 CCQ gave rise to a propter rem real liability regime, because this would be tied to ownership, and would leave renters without a remedy.)

François Terré & Philippe Simler, Droit civil: les biens, 7th ed (Paris: Dalloz, 2006) at paras 775, 878 (CBII 336)Real rights are distinct from certain obligations that flow from them. The obligations are not real rights (even from the perspective of the creditors), they are a person’s obligations, not freedoms to enjoy, etc. But the debtor is only such in holding the right, and the obligations follow its transfer, and no longer apply to them if they abandon it. We call these propter rem (or sometimes real obligations, though that’s a misnomer). Servitudes are closely related, and have the same characteristics: (i) attachment to a particular property owner, (ii) they are transferred with it, and (iii) can be cast off by abandoning the property. Propter rem is, however, neither necessary nor sufficient to the concept of servitude. From the perspective of the dominant property, the servitude is a real right, accessory to the right of property and automatically transmissible with it. From the perspective of the servient property, it’s a dismemberment, and the property can only be transferred without it. It’s best to limit propter rem obligations to those necessary to enjoy the servitude to avoid imposing a servitude on a person, or for the benefit of a person.

Julien Scapel, La notion d’obligation réelle (Aix-en-Provence: Aix-Marseille, 2002) ¶ 118, 225, 304, 333 (CBII 337)Real obligations are personal obligations. The only thing they share with real rights is that they’re perpetual, unless abandoned. They’re restricted by the real rights they complete. Servitudes create benefits flowing from a servient to a dominant property. Differences between servitudes and real obligations: (1) servitudes are real rights, with a unilateral structure, and can be freely created by the property owner, where real obligations are personal rights, bilateral, and have a restrained field, and (2) servitudes allow a property to benefit from certain neighouring properties, while a real obligation only has the meaning contained in the principal real rights whose use it harmonizes, serving ideally to assure the effective exploitation of property by transferring some of utilities. It’s not a mode of exploitation but an accessory to a mode of exploitation of a thing.

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UsufructConsider reading 1120–71 CCQ, on this topic.

1120 CCQUsufruct is the right of use and enjoyment, for a certain time, of property owned by another as one's own, subject to the obligation of preserving its substance.

Usufruct grants usus and fructus (compare with 1200¶1), while the owner retains abusus and accessio. It is fully set out in the code and is the most commonly used dismemberment. It’s in every will, and used between couples. It’s not limited to immovables, but that’s where it began. It’s more and more used in Europe where property is very expensive, permitting what’s called usufruct for life: If you have no heirs, you can sell your home but keep using it for as long as you live. The bare owner has the title, but cannot occupy the house. It’s a bit of a gamble for the buyer depending on how long the person lives. It is a real right, so it can be set up against third parties (1125, 1160 CCQ) or hypothecated.

1127, 1135–36 CCQ1127. The usufructuary may dispose, as though he were its owner, of all the property under his usufruct which cannot be used without being consumed, subject to the obligation of returning similar property in the same quantity and of the same quality at the end of the usufruct.

Where the usufructuary is unable to return similar property he shall pay the value thereof in cash.

1135. The usufructuary may transfer his right or lease a property included in the usufruct.

1136. A creditor of the usufructuary may cause the rights of the usufructuary to be seized and sold, subject to the rights of the bare owner.

A creditor of the bare owner may also cause the rights of the bare owner to be seized and sold, subject to the rights of the usufructuary.

Madeleine Cantin-Cumyn, De l’usufruit, de l’usage et de l’habitation (Montréal, Soquij, 1990) ¶ 5–10, 62, 63, 65 (CBII 360)(5) Usufruct must be in existing property; one in a house not yet built is actually a promise of sale, not real rights. (6) Leased and usufructed property both permits use, but where a lessor has an obligation to allow the renter to enjoy the property, resulting in obligatinos to carry out repairs, etc., the bare owner in usfruct has no such obligations. It’is more like a trust in that administration is done independently of the owner. (7) Usufruct differs from a personal right to revenues of a property, as the usufructuary can get gross (not net) revenues, and can manage the property. (9) The obligations arising from usufruct are all propter rem obligations and are be lifted by abandoning it. (10) As a real right which can be set up against third parties, usufruct takes precedence over real rights granted later in time. (62) Usufruct grants the same right to possess [sic detain] the property as that of an owner.

Pierre-Basile Mignault, Le droit civil canadien basé sur « les répétitions écrites sur le code civil » de Frédéric Mourlon (CBII 359)The usufructuary’s real right is exactly similar to that of the owner. Both are real rights. While the usufructuary has the right to enjoy the property, all corresponding obligations follow that right, so she has no right to demand that someone else maintain the property for her enjoyment. (1) The usufructuary must take the property in the state that she finds it. (2) She can’t force the owner to repair it, unlike apartment renters, who hold a personal right against the landlord, not a real right against the property. (3) Usufruct is movable or immovable based on the underlying property.

1121, 1123, 1167, 2910, 930 CCQ1121. Usufruct is established by contract, by will or by law; it may also be established by judgment in the cases prescribed by law.

1123. No usufruct may last longer than 100 years even if the act granting it provides a longer term or creates a successive usufruct.

Usufruct granted without a term is granted for life or, if the usufructuary is a legal person, for 30 years.

1167. At the end of the usufruct, the usufructuary returns the property subject to the usufruct to the bare owner in the condition in which it is at that time.

The usufructuary is accountable for any loss caused by his fault or not resulting from normal use of the property.

2910. Acquisitive prescription is a means of acquiring a right of ownership, or one of its dismemberments [not

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servitudes, and possibly not emphyteusis, it’s explicitly in the code], through the effect of possession.

930. Possession vests the possessor with the real right he is exercising if he complies with the rules on prescription.

The principal obligations provided by the code, attaching directly to its real nature are inventory (1142 CCQ), insurance (or surety, 1144 CCQ), and preserving the substance of the property (1120 CCQ). The accessory obligations (1142+ CCQ, propter rem justified by the nature, but almost considered separate) insurance 1148 CCQ, maintenance 1151–52 CCQ, charges 1154 CCQ. These provisions are treated as imperative or suppletive on a case-by-case basis.

Larocque c Beauchamps, [1975] CS 384 (CBII 363)Facts—St-Denis died, left his house to relatives, and granted Beauchamps usufruct in the house for as long as she lived and paid certain upkeep costs. The relatives took out a loan from Larocque, secured by a hypothec on the house, which was later executed. Larocque then demanded Beauchamps leave, and alleged she failed to pay some of the upkeep costs.

Issues—(1) Did seizure of the house extinguish the usufruct? No. (2) Did failure to pay costs extinguish the ususfruct? No.

Reasoning—The usufruct predates the judgment giving Larocque ownership, so it can’t have extinguished it. Larocque seized only the rights held by her debtors, and took the house as charged with the usufruct. The failure to pay costs, as usufructuary obligations, only create a personal right to reimbursement for the missed payments.

Ratio—Seizure of the right of ownership leaves a usufructuary’s rights intact (later codified in 1136¶2 CCQ).

Madeleine Cantin-Cumyn, De l’usufruit, de l’usage et de l’habitation (Montréal, Soquij, 1990) ¶ 59–61 (CBII 365)Quasi-usufruct [usufruct of consumables] does not function as a dismemberment, it transfers the right of ownership to the quasi-usufructuary and simultaneously makes them a debtor to the “bare owner,” whose credit comes into being when the property can no longer be returned. Contracts of quasi-usufruct can designate property consumable to opt for the rules of quasi-usufruct rather than the normal regime. Quasi-usufruct can also apply to parts of the property. E.g. A store as usufruct, and the goods in it as quasi-usufruct, since they need to be sold.

What about usufruct on intangible property like copyright? Cantin Cumyn would likely refuse this, as real rights require an immediate and direct relationship with property, an object. But look at 1127 CCQ on usufruct of personal rights:

1132 CCQIf a debt subject to a usufruct becomes payable during the usufruct, the price is paid to the usufructuary, who gives an acquittance for it.

The usufructuary is accountable for the debt to the bare owner at the end of the usufruct.

1162–63 CCQ1162. Usufruct is extinguished (1) by the expiry of the term; (2) by the death of the usufructuary or the dissolution of the legal person; (3) by the union of the qualities of usufructuary and bare owner in the same person, subject to the rights of third persons; (4) by the forfeiture or renunciation of the right or its conversion into an annuity; (5) by non-user for 10 years.

1163. Usufruct is also extinguished by the total loss of the property over which it is established, unless the property is insured by the usufructuary.

In case of partial loss of the property, the usufruct subsists upon the remainder.

Right of UseConsider reading 1172–76 CCQ, on this topic.

1172 CCQA right of use is the right to enjoy the property of another for a time and to take the fruits and revenues thereof, to the extent of the needs of the user and the persons living with him or his dependants.

Right of use gives only the usus and fructus necessary to meet the titulary’s family’s own needs. As it attaches to a determinate person, It can’t be seized, limiting its commercial value. An intuitu personae is a contract with a person who gets the rights, but still can’t freely dispose of it to others.

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Banque National du Canada c Gravel, [1984] JE 1027 (CBII 367)Facts—Gravel sold her daughter Beaudry her house for $1, keeping the right to live in it for life, with Beaudry promising to pay the upkeep. The Bank seized and sold Beaudry’s house over a debt. Gravel claims hers is a real right.

Issue—(1) Is Gravel’s right to live in the house a real right? Yes. (2) Is Beaudry’s promise to pay the upkeep and taxes a part of Gravel’s real right? Yes.

Reasoning—Use and habitation is a real right recognized in the code, and the Bank must accept this charge upon the house. Beaudry’s payment of the upkeep is not automatically part of the right, as it’s not in the CCLC definition of use. However, in the context of this contract, clearly motivated by Beaudry’s generosity, the promise to let Gravel live in the house “for free” must be interpreted as such. Thus the owner of Beaudry’s house must pay all the upkeep and taxes. Also, the bank cannot seize or remove elements of the house that are essential to Gravel’s use of it, like light fixtures, since that would violate the promise to let Gravel live in the house in a normal manner.

The CCLC called the right of use habitation when its object was a house, which the CCQ no longer explicitly recognizes.

Innominate Real Rights1119 CCQUsufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights.

Formalists say 1119 CCQ enumerates all real rights, which exist within a particular vision, context, and limited framework. If the legislator wants more, they’ll make more. Anyone can create obligations, but they are personal, not real.

Others say 1119 CCQ gives examples, but people’s activities continue to evolve, so we can use the code in new ways. Contract can create rights with the rigidity and permanence of real rights, binding third parties.

The latter still acknowledge limits, like formalities including publication. Formalists argue jurisprudence often avoids this protection when it expands the regime, e.g. Morin required no formalities for prescriptive acquisition of superficies.

Marcel Planiol et Georges Ripert, Traité pratique de droit civil français: les biens, t 3, 2d ed (Paris LGDJ, 1952) (CBII 372)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 set up against third parties, real rights must generally be published. This is problematic if the rules for publication do not recognize innominate real rights.

A final argument for innominate real rights is that if they can lead to the optimal economic use of property, then we shouldn’t prevent it. In this vein, the law appears to now have recogized rights of enjoyment of property as innominate dismemberments, but is reluctant to allow restrictions on the use of property, which may have more troubling economic consequences. The idea is that innominate dismemberments are halfway between real rights and personal obligations. Even though they may be created by contract, personal servitudes attach to real rights. The right to fish and to hunt are thought to be possible personal servitudes. Some have said they’re part of usufruct, but fish and animals are vacant property, not attached to use, so this doesn’t work. Wood and minerals are products, not fruits. Some rights of passage also attach to a person. Only real servitudes are supposed to be potentially perpetual. Some have suggested innominate dismemberments may also be. But the more usages you can create and codify, then each one can be a real right, and each one can be perpetual, and property is essentially frozen.

Review Québec (PG) c. Club Appalache, which allowed the innominate dismemberment “hunting & fishing rights.” But depending on the way the contract is written, they can either be a personal right, a right of ownership, a usufruct, a real servitude, or an innominate dismemberment of property.

Matamajaw Salmon Club Limited c Duchaine, [1917] 27 KB 196, [1919] 58 SCR 222, [1921] AC 426 (PC) (CBII 373 x 3)Facts—Blais sold his property to Duchaine, but had previously sold “all the fishing rights” to Sir George Stephen, though not (explicitly) ownership of the riverbed itself, and Stephen later sold it to Matamajaw.

Issues—Are the fishing rights (1) a personal servitude? (2) perpetual? (3) and are there innominate real rights in Québec?

QCCS (Roy J)—Ownership of the riverbed wasn’t transferred. (1) No, an innominate real servitude. (2) Yes. (3) Yes.

KB(CA) majority reasons (Pelletier J)—(1) A real servitude needs a dominant property, and there is none. Duchaine’s title conferred more than a personal servitude, but he conceded the riverbed. Matamajaw must have co-property in right of

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ownership in the riverbed. [Moyse: Pelletier is confused.] (2) Yes, as a right of ownership. (3) N/A.

KB(CA) concurring reasons (Archambeault CJ)—(1) Yes. (2) No. (3) Unclear. The right is either ownership, usufruct, a real servitude, or a personal servitude, all of which are transferable to third parties within 100 years and as long as Stephenson is alive. Since this dispute does not concern the duration of the right, there is no need to specify which.

SCC majority reasons (Anglin J)—(1) Yes, usufruct. (2) Usufruct ends with the life of the holder, Stephenson. (3) No.

SCC dissenting reasons (Idington J)—(1) No, a real servitude. (2) Yes. (3) Yes. “There is no prohibition in law against his dismembership of his property in a way or shape he chooses” and Blais seems to have intended perpetuity.

PC reasons (Haldane LJ)—They restore Roy J’s judgment. The fishing rights are a separable [dismemberment of] ownership, and if not, they are a usufruct lasting beyond Stephen’s death. 479 CCLC says “if for life”, which implies it can be extended longer. Quebec law doesn’t recognize fishing rights in a non-navigable river as a real right separate from ownership of the riverbed. They do a textual analysis of codal articles.

Ratio—There are innominate real rights in Québec.

Hunting rights, timber rights, fishing rights can be personal or real rights (ownership, usufruct, real servitude, or innominate dismemberment of ownership).

617 CCF, 479, 405 CCLCCCF 617. L’usufruit s’éteint par la mort naturelle et par la mort civile de l’usufruitier; [ou] par l’expiration du temps pour le lequel il a été accordé ...

CCLC 479. Usufruct ends by the natural death of the usufructuary, if for life; [or] by the expiration of the time for which it was granted …

CCLC 405. A person may have on property, either a right of ownership or a simple right of enjoyment, or a servitude …

Stipulations of InalienabilityConsider reading 1212–17 CCQ, on this topic.

Part of property is the right to dispose of it through sale, gift, abandon, etc. This is why DDB exists, to facilitate commerce. Dismemberments were created to make commerce easier. The DDB is a mini commercial code.

1212 CCQ [emphasis added]No restriction on the exercise of the right to dispose of property may be stipulated, except by gift or will.

A stipulation of inalienability is made in writing at the time of transfer of ownership of the property or a dismembered right of ownership in it to a person or to a trust.

The stipulation of inalienability is valid only if it is temporary and justified by a serious and legitimate interest. Nevertheless, it may be valid for the duration of a substitution or trust.

This shows how the legislator is distrustful of stipulations of inalienability. There another requirement, publication:

2649 CCQA stipulation of unseizability is without effect, unless it is made in an act by gratuitous title and is temporary and justified by a serious and legitimate interest. Nevertheless, the property remains liable to seizure to the extent provided in the Code of Civil Procedure (chapter C-25).

It may be set up against third persons only if it is published in the appropriate register.

Robinovitch c Banque de Montréal, [1999] RDI 160 (CQ) (CBII 403)Facts—Robinovitch’s uncle willed her money, validly stipulating it was unseizable. She bought a house with $125k from money from her uncle plus a $100k hypothecated loan from the bank. She defaulted.

Issue—Is the hypothec valid under 2668¶1 CCQ? Yes.

Reasons (Laliberté J)—The CA in Morency said that seizability is the rule, unseizability the exception, and that unseizability applies only as long as its object conserves the characteristics that make it such that the law protects it. It was only the money that was unseizable, not the house. Robinovitch chose to combine it with another sum of money to

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buy the house, clearly modifying the nature of the property, and making it seizable.

Ratio—Stipulations of inalienability do not survive modification of the nature of the property.

Unilaterally limiting the seizability of one’s property, goes against the idea of the common pledge. In this case, the court allowed it. All three requirements were met, though a “legitimate motive” was questionable.

Imprescriptibility is another potential restriction, like unseizability. Ex. Doyon, 2008 QCCS 1089.

Recent DevelopmentsMoyse wonders if recent developments like IP, Trusts, and Aboriginal title have made the CCQ insufficient for commerce.

Intellectual Property (IP)IP has grown onto the existing framework of DDB of absolute, perpetual property with all attributes, created by the state, contract, sale, inheritance, gift, occupation. For IP, it comes initially from creation. Is IP an anomaly or the new DDB?

Jacques Ghestin & Gilles Goubeaux, Traité de droit civil: introduction générale, 4th ed (Paris: LGDJ, 1994) ¶225(CBI183)IP is hard to define apart from in a negative sense. The rights aren’t directed at a particular person, and they don’t bear on a material object, nor on elements of the subject’s personality, but an “incorporeal thing” resulting from the subject’s intellectual activity. It includes copyright and patent, where the work doesn’t correspond to the material object. They are exploited by being disseminated to the public, and law grants a monopoly on this exploitation to the author, granting a “moral right” which guarantees respect for the work through its reproductions and allowing the author to modify it. Qualifying IP as “incorporeal property” gives rise to an analogy with real rights; its the ability to be set up against third parties which allows the titulary to see a benefit from it. But real rights’ attachment to a physical object limits the comparison, and they’re generally acknowledged to be distinct.

Jean-Louis Baudouin & Pierre-Gabriel Jobin, Les obligations, 5th ed (Cowansville: Yvon Blais, 2005) ¶ 10 (CBI 184)Intellectual rights are rights bearing on a product of the human spirit, that flow from artistic or intellectual creation. In the strict sense, the object of an intellectual right Is an idea, a design, or an invention, which shouldn’t be confused with its physical manifestation. The do also have an extra-patrimonial connection, as the creator has a certain moral right on their work, allowing them, e.g., to prevent it from being deformed, betrayed, or misrepresented. Federal and provincial statute protects these rights and requires certain formalities of them to protect their creation or their creator’s rights.

When you buy a painting from a collector, how much goes to the painter? Zero in Canada. This fits better in the traditional property regime: they get their pay the first time it’s sold, and it’s a unique object. Some other countries allow a right to follow (originating in Roman law):

European Directive 2001/84/EC—27 September 2001—resale right for the benefit of the author of an original work of art In the field of copyright, the resale right [“droit de suite”] is an unassignable [i.e. nontransferrable] and inalienable right, enjoyed by the author of an original work ...

The royalty provided for in Article 1 shall be set at the following rates:

(a) 4 % for the portion of the sale price up to €50 000;

(b) 3 % for the portion of the sale price from €50 000,01 to €20 0000; [ ... etc.]

Review Tri-Tex, and Gendreau’s article on moral rights, both from first term.

Théberge v Galerie d’art du Petit Champlain inc, 2002 SCC 34Facts—Théberge was paid by a printer to make 100 copies of a poster he designed. Champlain then used a technique to transfer the ink from the poster to a canvas to exhibit in a gallery, leaving the paper blank.

Issue—Is this unauthorized reproduction? No, there is still only one copy.

Reasons—“[I]t seems the ... artist simply wishes to stop the appellants from catering to the market for canvas-backed reproductions that apparently exists. To do so, however, he must as a litigant demonstrate a statutory right that overrides what the owners of the authorized poster could otherwise do with their tangible property.” “Moral rights act as a continuing restraint on what purchasers such as the appellants can do with a work once it passes from the author, but respect must be given to the limitations that are an essential part of the moral rights created by Parliament. Economic rights should not be read so broadly that they cover the same ground as the moral rights, making inoperative

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the limits Parliament has imposed on moral rights.”

Ratio—Reproduction is not unauthorized if an item is not duplicated.

The SCC has we have to be careful not to give too many rights to authors, as users and owners have rights of their own.

CVL’s subjectivist copyright (patrimonial economic + extra-patrimonial moral rights) brings up the same problems as indivision: multiple owners of the same thing. Since 1931 CVL has the idea of moral rights, which didn’t exist in CML:

Copyright Act, RSC 1985, c C-42, s 14.1(1)–(3)3. [Copyright applies to “literary, dramatic, musical or artistic works” including adaptations between media.]

6 . The term for which copyright shall subsist shall ... be the life of the author ... a period of fifty years ...

13. [The first owner is the author, or person who ordered it if it’s a portrait, or an employer in some cases.]

14.1 (1) The author of a work has ... the right to the integrity of the work and ... to be associated with the work ...

(2) Moral rights may not be assigned but may be waived in whole or in part.

(3) An assignment of copyright ... does not ... alone constitute a waiver of ... moral rights [i.e. moral rights are separate].

14.2(1) [Moral rights last as long as copyright.] (2) [Transfer by succession.]

28.2(1)–(3) [Definition of infringement of author’s right to integrity of the work.]

Moral rights aren’t explicitly said to be extra-patrimonial, but we know because they’re not waivable. Property is perpetual, while copyright last 50 years after death of the author, grants right to reproduction, and public exhibition.

Are there immovable intellectual property rights? Industrial design, part of copyright. Is taking a photograph of a building a violation of copyright? Moyse feels this is a difficult question.

The Copyright Act speaks also of a “work of joint authorship,” a type of indivision.

Aside from copyright, IP also includes patents and trademarks.

Constitution Act, 1867, ss 91¶22, ¶23, 92¶1391(22). Patents of Invention and Discovery.

91(23). Copyrights.

92(13). Property and Civil Rights in the Province.

The way this shared competency works is that the CCQ is suppletive. It references IP in two places: when it’s defining capital, as well as in the family regime in the community of spouses.

CCQ 458, 909458. Intellectual and industrial property rights are private property, but all fruits and income arising from them and collected or fallen due during the regime are acquests.

909. Property that produces fruits and revenues, property appropriated for the service or operation of an enterprise, shares of the capital stock or common shares of a legal person or partnership, the reinvestment of the fruits and revenues, the price for any disposal of capital or its reinvestment, and expropriation or insurance indemnities in replacement of capital, are capital.

Capital also includes rights of intellectual or industrial property except sums derived therefrom without alienation of the rights, bonds and other loan certificates payable in cash and rights the exercise of which tends to increase the capital, such as the right to subscribe to securities of a legal person, limited partnership or trust.

IP is necessarily patrimonial, and so necessarily involves contract. The code stipulates these contractual elements. So there is not such a clear distinction between IP in the federal sphere and traditional property in the provincial sphere.

Nicholas Kasirer, “L’ambivalence lexicographique en droit d’auteur canadien” at 259 (CBI 204)Federal jurisdiction over IP is superimposed on top of provincial control of property and civil rights. Thus if there is a gap in the statutory law of Parliament, this gap is filled by the provincial laws. Parliamentary IP laws are extremely ambiguous at the level of language and this appears to be deliberate.

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A statutory right of limited time: “for the progreess of the science and the useful arts, by securing for limited times to authors and inventors the exclusive rights to their respective writings and discoveries.”

Millar v Taylor (UK) (1769), 98 ER 201Yates J: “nothing can be an object of property, which has not a corporeal substance”. “With regard to books, the very matter and contents of the books are by the author’s publication of them, irrevocably given to the public; they become common: all the sentiments contained therein rendered universally common: and when the sentiments are made common by the author’s own act, every use of those sentiments must be equally common.”

The argument is everyone will be a “free rider” unless we have copyright to force people to pay, but some disagree.

Barlow, “Everything you know about intellectual property is wrong” (1994)What was previously considered a common human resource, distributed among the minds and libraries of the world, as well as the phenomena of nature herself, is now being fenced and deeded. It is as though a new class of enterprise had arisen that claimed to own the air.

Review Euro Excellence v. Kraft, on abuse of copyright.

Diffusion Inc c Disques Gamma, [1999] RJQ 1455 (CBI 221)Facts—Gamma had rights to ¾ of the profits of one of its artist’s songs. The artist gave Diffusion the rights to his songs for five years. When Diffusion registered with the copyright royalty bodies, Gamma claimed ¾ of the profits.

Issue—Could the author cede his rights in a future work of art to Gamma? Yes.

Reasons—The Copyright Act is unclear on this point, so CVL applies. 1374 CCQ allows contracts to transfer future goods if the prestation is “determinate as to kind and ... quantity.” The songs fulfil both criteria, so Gamma’s rights are valid.

Ratio—(1) Copyright can be transferred before its object exists. (2) When the Copyright Act is unclear, CVL applies.

Trade-marks Act, RSC 1985, c T-13, s 2 (CBI 227)[A certification mark is an indication of quality/etc. (e.g. fair trade, organic). A distinguishing guise is a distinctive shape or packaging of products. A trade mark is a certification mark, distinguishing guise or “a mark that is used to distinguish one’s own products from those of competitors.”]

Patent Act, RSC 1985, c P-4 ss “invention,” 27, 28.3 (as of May 2010) (CBI 229)2. ... “ ‘invention’ means any new and useful art, process, machine, manufacture or composition of matter or any new and useful improvement [to the above]”;

3(a-d). [information/specificity requirements for a patent.]

27(8). No patent shall be granted for any mere scientific principle or abstract theorem ...

28.3 [Invention must not be obvious. Definition of obvious.]

The TrustConsider reading 1260–98 CCQ, on this topic.

Origins in Anglo-American Law

Alastair Hudson, Understanding Equity and Trusts (London: Cavendish Publishing, 2001) at 13–17 (CBII 413)The trust is a product of English history, so it is found in all CML jurisdictions, but is historically unknown to CVL. The historical roots are in the 13th century crusades: all the nobles (the big landowners) had gone to invade and pillage other lands. Courts of equity came to recognize trustees who could manage property without owning it. The intellectual origin is cases in which a number of people had claims in land arising simultaneously. The system is sometimes seems ill-suited today. Recall that land turned out to be perhaps the least interesting form of property in the 20th century.

The modern trust is related to an identified property, the trust fund. The settlor creates the trust (makes a “declaration of trust” or “settles the property on trust”) by appointing the trustee to hold the fund for a beneficiary, observing formalities. The settlor, the absolute owner, must have absolute title on property to do this. The trustee then acquires legal title (and all common law rights in the property, appearing to the outside world as owner) and the beneficiary gets equitable or beneficial title (from the perspective of law, the ultimate title). The beneficiary acquires equitable property

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rights against the fund, and personal claims/rights against the trustee, including for the trustee to protect the interests of the beneficiary, to faithfully observe the terms as set by the settlor, and to protect the trust property, and is potentially subject to personal liability for the beneficiary’s loss or breach of trust. Something as simple as a joint bank account may form a trust. Someone may act in all three capacities simultaneously. The only impossible configuration is to have the same person as trustee and sole beneficiary, in which case they would effectively remain the absolute owner. When there is only one beneficiary, it’s called a bare trust, and the trustee is a bare trustee or nominee. The trust can set up various schemes when there are multiple beneficiaries. If the settlor provides trustee “shall hold the property on trust for A for life, remainder to B absolutely” then A is the life tenanant, B the remainderman or remainder beneficiary. A discretionary trust, giving trustees some apportionment power, is also possible.

The Trust in Quebec

Remember 2¶2 CCQ: everyone has a patrimony. “The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.” CVL can’t understand ownerless property. CML has trusts, and they were eventually transplanted into CVL, but it was not easy.

1260 CCQA trust results from an act whereby a person, the settlor, transfers property from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer.

Three people: settlor (« constituent »), trustee (« fiduciaire », legal title in CML), beneficiary (« bénéficiaire », equitable title in CML), none of whom is the owner. The latter might not even be born yet. CML never had to justify it because there is no integrated property law, but a mish-mash of obligations. CVL has enormous difficulty in explaining it and integrating it into its regime. CVL can’t have two types of ownership of a same thing: property is a unitary concept.

1261 CCQThe trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.

There’s a fiduciary patrimony, of which no one is owner.

Royal Trust c Tucker, [1982] 1 SCR 250 [excerpt on ownership of trusts] (CBII 416)Facts—Tucker created a trust (981a+ CCLC) with Royal Trust to leave money to her unborn (grand)children, or if none existed at her death, to the heirs of her father (i.e. her sisters). Royal Trust was given wide administration powers, even alienation. Tucker sought twenty years later to void the trust and retrieve the fund on the grounds that the children didn’t yet exist and that making her sisters beneficiaries is an invalid gift in contemplation of death (754 CCLC).

Judicial history—Mackay J held at trial that (1) the beneficiary doesn’t need to exist if the benefits are not yet intend to be used, like in the CML. (2) Acceptance by the trustee makes the trust irrevocable. (3) No ruling on the sisters, either way it wouldn’t invalidate the trust as a whole. The CA majority (Paré JA + Lamer JA) said 754 CCLC is not relevant, but (1) trusts cannot benefit non-existent people, which invalidates the whole. Owen JA, dissenting, did not rule on benefit to non-existent people, but having the sisters as beneficiaries was valid, and on its own rescued the validity of the whole.

Issues—(1) Can a trust be made for the benefit of unborn children? Yes. (2) Is acceptance by the trustee sufficient to make the trust irrevocable? Yes, with the trustee acting as owner. (3) Are her sisters valid beneficiaries? Yes.

Reasons (Beetz J)—Courts have rejected the English concept of dual ownership in favour of sole ownership, so with whom does this lie? Mignault initially thought the beneficiary, but after Curran v. Davis looked to the trustee, in which case, no beneficiaries are needed. Faribault’s theory, which Cantin Cumyn seems to agree with, is that the trust itself is the owner. Others say the trust is a dismemberment of ownership, with the grantor as owner, and beneficiaries under a suspensive condition. The trust can be treated like a testamentary trust, even though 981a+ CCLC’s wording runs against the idea. The unanimous SCC in Curran v. Davis held that acceptance by the trustee makes the trust irrevocable, and the trustee is the sole apparent owner, and have all rights over it, though they cannot derive personal advantage from it, and lack usus, fructus, and abusus. If they allow it to deteriorate, they risk being dismissed by the court. The SCC in Masson v. Masson held that “[t]he great difficulty … [in reconciling] the system of the English trust with French law … was of course this fundamental principle that ownership is always vested in someone. … . Mignault [suggested] that under the Canadian system, the trustee should be regarded as owner.” This case history only supports Mignault’s approach. The grantor cannot both give and retain the property. The beneficiary is merely a creditor of the trust, sometimes has not been born, and the trust has terminates when it’s conveyed to him (981l). This approach is accepted even though it

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requires a sui generis property right, as it’s tempororary and includes no fructus.

Ratio—A trust has one owner, the trustee (this is no longer true under the CCQ), so beneficiaries do not need to be precise or exist, as long as they can and will be determinable (this part remains true).

The CVL was previously uncomfortable with the trust, only accepted it as donations between the living and testamentaries, not for commercial activities. With the CCQ, the trustee’s contracted obligations in the course of management for the ends to which the trust is created only affect the trust fund. An patrimony by appropriation has no moral personality

Trusts can be established by gratuitous title (no returns for the settlor) (1258, 1279 CCQ) as personal trusts, foundations (for social utility, the others are private trusts) or private interest trusts; or by onerous title (1269 CCQ) as business trusts.

Crown Trust Company c Higher, [1977] 1 SCR 418 (CBII 425)Facts—Higher and sixty others paid almost half the funds to launch a shopping centre, with the rest coming from a loan secured by hypothec with twenty-year amortization, with Crown Trust as trustee. Five years later the bank asked for the loan to be repaid, as it was apparently mistakenly contracted as five-year amortization, and the project failed.

Judicial history—The trial judge and CA ruled Higher could recover their shares from Crown Trust.

Issue—Is the relationship between the parties even a trust at all? No.

Reasons—As the CA said, Crown Trust did not use the fund in accordance with the terms of its promise, so it is liable for the damages (1065 CCLC), but this is not the only problem here: 981(i) CCLC does not relieve Crown Trust of personal liability, as it applies only to testamentary and inter vivos gifts (981(a) CCLC). It is impossible in Quebec to create a business trust, as is found in CML provinces. Higher are not third parties to the trustee appellant. This is an innominate contract, be governed by the general rules of obligations.

Ratio—Business trusts do not exist under the CCLC. (This was changed with the CCQ.)

Arts 981(a)+ CCLC (CBII 426) [Chapter 4, “Of Trusts,” added in 1888]981a . All persons capable of disposing freely of their property may convey property, moveable or immoveable, to trustees by gift or by will, for the benefit of any persons in whose favour they can validly make gifts or legacies.

981b . Trustees, for the purposes of their trust, are seized as depositaries and administrators for the benefit of the donees or legatees of the property, moveable or immoveable, conveyed to them in trust, and may claim possession of it, even against the donees or legatees for whose benefit the trust was created.

This section lasts only for the time stipulated for the duration of the trust; and while it lasts, the trustees may sue and be sued and take all judicial proceedings for the affairs of the trust.

981c . The donor or the testator creating the trust may provide for replacing the trustees as long as their trust lasts, in case of refusal to accept, of death, or other cause of vacancy, and indicate the mode to be followed.

When it is impossible to replace them under the terms of the document creating the trust, or when the replacement is not provided for, any judge of the Superior Court may appoint replacing trustees, after notice to the benefited parties.

981d . Trustees dissipating or wasting the property of the trust, or refusing or neglecting to carry out the provisions of the document creating the trust, or infringing on their duties, may be removed by the Superior Court.

981e . The powers of a trustee do not pass to his heirs or other successors, but the latter are bound to render an account of his administration.

981 f . When there are several trustees, the majority may act, unless it be otherwise provided in the document creating the trust.

981g . Trustees act gratuitously, unless it be otherwise provided in the document creating the trust.

All expenses incurred by trustees, in the fulfilment of their duties, are borne by the trust.

981h . Trustees are obliged to execute the trust which they have accepted, unless they have accepted, unless they be authorized by a judge of the Superior Court to renounce; and they are liable for damages resulting from their neglect to execute it when not so authorized.

981 i . Trustees are not personally liable to third parties with whom they contract.

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981 j . The trustee, without the intervention of the parties benefited, administer the property vested in them and dispose of it, invest monies which are not payable to the parties benefited, and alter, vary and transpose, from time to time, the investments, in accordance with the provisions and terms of the document creating the trust.

In default of constructions, the trustees make investment without the intervention of the parties benefited, in accordance wit hthe provisions in 981o.

981k . Trustees are bound to exercise, in administering the trust, reasonable skill and care of prudent administrators; but they are not liable for depreciation or loss in investments made according to the provisions of the documents creating the trust, or of the law, or for loss on deposits made in chartered banks or savings banks, unless there has been bad faith on their part in making such investments or deposits.

981 l . At the termination of the trust, the trustees must render an account, and deliver over all moneys and securities in their hands to the parties entitled thereto under the provisions of the document creating the trust, or entitled thereto by law.

They may also execute all transfers, conveyances, or other deeds necessary to vest the property held for the trust in the parties entitled thereto.

981m . Trustees are jointly and severally liable for the property vested in them, in their joint capacity, and for the payment of any balance in hand, or for any waste or for any loss arising from wrongful investments, saving where they are authorized to act separately, in which case those having acted separately, within the scope assigned to them, are alone liable for such separate administration.

981n . Trustees are liable to coercive imprisonment for whatever is due, by reason of their administration, to those to whom they are accountable, subject to the provisions contained in the Code of Civil Procedure.

John EC Brierley, “De la fiducie” in La réforme du Code civil (Presses de l’Université Laval, 1993) 735 at 745–50 (CBII 428)The mechanism adopted for trusts in 1260–61 CCQ is the patrimony by appropriation, a contrived notion, though not altogether unknown to CVL. The CCQ doesn’t fully define trusts’ workings, but they now expand beyond gifts and testaments, and their essential elements are (1) the settlor’s intent to create a distinct mass of property in the hands of the trustee, (2) detention of this property by the trustee for its management according to law and the constituting act, and (3) a particular goal, often advantage to a beneficiary. The patrimony by appropriation is not ownerless property subject to occupation (914 CCQ) because the trustee has detention and control (1278 CCQ). Even though there’s reason to fear the breakdown of Aubry & Rau’s pure vision of a patrimony for every person and a person for every patrimony, no other solution works, whether it’s (1) real rights like ownership or dismemberments, because even though the trustee has sweeping powers (even to alienate), she doesn’t exercise ownership in the sense of 406 CCLC/947 CCQ, nor does the beneficiary (this would defeat the purpose); (2) creditor rights like the nominate contracts of loan or deposit, as the beneficiary’s interest is much stronger than this, she has lawful powers to demand a statement of account and even dismissal of the trustee, (3) stipulations for a third party (1444 CCQ); (4) egal persons; (5) substitution (though this is more similar); (6) succession (776 CCQ); (7) power of appointment (though there’s overlap in 1282–83 CCQ); nor (8) mandate.

Madeleine Cantin Cumyn, “La fiducie, un nouveau sujet de droit?” dans Mélanges Ernest Caparros (2002) (CBII 432)The patrimony by appropriation in the CCQ resolves the confusion around trusts, but does making it a distinct concept cause uncertainty? The idea that it simultaneously has no owner and isn’t ownerless doesn’t make sense. (1) Historical background—Before the CCQ, the CVL tendency was to faithfully reproduce the CML’s trust. Before enabling legislation, some tried to use usufruct, substitution, or execution of wills to achieve trusts. The unique CML notion of splitting title made this sketchy until the 1879 act allowing trusts combined prior jurisprudence with the CML understanding. This was welcomed, though even the sui generis approach led to contradictions and confusion. It had to be reformed with CCQ 1260–61 as an autonomous and distinct patrimony by appropriation with the trustee as administrator. The property is tied to obligations flowing from the purpose to which the goods are appropriated. The sui generis approach is abandoned, along with the vision of a trust based on creditor rights. There’s a risk that patrimonies by appropriation might be viewed as simple collections of property, as in other places: family patrimony (414–24 CCQ) and substitutions (1223 CCQ) improperly use the word “patrimony,” and especially 2¶2, 302 CCQ, which speak of “division” of a patrimony. Division is not what’s happening with trusts (1261 CCQ) and they actually just mean that we sometimes refer to sub-groups within a patrimony, but they’re still part of a single patrimony. So trusts are now centred on a passive patrimony, not juridical relationships between people, which differs both from the CML and Roman law trust. (2) Current regime—The settlor is now clearly stripped of her property as soon as it’s transferred. The beneficiary’s interest is still a creditor right. The trustee’s powers are framed by the norms that regulate DDB. But should we assume that the law created a new category

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of patrimony where res nullius doesn’t apply? Does this mean the trust is titulary of the patrimony, as (A) a legal person—it appears more likely that patrimony by appropriation was chosen as an alternative to a moral person. Quebec CVL is also closer to CML than other CVL countries in rarely allowing a group of people to form a legal person without an express legislative provision. (B) a subject of law—notice that trusts are completely absent from the book on obligations. The link between the trust’s patrimony and its property is clear in some provisions, but others look more like the old law, with the trustee in between them, bolstered by trust being in the chapter on status of real property, so it’s not clear how to proceed. Aubry & Rau’s traditional conception was tied up in the end of slavery, and the principle of equality of human beings, who should all be recognized as people. It said all creditors should have an equal stake in the debtor’s patrimony, and specified the object of their recourse. Doctrine relies on a one-to-one correspondence between persons and patrimonies, as do 1, 2 CCQ. Though this is only “to the extent provided by law”, trusts are so far the only exception. It’s not a person, but is its own titulary, meaning (i) it can’t have extra-patrimonial rights, including those in 302 CCQ for legal persons (ii) it can’t hold a charge on someone else, nor administer anyone else’s property, whether trustee or mandatary. Even if not a person, it can be bankrupted. It can’t be liable in delict or criminal law. Even criminal liability of legal persons is still unclear in Canadian law. Under the new understanding, a patrimony simply a means to understand the relationship between property and debts. The trust has to be admitted as a third subject of law, alongside natural and legal persons.

It appears Cantin Cumyn may have warmed up to the idea of patrimonies by appropriation between the two articles.

Madeleine Cantin Cumyn, “Pourquoi définir la fiducie comme un patrimoine d’affectation?” (2008) (CBII 439)The trust still has a strange relationship with Qubeec CVL, despite being introduced 125 years ago. Faribault noted in 1930 it failed to be used in wills, and this remains true. The confusion around its use and jurisprudence make it hard to feel as though it’s as integral to Quebec’s “droit commun” as are partnerships, mandate, indivision, and legal persons. European CVL countries aren’t using the CML trust, but returning to the fiducia of Roman law. This approach ignores that the Romans dropped the concept after it developed better tools to meet the same needs (mandate and hypothec) and that it allows the settlor no recourse against the trustee for disrespecting the agreement. Making the trust a distinct kind of property is also surprising. The modern concept of real rights corresponds to the dominium in Roman law and bears upon a corporeal object. Since the elimination of tenure, CVL countries no longer allow plurality of parallel property. QC CVL has included the trust for some time, so no one advocates a return to fiducia, but confusion with the CML concept meant it took 100 years to clarify. The initial inclusion in the CCLC provided no definition, so jurists assumed it was a sui generis type of property. 981a+ CCLC imply it’s not a patrimonial right: the fund can’t be seized by the trustee’s personal creditors though they are seizable, nor can they be transmitted to her heirs. The trustee can renounce the fund just as she can be removed for reducing or wasting it. The only patrimony-like power is alienation by onerous title. But even having decided this, CVL was never able to describe what the sui generis regime actually consisted of. Large trust partnerships had a big hand in forming the regime, which is why trustees gained sweeping prerogatives and are bound by minimal constraints: it’s like legal title without being bound by equitable title. There have been exorbitant clauses of permission and exoneration. The few times controls have been called on to assess the conduct of trustees, courts have required no particular competence, even when their job was to administer another’s property. Only fraud and bad faith have been reprimanded, meaning fault-based liability for abuse of rights. The CCQ’s approach is more accessible to a non-specialist CVL jurist. It uses a patrimony by appropriation, a third way between the problems of either a sui generis right or a legal person. This is certainly new and strange, but at least it fits within CVL categories. It makes clear that the regime is distinct from the patrimonies of any of the players, and that they are immune from it. The trustee is authorized to take any juridical action serving the purpose. Unlike with sui generis ownership, the regime surrounding trustees is specified: she supplies the rules to practically achieve the purpose in conformity with the settlor’s wishes 1299–1370 CCQ. They’re bound to exercise prudence, due diligence, and loyalty, to maintain the property as an identifiable collection at all times, to make regular account of its administration, in all a general obligation of competence, transparency, and faithfulness in administration. The beneficiary and others mentioned in 1287 CCQ have rights to oversee it. The choice in the CCQ for an patrimony by appropriation regime in which the trustee has powers not rights answers the problems of the trust in CVL. This is not a property regime, but of administration of someone’s property or of exercise of powers. An patrimony by appropriation is not a doubling or division of a patrimony as in 2 CCQ, and is distinct from the notion in Europe, where it refers to a subset of a patrimony, flowing from the idea of fiduciary property. A trust must be constituted by a juridicial act, contract or testament which definitively transfers property from the settlor’s patrimony to the newly formed trust. The purposes it can serve are delimited by the distinction between three types of trust. Weaknesses persist and aren’t harmless. To assure real autonomy, the requires an independent trustee at all times, and prevents the settlor from being the sole beneficiary of the trust she creates. We might also regret that the rules of the gratuitous title trust were applied to the newly allowed onerous title trust.

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Final Exam April 2012Question I – True or false

1. Superficies are a dismemberment of ownership.

2. Article 1193 of the CCQ provides that servitudes can be acquired by prescription.

3. An emphyteutic lessee owns the constructions she builds on the property.

4. There are no innominate dismemberments of property in Québec civil law.

5. Usufruct cannot last longer than thirty years.

Question II

A) What is the utility of the notion of destination in divided co-property? Explain.

B) What do you think of the idea of 1195(2) CCQ’s emphytheusis by will? Explain.

C) Would a non-pollution servitude be valid which required stricter norms than state controls on water treatment and chemical fertilizer if it was consented to for the benefit of a dominant land situated downstream from the servient land? Explain.

Question III

Explain the changing conception of “rights” in Québec civil law property rights. [or something equally vague…]

Sample answers

Question I

1. False. Superficies are a special mode of ownership, and fall under that title in the Book on Property, not under that of “Dismemberments of the Right of Ownership”. 1011 CCQ specifies “[s]uperficies is ownership”, meaning it contains all of the attributes of property, not simply a subset, which would be a dismemberment.

2. False. 1193 CCQ falls under the section “Extinction of Servitudes” and refers to the fact that they are subject to extinctive prescription. 1181(1) CCQ provides only that they may be “established by contract, by will, by destination of proprietor or by the effect of law” and does not include prescription. Justice Baudouin in Whitworth c. Martin explicitly says that 1181 CCQ excludes prescriptive acquisition.

3. [can be argued either way, following either Moyse or Frenette’s lines of reasoning]

4. False. The Minister’s comments on 1119 CCQ specify that those dismemberments are the nominate dismemberments of the right of ownership, which implies that there are also innominate dismemberments. The case of Club Appalaches held that hunting and fishing rights could be considered innominate dismemberments of ownership.

5. False. Although 1123(2) CCQ specifies that “[u]sufruct granted without a term is granted … , if the usufructuary is a legal person, for thirty years”, 1123(1) CCQ provides that when a term is stipulated, “[n]o usufruct may last longer than one hundred years.”.

Question II

(A) The destination of divided co-property limits both the individual co-owners, as well as the collectivity of co-owners, as represented by the syndicate. The restriction on individuals is provided for in 1063 CCQ. In Bergeron, for example, a co-owner was prevented from opening a noisy daycare in her private part of the immovable because of its destination. The restriction on the syndicate is provided for in 1056 CCQ. In Talbot, for example, a co-owner attempted to challenge a by-law passed by the syndicate banning awnings, on the basis of the immovable’s destination.

The Court of Appeal in Amselem looked at the immovable’s destination from both individual and group perspectives at the same time. The case helps us see how destination parallels in some ways the Charter right of freedom of religion, which the Supreme Court of Canada (“SCC”) used to resolve the case. Both concepts balance the interests of individuals and those of collectivities. Both are difficult to change: Destination is subject to strict voting requirements in 1098(1) CCQ, and the SCC in Amselem held that freedom of religion cannot be renounced implicitly in a contract, and left open the question

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of whether it may even be renounced explicitly.

(B) Emphyteusis by will does not appear to be particularly useful. It appears to make more sense to will other dismemberments, such as the right of use, or as the CCLC called it, habitation. The case of Gravel demonstrates the usefulness of habitation, although there it was not willed. Usufruct, a dismemberment which gives broader rights than the right of use, could similarly be helpful to another person. However, emphyteusis is much more akin to a lease, and is usually used in commercial contexts, such as the case of Sun Life. It would be strange to imagine that someone would want to further their commercial interests, or have property returned to them at the extinction of emphyteusis, after they had died.

However, merely allowing this (perhaps useless) possibility, does not cause any practical problems. In common law such a rule would be harmless, as miscellaneous new law is constantly created which may or may not be relevant to the workings of society. There is more reason to be concerned with it in a civil code. The CCQ’s preliminary provision says the code is the “foundation of all other laws”, and the fundamental purpose of a code is to provide an integrated, rational framework. Useless rules like 1195(2) CCQ have no place in such a context.

(C) A non-pollution servitude could probably be valid. There is no reason to think it could not meet the requirements in 1177 CCQ, including a servient and a dominant land with different owners. The servitude meets Mignault’s requirement that it must not force the owner of the servient land to do anything, but rather not to do, to suffer, in this case not being able to pollute. Creating it by contract (1181(1) CCQ) does not appear to lead to any inherent difficulties in meeting the requirements set out by Montmollin Marler and Marler.

1178 CCQ limits servitudes to being “for the service and exploitation of the immovable”, and this requirement prevented a servitude of right of preference of sale from being created in Cadieux, since the servitude was determined to benefit the owners. However, the non-pollution servitude is more similar to that in Hamilton v. Wall, in which a servitude was allowed because it served the immovable itself, not the owner. Even though the distinction between benefitting property and an immovable often seems confusing or arbitrary, in this case, an immovable on a river downstream from another immovable is clearly a case in which a stricter non-pollution servitude would benefit the dominant immovable itself.

Question III

[This was an open-ended question. We had to cite codal articles, doctrine, and jurisprudence to make the case that rights have become economic vehicles which can be sold, transferred, and are objects of commerce and scarcity.]

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Final Exam Quick ReferenceLayout of the CCQ Book of Property

Title 1—Kinds & appropriation• Ch1—899–907 (im)movables• Ch2—908–910 fruits & revenues• Ch3—911–920 relation to persons & appropriation• Ch4—Certain de facto relationships

◦ Possession▪ 921–927 Nature▪ 928–33 Effects

◦ Acquisition of vacant property▪ 934–938 Things without an owner▪ 939–946 Lost or forgotten movables

Title 2—Ownership• Ch1—947–953 Nature and extent• Ch2—Accession

◦ Immovable—954▪ 955–964 Artificial▪ 965–970 Natural

◦ Movable—971–975• Ch3—Special Immovable Ownership Rules

◦ TDV—976◦ Limits and Boundaries—977–978◦ Waters—979–983◦ Trees—984–986◦ Access/Protection—987–992◦ Views—993–996◦ Right of Way—997–1001◦ Common fences and works—1002–1008

Title 3—Special Modes• Ch1—1009–11 General provisions• Ch2—Undivided co-ownership

◦ establishment—1012–14◦ Rights & obligations—1015–24◦ Administration—1025–29◦ End/Partition—1030–37

• Ch3—Divided co-ownership◦ Establishment—1038–40◦ Fractions—1041–51◦ Declaration

▪ 1052–58 Content▪ 1059–62 Registration

◦ Rights/Obligations of Co-owners—1063–69◦ Rights/Obligations of Syndicate—1070–83◦ Board of Directors—1084–86◦ General Meeting—1087–1103◦ Loss of control by promoter—1104–07

◦ Termination—1108–09• Ch4—Superficies

◦ Establishment—1110–13◦ Termination—1114–18

Title 4—Dismemberments 1119• Ch1—Usufruct

◦ Nature—1120–23◦ Rights

▪ 1124–36 Scope▪ 1137–38 Disbursements▪ 1139–41 Trees/Minerals

◦ Obligations▪ 1142–47 Inventory/security▪ 1148–53 insurance/repairs▪ 1154–61 Other charges

◦ Extinction—1162–71• Ch2—Use 1172–76• Ch3—Servitudes

◦ Nature—1177–83◦ Exercise—1184–90◦ Extinction—1191–94

• Ch4—Emphyteusis◦ Nature—1195–99◦ Rights/Obligations—1200–07◦ Termination—1208–11

Title 5—Restrictions• Ch1—Stipulations of Inalienability 1212–17• Ch2—Substitution 1218–55

Title 6—Patrimonies by Appropriation• Ch1—Foundation 1256–59• Ch2—Trust

◦ Nature—1260–65◦ Kinds/Duration—1266–73◦ Administration

▪ 1274–78 Trustee▪ 1279–86 Beneficiary▪ 1287–92 Supervision

◦ Changes—1293–95◦ Termination—1296–98

Title 7—Administration of Others’ Property 1299–1370• Ch1—General• Ch2—Kinds• Ch3—Rules• Ch4—Termination

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CCQ Articles IndexThe numbers in brackets are (clickable) page numbers inside this summary.

• [17] 6 CCQ—good faith, abuse of rights, [17] minister’s comments• [16] 7 CCQ—good faith, abuse of rights, [17] minister’s comments• [50] 458 CCQ—intellectual property has fruits … 909• [50] 909 CCQ—... so intellectual property is capital, 458

Relation to persons & appropriation• [38] 911 CCQ—real rights other than property exist (dismemberments) minister's comments• [] 913 CCQ—res communis of air & water• [23] 916 CCQ—¶1 acquisition of property "by contract, succession, occupation, prescription, accession"

◦ ¶2 restrictions acquiring state property, public utilityPossession

• [23] 921—¶1 def'n, real right, detention ¶2 intention presumed• [23] 922—peaceful (927), continuous, public, unequivocal; Mazeaud×2 & Chabas• [-] 923—good faith possession def’n, “inversion of title” • [23] 924—acts of sufferance do not found possession, Morin c. Grégoire• [23] 927—thievery, holder, succesors, 922 (peaceful)• [23] 928—non-possessor claiming ownership has the burden of proof• [-] 929—protection of & court actions for• [45] 930—vests with the real right being exercised• [-] 931—fructus, good faith• [-] 933—compensation

Occupation• [-] 935—¶1 vacant/res nullius

◦ ¶2 abandon, state becomes owner• [-] 939—not possessor (only holder) until intention declared to authorities

Ownership• [-] 947— ¶1 property usus, abusus, fructus; “subject to limits” (expropriation), Amselem “the right to use, enjoy

and dispose of property freely”◦ ¶2 modes & dismemberments

• [14] 951—¶1 ownership carries with it what is above and below• [14] 952—expropriation, public utility• [23] 953—absolute property rights, revendication, possession, expropriation

Accession (see also 955)• [-] 956—¶1 (immovable), compensation ¶2 movable owner has no right or obligation to remove• [-] 957—(immovable) “necessary, useful, or for amenities”• [-] 958—possession, compensation, good faith• [-] 959—63—possessor's compensation (more)• [26] 971–75—(movable) def’n, Fortier• [26] 975—(movable), equity, Fortier, compensation

Special rules ([Error: Reference source not found] right of way, tour d’échelle, views, waterways, etc.)• [16] 976—TDV, [17] minister’s comments• [19] 982— right of way• [14] 992—¶1 good faith building beyond limits, purchase or compensation

◦ ¶2 bad faith, considerable, serious damage may compel mover to acquire or destroy• [35] 995—accession def'n, presumption• [40] 997—enclosed land, right of way

Common wall• [30] 1006—¶1 common wall, maintenance, repair in proportion to right, 512 CCLC

◦ ¶2 renunciation: non-use, notice, 513 CCLC

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Modes• [26] 1010—¶1 co-ownership, def'n ¶2 indivision ¶3 divided• [35] 1011—superficies def’n: constructions, works, plantations, immovable, subsoil

Indivision• [28] 1012—indivision from contract (Robin, Harel), succession (653, 733), judgment (Caillou), by law (973 movable

accession, operation: 487 marriage)• [-] 1013—¶1 indivision, postpone partition, uncertainty ¶2 max 30 years, renewable• [28] 1015—¶1 indivision shares presumed equal

◦ ¶2 each may alienate or hypothecate share• [-] 1016—¶1 undivided owners may use but not change destination

◦ ¶2 if one has exclusive use/enjoyment » compensation• [27] 1018—fruits to the indivision, ~provisional partition, ~agreement, ~claim• [-] 1019—undivided owners proportionately liable• [30] 1020—¶1 indivision, compensation, increase in value ¶2 decrease in value• [29] 1022—¶1 exclusion of new undivided co-owner, compensation, 1 year, pre-emptive "right of redemption",

precarity/uncertainty◦ ¶2 ~exclusion when pre-emptive published rights in agreement

• [29] 1023—¶1 undivided co-owner subrogation of creditor action, compensation◦ ¶2 ~registered address means no right against creditors, successors

• [27] 1025—indivision, joint administration• [27] 1026—¶1 indivision administrative decisions by majority "in number and shares", uncertainty

◦ ¶2 partition, alienation, charge w/ real right, destination, "substantial alteration" by unanimity• [27] 1027—¶1 indivision, appointment of manager

◦ ¶2 court appointment when majority cannot agree or impossible to appoint• [28] 1030—No one bound to remain in indivision, partition, agreement, succession, judgment, law, durable

purpose (notarial assent), uncertainty• [30] 1031—indivision » division, ¾ of owners 90% shares, mainly residential

Divided Co-ownership• [32] 1038—publication, declaration, divided co-ownership, immovable, fractions• [32] 1039—legal person/syndicate, divided co-ownership, Amselem• [31] 1042—private portions, divided co-ownership• [31] 1043—common portions, divided co-ownership• [-] 1045—common wall/mitoyenneté, 1002–08 CCQ• [31] 1047—alienation/transfer, fraction, common portion, divided co-ownership• [-] 1052 constitution, bylaws, fractions in declaration, divided co-ownership• [-] 1053¶2 relative value of fractions, expense proportion, votes per fraction in declaration, division• [-] 1054 rules on enjoyment, use, upkeep, operation, administration in by-laws, divided co-ownership• [32] 1056—1056 limits on syndicate, destination, characteristics, location, declaration, 441o CCLC, division• [-] 1059 ¶1 declaration notarized, divided co-ownership• [32] 1063—limits on co-owners: by-law & destination, fraction, enjoyment, divided co-ownership, Bergeron,

Amselem• [-] 1064—contribution expenses based on fraction, divided co-ownership• [-] 1096—vote, simple majority, most decisions, divided co-ownership• [-] 1097—vote, ¾ quorum, simple majority, divided co-ownership• [-] 1098—vote, ¾ quorum, 90% majority, destination, timeshare, divided co-ownership

Superficies• [35] 1110 (creation), division, accession, renunciation, transfer, minister's comments, 414, 415 CCLC,

underground passageways, [35] minister’s comments • [35] 1111—agreement, servitudes• [35] 1112—limits, bear charges, encumbrances• [35] 1113—temporary or perpetual, agreement

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• [38] 1114—termination• [38] 1115¶1—termination on loss only if from division, ¶2 expropriation ~termination superficies

Usufruct• [47] 1119—four dismemberments, [38] minister's comments, qualified by “nominate”• [45] 1121—established by contract, will, or law• [45] 1123—max 100 years• [45] 1127—¶1 usufructuary must replace consumables ¶2 or pay cash• [45] 1135—transferrable• [45] 1136—¶1 seizure leaves the owner’s rights ¶2 ownership seizure leaves the usufructuary’s rights, Larocque• [46] 1162—extinction possibilities, plus …• [46] 1163—¶1 extinction by total loss of the property unless insured ¶2 partial loss reduces the right• [45] 1167—¶1 returns property “as is” upon termination ¶2 but is accountable for abnormal loss

Right of use• [46] 1172—right of use definition: personal need

Servitudes• [40] 1177—¶1 definition, servient, dominant land, charge, 2 owners ¶2 tolerate and abstain ¶3 extent• [41] 1178—must benefit the immovable• [40] 1181 ¶1—created by contract, will, destination, law ¶2 ~prescription of servitudes• [40] 1182—persist through transfer, have publication requirements• [40] 1183—by destination• [43] 1185—avoided by servient owner by abandoning the land (part or all)• [43] 1191—extinguishment possibilities

Emphyteusis• [39] 1195—¶1 def’n “full benefit and enjoyment”, cannot endanger, and must “make constructions, works or

plantations .. that durably increase its value.” ¶2 established by contract or will• [39] 1197—terms in constituting act, 10–100 years.• [39] 1200—lessee has owner’s rights, subject to restrictions• [39] 1207¶1—can be voided if rent not paid for three years• [40] 1208—ways of terminating• [39] 1210¶1—at end, it’s returned “in a good state of repair” unless “perished by superior force”

Stipulations of inalienability• [48] 1212—¶1 only gift or will ¶2 at the time of transfer ¶3 temporary and “a serious and legitimate interest”

Trust• [52] 1260—def’n• [52] 1261—patrimony by appropriation

After the book of property• [-] 1529—holder’s right of retention (before repairs paid for)• [-] 1824—immovable gifts notarized• [28] 2186—¶1 partnership contract, (~indivision)

◦ ¶2 association, common goal• [48] 2649—¶1 limits on stipulations of unseizability ¶2 must be published to set up against third persons• [45] 2910—acquisitive prescription• [-] 2917—prescription period generally 10 years• [23] 2918—prescription on immovables 10 years, must be court-ordered• [-] 2919—prescription on movables 3 years for good faith possessors• [-] 2921—extinctive prescription

Other Legislation (CCLC, CCP, etc.)

• [38, 48] 405 CCLC—either ownership, enjoyment, servitude on property. 911 CCQ. dismemberments.• [32] 441b CCLC—divided co-ownership, condo regime, 1010¶3• [32] 441o CCLC—limits on syndicate, destination, characteristics, location, declaration, 1056 CCQ, division

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• [48] 479 CCLC —usufruct end• [32] 521 CCLC—divided co-ownership, repealed• [39] 567 CCLC—emphyteusis def’n• [27] 689 CCLC—¶1 ~indivision, partition can be demanded ¶2 deferral for utility• [27] 690 CCLC—partition even if from succession, no act of partition, insufficient possession for prescription• [27] 710 CCLC—exclusion from partition of assignee of right of succession, compensation• [53] 981(a) CCLC ff—trusts• [-] 805–06 CCP—acquisitive prescription, cadastral plan• [37] 696 CCP—sheriff’s sale, ~real rights except emphyteusis, superficies• [32] 664 CCF—divided co-ownership• [38] 543 CCF—either ownership, enjoyment, servitude on property, 911 CCQ, 405 CCLC• [48] 617 CCF—end of usufruct, 479 CCLC• [14] Expropriation Act, RSC & RSQ• [49] European Directive on Copyright—author’s resale right is nontransferrable and inalienable• [50] Copyright Act—moral rights, author, length, inalienability.• [50] Constitution Act, 1867—Parliament has patents and copyrights, the provinces have property and civil rights.• [51] Trademarks Act• [51] Patent Act

Cases

• [10] Allard—partnership, indivision, common goal• [33] Amselem—1039 CCQ, 1056 CCQ, 1063 CCQ, religion, divided co-ownership, Époux X• [15] Authorson v. Canada—expropriation without compensation• [47] Banque National c Gravel—right of use, habitation, contractual• [33] Bergeron c Martin—daycare, destination test, ~declaration, 1063, ~limit on co-owner, divided co-ownership• [25] Boivin v Québec (PG)—possession, lost, abandoned, treasure• [24] Bolduc c. Fortier—prescription, “useful” (corpus?) possession (921 CCQ), animus, 924, 992, acts of sufferance• [41] Cadieux c Hinse/Morin—~servitude, right of preference of sale• [24] Cass civ 3e, 17 October 2007—possession holder, prescription• [18, 44] Ciment St-Laurent—TDV, good faith, abuse of rights, judicial activism, fault-regimes, 7, 967, 1457, 1458• [6] Club Appalaches—innominate dismemberments, real vs. personal rights• [53] Crown Trust c Higher—~business trusts in CCLC• [42] Davidson c Rosaire Nadeau—personal servitudes’ right to follow applies to the property, not the person• [51] Diffusion c Gamma—Copyright transfer pre-creation, use of CVL when Copyright Act unclear• [16] Drysdale—Abuse of rights, TDV, CML/CVL dialogue• [34] Époux X c Syndicat Gorbella—destination, character, situation, Amselem, ~nuisance, religion, division• [17] Euro-Excellence v. Kraft—abuse of rights, copyright, judicial activism, certainty, good faith• [18] Gourdeau c Letellier De St-Just—fault-regimes, abuse of rights, TDV• [31] Groleau c Patrimoine Architecturale—mitoyen/common wall, repair, renunciation, 1006, good faith, compensat• [43] Hamilton v Wall—new real servitudes by contract• [29] Harel c 2760-1699 Quebec—indivision, seizure (hypothec?), ~publish address, 1022, 1023, conjugal• [17] Houle—abuse of rights, good faith, reasonableness, Baudouin, judicial activism, Josserand/Ripert• [34] Kilzi—destination test, ~declaration, 1056, Gagnon, CCF, 1053¶1, 1063 1098, divided co-ownership• [36] Lafontaine c Gravel—superficies, division, timber rights• [46] Larocque c Beauchamps—seizure of ownership leaves a usufructuary rights, 1136¶2• [15] Leiriao v. Val-Bélair—expropriation prohibited unless it serves public utility• [25] Malette c Sureté du Québec—possession, lost, abandoned, treasure, 934, 939, prescription• [47] Matamajaw—innominate real rights exist, Pierre• [35, 23] Morin c. Grégoire—superficies, transfer accession, “acts of tolerance” v permission, ~possession, 924

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• [37] Québec (PG) c Dével de Demain—superficies, opposability, publish, implicit, renunciation of access’n, prescript• [28] Régime de la STCUM c Bandera Investment Company—hypothec (accessory real right), indivision, personal

rights, 904, real right, 1022/23, undivided co-ownership, pre-empt• [29] Robin c Nicole—indivision, division of (1030), conjugal, hypothec, 101, ~agreement, 1016(¶2?)• [48] Robinovitch c Banque de Montréal—stipulations of inalienability end with modification of property’s nature• [52] Royal Trust c Tucker—trustees own trusts, beneficiaries can be indeterminate• [25] Sivret c. Giroux—possession, superficies, 772 CCP, unequivocality, 922 CCQ• [43] Standard Life—~servitude, non-concurrence benefitting lessor• [36] Stone-Consolidated c Gestion—garage, hypothec, superficies implicit, temporary, renunciation or division• [15] Sula v. Cité de Duvernay—de facto expropriation• [39] Sun Life—emphyteusis seizure includes right and obligations• [15] Sutton (Ville de) c. 9034-8822—no de facto expropriation for property devaluation, judicial activism, good faith• [33] Talbot c Guay—injunction, awning, 441o & 1056 CCLC, limits on syndicate, characteristics, destination, divisn• [49] Théberge v Galerie—Reproduction is not unauthorized if an item is not duplicated.• [13] Themens c. Royer—absolute property rights, encroachment, public utility. (check if it mentions 953 CCQ), 992• [26] Tremblay c. Boivin—occupation, 934¶1, 935¶1, vacant property/res nullius• [3, 49] Tri-Tex—Chemical formulae are not subject to copyright.• [37] Veronneau v IBIS—superficies, temporary, division, sale, 1116–17, suppletive• [33] Wilson c Champlain—limits syndicate & destination, 1056, destination test, 1098, voting regime, division, pets• [30] Zambito-Orazio c Meneghini—mitoyen. renunication of rights. seizure. co-ownership. 1006?, compensation

Doctrine

• [51] Barlow—IP is fencing the commons• [49] Baudouin & Jobin—IP is an idea not a thing, extra-patrimonial aspect• [54] Brierley—trust, patrimony by appropriation• [28] Cumyn—indivision, patrimonial right, indivision, partnerships, contract, 1018, 1126–27, common goal

◦ [54, 55] Trusts, [46, 45] Usufruct, right of use, habitation• [23] Carbonnier—possession, certainty, [44] propter rem• [36] Frenette—superficies, accession, 415 CCLC, 1110 CCQ dismemberment, real right, 948, 911¶1 CCQ,

emphyteusis, 1200, renunciation, ~abandon, transfer, accession, vis attractiva, personal right, tacit, 955, 1200◦ [37] (publication)—2938 , 1110, real rights, personal rights, cadastral number 3030, 3054, accession (nature)◦ [38] (termination)—1113 CCQ, division-permanent, accession, 1114–17 CCQ

• [34] Gagnon—timeshares, 1058, 1098, 1787¶2, 2974 CCQ, Belgium, France, real rights, permanence, legal person/syndicate, indivision, usufruct, 1013, 1030, hypothec, transfer, ~modality, 1058 CCQ, division

• [49] Ghestin & Goubeaux—IP as incorporeal right, compared to real rights, and a moral right.• [12] Gendreau—copyright def’n canada, int’l, moral rights, embodiment, renunciation, paternity, integrity• [51] Hudson—CML trust, legal title, beneficiary title• [50] Kasirer—IP law, federalism, jurisdiction, CVL/CML, lacuna• [35] Marler—CCLC 414, dismemberment, modality, [41] servitudes, contracts, creation requirements• [24] Mazeaud, Mazeaud & Chabas—possession justification, Ihering, Savigny, quasi-possession, corpus, animus• [30] Mignault—mitoyenneté, immovable, broad concept [40] servitudes def’n feudalism [45] usufruct, same

rights as ownership• [27] Montmolin Marler & Marler—indivision, def’n• [42] Moreau—~non-concurrence servitude, commerce, France, perpetual, person/property, public order, difficult:

extinguishment, prescription, certainty• [47] Planiol & Ripert—innominate def’n• [44] Scapel—propter rem vs. servitude, perpetual• [44] Terré & Simler—propter rem, servitude, as real right, as dismemberment• [31] Vincelette—permanent co-ownership, 1006 CCQ, 512 CCLC, 513 CCLC, Groleau, Meneghini, propter rem

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Topics

• common wall—1002–08, 1045• dismemberments—911, 947, 1119, 405 CCLC, 543 CCF, Club Appalaches, Marler, Plainol• expropriation—952–53, Act, Authorson, Leiriao• feudalism—Mignault, servitudes, Matamajaw, Houle, Cumyn (real rights), Moreau (non-concurrence servitude)• good faith/abuse—6,7, Ciment, Euro-excellence, Houle• hypothec—indivision: 1015¶2 1022–23, Harel, Bandera, Stone-consolidated• indivision—~common goal, Allard, Bandera• intellectual property—458, 909, european directive, copyright act, BNA, Théberge, Tri-tex, Ghestin & Goubeau,

Gendreau• quasi-possession—1181, 1177, Roman law, Patault, servitudes, Mazeaud×2 & Chabas• legal person—condo 1039, Gagnon• partnership—Allard+, Cumyn, Gagnon• patrimony by appropriation—1261, Brierley, Cumyn• personal servitudes— Davidson c Rosaire Nadeau (reconcile with 1136¶1?), Larocque, Matamajaw• possession—921–33, 939, prescription 2910–21+, 805–06 CCP, Boivin c Québec, Bolduc, Malette, Sivret, Mazeaud• propter rem—Groleau, Standard life, Scapel, Terré, Vincelette• public utility—952, Leiriao, Themens• res communis—913, Lacroix• res nullius—935, Tremblay c. Boivin• right to follow—2660, Davidson c Rosaire Nadeau (reconcile with 1136¶1?), Club Appalaches?, IP• superficies—Morin, Québec v Dével, Veronneau

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