Civil Law Property Summary Kirk Shannon

Civil Law Property Summary Kirk ShannonCIVIL LAW PROPERTY – SUMMARY APRIL 2005 Semester 2 – Cantin CumynChapter III: Acquisition of the Right of Ownership...... 3 S. 1 – Possession and Acquisitive Prescription...... 3 A: Comparison with Ownership, Detention and apparent ownership...... 5 B. Qualities for useful or effective possession...... 6 Sivret c. Giroux...... 7 S. 3 Occupation...... 8 Tremblay v. Boivin...... 8 Boivin v. Quebec...... 10 S.4 Accession (immovable, artificial)...... 10 Location Fortier Inc. v. Pacheco...... 10 Lacroix v. The Queen...... 11 Case: Themens v. Royer...... 13 Part V: Modalities of Ownership or Special Modes of Ownership...... 14 Chapter I: Indivision or undivided co-ownership...... 14 S. 1 Legal analysis of Indivision...... 14 STCUM v. Bandera Investment Co...... 15 Dame Tamar Harel v. 2760-1699 Quebec Inc...... 16 S.2 Indivision agreement or contract Content and Effects...... 18 S.3 Partition or an end of Indivision...... 19 Chapter II: Permanent CO-ownership of the Immovable...... 19 S. 1 Common Walls...... 19 Zambito-Orazio v. Meneghini...... 20 Groleau v. Société Immobiliere du patrimoine Architectural de Mtl...... 21 S. 2 Common Immovable Accessory...... 21 Michon v. Leduc...... 22 S. 3 Divided Co-ownership of an Immovable (condo)...... 22 B. Structure and Nature of co-owner’s Right...... 23 C: The destination of the immovable: Content and Role...... 25 Talbot v. Guay...... 26 Syndicat des Copropriétaires de Trillium Court Condominium c. Ouellette...... 26 Bergeron c. Martin et Syndicat de la propriété Beaumarber...... 27 Kilzi c. syndicat des copropriétaires...... 27 Mixed Destination...... 28 Wilson v. Syndicat des copropriétaires du condominium le Champlain...... 28 D: Functioning of the Co-ownership and its duration...... 30 E: Right to Periodical Enjoyment or Time-Sharing (“multipropriété”)...... 31 Chapter III: Superficies...... 31 Morin v. Gregoire...... 32 Corp Stone Consolidated v. Pierre Desjardins Gestion inc...... 33 Procureur Géneral du Quebec v. Les Développements de Demain inc...... 34 Veronneau v. Ibis Investeringen S.A...... 35 PART VI: Dismemberments of Ownership...... 35 Chapter I: Usufruct and other similar Personal Servitudes...... 36 S.1 Content or nature of the right of usufructuary...... 37 Larocque v. Beauchamps...... 38 S.2 Legal Regime of the Usufruct...... 38 Usufruct of a Consumable thing: QUASI-USUFRUCT...... 39 S. 3 – Other similar personal servitudes...... 39Page 1 Civil Law Property Summary Kirk ShannonBanque Nationale du Canada v. Gravel...... 40 Chapter II: Emphyteusis...... 40 S. 1 Nature of Emphyteutic Right...... 40 Bernard Weissbourd v. The PSBGM and Montreal Catholic School Commission...... 41 S.2 Requirements for constitution (compare w/ Usufruct and Superficies)...... 41 Alta Mura Construction Inc. v. La Société des parcs de Sciences Naturelles du Que...... 42 H.L.P. Société en Commandite v. Ville de Beauport...... 42 Sun Life Assurance Co. of Canada v. 137578 Canada Inc...... 43 Chapter III: Real Servitudes...... 43 S. 1 Definition, Characteristics and constitution of a real servitude...... 43 S.2 Nature of the charge which may constitute a real servitude...... 44 Cadieux v. Hinse...... 46 Epiciers Unis Métro-Richelieu Inc. v. Standard Life Assurance Co...... 46 S.3 Legal regime and extinction...... 47 Whitworth v. Martin...... 48 Auger v. Grenier...... 49 Chapter IV: Is there Numerus Clausus of Real Rights?...... 49 Banque Nationale du Canada v. Gravel...... 50 Thadee Duchaine v. The Matamajaw Salmon Club...... 50 Thadee Duchaine v. The Matamajaw Salmon Club...... 51 Le Procureur Général du Qué v. Club Appalaches...... 52 Le Procureur Général du Qué v. Club Appalaches (appel)...... 52 S.2 Real obligation...... 53 Chapter V: Publication of Real Rights in an immovable...... 53Page 2 Civil Law Property Summary Kirk ShannonChapter III: Acquisition of the Right of Ownership (Art 916)S. 1 – Possession and Acquisitive Prescription Mazeaud, Mazeaud et Chabas, Leçon de droit civil – Biens : Droit de propriété et ses démembrements Possession - Power of right : The owner of a real right has a juridical power that exists independently of his level of exercising of the right of ownership. « Pouvoir de droit » - Power of fact :The person who has the power of fact has no right on the thing but comports himself as if he was the owner. Possession is a power of fact « pouvoir de fait ». There are many justifications for the protections that the law gives to possession: 1. Where the possessor is the owner, focussing on possession allows easier proof of ownership. In order for the owner to have the protection of the right of ownership, he must first establish a right. [According to Carbonnier, this is the primary justification for the presumption of ownership granted to the possessor.] 2. In some cases, the possessor is not the owner. However, it is still important to protect possession; this is the case, firstly, for the maintenance of public order. Not to protect the possessor would authorise acts of violence. On the other hand, by protecting possession, when a person claims to be the owner of a good that he/she does not possess, he/she can only address the courts in order to recognise and proclaim his/her right. 3. Another justification for protecting possession is economic interest: the owner who is not in possession of his/her goods directly or through an intermediary leaves his/her things unproductive. 4. There is also the argument of interest of the security of transactions: in order to ensure the security and facility of transactions, one must relieve third parties of the fear that they will be prejudiced by the sudden appearance of the “real owner”. However, there is something troubling about the fairness of allowing a possessor to acquire ownership at the expense of the real owner. In this vein, the drafters of the Civil Code occupied themselves largely with the morality of the possessor. Thus, the distinction was made between good and bad faith of the possessor. o Things “hors de commerce” are not susceptible of possession. As well, juridical universalities (patrimonies, inheritances) and factual universalities [because they themselves cannot be the object of ownership but only the elements which comprise them] are not susceptible of possession.Art 916 Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law. (2) 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. - Says “property”  any patrimonial right. - Some modes are applicable to any type of property – Contract, sucession. - Some relates specifically to real rights: Occupation, accession (both to only ownership), aquisative prescription (ownership and dismemberments).Acquisitive Prescription One of the effects of possession is acquisitive prescription AP – also referred to as UsucapioNotion of Possession: 921-933, 939-941, 957-964 2910-2920 (acquisitive prescription) - In the domain of real rightsNew Code: - Has rephrased the stuff on possession. It is much clearer. Significant change has to do with the delay of Page 3 Civil Law Property Summary Kirk Shannon acquisitive prescription. Art 921 Possession 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. (2) The intention is presumed. Where it is lacking, there is merely detention. Definition: Possession - Can only have possession of a material object. Possession can only be on a real right - Technical and narrow notion that is mentioned first at art 911  possession is distinct concept from ownership and other real rights Must act to be recognized – acts of corpus - 1) art 921 – see above – exercise of a real right in fact with intention of acting as the holder of the real right. - 2) General observation: Possession is separate from the right. Situation of fact. - 3) Intention is presumed. If NO intention (animus), called detention. Three ways of having possession – you are the owner, owner with a defective title, no title (not in good faith).Possession requires 1) Corpus  Material component of possession. (must show material and juridical acts of possession)  Person who claims to be a possessor is exercising a real right.  One must show that one accomplishes act similar to those that an owner (or real right holder) would be performing. In the case of possession wrt ownership: i. Acts of Abusus ii. Acts of Usus iii. Acts of fructus  Juridical acts of possession  granting servitude, paying taxes  Same frequency as an owner. Merely occasional acts do not constitute possession (art 924) Art 924 Merely facultative acts or acts of sufferance do not found possession. - Possible that acts be accomplished by others (eg leasee) The rule adopted by French law was that it is not necessary that the possessor exercises the corpus himself (this is possessing corpore alieno).  Ex. = the person who leases a thing to a tenant. The tenant is a simple detainer and exercises the corpus for the lessor, not for himself.2) Animus  With the intention of acting as the titulary of that right – objectively ascertained  Intention of an owner or of a usufructuary i. Could be possessor and owner ii. Possessor thinks that he has the real right (but does not…..title might not be valid) iii. Possessor wants to acquire the right but knows that he does not have title (eg. The Thief!!!! See Art 927)  Intention is presumed  (per art 921)  must formally establish acts of Corpus. If can show this, presume the animus.  Possible to counter animus. Show another explanation for corpus. Eg. Lessee  will be able to show corpus but for different reason….or….will showing that possessor is merely usufructuary.  If Animus is lacking, has “detention” (923)  After which cannot change back and show animus. Art 923 A person having begun to detain property on behalf of another or with acknowledgement of a superior domain is presumed to continue to detain it in that quality unless inversion of title is proved on the basis of unequivocal facts  Must show Corpus, after having done so, presumed animus. Cannot invert this so as to have title.J. Carbonnier, Droit Civil :Les Biens, (p. 290) - Ownership is a right and possession is a fact Possession : The physical powers exercised on a thing whether is coincides with ownership or not.Example of the Usufructuary  Both usufructuary and possessorPage 4 Civil Law Property Summary Kirk Shannon With respect of ownership, he is a détenteur.  With respect to the usufructuary, he is a possessor.  Cannot claim to be acting as if he was the owner  No presumption of animus dominiA: Comparison with Ownership, Detention and apparent ownership 1. Compare Possession with ownership - Ownership is not a fact, it is a right - Owner does not need to act to maintain his right whereas possessor does Art 929 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. - Possessor who does not possess property for one year and one day, loses possession. Art 2923(2) However, an action to retain or obtain possession of an immovable may be brought only within one year from the disturbance or dispossession IF there is an owner and a possessor, the possession will be protected by law if it meets the proper criteria.  Possessory action can be taken (removal by owner or protection of possession).  After 10 years, there can be acquisitive prescription. Art 2917 The period for acquisitive prescription is ten years, except as otherwise fixed by law  If the possessor is not the owner and the owner sells, is the possession opposable. Answer: Purchaser will have to gain possession from the possessor.2. Compare Possession with Detention  Issue is not in the corpus so much, they are very close in this respect  rests on the animus.  Detention (lessee or on loan) is a right. Possession is not a right it is a fact.  Detainer has the power of a right over the thing.  The presence of a detainer does not prevent the owner from continued possession (i.e. the owner who has rented his house conserves possession.)  Look to the Animus (Mazeaud) (1.) it is always presumed to exist; (2.) it is appreciated in abstracto, by reference to a typical possessor found in the same situation as the actual possessor; (3.) the possessor is presumed to have the same animus throughout his/her possession as he/she had at the beginning; (4.) this presumption falls with proof of an inversion of title coming from a 3rd party or resulting from a manifest contradiction in the owner’s rights.Inversion of title  (1) Inversion of title emanating from a third party: e.g. a lessee buys the building that he occupies from a person other than the lessor. The acquisition is a new title coming from a third party: the seller, affirming that he was the owner, and not the lessor. This inversion of title modifies the situation of the occupier while ignoring the true owner because the animus of all acquirers, appreciated in abstracto, is necessarily animus domini;  (2) Inversion of title by contradiction opposed to the right of the owner: the legislator requires certain unequivocal signs of contradiction. Such signs are necessary for the contradiction to translate the will of the occupant to act as master. It will not suffice for the detainer to accomplish simply the acts of the master. A formal act of denial is necessary. The contradiction to the rights of the owner results either from a denial in justice or signified by a bailiff’s act, or from material acts leaving no doubt as to the intentions of the occupant. For example, the simple fact of not paying rent is insufficient. The occupier must specify that his refusal is motivated by the fact that he considers himself to be the owner.3. Possession vs. administration of property of another  Tutor (administrator) is not a right. It is a legal situation but is not a rightPage 5 Civil Law Property Summary Kirk Shannon Administrator is not mere situation of fact as in possession  Administrator has a power to administer the thing but does not have a right to the thing. 4. Possession vs. apparent ownership  Main difference  effects are provided for a 3rd party.  Law attaches effects to appearance  if this appearance has as a consequence creates a legitimate error on the part of third parties. (e.g. Appears to be owner but is not b/c the title is not valid – if 3rd party deals with this party as an owner and it is legit to be mistaken (not feasible to expect anyone to know) that he is owner then the 3rd party will be protected  ie. will acquire ownership)  Eg. Succession. Death with no will. Succession is devolved to the legal heirs. Immovable is transferred. Heir appears to have the title of the immovable. Later a will is found which transfers property otherwise. Heir has already sold the immovable to X. X’s ownership will be protected.  Could be applicable with extent of powers of administrator, position of administrator, etc. Must all be legitimate B. Qualities for useful or effective possession Art 922 Only peaceful, continuous, public and unequivocal possession produces effects in law. - Spoken of in the negative  Discontinuous, clandestine, violent…..etc. Art 927 No 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.  Presumption No. 2: There is a presumption of the required qualities for the possession to be useful. The burden of proof is on the person who contests the utility of the possession.4 Qualities from art 922: 1. Peaceful: Possessor not required to defend the requirement of corpus (or to use force to do so) 2. Public: Must do so openly. In a manner which makes it possible for others to take notice 3. Continuous: Necessity for the possessor to act. (see Art 925. There is a presumption of continuity  (2) of 925 must be read with Art 929) Art 929 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. 4. Unequivocal: Clarity of the situation. Eg. Ambiguity  Family relationship. If several persons inhabit house, one of two spouses is not going to be able to claim possession.C. Legal Effects of Juridical Useful Possession Art 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. - E.g. Possession on basis of K (or a will) but the K (or will) is not valid. Good faith will be establish based on whether knew about defective title. - Comes into play for prescription period (for a movable) and for fruits and reimbursement for constructions.5 Effects of Juridical Possession from Art 921 1. Fruit or revenue produced during possession: - When possessor must return fruit (typically) during time of possession. Art 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.2. Indemnity which possibly must be paid to possessor for expense made during possession - Art 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 (which are found at Art 957-963) - Good faith and nature of expenses taken into consideration in these articles.Page 6 Civil Law Property Summary Kirk Shannon3. Possessory actions Art 929 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. The law does not allow anyone, even the owner, to take the law into their own hands. Anyone willing to question the possession of an object must go through the appropriate legal channels. - “Action en Complainte”  to get cessation of disturbance - “Action en Reintégrante”  to reacquire land from possessor - No role of Good Faith - Even the owner must respect the possession and recover the possession through the judicial process. - Purpose is peace-keeping – public order - Note that an owner can revendicate as per art 953.4. Presumption of title which derives from possession Art 928 A possessor is presumed to hold the real right he is exercising. A person contesting that presumption has the burden of proving his own right and, as the case may be, that the possessor has no title, a defective title, or defective possession. - Purpose of possession: Possession, most of the time, benefits the owner. Much easier for owner to show possession (eg. if title is lost). - See Carbonier - Title is never better than the one from whom you got it. Possession allows you to circumvent this by showing possession and eventually acquiring title through prescription. Note that Art 2944 Registration of a right results in presumption of the existence of that right. Exception to presumption: real servitudes (must have title according to Art 1181 in order to grant a servitude.)5. Acquisition of the real right  ACQUISITIVE PRESCRIPTION Art 930 Possession vests the possessor with the real right he is exercising if he complies with the rules on prescription. Art 2910 Acquisitive prescription is a means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession. - Art 2910-2920 - Use + Time. 10 years of possession must be shown (no requirement of good faith) with immovables. Art 2918  only upon judicial demand – that is, a judgment must show this. - Also CCP art 805,806 in CB page 302 - Only three years from dispossession of the owner for movables (see Art 2919) or by judicial demand. - Good/bad faith is irrelevant after the point of acquisition – you have to be in good faith when you acquire (art 2920). Exception: One real right which may NOT be acquired through prescription  Real Servitude (must show title)3 modes of Acquisition 1. Usucapio 2. Occupation 3. Accession1. Ususcapio: Prescription, need juridical possession (Art 921). (922 and time (930)) which sends to 2910, 2917. The general delay of prescription is 10 yrs. The general delay of prescription refers to movables and immovables. The general time for movables can be reduced if there is good faith (Art 932, 2919). We are speaking of acquiring (through possession) Real rights over a movable and immovable except servitude.Sivret c. Giroux Jurisdiction C.A. Que [1997] Facts Couple buys some land in Sainte-Cécile and builds a chalet. The couple separates. For about 5 months, the appellant lives in the Chalet after having changed the locks. The respondent lives in the other residence in Page 7 Civil Law Property Summary Kirk ShannonMarsboro but demands access to the Chalet so that he can continue possession of his Chalet and be declared possessor of the Chalet by the law of superficies. Issues Does the husband have possession of the chalet? Holding No – Action dismissed – find for Sivret, the ex-wife. Ratio - Action possessoire en réintégrante (il était à l’intérieur du délai) - Must show proof of corpus (usus, abusus, fructus) - The strategy of the respondent who allegedly has possession by virtue of a right of superficies but claims a right of possession on the immovable hurts his position. - Court finds that the claims of the appellant are well founded and cites the articles 2192, 2193 (CCLC) (Art. 921-922 du Code Civil); these articles state that there is peaceful, continuous, public and unequivocal possession which precedes the act which troubles the possession. In the case of cohabitation, jurisprudence and doctrine deny all useful possession, la possession étant non exclusive, partagée et équivoque. - Both possessions are equivalent but only the possession of the husband is at issue - The possession of the respondent is therefore vitiated and, even if the possession of the appellant is not proven, proof of vitiation of the possession of the respondent will suffice to reject the action. Notes The basis of the action is possession. We must see if there is proper juridical possession to see if the action can be maintained. The possession in order to be invoked must have existed less that a year ago. Here, yes, has not been disposed for more than a year. -  Can the Pl be viewed as a possessor. Possibly, yes. But we must ask if the possession had the required quality. Here, he fails, the possession is equivocal, it can be explained by the couple’s relationship. So…the possession not have the required characteristics, the action is dismissed.S. 3 Occupation 914, 916, 934-938 Def of occupation: IS a mode of acquiring ownership of a res nullius  Leads to ownership  ONLY the right of OWNERSHIP is acquired through means of occupation  Takes physical control over an object that belongs to no one.  In practice it does not happen all that often Art 914 Certain other things, being without an owner, are not the object of any right, but may nevertheless be appropriated by occupation if the person taking them does so with the intention of becoming their owner. Art 934 Things without an owner are things belonging to no one, such as animals in the wild, or formerly in captivity but returned to the wild, and aquatic fauna, and things abandoned by their owner. Movables of slight value or in a very deteriorated condition that are left in a public place, including a public road or a vehicle used for public transportation, are deemed abandoned things. Art 935 A movable without an owner belongs to the person who appropriates it for himself by occupation. An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State. - Res Nullius  Can be owned (whereas Res Communes cannot be owned) - Must be movable  Although in theory, it is possible to be immovable, immovables without owners will immediately be owned by the state (art 936)How is it effective - Occupant appropriating the object w/out an owner such that he is the master of that thing. - Operates immediately (no term which is very different from Acquisitive prescription) - Evidence required is only that you have taken ahold of the objectTremblay v. Boivin Jurisdiction C.S. Que [1960] Facts - Two groups of hunters hunting for game. Two have rights to hunt in two different neighbouring Page 8 Civil Law Property Summary Kirk Shannon camps. Boivin shoots in his camp and wounds animal which he chases it. Tremblay shoots game. It dies on Boivin’s land. - Boivin takes possession of game. Issues Which group of hunters should acquire the ownership of the game. Holding For the PL  Tremblay. 1600$ damages. Ratio - Where the animal was shot does not effect the present case. - The location of the animal when it finally died does not dictate who has the right of ownership. - Deer that runs on the land is not the property of the owner of the land but can be acquired by occupation. - Possession in this case, of the wild game, is the inflicting of a mortal wound on the animal or the impossibility of it running away. - Given that Boivin fired the first shot – was it a mortal wound? No, lost track of the animal for 30mins. Without the shot of Tremblay, cannot be certain he would have caught the animal. - Actual possession of animal that Boivin took was not peaceful and certain. Burden on them to show peaceful and certain possession (which is not the proper word in this case – here it refers to occupation). Cannot as he forcefully took possession of the game from Tremblay. Note The judge has conflated possession and occupation in this case. Wild game (as in CCQ 934) can be acquired through occupation and, therefore, peaceful and certain possession are irrelevant, according to Cantin-Cumyn. 1. When is the thing w/out an owner  Thing that has never been appropriated (eg. 934, game and wild fish) Position of the owner of the land when an intruder captures fish or game on the land  Owner may assert that intruder trespassed  Art 953  Land owner has no right to the game despite his ownership of the land as is a res nullius  If nobody claims it  Art 935  things formerly owned but abandoned by their owner.2. Treasure Art 938  Finder of the treasure acquires the treasure through occupation. Possibility that the owner of the land can claim half (through accession) of the ownership of the treasure if the finder did not have the permission of the owner to search for treasure. Art 938 Treasure belongs to the finder if he finds it on his own land; if it is found on the land of another, one- half belongs to the owner of the land and one-half to the finder, unless the finder was acting for the owner.  It is a traditional solution. Does not make sense with other concepts as either it should be res nullius and can be owned through occupation or it is a fruit and is owned by the land owner. This is a cross b/n the two.  Cantin does not like this as she thinks it should be either res nullius and therefore finder gets all or fruit where finder gets none.3. Articles lost or forgotten Art 939-946  Unless (per 934) the movable object is of slight value in which case they are considered as abandoned NOT lost or forgotten. Art 939 A movable that is lost or that is forgotten in the hands of a third person or in a public place continues to belong to its owner. The movable may not be acquired by occupation, but may be prescribed by the person who detains it, as may the price subrogated thereto. Art 941 The finder of a lost thing, in order to acquire, by prescription, ownership of it or of the price subrogated to it, shall declare the fact that he has found it to a peace officer, to the municipality in whose territory it was found or to the person in charge of the place where it was found. He may then, at his option, keep the thing, dispose of it in the manner of a person having detention or hand it over for detention to the person to whom he made the declaration.Page 9 Civil Law Property Summary Kirk Shannon If owner brings claim and there is evidence that he abandoned property, then claim will fail.4. Stolen thing Art 927 No 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. Not able to acquire through acquisitive prescription. BUT….his successor may hold it through possession and then acquire ownership through acquisitive prescription.Boivin v. Quebec Jurisdiction [2000] C.A. Que Facts Discovery of gold bars when diving in the lake on public land. The appelants claim that the ingots are not treasures but rather abandoned property. If they are abandoned property, they belong to no one and the procureur has no rights to them. Issues What is the legal position of the finder, the state, the previous owner?? Holding It is something abandoned as per Art 941-2 Ratio - Can the finder claim to occupy those bars? Applies 938  half to the finder and half to the state. But this must have been there for a very long time. This assumed not to have been there for a long time. (This was the decision of the S.C.). Therefore the state has no claim. See para 35 and 36. - Do we have an owner? We must accept that the object has been abandoned. (Art 941-2). Very likely this was the case. (Cantin says word abandonment as 941-2 deals with lost things). - Could not be a stolen thing. (art 927) Not the case as there was no report of stolen gold bars. - Based on abandoned, the owner shall not be able to take ownership until prescription is acquired. Abandonment brings occupation but the court does not go this far. Instead it allows for ownership through prescription but not full ownership until that time. Note Conflate abandonment (of 935) with articles on lost items (914,2) and acquisitive prescription of possession. Crappy judges. Cantin would like abandoned by 935 and immediate ownership through occupation. - What would be the prescription period.  10 years. For it to be 3 years must be in Good Faith (art 932) which requires a title of which you don’t know the defects. He does not have a title (did not buy, was not given through succession, etc.). Thus it is 10 year prescription period. S.4 Accession (immovable, artificial) 913, 916, 948, 951, 954-975 Can operate with respect to immovable or movable. Can be natural or artificial. Art 948 Ownership of property gives a right to what it produces and to what is united to it, naturally or artificially, from the time of union. This right is called a right of accessionMovables Art 971-975 Art 971 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. Art 973 The owner of the new thing shall pay the value of the material or labour to the person having supplied it. (2) If it is impossible to determine who contributed most to the creation of the new thing, the interested persons are its undivided co-owners.Location Fortier Inc. v. PachecoPage 10 Civil Law Property Summary Kirk ShannonJurisdiction [1997] C.S. Facts - D rented a truck from PL and had installed on it a platform which was owned by another (la requérante) and on loan to the D. - Platform was screwed into the chassi of the truck and require the chassi to be cut and a whole to be made in the truck floor. Issues As the two pieces of equipment cannot be separated, who is to be owner of the truck? Holding For the PL – accession of the truck by the Pl and she shall pay $6000 to la requérante. Ratio - Truck has been modified such that, should the platform be removed, the truck can no longer serve its purpose. - Art 971 must apply as two pieces of equipment cannot be separated. Also must apply Art 975 that says equity takes precedence. As such, the equipment shall not be separated and, as the truck is worth more, the PL shall pay the value of the platform and will keep the truck. Natural Accession as it relates to minerals, watercourse, islands….. Art 965-970 Artificial Accession A. Landowner’s right to the space above the land Art 951 Ownership of the soil carries with it ownership of what is above and what is below the surface. The owner may make such constructions, works or plantations above or below the surface as he sees fit; he is bound to respect, among other things, the rights of the State in mines, sheets of water and underground streams.  The air cannot be owned as is res communes (art 913). Owner is required to respect the legislation relating to pollution.  The owner also has the right to full enjoyment of his land which includes forbidding any encroachment on his land (Art 953). Right to forgive encroachment o Encroachment could be in the space above the land. Could be hanging over the balcony above the land (Art 985 and trees) o Art 951  Means that owner is allowed to build, plant and have exclusive occupation above the land if embedded in the ground. o Owner can stop it unless it is expropriated. Limitations: Municipal laws could impose limits with respects to heights of buildings. Barring this, can build as high as owner wants.Lacroix v. The Queen Jurisdiction [1953] Facts Crown expropriates land to lay underground cable and build a pole to light one of the runways at Dorval airport. Plaintiff (known as suppliant) sought damages on the basis of the fact that he was the owner of the surface of his land and “what is below and … above” according to article 414 of the CCLC and that his rights of ownership were interfered with because planes were flying overhead. He also sought compensation for the easement on the surface of his land. Issues What claim does the owner of the land have to the air space above his property Holding Claim to compensation for flightpath overhead fails. Compensation for the easement for the lighting system (ie use of land) Ratio The plaintiff is not entitled to damages on the basis of an ownership right in the air.  Air and space are res communis, despite 414 CCLC  Owner has a limited right in the air and space above his property  Crown cannot expropriate what is not susceptible of possession. The plaintiff is entitled to compensation from expropriation of the surface.  According to the judge, juridically, airspace cannot be appropriated nor become private Page 11 Civil Law Property Summary Kirk Shannon domain, the same as it cannot be placed in the same category as the res nullius which are capable of becoming private property. The application of art. 552 CN regarding ownership of ‘l’espace aérienne” as a function of the concrete interest of the owner is not tenable eitheras soon as one constructs something, the volume occupied ceases to be airspace. Airspace remains, therefore, a common thing, to the usage of all. Note Court characterised as an easement which is a CL concept. Should be a servitude or a right of superficies. Cantin on Lacroix v. The Queen  Equals expropriation of his rights. Here, property was agricultural, but in any event flightway means that he can no longer has ability to build to any height he desires. Thus she thinks that it should be compensated.  Perhaps today, could again argue unreasonable interference with enjoyment of property using new 976 C.C.Q. As a starting point, the answer should be Yes. But note that there is a statutory basis to build airports in order to promote public benefits  thus we must see if there is statutory permission to create a nuisance as there was here.B. The presumption of single ownership of land and construction above the land Art 955 Constructions, 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. Whoever owns the land is presumed to own and construction or plantation embedded/on in the land. Can be displaced by bringing for a title contrary to the presumption  Granting of the right of superficies.  Eg. A owns the land and B owns the construction or plantation. Granted by the owner or taken through expropriation or acquired through acquisitive prescriptionC. Mode of acquisition of Ownership 955-964 Presumption of single ownership goes further above goes further. Owner of the land acquires the construction unless shown otherwise. Art 956 The owner of an immovable becomes the owner by accession of the constructions, works or plantations he has made with materials which do not belong to him, but he is bound to pay the value, at the time they were incorporated, of the materials used. The previous owner of the materials has no right to remove them nor any obligation to take them back. Construction built by the owner but not with material owner by him. Must be linked with 901 (see movables and immovables.)Art 957 The owner of an immovable acquires by accession ownership of the constructions, works or plantations made on his immovable by a possessor, whether the disbursements were necessary, useful or for amenities. Deals with the possibility that the land was in the hands of a possessor. The owner acquired ownership of the construction. May have to pay indemnities if the construction is necessarily useful and not just for amenities.D. Limits and Boundaries 977-8, 2996, CCP 787-794 (CBp. 284) Art 977 The limits of land are determined by the titles, the cadastral plan and the boundary lines of the land, and by any other useful indication or document, if need be. Art 978 Every owner may compel his neighbour to have the boundaries between their contiguous lands determined in order to fix the boundary markers, set displaced or missing boundary markers back in place, verify ancient boundary markers or rectify the dividing line between their properties. (2) Failing agreement between them, the owner shall first make a demand to his neighbour to consent to having the boundaries determined and to agree upon the choice of a land surveyor to carry out the necessary operations according to the rules in the Code of Civil Procedure. (3) The minutes of the determination of the boundaries shall be entered in the land register.Page 12 Civil Law Property Summary Kirk ShannonOwner must know the limit of his land in order to know what he is allowed to enjoy. Prerequisite that the boundary must be established. “Bornage” in fr. Must be conducted by a land surveyor.  When does one have to do this. Art 978.  10 years of possession beyond one’s limit will lead to acquisition through acquisitive prescription. (cannot be land of the state (916(2)) All owners must be involved in this process.CCP  Surveyor operates in similar manner as a court – may call witnesses, etc. Must produce minutes. THEN….drive markers into the ground. It is an infraction to remove markers. If Dispute: Moves to the S.C. When process is finished, minutes are deposited in the land registry. Action in Bornage is a real action – matter discussed b/n owners.E. Construction encroaching on neighbour’s land 947, 951-955, 992, 932 Art 992 (new article which Cantin does not like) Where 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. Art 992 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.  Power to the encroacher in para 1 is limited by para 2.  What is considerable  look at the whole superficies of the land with the encroachment. Problem per Cantin: What is good faith and what is bad faith? You need a title for Good Faith. Basis must be a defective title not a “No title” (good faith in Art 932 requires a title which is defective – here no title – so how is that possible) Therefore, cannot be the good faith of 932. Could be Art 2805 which is a general presumption of good faith.  Alternative conditions of “Not considerable” and “no serious damage”. Case: Themens v. Royer Themens v. Royer C.A. [1937] Facts: Decision:  Construction which is  For the PL – must demolish the part of the building on the PL’s land encroachment on the Ratio: PL’s property  Owner who had built the encroaching building could have avoided the Issue: situation by having line defined through a bornage. Did not. Negligence on  Must the D demolish the the part of the owner as he had taken the risk that the division line was part of the construction properly established on the Pl’s property or  Cannot order PL to sell section of land as this would constitute a private can the court order the expropriation. PL to sell that section of  Defence that the building has been there for 15 years cannot be valid the property?  Good faith is not enough. Good faith in possession must come with a title for which you don’t know there is a defect. There is no title here. Note: - See are CCQ 953. - Would not exist today as Art 992  Which could give a very strong position to the encroacher in para 1. This is limited by the para 2. Cantin on Themens v. Royer - She likes this case and decision. Does not think it should be decided differently today regardless of the new Art 992. The owner should have done the bornage and established the division line. If the two owners had discussed the location of the division line and agreed, then there is good faith. - Could claim possession – has corpus – has been more than 10 years (in 1937, was 30 years) and therefore could make a claim that had the legal right to this land. Would be decided differently on this basis today.Page 13 Civil Law Property Summary Kirk ShannonPart V: Modalities of Ownership or Special Modes of Ownership 1010, 1012 – 1037, 460, 487Art 947 Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Ownership may be in various modes and dismemberments. Subject to modes: What the heck are modes? Art 1009 Ownership has two principal special modes, co-ownership and superficies.Old code (CBp. 575) does not have a discussion of modes.  Impossible to give one defn of modes of ownership. Co-ownership, indivision, right of superficies – cannot all be under the same defn.Indivision/Co-ownership: Right of ownership is not exclusive. Must modify in order to accommodate the multiple owners at the same time.Right of Superficies: No modification of right of ownership. What is modified is presumption of single ownership of land and buildings. You have two owners - one for the land and one for the buildings.Ch I: Indivision or undivided co-ownershipS. 1 Legal analysis of Indivision “ so-called” Undivided Co-ownership: If you have co-ownership, you have at least two persons who are undivided with respect to ownership. Two titularies of the same right. This is the same as indivision but is specific to ownership. Undivided co-ownership is specific to ownership. Could also say indivision of ownership. Indivision: (proper word) can apply to any patrimonial right (personal and real rights, co-usufructuaries, joint creditors, co-owners of a copyright, etc…) Don’t forget this.Defn: Art 1009 Ownership has two principal special modes, co-ownership and superficies. Art 1010 Co-ownership is ownership of the same property, jointly and at the same time, by several persons each of whom is 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.It 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 Art 1012 and following are new articles. Only had one codal ref in old code (CBp. 325). Was seen as uncomfortable situation. Was a source of conflict b/n co-owners. Only rule was the ability to ask for partition.  Indivision is one legal situation which could be compared with partners in a company, condominium owners. Page 14 Civil Law Property Summary Kirk Shannon Arises from contract, succession, court decision, statute or codal provision as per Art 1012. Often arises in marriage and civil union and co-habitation. Presumption of co-ownership b/n spouses ( art 460 , art 487 )  Can ask for separation as to property expressly. Could still lead to confusion in which case the law will presume co-ownership.M. Cantin-Cumyn 1993: L’indivision  indivision is susceptible of occurring with all things and all patrimonial rights. Co-ownership only constitutes one species of indivision, being that relative to the right of ownership. This large domain should prevent the term co-ownership from being used as a synonym for indivision (unless ownership itself is given a larger definition at the same time).  the term “divided co-ownership,” although initially surprising, is well-suited for a situation of co-titularies relative to a right of ownership and brings out the particularity of the situation: an immovable is surveyed in a manner that permits it to be made simultaneously the object of divided ownership and of undivided ownership, depending on whether one speaks of private or common portions.  there is no disposition in the chapter on indivision which defines the nature of the undivided right. However, as its place in the Code attests, the right can be a modality of the right of ownership and can be called a real right, either movable or immovable, depending on the thing that it refers to. HOWEVER, it may be otherwise defined according to the nature of the object of indivision: in this way, the undivided right remains an immovable real right and constitutes a type of dismemberment of ownership when the undivided co-owner is a joint usufructuary of an immovable thing, co-titulary of a servitude or emphyteusis. The undivided co-owner has a movable real right if the joint usufruct is on a movable. Furthermore, the undivided co-owner has a movable right if he is co-titulary of a personal right or an intellectual right.  to qualify the undivided co-owner as owner of an aliquot part tends to throw out the “major characteristic of indivision” which holds that “it does not modify the structure of the right to which it applies.”  recent legislation has brought the juridical regimes of “society” and indivision. Their difference is manifested in the status of things and the respective position of associates and undivided co-owners in this regard:  the society is constituted to realise a common lucrative goal, and to this end, things are appropriated by the associates. The appropriation of the things to the common enterprise causes their transfer to the society. The titulary whose things is taken is therefore from then on only one part in the society. His title is analysed as a movable personal right, no matter what the nature of the things put in the society should be (because those goods are now those of the society).  indivision, even though it flows from a convention, is NOT established for the active pursuit of a common goal. Indivision aims for the enjoyment and conservation of undivided things. In the absence of collective interest, the undivided rights remain the rights of each undivided co-owner.  therefore, the rights of the undivided co-owner and the associate are necessarily different. The right of the associate, qualified independently of the nature of the rights of the association, can be represented by the abstract notion of a “part”. However, this notion does not take account of the juridical situation of the undivided co-owner, except to indicate that he shares an undivided thing with another. The qualification of the right of the latter must be made concretely, in each case, because it is entirely dependent on the nature of the thing itself.A. Nature of the title in indivision. - Undivided co-owners (in ownership) or “indivisaires” in French which relates not only to ownership - Cannot just characterise the nature of the right of indivisaire. Must correspond to the title which is shared but other than that is a case by case issue.STCUM v. Bandera Investment Co. Jurisdiction C.S. Que [1997] Facts  Application for a declaration that the applicants were entitled to exercise a right of redemption respecting a mortgage on a property. The applicant had a 28 per cent interest in the mortgage by way of investment. The issue concerned whether the usual rights attendant upon undivided co-ownership of property, which included rights of redemption when the co-owner disposed of its interest, applied in the case of a participating mortgagee and in particular in light of new provisions of the Civil Code. In this case, the owner of the other 72 per cent of the mortgage had sold its interest to thePage 15 Civil Law Property Summary Kirk Shannon respondent at a discount, which the applicant claimed it had the right to redeem at that value. Issues The question was: can the syndicated loan – something intangible – holders be in indivision Holding Indivision includes intangible rights. (can have real, personal and intellectual rights held in indivision) Ratio  Justice Bishop thought that indivision could exist in regards to intangible rights. But, in this case, the deed did not clearly point out that indivision did indeed exist. Nonetheless, the pension fund settled out of court and got what they wanted before the case went to appeal.  Although a co-owner of a mortgage had personal and not real rights, the applicable provision of the Civil Code respecting undivided co-ownership dealt with both.  However, the holder of a portion of a mortgage was not an undivided co-owner of the mortgage in that the respective mortgagees were free to deal with their interest independently, as the predecessor to the respondent had done. Their interest was not undivided, pursuant to the Civil Code provisions, and therefore no right to redemption or option to purchase arose. The parties' relationship was that of joint creditors. Each titulary has a portion of the right…..NOT…..a portion of the object of the right. Were it to be divided, would not be in a position of indivision. Would be single, divided ownership.  Law gives presumption of equal shares (presumption of equality) if there is no other way of distinguishing. (art 1015)  Must distinguish b/n exercise of right of each co-owner and administration of the object. Must be treated separately.  Each indivisaire is able to do with his share what he will. As per Art 1015(2) Art 1015(2) 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.  Seizure will bare on the share and not on the whole.Limitations of disposal  Limitation to free disposal of share as per 1022-1023  Right of redemption – rights of other indivisaire to repurchase the share of the seller (limit the intrusion of foreigners in the indivision). Sale has already occurred and the right is redeemed (see Art 1022) o A sells to B but partners X and Y have 60 days to take it back and reimburse B.  Sometimes replaced by right of pre-emption: To recover the share before it is sold to another (Art 1022) Art 1022 Any undivided co-owner, within sixty 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. Art 1023 An undivided co-owner having caused his address to be registered at the registry office may, within sixty 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.  1023  applicable when the shareholder/co-owner is seized by a creditor. And it is to be sold. The other co- owners can come in and take on the debt. Dame Tamar Harel v. 2760-1699 Quebec Inc. Jurisdiction [2000] C.S.Page 16 Civil Law Property Summary Kirk ShannonFacts The plaintiff and her husband were undivided coowners in their family residence. After financial difficulties, a creditor had obtained a judgment against the husband and the undivided part of the husband’s immovable was seized and sold in Feb 1999. Plaintiff found out about this in March at which point she exercised her right of redemption (1022CCQ). The contractors contest her right of redemption because it was not a normal sale but a sale by law and 1023 CCQ should apply (according the right of subrogation Issues Does a sale by law affect the right of redemption of an undivided coowner Holding No – Harel can exercise her right of redemption (Art 1022) even after a sale by law. Ratio - 1022 and 1023 CCQ are not mutually exclusive. Both protect rights of the undivided co-owner. 1023 aims at the case when she is informed of imminent sale while 1022 aims at when the sale has already occurred and there has been an onerous transfer of title. In this case, they acquired the husband’s title and the right of redemption was exercised within a year. Sale by law doesn’t stop the right of redemption (must occur within a year).  If it is not through the process of registration then one of the owners can rely on 1022 and purchase the share before seizedB. Exercise of the right in indivision 1016-1020 Art 1016 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.  Each undivided co-owner, even though the share may not be equal – each owner has the right to the use of the object. This is the general rule.  More specific  1016(2)  Subject to right to use and enjoy and allowing other indivisaire to also use and enjoy (subject to agreement of exclusive enjoyment by one indivisaire which could come with an indemnity).  Also, co-owners cannot modify the destination unless unanimous (see Art 1026)Fruit of the objects Art 1018 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.  Cantin says curious rule as treats the co-owners as creditors of the revenue rather than owners. They are owners and should get the fruit right away. This would be the proper rule for partnership not indivision. They should not have to claim it. Should share income in same proportion as their share of the indivision. Cantin cannot explain this rule. Only explanation is that the indivision is managed by a manger….but this makes not sense to her.Accession of things which are joined to the object Art 1017 The right of accession operates to the benefit of all the undivided co-owners proportionately to their shares in the indivision. Nevertheless, where a co-owner holds a right of exclusive use or enjoyment of a portion of the undivided property, he also has exclusive use or enjoyment of property joined or incorporated with that portion.Costs of maintenance  Shared in proportion Art 1019 The undivided co-owners are liable proportionately to their shares for the costs of administration and the other common charges related to the undivided property.In case of depreciation caused by one undivided owner Art 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 Page 17 Civil Law Property Summary Kirk Shannon 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.C. Administration of the undivided…. 1025-1029 Art 1025 Undivided co-owners of property administer it jointly. Art 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.  Double majority  majority of persons and value.  Certain admin (found in 1026(2)) require unanimous majority.Art 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. (2) 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.  Joint admin is possible or (per 1027(2)) may appoint a manager.  Manager will have authority to act alone with respect to the property  Art 1029  Relates to admin of property of another (Art 1301-1305). Only simple administration is in his authority. Other things that fall under 1026(2) and cannot be performed by the manager.  Does there need to be a majority to have a manager? Probably need double majority, but, if don’t have it, can be decided by the court.S.2 Indivision agreement or contract Content and Effects Content Art 1013 The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision. Such an agreement may not exceed thirty years, but is renewable. An agreement exceeding thirty years is reduced to that term. Art 1014 Indivision by agreement in respect of an immovable shall be published if it is to be set up against third persons. In particular, publication mentions the expected length of indivision, the identification of the shares of the co-owners and, where applicable, the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment of a portion of the undivided property.  As per 1013, indivision must not exceed 30 years. Contract might have clauses that:  ID shares of co-owners (otherwise presumed equal)  Duration of indivision  must provide for that. Term MUST be specified. Cannot exceed 30 years.  Nomination of a manager, his powers, how to be chosen, etc…. Modification of powers from what is found at 1301-1305.  Art 1014 – must say whether wish to replace right of redemption with a right of pre-emption.  Can also renounce both the right of redemption and right of pre-emption (this is Cantin’s thought and is not shared by all)Page 18 Civil Law Property Summary Kirk Shannon Could provide for exclusive use and enjoyment with compensation.  Could each decide to use part of the immovable w/out partition – clarify  Clarify distribution of fruit and revenue. Art 1015 The 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.Effects of the Contract - Opposability Possible that one indivisaire who has signs agreement sells his or her share. Is the new purchaser bound by agreement? NO….Only parties who signed the K are bound by the K. New owner must personally oblige himself to that K. BUT…..New law says. Art 1014 Indivision by agreement in respect of an immovable shall be published if it is to be set up against third persons. In particular, publication mentions the expected length of indivision, the identification of the shares of the co-owners and, where applicable, the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment of a portion of the undivided property.  If you have a division of an immovable and is registered, K will acquire real effect. It will go along with the immovable. Therefore will bind whoever becomes part of that indivision. This is a REAL OBLIGATION: Obligation which relates to a real right. Binds persons in real right and ends when person has no more real right. Then, binds new holder of the real right.  Interesting new rule which gives effect to clauses in the indivision agreement. Question: Will every clause in an indivision K be applied to new co-owners. Not fully settled. Cantin: Restrictions must have relationship to with the indivision (most likely to do with administration of the indivision). Privity of Contract is displaced here and replaced by a real obligation that IS REGISTERED. (Art 1440 says a K does not effect 3rd persons except provided for by law.)Indivision vs. Partnership 1. Indivision - parties have a right in the object. Partnership - parties transfer a right from them to the partnership 2. Indivision - co-owners own fruit (still a real right) Partnership - partners are creditors in relation to fruit. 3. Indivision - co-owners own property for its own sake, not for an external purpose. Partnership - often external purpose to venture e.g. (making a shared profit)S.3 Partition or an end of Indivision A. Action for Partition 1030-1032, 836, 837 Supposedly always possible to call for partition. But there are a great many exceptions. Art 1030 No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.  Could be blocked by one of the indivisaire. When they agreed to remain in indivision, then they have to abide by that agreement…..when have not agreed then cannot be blocked.  Also see control over the undivided thing in Art 1031-3.  In order to convert undivided co-ownership into divided co-ownership (condominium), require agreement of 3/4 of shareholders representing 90% of shares (1031 C.C.Q.).  Court may postpone partition upon motion by a co-owner in order to avoid a loss, and continue the indivision for up to 2 more years (1032 C.C.Q.) Applies unless 30 yr. limit intervenes (1013)  If co-owner objects to continuing in indivision, others may satisfy him by apportioning to him his share in kind or in cash. (1033 C.C.Q.) C-C: A form of private expropriation. Before, thought that best way to address problems with indivision was to terminate it; this is no longer the case.Page 19 Civil Law Property Summary Kirk ShannonChapter 2 Permanent CO-ownership of the Immovable Right of partition does not applyS. 1 Common Walls 1002-1008 Mignault 1896: Le droit civil canadien basé sur les ‘répétitions écrites sur le code civil’  someone wishing to acquire “mitoyenneté” of a private wall along his land can do so by paying half of the value of the wall and of the land on which it is situated. (518 CCLC [1004 CCQ]). At the same time, each person may oblige his neighbour—in the cities and towns—to contribute to the construction of an enclosing wall separating their houses, courts, or gardens, to the height of 10’ and a thickness of 18”. (520 CCLC [1002 CCQ])  another hypothesis: one of the neighbours wants to construct, at his own expense, on the separating line between his land and his neighbour’s, a private wall. In the case that the neighbour wants to make this common in the future, the builder will have diminished the size of his land by a measure of ½ of the width of the wall. From the principle in 520 CCLC, permitting one to force his neighbour to contribute to the construction of an enclosing wall and to furnish for this purpose 9” of his land, can the builder demand to put his private wall half on his land and half on his neighbour’s?  with the good sense which has always characterised it, l’ancien droit français did not hesitate to respond affirmatively to this question, as long as he takes no more than 9”, and he can do this without having to pay an indemnity for the land thus taken.Art 1002 Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence. He may also require his neighbour to make one-half of or share the cost of making a fence which is suited to the situation and use made of the premises, on the dividing line to divide his land from his neighbour’s land.  Presumption that whatever work exists to divide two lands is co-owned. It can be inferred that it is ANY work on the division line. This is common ownership  mitoyenneté.  This indivision is permanent and will only end if it is removed by the agreement of the two owners. Exception to Art 1030.  Cost is sharedWall on the division line (could be a building wall)  Even if on one side of the division line, the other owner is able to acquire mitoyenneté of the wall for the building of a construction  Is basically private expropriation Art 1004 Any owner may cause a private wall directly adjacent to the dividing line to be rendered common by reimbursing the owner of the wall for one-half of the cost of the section rendered common and, where applicable, one-half of the value of the ground used. The cost of the wall is estimated on the date on which it was rendered common, and account is taken of its stateMaintenance of a Common Wall  Maintenance of wall is shared….unless……right to renounce or abandon right to the wall. If the wall is abandoned, the right to the wall becomes solely of the other owner.  If wishes to abandon, assumed that he is not using the wall for a construction. Art 1006 The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right. (2) An owner who does not use the 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.  Costs when abandon wall  cases say different things about future costs after the abandonment.Page 20 Civil Law Property Summary Kirk ShannonZambito-Orazio v. Meneghini Jurisdiction [1994] R.D.I. 42, C.A. Facts Def is ordered to pay for the reconstruction of the common wall separating his land from that of pl. One month later, D advises PL that he has retained a notary to prepare the renunciation of the mitoyenneté and that, as a consequence, he no longer has any obligation as regards it. Pl seizes some property to help pay. Issues Who is responsible for the cost of reconstruction? Holding The seizure is valid – D is free only from future costs of mainenance – not retroactive. Ratio The costs of reparation or reconstruction of a common wall are borne by those who have a right in it, in proportion to their respective rights. Although a co-owner can liberate himself from his obligation to contribute by renouncing usage of the wall. o In this case the act of renunciation was only signed after the judgment establishing the contribution was given; o it is in the interest of justice that judgments that have become executory become effectively executed. o In addition, according to doctrine, the abandonment of a right of mitoyenneté only liberates someone for the future.Groleau v. Société Immobiliere du patrimoine Architectural de Mtl Jurisdiction [1999] Cour de Qué Facts Discussions on repairing a wall between the properties of the two parties started in 1990. Both parties recognize the need for repairs in 1992. Agreement is reached verbally in 1994, but the defendant refuses to pay to execute the agreement. Silence follows between 1994 and 1997, when the wall crumbles on the 31st of May. The city of Montreal inspects the wall on 2 June and sends notice that this must be repaired on June 19th . The defendant, a paramunicipal society created by the city, published a notice of abandonment of the wall on 18 June 1997. Issues Is the Société responsible for 50 percent of the cost? Holding Société was ordered to pay $13,199 plus interest Ratio  Art 1006 says that to abandon, you need to produce a notice of renunciation and only when these formalities are complete is the renunciation in effect.  The repairs made were, in large measure, repairs necessary before the defendant renounced its right to the wall, as recognized in 1992.  Renunciation only affects future costs, not past costs, as per an article by doctrinal author Denis Vincelette cited by the judge.  In an emergency situation, as in the facts at hand, one of the co-owners cannot be reproached for taking the necessary repairs when the other is silent and inert.  Therefore, the defendant must pay half the cost of repairs.  Note, however, that the judge only awards a quarter of the amount the plaintiff requested… Cantin doesn’t like that this case is awarding less damages to Pl than %50 (only gives %25). If really responsible for half past costs, should pay them.S. 2 Common Immovable Accessory Permanent means no partition is possible despite CCLC 669  Excerpt from Marler and Mignault  CBp.352Where the indivision is destined to last, indivision is forced.  Common walls, divided into flats, condos  Certain things which by reason of agreement or state of fact are destined to perform services for two or more immovables such as irrigation ditches, passageways, courtyards, private roads, etc. o Permanent indivision.Page 21 Civil Law Property Summary Kirk Shannon o In order to separate co-ownership, must be requested by all o Appears at the end of Art 1030 Art 1030 No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose. Three states of permanent co-ownership (divided, undivided)  Common walls  Immovable appropriated for a durable use (courtyard used by two or more immovables, irrigation ditches, passageway)  CondoMichon v. Leduc Jurisdiction [1890] R.L. 504 (B.R.) Facts Separate owners contracted an aqueduct for their common usage. It is undividedly co-owned. Issues Can this partnership bee dissolved by the will of the parties? If one of the co-owners abandons his land, can he demand partition of the aqueduct? Holding No. There is a necessity to maintain the indivision in this instance. Ratio -the thing held in indivision is an indispensable accessory for the use of each house -the aqueduct is indivisible, attaching to the land by a link of dependence by the effect of the law, since by the terms of 1499 CCLC [1718 CCQ], a sale includes all of the accessories of the thing sold, and all which is destined to its perpetual usage. Considering the general principle in 689 CCLC [1030 CCQ] that no-one can be bound to remain in indivision, and that partition can always be forced, this DOES NOT APPLY to common things, which are destined as indispensable accessories to the undivided usage of several principal lands belonging to different owners, and whose deprivation would make exploitation impossible or notably deteriorated. Notes Marler p. 352 CB [1932] : Where the indivision is destined to last and a partition may not be demanded, the indivision is “forced.” (Three groups of things: 1) common walls, hedges, and ditches; 2) land and parts of building divided into flats or apartments each owned by a separate owner; 3) certain things “which by reason of an agreement or of a state of fact are destined to the perpetual service of two or more immovables because they are indispensable accessories of the immovables they serve, such as irrigation ditches, passageways, court yards, lanes, private roads, and wells…”)… “by reason of the nature of the thing in common and its destination..” no co-owner may provoke its partition… -further, “the right being an indispensable accessory of the different immovables—this being the basis of this type of indivision--- cannot be transferred to another immovable, which the thing in common was not destined to serve…”S. 3 Divided Co-ownership of an Immovable (condo) 1010(3), 1038-1109, 2972, 3026, 3030  New legislation passed in 1969. Antecedent was in CCLC Art 441b and following. CCQ legislation has undergone several changes but is still same as current codal articles on divided co-ownership.  CCLC Art 521 is in CB. This pre-1969 and art 441b. CCLC 521 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 story which belongs to him; The proprietor of each story makes the floor under him; The proprietor of the first story makes the stairs which lead to it; the proprietor of the second story makes the stairs which lead from the first to his, and so on What is involved  Subdivision of a building which is similar to subdivision of land.  Subdivision through cadastral number (the equivalent of a lot number in a condo building). o Each viewed independently from the other. o Each cadastral number can sell, hypothecate, transmit by succession, taxation…..etc.Page 22 Civil Law Property Summary Kirk Shannon Subdivision will effect a construction. Will effect the act of disposition of each subdivision independently.  Based on a concept of ownership  As ownership was considered the best manner to maintain the value of the immovable.A. The establishment of an immovable in divided co-ownership  High level of formalism (which, according to Cantin, is not common in the civil law)  Several elements must be put in place. 1. Declaration of co-ownership in notarial form (Art 1059). Declaration must follow a certain process (Art 1052) which says it comprises three separate things. Each is defined in Art 1053 (constituting act), 1054 (by-laws), 1055 (description of fractions). Declaration must be signed by each real right holder (could be owner or usufructuary and those holding hypothecs). See Art 1059(2). 2. Publication in the land registry. Publicity which creates the co-ownership seen in Art 1038. Co-ownership starts ONLY with the publication. Cantin says this is an unusual effect to publication. Normally it only has the effect of publicising but, in this case, it is the beginning of the co-ownership. 3. Fractioning Establishment of condo requires that the subdivision involves emmatriculation or fractioning of the immovable. This process of subdivision must be made prior to having a declaration of co-ownership. SO….the construction must be present or sufficiently advanced to permit a land surveyor to survey the construction. (Art 1060(1)).Effects of publication of co-ownership declaration.  Effects of Publication  Art 1062  Establishes a permanent legal status of that immovable. Binds successors and other persons who sign it. The obligations from this signing have the status of REAL OBLIGATIONS. Effects on lessee or any occupant  Art 1065  Constitution of a legal person (Art 1039) of which all co-owners are a member and it will be in charge of the maintenance of the immovable. The legal person is called the SYNDICAT.B. Structure and Nature of co-owner’s Right Constructed as a division of the real right of ownership. Leads us to recognize that the nature of the right is an immovable real right.  Possible to have only one co-owner. Per Art 1038 Art 1038 Divided 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.  Lessee will be bound (Art 1057) i. Fraction  Right of each co-owner in the immovable is referred to or ID’d as being a “fraction”. You are buying a fraction. The fraction encompasses the rights you are acquiring in the immovable. See Art 1010(3) – right of ownership is apportioned in fractions. In fraction each co-owner has, there are 2 portions each co-owner has 1. Right to a Private portion  What is the private portion? See Art 1042  “Property” should say “ownership”. For the exclusive use of the co-owner who has the right to the fraction. 2. Right to the Common Portion.  What is common portion? See Art 1043, 1044  Each fraction contains a share in the common portion in the immovable. It is an UNDIVIDED portion. Owner in indivision. Art 1046 Each co-owner has an undivided right of ownership in the common portions. His share of the common portions is proportionate to the relative value of his fraction. ii. Dissociation It is NOT POSSIBLE for the common and private portions to be dissociated. They come together. Art 1048 The share of the common portions appurtenant to a fraction may not, separately from the private portion of the fraction, be the object of alienation or an action in partition.  Not possible for owner to claim right in the common portion without being owner of a private portion.Page 23 Civil Law Property Summary Kirk Shannon o This comes up when dealing with lockers or parking spaces (which are common portions). Cannot lease to another. Promoter of Condo, as soon as all units are sold, has no more right in the immovable. Cannot lease these spaces unless leased from a co-owner. iii. Identification of parts of the Immovable Art 1055 A description of the fractions contains the cadastral description of the private portions and common portions of the immovable. (2) Such a description also contains a description of the real rights affecting or existing in favour of the immovable other than hypothecs, and additional security accessory thereto. When the land surveyor divides into common and private portions, the surveyor will give each portion a cadastral number. Private portion is central to the co-ownership. Through the ID of this portion that co-ownership is identified.Art 1053 A constituting act of co-ownership defines the destination of the immovable, of the exclusive parts and of the common parts. The act also specifies the relative value of each fraction, indicating how that value was determined…  Common portions must not be enumerated as carefully. Usually done by a general number but there are certain cases where more enumeration might be neededBalconies Considered common portion (per Art 1044) but is given to the exclusive use of one co-owner. There are many other elements that are considered common portion.  Presumption that residual elements are common under 1044Dividing walls  Certain partitions are considered “mitoyen” and partitions b/n private and common portions are considered common. Art 1045 Partitions or walls that are not part of the foundations and main walls of a building but which separate a private portion from a common portion or from another private portion are presumed common.  Cantin doesn’t know why this article was needed. She hasn’t seen any case dealing with this aspect. iv. Evaluation of the Fraction Art 1041 The relative value of each of the fractions of a divided co-ownership with reference to the value of all the fractions together is determined in consideration of the nature, destination, dimensions and location of the private portion of each fraction, but not of its use. (2) The relative value is specified in the declaration  Found in the constituting act  It does not change over time.  It is not a Dollar value but a relative value with comparison with the other fractions. [eg. of fractions where total of building is 100 and broken down into fractions]  Based on the value of the private portion alone o Factors to be considered  see art 1041  nature, destination, dimensions and location but no its use o Evaluation will not change with market value. o BUT…..can be contested within five years (Art 1068) Can request to have it revised. Why have an evaluation?? Art 1046 Each co-owner has an undivided right of ownership in the common portions. His share of the common portions is proportionate to the relative value of his fraction.  Share of common portions is based on value of fractionArt 1090 Each co-owner is entitled to a number of votes at a general meeting proportionate to the relative value of his fraction. The undivided co-owners of a fraction vote in proportion to their undivided shares  Voting rights at general meeting proportional to value of fraction.Page 24 Civil Law Property Summary Kirk ShannonArt 1064 Each co-owner contributes in proportion to the relative value of his fraction to the expenses arising from the co-ownership and from the operation of the immovable and the contingency fund established under article 1071, although only the co-owners who use common portions for restricted use contribute to the costs resulting from those portions  Expenses of co-ownership and operation/contingency fund (Art 1071)Art 1051 Notwithstanding articles 2650 and 2662, a hypothec, any additional security accessory thereto or any preferences existing at the time of registration of the declaration of co-ownership on the whole of an immovable held in co-ownership are divided among the fractions according to the relative value of each or according to any other established proportion.  Less important...but…division of hypothec registered before declaration Art 1075(2) The indemnity shall be used to repair or rebuild the immovable, unless the syndicate decides to inference terminate the co-ownership, in which case the trustee, after determining the share of the indemnity of each of the co-owners according to the relative value of his fraction, pays the preferred and hypothecary creditors out of that share according to the rules in article 2497. For each of the co- owners, he remits the balance of the indemnity to the liquidator of the syndicate with his report.  End of the condominium (destroyed and insurance, expropriation, agreement)  indemnity will be divided on basis of value of fraction (also, see Art 1108-1109)C: The destination of the immovable: Content and Role Modification of the right of ownership 1. Distinction made b/n common portion and private portion  See case: Wilson (CBp.371) below  One full ownership (private) as per Art 1015 and one is ownership in indivsion (common portion) -.  Effects use and enjoyment.  Whatever is not clearly described as a private portion is a common portion. 2. Onerous restrictions and obligation on the rights of the co-owners  Art 1066  allow for maintenance  Must notify if leasing Art 1056 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  Restriction must be justifiable by the destination. This is centerpiece of this notion. Cannot impair the destination of the immovable (per 1063). Destination’s roles  Control the use an enjoyment of individual co-owners in the immovable (protects the rights of the co-owners individually from the collectivity)  Control the restriction and obligation on the co-owners by the declaration. (protects the collectivity from the actions of one or a couple individuals.) Highest approval is required to change the destination Art 1098 Decisions on the following matters require a majority vote of three-quarters of the co-owners representing ninety per cent of the voting rights of all the co-owners: (1) to change the destination of the immovable Art 1102 Any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on a co- owner a change in the relative value of his fraction, a change of destination of his private portion or a change in the use he may make of it is without effect  Other simple changes are made via Art 1097.Definition of Destination Notion of destination provides an objective control making sure that restrictions are not excessive. On both the commonPage 25 Civil Law Property Summary Kirk Shannon and private portions. Must have a manner to assess objectively what is allowable or not. All must abide by same regime and therefore more hope of living in peace amongst neighbours (neighbourhood relationships that could bring in 976). One would expect a greater level of restrictions on common portions over private portions.  Declaration of co-ownership (Art 1053) defines destination of private and common portions of the immovable  Courts rely on French legislation  law distinguishes b/n o Explicit content of destination: The global affectation of the immovable (residential, industrial, commercial, professional, mixed)  objective . Common portion content destination: Common portions can be reserved to certain people  e.g. where to park, allowed to take dog in garden, bicycle at the door….etc. . NOT the administrators that impose the destination – it is the declaration. Easier to modify the by-laws with respect to the way to use common portion than to the other parts of the declaration (Art 1097) o Implicit Destination: In 1056 “characteristic, location” are part of implicit content of destination. Why did this co-owner decide to live in this condo and not another. These are subjective aspects used when decide . Factors as area where located, choice of material, quality of construction, luxury of building… . Taken into consideration when imposing contribution on the co-owners for repairs of the immovable.Example of Implicit DestinationTalbot v. Guay Jurisdiction [1992] C.A. Facts Each party possesses a condo in a building under divided co-ownership. Resp receives an injunction from Superior Court to stop app from putting up an installation on his property because it blocks resp’s view. App says that the Judge erred in applying one of the articles from the declaration of co-ownership, because the restriction is not justified by the destination of the building. Issues Can the declaration be applied? Holding The D must remove the installation that obstructs the view. Injunction Ratio - One of the characteristics of this condominium is its proximity to the river and the possibility to have access to the river, if only a visual one. The particularly spectacular view of the resp results from the situation of the immovables on the land and the decision of the resp in her choice of apartment, as well as from the situation of the apartment chosen by app. - This particular advantage of resp cannot be denied to her for the sole reason that app and most of the other co-owners do not enjoy an identical or even equivalent advantage. - The article of the declaration does not unduly restrain the rights of the co-owners because it prevents all constructions, plantations, or installations which serve as an obstacle to the widest possible view, which is a characteristic and an aspect of the destination of the whole immovable. Cantin  Look at the location. On the St. Lawrence with a nice view and was a likely reason for buying the condo. It is an appeal to characteristics and location – implicit destination. Example of Implicit DestinationSyndicat des Copropriétaires de Trillium Court Condominium c. Ouellette Jurisdiction [1998] C.S. Facts The D expanded the balcony of her co-ownership without having received authorisation from the administrators. The Board of directors voted a resolution putting Ouellette in default and ordered her to restore the balcony to its previous dimensions. Others had been allowed to expand balconies and PL complained of biased decision by the board (Art 1103) Issues Must the D demolish her balcony? Holding YES. This restriction is justified by the destination. External appearance/ exterior aspect of immovable is Page 26 Civil Law Property Summary Kirk Shannon part of the destination of the immovable. She must demolish the extension of her balcony. Should she refuse, the PL is authorised to do the work at the expense of the D. Ratio The declaration of co-ownership clearly stipulated that Ouellette was not allowed to modify her balcony without first obtaining the authorization from the Board of Directors. Thus, the changes she made violated the declaration of co-ownership.  Evidencedemonstrated that the administrators wished uniformity in the appearance of the building (art 1056, 1016) The Board could thus regulate the changes that the co-owners wanted to bring to their balcony. It further showed that the co-owners did not ratify the changes brought by Ouellette. Moreover, if the injunction was not granted, the administrators would be inundated with different types of requests by other co-owners and would loose control over the administering of the condominiums.  Common portions have restricted use (art 1043)  Vote required via art 1039, 1026.  If she does not comply, Art 1080 can oblige her to.  Even in the absense of a specific clause, the notion of common portions stops her from effecting these changes. Cantin  Exterior aspect of the immovable is a character of the immovable.  Not allowing expansion is allowable by the destination of the immovableExample of Explicit DestinationBergeron c. Martin et Syndicat de la propriété Beaumarber Jurisdiction [1997] C.S. Facts Bergeron has a day-care in a property in divided co-ownership that is inhibitng the right of the Martin to freely enjoy his proterty b/c of noise, etc. Issues Is the carrying on of a day care within the fraction of a co-owner contrary to the residential nature of the immovable? Holding The owners of the day-care are causing serious and irreparable prejudice and they must repsect the declaration of co-ownership and stop using the immovable as a daycare. Injunction Ratio - CCQ Art 1053: The constituting act of co-ownership defines the destination of the immoaveble  Exclusively residentail destination. The act clearly indicates the will of the co-owners to exclude commercial activities. - CCQ Art 1056: The act of co-ownership can not impose any restrictions other than those justified by destination  can enjoy on the condition that the owner respects the by-laws and does not impair the rights of the other co-owners. - The fact that the the third co-owner does not complain of a inconvenience holds not weight on that submitted by Marin. - Even if the activity is permitted by municipal by-las and provincial legislation, this does not have an effect on co-ownership. - The court rejects the fact that the D says that they did not read teh declaration of co-ownership. - Good Faith is not an issue in this evaluation either. - The right of ownership is a compete right and the declaration as well as Art 1042 are interpreted broadly in favour of the co-owners as opposed to the indiviudal. Obiter Definition of destination of the immovable - Objective or explicit elements (residentail, quality of materials, distribution of portions) - Subjective elements: Conditions on which one co-owner bought his/her fraction. - Collective elements: Destination represents the safeguard of the general interests of the co- owners. The court takes into consideration the destination and the whole of the declaration of co-ownership to determine the validity of imposed restrictions. Kilzi c. syndicat des copropriétairesPage 27 Civil Law Property Summary Kirk ShannonJurisdiction [2001] C.A. Facts Member of a syndicate with whom he rents 8 units on a short term basis of which he is owner. The co- owernship agreement forbids short term rentals to a moral person. The Condo society passes three new rules that: (1) prevent legal persons from owning property in the society (thereby disallowing the plaintiff’s company from owning); (2) forbid any one co-owner from owning more than 3 units; (3) forbid short-term leases. Issues Was the modification to prevent a co-owner that owns more than 3 units from leasing them valid? Are short term leases valid? Holding The syndicate (1) could not prevent legal persons from owning property in the society and (2) could not forbid any one co-owner from owning more than 3 units. It could, however, (3) forbid short-term leases. Ratio  Activities of the Kilzi group could not be prevented on the basis of the fact that they constituted a commercial activity. o The rules implemented by the co-owners prevent commercial activities from carrying out commercial activities inside their apartments. They do not prevent commercial agents from owning the properties.  Only the destination can be used to limit the rights of co-owners o The judge supports a view of destination that comprises an objective component (consisting of the location, the environment, the quality of the materials, the distribution of apartments, luxury, and comfort, etc), a subjective component (considerations that motivated the co-owners to purchase) and a collective component. He favours this view over one which claims that destination can only arise from the personal considerations of each co-owner. o Citing in article by Me. Christine Gagnon, he lends authority to the following points: . La destination de l’immeuble, c’est le genre d’immeuble voulu par les copropriétaires . On la retrouve d’abord dans la déclaration de copropriété . Il est manifeste que ... les caractères et la situation de l’immeuble sont des éléments qui aident à en déterminer la destination.  Issues (1) and (2) could not be justified on the basis of the destination of the building  Issue (3) could be justified because witnesses for the defendant expressed concerns about the quality of the whole, the calm and tranquility, the absence of noise, the building’s security, the surroundings, the size of the units, and their new state Cantin  Issue is rapid turnover of the occupants is issue.  Forbidding short term lease it valid. Limitations on leasing if own more than three units is not valid. Effects that value.Mixed Destination  Mixed commercial and Residential. Would it be valid to exclude certain activities in the commercial portion based on destination? Depends. Based on the fact that the activity is noisy might work. Example of a Dance Club could be valid as would effect the residential destination.  Might be the case that these restrictions might be a disguise for non-competition clause. You can ID these when, in declaration, there is a prohibition to prohibit commerce providing food when there is already a Depanneur. This is a form of non-competition.  Have had prohibitions of any lucrative activity in condos or practice of certain professions (e.g. consultancy work) will be valid in residential.  Clauses that forced new purchasers to be accepted by syndicate would not be justified by destination and would be discrimination on basis of Quebec Charter.Wilson v. Syndicat des copropriétaires du condominium le Champlain Jurisdiction [1996] C.S. Facts  The group of co-owners get an amendment made to the by-laws providing that you could not have domestic animals in the condo (except fish, birds and cats i.e. discriminatory against dogs).Page 28 Civil Law Property Summary Kirk Shannon It would not hurt present dog owners but would restrict them from replacing their dogs after they died.  The dog people are not happy and seek to have declared invalid this amendment (note the original declaration allowed dogs). Issues  Is this new by-law valid? Holding  By-law not valid Ratio  Ownership is a complete right  CCQ 1053 should be given a broad interpretation in favor of the co-owners taken individually.  The "purpose of the building" was not defined in the Civil Code but had to be determined by the subjective elements, namely the quality of the materials, comfort and luxury; the subjective elements, namely the conditions why a co-owner bought his unit; and the collective elements, namely, the preservation of the general interest of the co-owners.  None of the elements, either cumulatively or alone, justified the prohibition of domestic animals.  There was no rational connection between the prohibition and the residential purpose of the building. No bylaws can be passed that restrict the rights of co-owners that are not justified by the destination of the building (under 1056).  The declaration and bylaw had been in force for a long time and adequately protected the co-owners in general.  Such amendment would have required an amendment to the "purpose of the building" (destination) in the declaration, which was not done.  The bylaw was overturned. Cantin  What the declaration had originally was to prohibit animals that would cause neighbourhood inconveniences was acceptable – noisy, dirty and dangerous. This is ok but a complete ban was not justifiable.Injunctions 1. Can the syndicate seek to enforce the declaration against recalcitrant co-owner – is it required that he show serious or irreparable prejudice?  Refers to Art 1080(1) (new article) Art 1080 Where the refusal of a co-owner to comply with the declaration of co-ownership causes serious and irreparable prejudice to the syndicate or to one of the co-owners, either of them may apply to the court for an injunction ordering the co-owner to comply with the declaration. If the co-owner violates the injunction or refuses to obey it, the court may, in addition to the other penalties it may impose, order the sale of the co-owner’s fraction, in accordance with the provisions of the Code of Civil Procedure regarding the sale of the property of others.  Bergeron v. Martin, Oulette cases  Court did not question whether the prejudice was serious. Just gave the injunction  Cantin thinks it is misguided. She thinks that no such requirement exists. Aim of regime is to ensure peaceful co-habitation. Can make analogy b/n the regime and general regime of ownership. Can point to 976 as well. Art 1016 – owners can use but cannot prevent others from likewise using it.  NO SUCH REQUIREMENT to see serious and irreparable damages to invoke regime and possible injunction.  Standard which 1080 appears to require only appears in the CCP Art 752 which deals with interlocutory injunctions within an action. CCP Art 752 In addition to an injunction which he may demand by a motion to institute proceedings, with or without other conclusions, a party may at the commencement of or during a suit, obtain an interlocutory injunction. An interlocutory injunction may be granted when the applicant appears to be entitled to it and it is considered to be necessary in order to avoid serious or irreparable injury to him, or a factual or legal situation of such a nature as to render the final judgement ineffectual.  Art 1080(2) – Cantin thinks this standard is appropriate in this case which deals with expropriation. 2. Facing a new co-owner who has not read the declaration – can he claim not to be bound??  Limitations and restrictions that arise from the declaration. They will bind whoever owns the immovable at anyPage 29 Civil Law Property Summary Kirk Shannon time provided it is registered.  NEW OWNER IS BOUND so long as is registered  In Bergeron v. Martin (CBp.363) as deemed to be irrelevant  Justification is Art 2941 Art 2941 Publication of rights allows them to be set up against third persons, establishes their rank and, where the law so provides, gives them effect. Rights produce their effects between the parties even before publication, unless the law expressly provides otherwise.  Everything registered is deemed to be known.  Also Art 1014  Once registered, K will be applied to future owners in co-ownership.3. If the activity which is contested is permitted by municipal/provincial legislation or is in the general interest – is this relevant?  Absolutely irrelevant  Reasoning under 976  See Bergeron v. Martin 4. Fact that one co-owner complains but the others do not?  Not at all a factor. People tolerate different thresholds of crap. See Bergeron v. Martin.  Under 9765. Legal framework of the organisation of the condo  Is organised under regime of ownership. Consequence is that they are owners. Role of Art 1066 is to be assessed through the lens of owners. Has to be justified by the destination of the immovable. POSSIBLE DIFFERENT FRAMEWORKS could be (as stated in Wilson) structured not as right of ownership but rather a company owning the immovable (legal person with shares) and occupants could be shareholders. o In that case the occupants would have only a personal right that is similar to the right of the lessee. Substantial impact. Creates jus ad rem which has only certain rights in the immovable. More restrictions and limitations. Company is able to define these rights. o Very different from co-owner. Restrictions are limited only by public order and the charter. The co- owner has a Real Right. Cantin thinks this is too often overlooked by the judges.D: Functioning of the Co-ownership and its duration 1) Structure and Maintenance: Art 1039 Upon 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. (2) The legal person is called a syndicate.  New model of devising the co-ownership. This is a new structure. Eventually refer back to general rules on legal persons. (Art 298-364)Organs through which the syndicate operates 1. General meetings of the co-owner: Manner through which the co-owners decide on certain issues. Found at art 1087-1103 2. Board of Directors: (see Art 1084) Carries on the decision of the assembly, administers the immovable and receives the application of the declaration 3. Manager: (See Art 1085-86) Board may delegate to a manager for the administration of the immovable  Maintenance is role of manager operating through the board. Or, if there is no manager, it is up to the board.Page 30 Civil Law Property Summary Kirk Shannon Board of directors does not create the obligations of the declaration but just enforces them.2) Patrimonial rights of the Syndicate (Art 1070-1083)  Property of syndicate includes: NOT the immovable itself (neither common nor private portions), maintenance equipment perhaps, contributions made by the co-owners to the 1 -maintenance and admin and to 2 - the contingency fund, insurance indemnity, could have received damages for latent defects. o Also possible for general assembly to authorize syndicate to purchase an immovable Art 1076 The syndicate may, if authorized to do so, acquire or alienate fractions, common portions or other real rights. (2) A private portion does not cease to be private by the fact that the fraction is acquired by the syndicate, but the syndicate has no vote for that portion at the general meeting and the total number of votes that may be given is reduced accordingly. o “Common Portions” in this case must refer to common portions OUTSIDE the immovable. CANNOT refer to common portions inside the immovable as these portions are not the property of the syndicate. o If Syndicate wishes to add new immovable to the common portion of the immovable then the declaration must be modified.  Obligations: 1077-78  Specific obligation. Also, obligations resulting from the declaration.3) Liability  Compensation to co-owners (art 1067) damages to co-owners (art 1077) and any other liabilities agreed upon by the majority of the co-owners at the meeting of the assembly4) Duration 1. Can be terminated (Art 1108, 1109) 2. Also possible due to total loss of the immovable. Must be decided whether the immovable will be reconstructed (Art 1075). During the period provided for in 1075, the indemnity cannot be touched. 3. OR through expropriation Shall be distributed on basis of value of fractionsE: Right to Periodical Enjoyment or Time-Sharing (“multipropriété”) 1058, 1099, 2974  Sharing on a monthly or weekly basis o Fraction can be in indivision amongst several undivided co-owners. o This is not smiled upon. Possible that there could be a complete ban. Do not want a hotel. Could lead to higher costs of maintenance. Could have an impact on the peace within the immovable. Art 1058 Unless express provision is made therefore in the act constituting the co-ownership, no fraction may be held by several persons each having a right of enjoyment periodically and successively in the fraction, nor may a fraction be alienated for that purpose. Where the act makes provision for a periodical and successive right of enjoyment by holders, it indicates the number of fractions that may be held in this way, the occupancy periods, the maximum number of persons who may hold these fractions, and the rights and obligations of these occupants. o Point of departure is a ban…unless….express provision in the declaration.  Uudivided co-owership of the condominium o Look to Art 1012 is simple indivision. Must sign the agreement with other undivided co-owners which will organise the use and enjoyment of the co-owners. Must also provide for maintaining the indivision in order to block the request for partition by one of the owners. Period of 30 years is the max (Art 1013)Chapter III: Superficies 1011, 1110-1118, 951, 953, 955, 992Page 31 Civil Law Property Summary Kirk ShannonDefinition: New codal article. There was not old article dealing with it specifically. Only was an indirect reference. Art 1011 Superficies is ownership of the constructions, works or plantations situated on an immovable belonging to another person, the owner of the subsoil.  Also look the Morin caseMarler Text on the Right of Superficies (CBp. 380)  Derogation from C.N. Art 414 (CCQ art 951/955) which is a general principle that ownership of the soil carries with it the ownership of what is above and below.  E.g A lease where the lessee is granted permission to build on the land. This would constitute the right of superficies, immovable, and could therefore be susceptible of hypothecation.Owner of the construction  SUPERFICIARY Owner of the land  Owner of the subsoil or “tréfoncier” (and land itself is referred to as “tréfonds”) Shall prevent the owner of the soil from taking advantage of the presumption of single ownership (derogation from Art 951, 955). Also, puts aside the accession mechanism (Art 957). Each of these articles are blocked when there is a right of superficies.  Pertains to immovable which (through registration) will be opposable.  Cantin does not like the term “right of superficies” in English and in French “propriété superficiare” which implies ownership. She does not like the implication of ownership. Do we find that what we thought was a right of superficies in the old system (though was not in the code) is the same as what is now found in the code. Look to Morin and Marler text  Cantin thinks that there must be a right to enjoy the land (either real as in a right of use or personal as in a construction lease) in which case there is no problem with contracting a right of superficies before the construction exists. However, if superficies only include the right of ownership of the construction, the right cannot exist before the construction exists and this seems impossible. Thus, it seems it is not in the regime of ownership but rather more like a dismemberment. o Are there one or two real rights involved. o We must account for the use of the land used by the superficiary.Morin v. Gregoire Jurisdiction S.C. Que [1967] Facts Pl owns land and claims to also own the construction. Defendant built on part of the land and used it, and the judge was convinced that the defendant’s actions were the result NOT ONLY of the tolerance of the plaintiff, but also his permission. {We saw the effects of tolerance with possession in 924.} Judge had to define the difference between tolerance / sufferance and permission Issues Does D have a right to the chalet constructed? What is the nature of that right? Holding D is the superficiary of the construction. Ratio Judge became convinced that the PL did not simply tolerate (or suffer) this construction. It is more than that. He gave the permission for the D to use part of his land and build on it. - D had argued that he possessed in good faith and claiming right to be indemnified. Judge did not take much notice of this - D was there under the right of superficies. Allowed to build on someone else’s land. - Renunciation by the PL to acquire the land through accession. - Recognition of owernship of the construction. - Also, D had a second real right in the land (tréfond). Immovable real right in the land belonging to another. Duration??  NO specification. Was an oral agreement. It will be an indefinite duration will last so long as the construction lasts. - Nature of the K? Found to be onerous – the result of a natural obligation bumped up to onerous b/c of the relationship b/n the two brothers. Notes: If building had been erected in good faith but not with the permission of the tréfoncier then it would be tolerance/sufferance and the tréfoncier would have to pay either the cost of improvement or an amount Page 32 Civil Law Property Summary Kirk Shannon equal to the increase in value of the land as a result of the improvement (per Art 933). Cantin on Morin  It is a dismemberment, in effect. Ownership of the construction and right to the land underneath the construction.Morin v. Gregoire with Marler allows for a critique of code:  In order for the superficiary to remain on the land with the construction, under the old system, he must have a legal right in the land. This is not the case in the present code.  Right of ownership is dismembered such that the superficiary has a right to use the land….but this is not reconcilable with the position of Art 1110 in the CCQ  it is in the chapter of Modes (along with indivision).  SO…used to be considered a dismemberment of ownership but is no longer so.  Should not characterised as a real servitude. A real servitude is a relationship b/n 2 immovables (land in this case) Art 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. Art 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. Art 1113 Superficies may be perpetual, but a term may be fixed by the agreement establishing its conditions. Art 1111 sounds like a servitude  Look to Art 1113. Superficiary of ownership which MAY be perpetual. There is a problem with this as the characteristic of ownership. There can be no term in ownership and it is the only right that is truly perpetual.  From 1115, total destruction of the construction will terminate the right of superficies or through a term (non- perpetual)  From Art 1116, the subsoil owner, through accession at the termination of superficies, but must pay the value of the construction. In effect, the right to keep the construction on the land is terminated.Cantin Problem There is a problem with the land under the superficies. Right as a servitude (right to use under Art 1111) exists only when construction exists. Yet superficies can exist per a K before the construction exists. Also doesn’t like the fact that it is called superficiary ownership Inconsistencies in the code 1. There is a right of the superficiary in the land, you can’t get around that, but it is not with respect to ownership. It is this right that is temporary and some sort of dismemberment. Could be perpetual if provided for. 2. Per 1111, it is supposedly extinguished. Not the ownership of the construction that is extinguished but rather the right to use the land. If didn’t have that right, encroachment per Art 953.  Transfer of construction through accession with money paid to the superficiary. But this is not an extinguishing of the right of ownership…..but…..rather a Transfer that happens. Thus, the tréfoncier must pay the superficiary. THERE IS A TRANSFER of the right of ownership of the construction. See Art 1110 -1116  What is temporary is the right of the superficiary in the LAND! Not the right of superficies itself. It is not extinguished, it is transferred.Before Construction is erected  It is limiting to see it the way it is formulated in the code. Right of superficies, according to Cantin, is in the land. Otherwise, could not have a right before the construction is built. If was considered a division of ownership (as per Art 1110), there must be a construction. Construction must exist. This is not the case with right of superficies. Can have this right before the construction is built.  E.g. poles for Hydro which land is expropriated for.B: Manner in which Superficies is constituted Art 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.Page 33 Civil Law Property Summary Kirk Shannon1. Return to the presumption that the person who owns the land also owns the construction. This must be divided in some manner. In the case of the right of superficies, the division is land and construction. 2. Transfer of right of accession: Cantin does not like this. There is no such thing as a right of accession – it is a mode of acquisition. But…this could mean that accession is paralyzed for the duration of the right of superficies. Thus, it is a transfer of the right to occupy the land of somebody else. 3. Renunciation of the benefit of accession: Illustrated in Morin v. GregoireCorp Stone Consolidated v. Pierre Desjardins Gestion inc. Jurisdiction CS Que [1998] Facts Stone signs contract to take lumber out of a piece of land with the ministry of forestry. Gets permission to build a garage on the land. Builders go bankrupt and there is a hypothec on the garage with Desjardins. Issues What is stone’s right in the garage? Does Stone have the ability to register a hypothec on the garage or is the garage owned by the government by accession. Holding Stone has an immovable real right in the garage which is a right of superficies. It therefore has the right to hypothecate. Ratio “La Propriété superficiaire” is a modality of ownership just like co-ownership - As per the Act regarding permits of forestry, the rights to the structures are immovable real rights. They come with a term in that, when the permit has terminated, the land must be cleared of all constructions. However, while still operative, Stone has a right of superficies on the constructions and can therefore hypothecate. C: The duration or term of the right of Superficies Per Morin v. Gregoire, if there is no term, the right of superficies exist so long as the immovable exists  Possibility of a term existing.  Term will often stipulate who buys from whom and what the price is.  If nothing is done, then accession will start operating again. Dismemberment being finished, acquisition will operate through accession.D: Could Possession enter into Superficies Can a superficiary be a possessor?  See Morin v. Gregoir  Person who had built submitted that they were in possession of the land. This was rejected by the court. They were not in possession in this case….but….according to Cantin, it is possible.  It is considered as a real right and therefore could have possession with respect to the right of superficies. It is NOT possession as an owner of the land but rather as a possessor of a real right of enjoyment or of personal servitude with respect to the land. Remember that possession is a question of fact. They DO have possession of the land (corpus, they pay taxes, etc and animus… o Accession is possible as titulary of a lesser right in the land after 10 years of possession. o Extinctive prescription also would apply with non-use even though not mentioned in Art 1114.E: Registration – not necessary Registration: In order to be opposable to third parties, the superficiary right has to be published (not required under the CCLC). This is not necessarily the case as per Developements de DemainProcureur Géneral du Quebec v. Les Développements de Demain inc. Jurisdiction C.S.Que [2001] – Vézina J. Facts The PG is claiming a right of superficies in some works (sidewalks, lamps, etc) and D claims to own them and wants an indemnity. The whole situation arose when the Min. de Transport and CN jointly planned and carried out the construction of those works—and then CN was privatized and a part of its land sold to D. Issues (1) Can a superficie be tacitly granted? (2) Need it be registered to be opposable?Page 34 Civil Law Property Summary Kirk ShannonHolding (1) Yes (2) No Ratio A tacit superficie is granted wherever knowledge (and contribution) and non-protest co-exist, and that right need not be registered to be opposable.  The Constructions were mutually agreed upon and mutually performed and both parties knew it was CN’s land and that the works would belong to Quebec—therefore the superficie is tacitly granted. o To this end, the Minister built the road on the land of CN with its knowledge – it even received contributions towards the construction by CN  There have been judgments in which, with respect to immovable real rights, registration was required for opposability. But, (a) other judgments have gone the other way by recognizing that registration of a tacitly granted right is a legal impossibility (b) a titulary of a superficie is both that and owner of the works and can be treated differently with respect to each and (c) the sale was made with reservations concerning these works.F: Termination of a right of Superficies  At the termination of a right of superficies Art 1116, 1117 apply only when intricacies are not provided for in the contract. They are suppletive in nature.Veronneau v. Ibis Investeringen S.A. Jurisdiction C.S. Que [2000] – Chabot J. Facts 1963 : Joachim Verronneau (uncle) sells his land to Rule excluding the buildings. He reserves the right of occupation on the land until three months after the final payment of the land. He agreed to remove the buildings in the three months after the final payment. 1965 : Verroneau (uncle) sells his house to Carrière ; not registered. 1966 : Rule sells land to IBIS, who finsihes payment le 6 novembre 1973. 1977 : Jean-Guy Verroneau (PL) buys the house from Carrière without publication. 1982 : IBIS allows PL a lease on the land. 1991 : IBIS refuses to renew the lease, but PL stays and takes action to buy tréfond. Issues Does the Pl have a right of superficies? Holding NO Ratio - Joachim Verroneau created a right of superficies. But....this was not perpetual b/c of the stipulaitons of the K. The right finished at the end of the payment (plus three months). - IBIS ignored the existence of PL until 1982 at which point uncle Verronneau should have removed the buildings. The lease in 1982 dealt only with the land and foresaw that, at the end of the lease, PL would have to remove the buildings. Were they not removed, it was provided for that the owner of the land would become owner of the buildings. The only right of the PL is to remove the buildings. - After 1991, Veronneau was only there by tolerance of the owner. The D did not give up any rights to him. - His purchase of the house in 1977 was, in effect the purchas of a movable object. - Art. 1116, 1117 are not useful as they are suppletive where the written K’s provide otherwise.PART VI: Dismemberments of Ownership Necessary that you have two real rights on the same object. Not to be confused with co-ownership where the same real right is shared by two persons.  The content of the owner’s right is going to be amputated of some benefit. That benefit is in the hands of the titulary of the dismemberment. That benefit is extensive – the extent is found in the title. If the title is not sufficient, go to the code.Dismemberment: CCQ now expressly recognised that concept (CCLC only indirectly mentioned via prescription) Art 1119 Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real Page 35 Civil Law Property Summary Kirk Shannon rights.  Dismemberments are divided into personal and real servitudes. Personal servitudes are usufruct, use, emphyteusis (not exhaustive). Called personal as rights of a person in a thing. Still real rights. Cantin doesn’t like that CCLC art 405 was taken away. CCLC 405 A person may have on property either a right of ownership, or a simple right of enjoyment, or a servitude to exercise.  Nevertheless this arrangement still prevailsReal Servitdue; Relationship b/n two immovables Art 1177 A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner. (2) 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. (3) A servitude extends to all that is necessary for its exercise. Personal to real rights  Must be a direct relationship b/n the titulary and the object. Barring that, will be a personal right.  Must show that the subject is not exercising the right through the owner (personal right). E.g. compare lease and usufruct at Art 1120 and 1851Distinction between personal servitudes and real servitudes: (Usufruct is the perfect example of personal servitude.) Real Servitudes Personal Servitudes Deal with real rights. Deal with real rights. Established on an immovable for the benefit of another Establishes a relationship for the benefit of a person in a immovable. (Opposable to everyone.) thing. Only on immovable property. On immovable or movable property. Can be perpetual. Must be temporary Chapter 1 – Usufruct and other similar Personal Servitudes 1120-1176 Defn: At Art 1120 Art 1120 Usufruct 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.  Object may be movable or immovable.  If immovable – usufruct is immovable…..as we might guess.  Nominate dismemberment of a real right and the first dismemberment.  It is necessarily temporaryCode has 51 articles establishing usufruct. Is it important as an institution?  Practically important  not really. Not very often established.  Important in two other ways o Materially: The right of usufruct is a very extensive right. While it lasts, the bare owner hardly has any benefit from his right of ownership. o Juridically: Gives the legal regime which is going to apply to other real rights of enjoyment where there is no codification. If have other lesser real rights of enjoyment which cannot find an answer to, go to law of usufruct. It is, in effect, the droit commun.P.B. Mignault (1896) Le droit civil canadien  -Same right of enjoyment as owner had o Direct relation to the thing, no personal rightsPage 36 Civil Law Property Summary Kirk Shannon1) Cannot demand delivery in good/usable state 2) Cannot demand repairs 3) =/= lessee, who has mere personal rights, and can demand upkeep and repair 4) Movable or immovable 5) Whereas all personal rights are movable 6) Have a real action in revendication 7) Right is opposableM. Cantin Cumyn 1990: De l’usufruit, de l’usage et de l’habitation  usufruct is a right exercised over a thing, exercised as a real right (443 CCLC). The usufructuary exercises his right directly and without an intermediaryhe cannot be deprived of access to the thing nor his physical possession unless it is (by exceptional measure) by disposition of law.  as with the right of ownership, the usufructuary real right must be over a corporeal object which is already existing. The sale of a usufruct over something which is being constructed is merely a promise of sale which only creates personal obligations between the parties.  the usufruct may seem like the right of a person who is the beneficiary of a trust, because both have rights to the fruits of something of which they are not the owner. Juridically, this is not the case, because the usufructuary earns the fruits by virtue of a real right over the thing whereas the beneficiary can only claim the fruits by virtue of his title as “creditor” of a trust. This leads to diverse practical consequencesthe degree of control that both can exercise over the thing producing the fruits, particularly.  some writers propose that a “time share” could be realized through the instrumentality of the usufruct. The true nature of the rights that the time-share agreements confer must me researched, taking into account the characteristics of the usufruct, notably that it is a right that is essentially temporary, but which gives the enjoyment of the owner himself.  the usufructuary can free herself from her obligations as usufructuary by abandonment (484 CCLC).  for opposability, the right must be registered.  the right to possession flows from 443 CCLC (1120 CCQ) which compare the situation of the usufructuary to that of the owner & 465ff CCLC (1145ff CCQ) which say that possession can be removed upon failure to furnish a security. Other than by express provision of law, the usufructuary can no more be deprived of his immediate access to the thing than can the owner. Thus ability flows (for each) from the USUS that they exercise over the object. The bare owner, however, exercises only corpore alieno possessionhe cannot claim physical control over objects subject to usufruct.  the powers of administration of the usufructuary are those of normal administration [these are needed in order to perform the obligation to preserve the thing]. Acts of alienation are generally prohibited.S.1 Content or nature of the right of usufructuary Right of use and enjoyment. As per Art 1120 above.  Usus: Right to use the object. While usufruct lasts, has complete and exclusive use of the object with the obligation to preserve the substance. Ie. Provided the destination is maintained (but, can make it into agricultural land as this in not considered a change in destination). o Has the object physically within his control. Art 1125  Bare owner must cease any act which prevents usufructuary from fully exercising his right.  Fructus: As per 1126. Fruit and revenue provided by the object. Owner of the fruit and revenue. (For defn of fruit and revenue see art 909, 910 and 1129,1130) Art 1129 The usufructuary is entitled to the fruits attached to the property at the beginning of the usufruct. He has no right to the fruits still attached to it at the time his usufruct ceases. Compensation is due by the bare owner or by the usufructuary, as the case may be, to the person who has done or incurred the necessary work or expenses for the production of the fruits. Art 1130 Revenues are counted, between the usufructuary and the bare owner, day by day. They belong to the usufructuary from the day his right begins to the day it terminates, regardless of when they are exigible or paid, except dividends, which belong to the usufructuary only if they are declared during the usufruct.Page 37 Civil Law Property Summary Kirk ShannonArt 1124(2) Usufruct also bears on all accessories and on everything that is naturally united to or incorporated with the immovable by accession.  WRT trees and minerals. Substance diminishes the value and therefore usufructuary must keep them with stipulations. See Art 1139-1141.  Administers the object of the right. Can lease the object (see art 1134).  Also, see Art 1140 wrt sylviculture and agriculture. Transferable:  It is transferable unless explicitly stated. Also provided for in art 1135 Art 1135 The usufructuary may transfer his right or lease a property included in the usufruct.  But….what is usufructuary selling? He is selling the usufruct. NB. The term is not effected.  Also see Art 1136.Duration  It is by essence a temporary right. It is not possible to stipulate that it is perpetual. Art 1122 Usufruct may be established for the benefit of one or several usufructuaries jointly or successively. Only a person who exists when the usufruct in his favour opens may be a usufructuary. Art 1123 No usufruct may last longer than one hundred 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 thirty years. Art 1162, 1171  If nothing is explicitly stated, the usufruct will end with the life of the usufructuary. There is a maximum of 100 years.  If a moral person, the suppletive term is 30 years  Patault  Perpetual usufruct would completely destroy the right of ownership. Therefore must be temporary. o Distinguished from the French law  In Quebec, if there is a 50 year term and the usufruct dies at 30 years, it is transferred to heirs. In French law, always only as long as the life of the usufructuary. When the term ends, usufruct is extinguished.  Also may be extinguished by: o Non-use (1162) o Diminishes the value or abuse of the dismemberment (Art 1168) o Extinctive prescription (art 1162)Larocque v. Beauchamps Jurisdiction C.S. Que [1975] – Bergeron J. Facts Roland wrote a will, giving a usufruct to B for the remainder of her life. The bare owners are the sons who now want to get rid of B. One son’s wife lends sons money and puts a hypothec on the house. They demand that B make the payments since as a usufructuary, she must pay for the house’s upkeep (includes taxes, charges). B refuses. PL is seeking to be declared sole owner of the immovable. Issues Is usufruct still valid? Holding Yes Ratio The rights of a usufructuary remain in force even when the ownership of a property changes.  If a hypothec is on the bare ownership, and it is seized, the usufruct is not affected. 1. Usufruct was granted before hypothec was put on it. The change of ownership does not affect usufruct, and B does not have to leave. 2. B does not have to pay interest on the hypothec, as it was made after usufruct was granted. B does, however, have to pay normal upkeep of property.Page 38 Civil Law Property Summary Kirk ShannonS.2 Legal Regime of the Usufruct Usufructuary is bound to preserve the substance of the object as per Art 1120. This means, the usufructuary must remain within the title. Title obliges him to preserve the substance.  Must abstain from acts which decrease the value of the object. o Exceptions exist: Trees and agriculture etc. from art 1140.  Maintenance  Art 1151. This only extends to repairs but….does NOT extend to major repairs (unlike emphyteusis). Must advise bare owner if major repairs are required. (see art 1151-1153)  If makes improvements, can get some indemnity but not much….see art 1137, 38. (same as possession)  Taxes must be paid by the usufructurary.If the Usufructuary does not maintiain, opens himself to art 1168. Art 1168(1) A usufructuary who makes misuse of enjoyment, who commits waste on the property, who allows it to depreciate or who in any manner endangers the rights of the bare owner may be declared to have forfeited his right. Who is liable where major repairs are not done under art 1467? Not a simple question. It deals not only with 1467 but also in many other articles. Look to Cantin’s article at CBp. 398 at para 97-99. Also, with respect to a falling building, see Art 990 which refers directly to the owner.At the end of the usufruct  It is an extinguishing of the right. It is not considered a transfer. Usufruct of a Consumable thing: QUASI-USUFRUCT M. Cantin Cumyn (1990) Le Quasi-Usufruit  Usufruct on consumables, where usus and abusus cannot be severed o Quasi-usufructuary assume risks of loss and damage  2 interpretations of obligation of restitution o 1) In kind (old) o 2) In kind or the value (preferable, allocates risk of increased value to the usufructuary) o Can fix the obligation of restitution in the acte constitutive o Can apply both to consumables by nature or consumables by destination  Consumable objects: Seen at art 1127.  Solution is a quasi-usufruct. Accommodation of this specific situation. How does it operate Art 1127 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.  Cantin thinks this does not adequately describe the quasi-usufruct. It is really that usufructuary OWNS the object. Has the obligation to replace the object with a similar object or, if that is not possible, the value of the object.  Stocks, shares, securities are not the ideal subject of a usufruct. (Art 1131-1134) Often involves sale of the object which usufructuary cannot do  Result Art 1128 Art 1128 The usufructuary may dispose, as a prudent and diligent administrator, of property which, though not consumable, rapidly deteriorates with use. (2) In the case described in the first paragraph, the usufructuary shall, at the end of the usufruct, return the value of the property at the time he disposed of it.  Why does it say “dispose” asks Cantin  if he does sell, must render the same thing or the value as per Art 1167. If usufructurary lets the thing disappear naturally then does not owe the bare owner anything. She asks, so why would the usufruct sell the thingUsufruct on a non-corporeal object:  Previously, have seen the usufruct as a real right. Therefore must have an object.  But…what about a secession where there are shares and possible intellectual rights passed as a usufruct. Here Page 39 Civil Law Property Summary Kirk Shannon the usufruct changes characterisation. Divide the benefits b/n bare owner and usufructuary. o Usufructuary has a right to the interest, revenue of IP, etc. o E.g. Sum of money owed to the creator of the usufruct. The debt will be paid to the usufructuary and will operate in the same manner as a quasi-usufruct. It is a consumable thing and will therefore have to be handed over to the bare owner and the termination of the usufruct.S. 3 – Other similar personal servitudes 1172-1176 1. The right of use:  Treated as similar to usufruct. Restricted  Extent of the right is measured by the need/requirements of titulary and family. Used for a family link.  It is not transferable/inalienable Art 1172 A 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. Art 1173 The right of use may not be assigned or seized unless the agreement or the act establishing the right of use provides otherwise. If the agreement or act is silent as to whether the right may be assigned or seized, the court may, in the interest of the user and after ascertaining that the owner suffers no damage, authorize the assignment or seizure of the right.  If not mentioned in the other articles of right of use, go back to the  Right of habitation is what was in old code. Now only speaks of right of use. Said it was effective as long as it was registered.Banque Nationale du Canada v. Gravel Jurisdiction C.S. Que [1984] Facts Mother grants a right of habitation for her daughter for $1. It is stipulated in the K of usage that payments (taxes and maintenance) would be made by the bare-owner. Bare ownership is seized by the bank who wishes to get out of payments usually made by user. Issues If the bare ownership is seized, will the new bare owner be bound by the regime of the original title? Holding Yes Ratio - The intention of the parites was to furnish to the seller with an obligation that was total with free conditions. It wished to put all charges in the hands of the bare owner. - The bank must assume these charges as they were real and are part of the title. Note New code – only speaks of right of use and not right of habitation. Cantin on Gravel This interpretation is too generous of the contents of the right of habitation. The court concludes that the right of habitation (now the right to use) was a free right in this case. It took the analysis too far by saying that the payments would be made by the bare owner and would include payments of maintenance and taxes.Chapter II: Emphyteusis 1195-1211, 1040, 1060(2), 1082  A personal servitude or dismemberment.  ‘Emphyteutic lessee’ is a dissatisfactory term because not always a lease.  NOW - In English, the term “emphyteutic lessee” remains for the person, but all references to bail/lease have been eliminated from the French text. Cantin doesn’t like “lessee” b/c it is a real right. She will use “emphytéote” CCLC 567 Emphyteusis or emphyteutic lease is a contract by which the proprietor of an immovable conveys it for a time to another, the leasee subjecting himself to make improvements, to pay the lessor an annualPage 40 Civil Law Property Summary Kirk Shannon rent, and to such other charges as may be agreed upon. Art 1195 CCQ 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.  Used to be the vocabulary of a personal right relationship. Is now more compatible with being a dismemberment of ownership. S. 1 Nature of Emphyteutic Right  HISTORY: This concept goes back to Greece: it was imported into the feudal system where there was no distinction made between real & personal rights, therefore its characterisation did not matter. o French codifiers thought that it was unseizable from feudal tenure, so excluded was from the Napo. Code. Later, it was placed in the French Rural Code. o In the CCLC  Was dealt with in a confused manner. Still dealt with in the section on property. Still used the former language of lease which has not been completely eliminated. o Also, analysis of the nature of the right – tendency was to consider the emphytéote as a temporary owner with extensive obligations. Created an ambiguous situation as the restrictions were so severe that it looked more like a debtor-creditor relationship.  New Code: THE EMPHYTEUSIS IS CLEARLY CLASSIFIED AS A DISMEMBERMENT (1119) and GIVES A REAL RIGHT OF ENJOYMENT of an immovable (1195).  THE BARE OWNER IS STILL ON THE SCENE.Duration  K must expressly indicate the duration. If they forgot to stipulate a term (though not likely). Is it going to be minimum length (10 years), maximum (100 years).  Minimum of 10 years and a maximum of 100 years. Art 1197 The term of the emphyteusis shall be stipulated in the constituting act and be not less than ten nor more than one hundred years. If it is longer, it is reduced to one hundred years.  At the end of the emphyteutic lease, the bare owner recuperates the immovable and the constructions thereon without the need to pay an indemnity.  Cannot be renewed. Another K must start again.Historical use  Used in the realm of agriculture. Someone else obliged to develop the land.  The word means grafting or planting.  Today – Means of financing land development. Context is commercial. Owner of the land does not wish to develop land himself and a developer who cannot buy the land.  In Montreal – PVM. Owner is CN. Also Nun’s Island.Bernard Weissbourd v. The PSBGM and Montreal Catholic School Commission Jurisdiction [1984] QCA Nolan J. Facts The appellants were the lessees under a 99-year lease of real property. The lease was expressed to be an emphyteutic one, but contained provisions requiring the lessees to pay taxes and other charges although such taxes could be contested on behalf of the lessor. The lessees were required to insure immovables and to allow free access to the lessor. The lease also contained restrictions on the lessees' rights to assign and sublease. The effect of an emphyteutic lease was to allow listing of the lessees as individual property owners on the municipal assessment role. Subsequently the local school board ordered the municipality to assess the appellants at a higher rate, since the lessor was a corporation, and on the basis that the lease was not emphyteutic. The appellants exercised their right of complaint and ultimately appealed.Page 41 Civil Law Property Summary Kirk ShannonIssues Is the lease an emphyteutic lease? Holding No Ratio  Held that lease was regular lease, not emphyteutic lease b/c had too many restrictions on lessee’s freedom (incompatible w 569-570 CCLC). Calling it emphyteusis does not make it so.  Emphyteutic lease cannot so severely restrict the lessee’s right to alienate the property in sub-leases.  This decision had a huge commercial impact, and statute was passed nullifying it.  It is codified in Art 1200 of the CCQ o Note still allowed to have payments but do not necessarily have to be annual. (see Art 1207)S.2 Requirements for constitution (compare w/ Usufruct and Superficies) Object: Necessarily an immovable. It is therefore an immovable real right subject to publication and opposability. Real right of use and enjoyment  Emphytéote must be granted a real right of use and enjoyment. Differences b/n old and new Code 1. Nature of the Right: In CCLC, there is a contradiction. On the one hand says “convey” or “céder” but is still treated as a lessee. As per Rohan, non-harmonious. But… a. Constitution of an emphyteutic right is an act of alienation. It is not an alienation of ownership but rather a part of the right. The right of ownership is reduced but it is still there. This is similar to the constitution of a usufruct. We still use the word alienation. 2. Annual rent: As per CCQ, no longer an obligation to pay an annual rent. Still can be as per Art 1207. See Onerous vs. Gratuitous.What does he get  Different from usufruct, but, still gets usus and fructus. Has the obligation to improve or increase the value of the immovable. Must considerably do so. This is the distinguishing characteristic.  Must also make major repairs (unlike usufruct) and maintain.  Leads one to the conclusion that the granting of an emphyteusis is an onerous K. Usufruct can be gratuitous and very often is.Comparison with Superficiary  Look to Art 1209-1210 for then end of the emphyteusis where no indemnity needs to be paid. This is very different from Arts 1116-1118 for superficiary.Onerous or Gratuitous  Art 1195(2) does not specify where it is by onerous or gratuitous K. Could be either. This was surprising for Cantin.  She is surprised also that it is possible to constitute by will which would be gratuitous…but would oblige a legatee to invest in something unless renounced.  Could annual rent mean that it is gratuitous? NO according to Cantin. Used to be a symbolic thing which had nothing to do with the value of the enjoyment. Used to be a minimal amount. Purpose was the assurance that the emphytéote constantly recognised the superior domain of the owner on the land which would make sense due to the duration of the emphyteusis. WAS NOT COMPENSATION. Alta Mura Construction Inc. v. La Société des parcs de Sciences Naturelles du Que Jurisdiction [2003] QCA Facts Province grants an emphyteutic right on public domain. Emphytéote is bad in business and the creditors want to seize the construction. Issues Is the right of the emphytéote seizable? Holding It is seizable. K of emphyteusis is onerous and not gratuitous. Ratio 1st argument fail  Land itself was not seizable but this does not hold that emphyteusis was not seizable as it is separate right. - 2nd argument was that K of granting was gratuitous with stipulation of inalienability bringing in Page 42 Civil Law Property Summary Kirk Shannon application of art 1212  prohibition to alienate only in gratuitous K. As was inalienable, it was argued, it is unseizable per Art 1215. This failed. The court says that the K of emphyteusis is onerous and therefore art 1212 does not apply Debated now in doctrine. H.L.P. Société en Commandite v. Ville de Beauport Jurisdiction [2000] Q.C.A. Facts Right of emphyteusis on the construction are ceded to H.L.P.. Ville wanted to apply a transfer tax stipulating that a sale of an immovable had taken place and not a just a transfer of a right of an emphytéote. Ville says that the bare owner has renounced the right of accession on the construction. Issues Is there something like superficiary ownership of construction as well as emphyteusis for the emphytéote? Holding NO – emphytéote is not he owner of the construction. Therefore, no sale of ownership has taken place. Ratio With respect to the construction, the emphytéote is not the owner of the construction. - Link trying to be made b/n 1195(1), Art 956, Art 1110 dealing with emphyteusis, ownership, superficies respectively. - Builds for the benefit of the bare owner just as much for his own benefit. - At the end of the dismemberment, the bare owner has nothing to pay. - Art 956 continues to apply for the benefit of the bare owner. - Therefore, emphytéote is not owner and there is no right of superficies in the construction. Debated now in doctrineSun Life Assurance Co. of Canada v. 137578 Canada Inc. Jurisdiction [2000] Q.C.A. Facts Emphytéote confers its right in the building to the benefit of Sun Life to discharge the hypothec. 137578 requires SL to pay annual dues and fulfill the obligations of the emphyteutic lessee, while SL claims the lessor has no choice but to cancel the emphyteusis, as it has no intention of paying the annual cost. Issues What about the obligations in emphyteusis. Is the creditor (Sun Life) now obliged to follow the K? Holding Yes Ratio Creditor is bound by the same obligations as the party who signed the emphyteutic K – cannot get out of term of the emphyteutic lease.  This transfer means that SL acquires the rights and obligations of MIL, including the obligation to pay the annual rent to the owner.  Cites LeBel, Mignault, and Baudouin; most effectively Mignault:  L’acquéreur de l’immeuble prend tout simplement la place de l’emphytéote; il doit donc server au bailleur la même rente et accomplir les autres conditions stipules par le titre constitutive de l’emphtéose, car l’alinéation se fait sans préjudice aux droits du bailleur. o Showing that it is a real right in the immovable.Chapter III: Real Servitudes 1177-1194S. 1 Definition, Characteristics and constitution of a real servitude Return to Seigneurial tenure (CBp. 196-197)  Not really changed much from old code (apart from art 1189-1190). Better expressed than before. Patault (CBp. 18-19)  Dans son functionnement, la servitude exclut toute obligation personnelle entre les propriétaires des deux fonds concernés.  Une fois la servitude constituée entre fonds servant and fond dominant, les deux propriétiares concernés sont Page 43 Civil Law Property Summary Kirk Shannon juridiquement des étrangers l’un pour l’autre. Unlike the usufruct, it is of very great practical importance. It is a source of court proceedings. Art 1177 A 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.  Very different from usufruct – right of a person to the land of another bare owner  Real Servitude is a relationship b/n immovables.Requirements  Dominant land and servient land. Quite possible that one is a construction as the article says immovable and not land.  Two immovables must be owned by two different owners.  For the dominant land, this is a real right, and it creates a charge/obligation on the servient land.  The servitude will increase the value of the dominant land and reduce the value of the servient land.\  NOT a requirement that the two immovables be side-by-side. But….they must not be too far away from each other to establish a link by the charge. The concept of a servitude provides a mechanism whereby a relationship or connection between two lands or immovable properties may be created.  It is important to clarify the NATURE OF THE CHARGE to distinguish it from the obligation and the “real obligation”. Usufruct & use may be either movable or immovable, but like emphyteusis, the servitude is ALWAYS AN IMMOVABLE RIGHT.Characteristics  Necessarily an immovable real right (same as emphyteusis).  Must be registered in order for it to be opposable to people who afterwards acquire the servient land. Registered as per art 1182.  Real servitudes are the second sort of dismemberments (see chart). This is no longer apparent from art 911 or art 1119 – there is no subdivision b/n rights of enjoyment and real servitude (personal and real servitudes) any more as there was in CCLC 405. Nevertheless it still operates.  Must be seen as objectively benefiting the dominant land. o Whereas in personal servitude, it is a right given to a person on somebody else’s land. . No requirement of owning an immovable o Whereas, a real servitude is a benefit which relates to a dominant land directly and charges the servient land as a consequence.  Flows from the definition that the charge which results from the constitution of a real servitude cannot be severed from ownership of the dominant land. Remains with the title of both the dominant and servient land upon transfer of the right of ownership. o In order to exercise a real servitude, one must own the dominant land. Without ownership, must negotiate a personal servitude or a debtor/creditor relationship.  Note, if either dominant or servient land is divided, see art 1187, 1188Duration  No disposition directly dealing with the duration of the real servitude. It is acknowledged that there can be a term (art 1191) but that does not mean that there must be term.  So….the real servitude is considered to be a perpetual dismemberment failing a term attached to the real servitude.Page 44 Civil Law Property Summary Kirk Shannon Can be extinguished by non-use (10 years.)  Cannot be a lifetime solution (ie the length of the life of a person) as it has nothing to do with the owners of the land but with the land itself.  As it is linked (or is an accessory) to the right of ownership, it follows that it is perpetual. Can be extinguished by non-use.S.2 Nature of the charge which may constitute a real servitude Note the attraction of a real servitude for the dominant land. It follows the title on and on…Can anything be the subject of the charge? NATURE OF THE CHARGE: the point of departure is that the real servitude MUST HAVE the substance of a servitude in order to benefit the dominant land.  1177(2) makes a requirement that the owner of the servient land must: 1.) tolerate certain acts of use on the servient land by the dominant owner (POSITIVE SERVITUDE) 2.) abstain from exercising certain rights inherent in ownership. (NEGATIVE SERVITUDE) Therefore, there are both positive (right to draw water, right to drainage, right of passage/way) and negative (a view, preclusion to build, preclusion to surpass a particular height) servitudes.  The CCQ also mentions continuous [e.g. a view] & discontinuous servitudes [e.g. rights of way,] (Art 1179).Servitudes can be used just to modify a codal default regime re: neighbours and newly sub-divided lots of land.  Art 979 – deals with the right of lower land to receive water flowing naturally from higher land…Could be modified with a servitide…  Art 980 – deals with use of a spring: can also have a servitude to forego water use  Art 983 – deals with roofs – can use a servitude to modify the obligations…Obligations on the owner of the servient land  It is not a direct obligation on the owner of the servient land. Must refrain from doing some act which, otherwise, he wouldbe able to do. (e.g. height of the building, etc.)  Art 1177 does not say anything about obligations on the owner. There is a limitation b/c of the elimination of feudal tenure there can be no obligation attached to a charge (as in the Act to abolish Seigneurial tenure art 59).  Cannot be the main purpose of the K. In the case of the servitude of way, the servitude of way is the charge.  Prohibited by legislation that eliminated the seigneurial tenureArt 1185  possible to free from the charge by abandonment of all or part of the servient land.Obligation can be an accessory to the servitude (ie maintenance)  Art 1178 permits obligations to be attached to a servitude – and Art 1184 & 1185 complement this by saying that it IS possible that the servitude stipulates something that requires some work or maintenance to do (ie Positive Action).  See also art 1191.  Unless otherwise stipulated, the owner of the dominant land is obliged to maintain.ASIDE: If the servitude comes along with an obligation for the owner of the servient to maintain, this is called a REAL OBLIGATION (see CBp. 464-465). This will be passed to the new owners of the servient land.Abandonment of the servient land Art 1185 The 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.Rules for ServitudesPage 45 Civil Law Property Summary Kirk ShannonOne must look at substance, not form, to see what is possible as a negative real servitude:  One must ask is this essentially the type of charge that is a real servitudeIS IT BETWEEN DOMINANT & SERVIENT LANDS?  DOES IT BENEFIT THE DOMINANT LAND? Must be. Not any prohibition can be the charge of a real servitude. Must have relationship b/n the two lands.Case: Zigayer v. Ruby Foos, there were 2 lots and one owner: one land is sold and a prohibition against operating as a food vendor is set up as a “real servitude”.  The court looks for: (i.) Clear expression of which is the dominant & servient lands, and an indication that the servitude benefits the land and not a person; (ii.) whether the servitude offends public order. Both are found & the servitude is found to be valid. Cantin-Cumyn: does not agree: objectively and substantially, the prohibition here benefits only the current business. Also, with respect to public order, this is essentially a non-competition clause, and these are usually only given effect if it is limited geographically and in time [if this is a real servitude, it will run with the land INDEFINITELY.]  It is in substance a perpetual non-competition clause which should be against public order.  It is not to the benefit of the land, but to the owner of the land.  Also see Standard Life Assurance Co. v. Centre Commercial Victoriaville. This is NOW NOT considered a real servitude but rather a non-competition clause.Cadieux v. Hinse Jurisdiction [1989] Q.C.S Facts The parties put in mutual clauses that qualified a right of first refusal as a real servitude. One partie rents his land for 99 years. The PL wants the right of first refusal to be qaulified as a real servitude and that the court recognises the rental as a disguised sale. Issues Is the understanding a personal obligation or a real servitude? Holding Held that servitude to ensure right of preference in buying b/w two neighbours was a personal obligation. Ratio Right of pre-emption (or first refusal) is not considered a real servitude. It is an obligation on the person not to benefit the immovable.  Does not facilitate the exploitation of the immovable.  Embellishing the immovable. Does not do this either. Calling it a ‘servitude’ is not sufficient if it lacks the characteristics thereof.- o Servitudes cannot impose positive obligations, which is exactly what these arrangements demand (must offer to neighbour 1st)-the relation is established between persons, not land-not even a personal servitude because the relation to the land is indirect for both parties o Must look at the clauses around those paragraphs which deal with the alleged servitude to determine the intention of the parties at the formation of the K of real servitude. Existence of a servitude is not presumed but must be proved by he who invokes it.Epiciers Unis Métro-Richelieu Inc. v. Standard Life Assurance Co. Jurisdiction Q.C.A [2001] Facts  Standard Life applied to the court for an order that would declare that a non-competition clause in an agreement between the Commercial Centre and 310555 Canada inc. was not applicable.  Standard had a hypothec on the Commercial centre. Metro entered into an agreement with the Commercial Center which set out a non-competition clause that prohibited any other grocery store from opening in the Commercial Centre.  Shortly thereafter, the Commercial Centre defaulted on its loan, and Standard Life exercised its rights under the hypothec.  Standard Life argued that the agreement between the Commercial Centre, 310555 and Metro- Richelieu, was not a servitude but merely a personal obligation binding on the parties to the agreement only. The Commercial Centre and 310555 argued that a servitude had been created.Page 46 Civil Law Property Summary Kirk ShannonIssues Had a servitude been created? Holding NO servitude  Personal obligation Ratio Commercial non-concurrence clauses are not real servitudes because (a) they benefit not the land but the business and (b) in virtue of being attached to the business, they lack the perpetuity necessary for real servitudes (i.e. attachment to the ownership of the land—at least for the duration of a term)  The agreement cannot be considered a servitude as it does not confer a benefit on the dominant land but rather a direct benefit to the appellant  The agreement is extinguished at the end of the lease  contrary to the principle of perpetuity that is attached to the servitude (unless a term is attached in terms of years).  The agreement is not a personal servitude either : it is not exercised directly on a immovable without an intermediary. The servitude cannot impose principally on the owner of the land who must serve an active role.  Demanding the execution of a prestation is a personal obligation. Note This is directly against Ruby Foo’s judgment.What a court considers in determining whether a servitude exists There is a general reluctance to recognise the existence of a servitude, since it is permanent unless otherwise stipulated.  As per Cadieux, the language must be clear and unambiguous. They will interpret it strictly and you cannot presume that a servitude exists. Servitudes must be proven. Any ambiguity will favour the servient land because of the encroachment of its freedom.  However, in 1177, the terms “a servitude extends to all the elements necessary for its exercise” allow for interpretative freedom. Also, 1184 allows owners to do whatever is necessary for the preservation of the servitude subject to the return of the land in the same condition at the expiry of the servitude. So, the servient owner’s freedom is not completely expropriated. (1) Formal/language based criteria  If the names of the owners are indicated in the agreement it is unlikely that a court will hold that a servitude will exit. The servitude exists between immovables, not persons.  Name of the immovables and characteristics such as its address, size, or dimension is a good sign. This emphasizes the owners’ desire to establish a relationship between the immovables.  The words servitude, dominant land, servient land, permanent (or term) are very important. (2) Intention of the parties  Did the parties intend to create a servitude?  Have they treated the immovable as a servitude over the years? (3) Substantive Criteria  To whom is the benefit accruing the land, or its owner?  Is there an objective benefit to the land? Will the benefit exist regardless of who owns land, or what they do with it?  Does the servitude increase the market value of the dominant land?S.3 Legal regime and extinction Title Required as the legal basis of a real servitude  Juridical act (K, will) is required Art 1181 A servitude is established by contract, by will, by destination of proprietor or by the effect of law. (2) It may not be established without title, and possession, even immemorial, is insufficient for this purpose. Art 1183 Servitude 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.  Acquisitive prescription is not possible (ie possession plus time, even immemorial, is no enough).In order to have a valid real servitude must have a title. Title must be:Page 47 Civil Law Property Summary Kirk Shannon Valued title (cannot be defective title)  Does not have to be a written title. Can be an oral agreement if can be legally proved. (see Marler at CBp. 447). If cannot prove the agreement will be held to have no title.  In title must have  description of dominant land, description of servient land and description of servitude. Higher importance placed on description of dominant land (CBp. 448 Marler)Aside: Useful to have writing (title) for evidence, registration, requirement of validity (condo, real servitude). Registration comes into play only for opposability and for it to carry onto the next owner Interpretation o In cases of doubt, the servitude will be construed in favour of the liberty of the servient land.Hesitation of the courts in declaring Real Servitude.  Real servitudes are real rights and are considered to be perpetual.  Permanently effects the right of ownership of the servient land. Courts are very hesitant to conclude that there is a real servitude. Where possible, the court will conclude that it is a real right of enjoyment or a personal obligation. Will choose a lesser characterisation. Destination of the proprietor  See Marler at CBp. 448. Situation of fact. See Art 1181,3. Says by “effect of law” which could be a response to Art 1111 (an article that Cantin does not like as there is a reference of the superficiary’s right to use the land for the construction….but this is not a benefit but a…..blah blah).  It is supposed that at the moment when one immovable is separated from the other, the parties have agreed tacitly that the state of fact established by the proprietor before such separation shall be maintained.  Per Marler “as the act by which a person establishes b/n two properties which belong to him a state of fact which would constitute a servitude, if it concerned two properties belonging to different properties.”  Own two lands, build close to the old property line (which would constitute a servitude) this will be up held b/c, at the time, the proprietor was one and the same.  Eg. If two lots become owned by the same owner, per art 1191, the servitude will become extinct. If, however, owner resells the second lot, the real servitude can be claimed by the new owner if: . Writing of sorts of the old servitude (could be title or surveyor’s plan) . Situation of facts on the ground (physical passage still exists). Duration:  Perpetual if nothing else is in the title.  Non-use brings extinctionEnclave Art 997 The owner of land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or 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.  Note that the following articles detail which neighbour must give the passage. See Art 1193  The mode of exercising a servitude may be prescribed just as the servitude itself, and in the same manner. o Refers to the manner in which it is exercised on the immovable. Referred to as “l’assiette”. Mode is the manner in which the servitude is carried out on the ground. It may not fit the description in the title. After 10 years, this new mode can be prescribed.Whitworth v. Martin Jurisdiction [1995] Q.C.APage 48 Civil Law Property Summary Kirk ShannonFacts Martin is owner of a piece of land enclosed in the sense of art 997 (no access to the public way). Before the «morcellement du terrain » and the purchase by Whitworth, Martin used a passage that took him to the private road that can now only be accessed by crossing the land of Whitworth. Whitworth refuses passage and access to the road and, therefore, Martin must pass by another road at the good graces of another neighbour. Issues Does Martin have a right of way? Holding Martin’s land is enclosed and therefore has a right of way over the Whitworth’s land. Ratio - The private road is essentially a public way b/c of its use. - The servitude of passage cannot be acquired by prescription. But, the mode of usage and «l’assiette » of this servitude can be prescribed after ten years as per Art 2917 (previously 30 years). The passage of the respondent has been used since 1946. - The route that the respondent has imprinted is used in an act of courtesy of the neighbour and this route is an «issue à la voir publique» insufficient, difficult or impassable as per Art 997. Cantin It’s a right of passage but it is not necessarily a real servitude of passage (historically we called all rights of passage servitudes). On a fait une sorte de prescription sur l’assiette de la servitude mais on a acquis le mode d’exercice de la servitude et non la servitude. Art 997 : la servitude réelle n’est pas le seul moyen pour régler l’enclave. Cantin on Whitworth v. Martin  Cantin has a problem with the link made here b/n real servitude and right of passage in cases of enclave. In cases of enclave the right of passage cannot be extinguished. It will always be there. However, real servitude can be extinguished for non-use after 10 years.  This is not a question of real servitude but rather a Art 997 issue  enclave. Might use real servitude to solve the problem. In which case, unlike other right of passage which is not permanent, it would be perpetual as it would then have been deemed a real servitude – it would always remain (except if term). Right of passage would cease to exist if the situation of enclave ceases to exist (1001).Duration of right of passage  Is a right of way permanent  Art 1001 in cases of enclave.Auger v. Grenier Jurisdiction Q.C.A. [1984] Facts K that perpetually restricted land use to preserve the character of an area used for secondary residences and to prevent noise and pollution on a lake Issues Does the K constitute a real servitude or a personal relationship? Holding Personal Relationship and not a real servitude. Ratio Personal servitude, not a real servitude. To be a real servitude, the service must be imposed not on a person nor in favour of a person, but between immovables. Title creating it must be drafted to indicate its real character.  To be a servitude a charge must (a) be manifestly intended (implicitly or explicitly) to indicate its real character and (b) subsist between 2 immovables.  Mere perpetuity does not indicate a real servitude Note The court will always choose the interpreation that is less encombering on the land.Ch IV: Is there Numerus Clausus of Real Rights? 911, 1119 Question of determining whether there are inominate real rights which are not dealt with in the code or in legislation.Remember.  Real right as a relationship b/n a person and an immovable. Structured around the idea of unitary ownership. This means that there is only one single concept of ownership in our law.  Ownership, as a point of departure, allows for all benefits of the property. It is perpetual, not revocable….etc.Page 49 Civil Law Property Summary Kirk Shannon Rights (in the real realm) are transferableOne must infer that an inominate real right is going to be a lesser real right than ownership. We call these dismemberments of ownership.  Don’t forget possibility that ownership be in the hands of several people at the same time (indivision of ownership).  B/c of our unitary idea of ownership indivision was not possible. Even now, limit to 30 years in indivision, although allowed perpetually in condos. Art 1119 Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights Art 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. Commentaires Cet article reprend en substance l’article 405 CCLC……et qu’on peut être titulaire des droits on Art 911 énumèrés, seul ou avec d’autres, pour couvrir les cas de copropriété. Can any dismemberment be created in a K?  CCLC used to have an article CCLC 405 CCLC 405 A person may have on property either a right of ownership or a simple right of enjoyment or servitude to exercise.  Article no longer in the CCQ. Either have a right of ownership, real right to enjoy or real servitude. Now must be classified as either real servitude or real right of enjoyment. i) Real Servitude  Under real servitude, obligation to tolerate or obligation to abstain.  There are NO LIMITS TO THIS under real servitude. See Art 1179 where it says “such as” which indicates not-exhaustive. ii) Real right of enjoyment (which is a personal servitude)  Note that this does not include right of superficies (necessarily, but she thinks it should be….).  Not clear as to whether you can add more than the ones listed.  This is where the issue is raised. Banque Nationale du Canada v. Gravel Jurisdiction C.S. Que [1984] Facts Mother grants a right of habitation for her daughter for $1. It is stipulated in the K of usage that payments (taxes and maintenance) would be made by the bare-owner. Bare ownership is seized by the bank who wishes to get out of payments usually made by user. Issues If the bare ownership is seized, will the new bare owner be bound by the regime of the original title? Holding Yes Ratio - The intention of the parites was to furnish to the seller with an obligation that was total with free conditions. It wished to put all charges in the hands of the bare owner. - The bank must assume these charges as they were real and are part of the title. Note New code – only speaks of right of use and not right of habitation. Cantin on Gravel  Modifications were seen to be placed also on the next person to acquire the immovable. Thus there can be modifications to the right of ownership.  Thus it is an inominate personal servitude  it is under right of use here. Right to fish Cannot be the right of use as the right to use is not transferable per art 1173.Page 50 Civil Law Property Summary Kirk ShannonIf the characterisation of real rights depends on their being in the code (ie nominate), then the entire regime must be modified. This is not the case. Can modify the right of ownershipThadee Duchaine v. The Matamajaw Salmon Club Jurisdiction SCC [1919] Facts Fishing rights on a river which is a non-navigable river and the title of the land (land owner) on the relevant side, is ancient title grant (pre-date 1911). (see Art 919 which state that pre this date, it was possible for owner to own river bed to the middle of the river. If own the bed, you can use your land for fishing. - Grant to anther fishing rights. Question now is – what is the nature and duration of that right as they were not specified in the title and had not been registered. Issues Duration of the right and whether it can be transferred Holding Right of personal servitude  usufruct with a term of life of the titulary. Implication: No inominate Real Rights Ratio - Must characterise the right of ownership…what sort of a right was being transferred. - Could have been personal relationship. Excluded b/c the manner in which the right was granted – was transferred and did not create obligations. Was an onerous K of transfer – right to fish being granted and price paid was another piece of land. K of exchange. Therefore not lease. - Thus, must be in the category of real right. - What sort? Right of ownership – no, ownership is not only use of land for fishing but whole content of title. - Real servitude  No, no relationship b/n two immovables. - Concludes  nature of right involved - Duration – 1) limited to life unless otherwise stipulated and 2) policy reasons b/c otherwise would be like ownership Dissent of 2: Idington J  Considered somewhat like ownership. There was no intrinsic limitation established any type of real right. It is perpetual and transferableMajority of 3: The right to fish is a personal servitude  it is a usufruct and therefore is transferable but limited to life of the usufructuary. Reasoning deals with essential temporal quality of the usufruct. Now very clear as stated in art 1120 “for a certain time”. Also see Art 1130 (max 100 years). Cantin  Note, the object of the right here is the land.  With respect to Mignault  usufruct on a fishing right? Usufruct is much more extensive than the limited right of the right to fish.  Remember Mignault (CBp. 100)  Where he expresses opinion that there is a limited enumeration of real rights. He must use usufruct to fit it into the enumerated real rights. NO possibility of establishing other types of real rights.  Is the whole reasoning of the majority persuasive?  1. NO, fish are res nullius  fish are not the fruit of the land even though the court, in giving a usufruct, considers them to be fruit. There is use and fruit (which is considered to be fish…wrong) 2. Policy reasoning behind limitation on the term of usufruct IN THIS CASE is not valid as it does not detract from the right of ownership in any major way. Cantin believes that it should be characterised as a real right of enjoyment/personal servitude that is smaller than the usufructThadee Duchaine v. The Matamajaw Salmon Club Jurisdiction PC [1921] per Viscount Haldane Holding Right to fish is a separate right of ownership – perpetual and transferable. Ratio Analysis is quite different from the majority above. Follows more Idington J. - Situate the reasoning in pre-abolition of feudal tenure time. Very similar to common law analysis is. Not taking into account abolition of Seigneurial tenurePage 51 Civil Law Property Summary Kirk Shannon- CBp. 483  Rests on current article art 948 which deals with accession. There should be ownership of right to fish. - Makes no sense to Cantin. Conclusion is that right to fish is a right of ownership and is therefore perpetual and transferable. There is no such thing as a right of ownership of fishing. Cantin  Does not take into account of the abolition of feudal tenure. There should not able to have two rights of ownership. Ownership is on an immovable and all other real rights should be dismemberments.  This could have been good reasoning in the 16th c.  The PC is not mindful of the property law in Quebec. It reasons it on the tenure system. Ignores art 405. Ignores abolition of the tenure system. Note that this case does not change the code. But, admits the possibility of admitting the right to fish with the possibility of perpetuity (ie distinct from usufruct). Position of the court todayLe Procureur Général du Qué v. Club Appalaches Jurisdiction C.S. Que [1998] Landry J. Facts  Garneau sells land to Club but retains right to hunt and fish and the right to become owner of the constructions and ameliorations made by the club.  Gov’t expropriates land from club but does not deal with rights held by Garneau  Garneau cedes rights to fish, hunt and over the constructions to Club Issues What is the nature of the rights to fish, hunt and over the constructions? What is the effect of the expropriation on those rights? Holding - Rights to fish, hunt and on constructions are inominate real rights (dismemberments) with a life-time duration. Here was stipulated otherwise  perpetual. - Expropriation does not effect these rights as were not dealt with in the notice of expropriation. Ratio  Art 1119: The list of dismemberments is not limitative  Cantin says must stay within the limits of rights of enjoyment and real servitudes. Silence by the legislature on this point confirms this.  Perpetuity is an essential characteristic of the right of ownership according to Cantin. The notion of perpetual dismemberments is not common.  The right to hunt and fish are therefore inominate dismemberments. o They are not usufructs as fish and game are res nullius. o Inominate dismemberments are not subjugated to any legal regime (this goes too far according to Cantin – there are always suppletive regimes of usufruct that take effect)  Duration: Here, the idea of perpetuity (in the sense of indeterminacy) was expressed in the K b/n the parties, - if it had not been, the duration would have been for life as we use the regime of the usufruct as suppletive title. This right can be extinguished by non use.  Finally, the expropriation has not effect on the rights ceded by Garneau to the Club b/c the notice of expropriation did not mention these rights.Le Procureur Général du Qué v. Club Appalaches (appel) Jurisdiction C.A. Que [1999] – Letarte J. Facts See above Issues What is the nature of the rights to fish, hunt and over the constructions? What is the effect of the expropriation on those rights? HoldingPage 52 Civil Law Property Summary Kirk ShannonRatio  The Club holds real rights of hunting and fishing – perpetual and exclusive – as well as accessory rights necessary to exercise the above mentioned rights.  With respect to the right over the buildings (superficies), retains conclusion of the C.S. (above) but the right of superficies does not include the right to the constructed roads which are access roads the constitute a right of passage granted already b/n the t\wo parties. Notes - Cantin : We must admit that there is a supplitive regime : usufruct. It is the model for adapting personal servitudes. This right is extinguishable. With respect to duration, it is a lifetime. There is only one right of ownership and it is perpetual. To reconcile the right of ownership with the rights above, this right can be extinguished with non-use like servitudes. Cantin Duration of right to fish o Cantin finds it possible to see a right to fish that (when stipulated as such) could be perpetual. It is passive and not an obligation to do. o Cases shows that perpetuity is possible in this real right to fish o What does this mean?  Perpetuity of ownership (not extinguishable) or of real servitude type (can be extinguished.) Cantin thinks it is the latter. If non-use, can be extinguished after 10 years.Other possible innominate real rights Having accepted that there are inominate real rights (personal servitude and real servitude) re-look at Cadieux v. Hinse. In this case was a right of the owner to another owner and therefore was not a real right. o Also, non-competition clause (Ruby Foo’s) which is also a relationship b/n people and not in a corporeal object.S.2 Real obligation Note on the real obligation ( propter rem ) Definition: obligation to which a person is bound only by reason of his or her quality as titular of a real right, in particular the right of ownership. It remains a distinct category within the family of patrimonial rights. It is a left-over of feudal rights.  Confers a benefit on the immovable!!! o Stipulated in the proper grant of a real right o Owner of dominant land in real servitude, unless otherwise provided for, is responsible for maintenance. o If provided for that the servient land will maintain the servitude  this is a real obligation (that will have a real debtor and a real creditor) o Also in usufruct where creditor of the real obligation is the bare owner. o In co-ownership as well….. Notion which facilitates relationships b/n titularies of real rights.Carbonnier , Droit civil : les biens Real Obligation or propter rem : It only weighs on the owner as owner of the thing, in such a way that he is freed from the obligation when he ceases to be owner. - Diffferent from accessory real right. There it is a guarantee and not a right – a preference in payment. Propter Rem is a right.Terré & Simler, Droit civil : les biens An obligation « propter rem » responds to the idea that an obligation, in the personal relm, can be on the titulary of a real right – it is transmitted to the successive titularies of the right. It is advisable to limit the creation of real obligations to those prestation which are necessary for the enjoyment of the servitude.Chapter V: Publication of Real Rights in an immovablePage 53 Civil Law Property Summary Kirk ShannonOne important distinction b/n personal and real right is the opposability of the real right  Key dealing with publication/registration in land registryArt 2938 The acquisition, creation, recognition, modification, transmission or extinction of an immovable real right requires publication. (aside – for the purpose of opposability)Renunciation of a succession, legacy, community of property, partition of the value of acquests or of the family patrimony, and the judgment annulling renunciation, also require publication.Other personal rights and movable real rights require publication to the extent prescribed or expressly authorized by law. Modification or extinction of a published right shall also be published. Art 2934 The publication of rights is effected by their registration in the register of personal and movable real rights or in the land register, unless some other mode is expressly permitted by law. Registration benefits the persons whose rights are thereby published.  Requirement to publicity is said to be of PUBLIC ORDER. Cannot dispense with publication per Art 2936. Not susceptible of contractual arrangementRegistration is required for what purpose. Art 2941 Publication of rights allows them to be set up against third persons, establishes their rank and, where the law so provides, gives them effect. Rights produce their effects between the parties even before publication, unless the law expressly provides otherwise.  Mostly publicity is a requirement for opposability but is not the validity.  In condominium, it MUST be publicised. Condo arrangement starts the day it is registered. This is the exception.  Another exception could be PG v. Devel de DemainWho are third persons?  Purchasers of the immovable  Servitudes are opposable upon transfer of the servient land if registered. It is only important that servitude is registered on the servient land. Good to have both servient and dominant….but only necessary for the servient land. NB: Opposability is with respect to the third party and not the parties to the contract  ie they are not third persons. Servitude is valid to the parties to the K as they are bound by the KArt 2943 A right that is registered in a register in respect of property is presumed known to any person acquiring or publishing a right in the same property. A person who does not consult the appropriate register or, in the case of a right registered in the land register, the application to which the registration refers, and the accompanying document if the application is in the form of a summary, may not invoke good faith to rebut the presumption.  There is a presumption that, when you own immovable, you are presumed to have knowledge of the title.For set up of land registry system see Art 2972. Page 54 Civil Law Property Summary Kirk ShannonSum up for Course o Why does she insist on concepts and definition and terminology. o Need a proper characterization of situations o Leads you to the applicable legal rules. o K’s will be supplemented by rules in the code and public order rules. o Do not characterise something such that it gives you no answer. Like trustee as an owner. o Definition of property --> theory of the Patrimony distinguishes b/n property and other rights. Only those things that fall within the patrimony are prop o Transmissible if property. o Establishes the room left for the K. Outside the Pat. there is little room left o What is a real right? o What is a personal right is the opposite question.  creditor and debtor o Real right link b/n person and object which is a corporeal object. o Notion of ownership o Principle real right. o History o Possession o Relates to real rights o Fact situation o Corresponds to the exercise of a principle real right (not accessory real right) o Dismemberments o Art 1119 announces them o Real right which has some element from the real right of ownership. o Something is taken out….big or small. o At the same moment on that material object there are two real rights o Dismemberments have the feature that they may be extinguished. WILL NEVER BE PERPETUAL. This is so even though they are given an indefinite duration they are extinguished with non-use.Page 55 Civil Law Property Summary Kirk Shannon o Personal servitudes o Right that the person has in somebody else’s object (e.g. usufruct). Not an obligation that somebody has against an owner but a right that somebody has in the object. o Real servitudes o Art 1177  definition – linking two immovabes where servient land has to suffer…..or prevented from doing something that he is nor o Real right is opposable but that was then supplemented by Registration if faced with an immovable real right for opposability. Here, opposability means permitting persons who want to deal with the immovable in question to do so knowing what the status of that immovable is. Comparisons o Usufruct vs. emphyteusis o Big difference. o Both personal servitude  both real rights, both dismemberments. o Main difference  obligation to invest – substantial improvement and major investment and major repairs. No such ob in usufruct o Usufruct can be on either immovable or movable whereas o Minimum duration for emp o Emphyteusis vs. superficies (look to what happens to the construction at the end) o Super  right in the land is the one that is extinguished at the end of the term. The ownership of the constructions must be transferred. If nothing is done, accession will take place with no indemnity. o If Emph  at end of the term there is no transfer that is required  accession will transfer. o Real servitude vs. personal servitudes. o Usufruct  1120  real right o Substitution  normal thing to do for a testator to spouse first and then to kids. First benefit one person and then the other. This is a substitution. First person who receives is an institute and second person is the substitute o Art 1218.  receives property with the obligation of giving it to another o Art 1221  Before opening of substitution (goes to 2nd person) the institute is the owner of the substituted property….says forms separate patrimony….which Cantin does not like. She thinks this sounds like the trust and it cannot be so. o IT IS NOT A DISMEMBERMENT. o Substitute has no right until substitution opens. Only has an eventual right. o Feature distinguishes from usufruct, if when substitution opens there is no substitute the property goes directly to the institute. o Can have two levels of substitute. o If nothing said about the term, will be the length of the life of the institute. o Substitute can sell the substitution. o If institute sells, must re-invest the value and that can be substituted. o Institute still obliged to protect the interests of the substitute.Page 56 Civil Law Property Summary Kirk Shannon o Beneficiary is a creditor of a trust. o Only a claim o Trustee administers that property.Questions  right of way which is granted by the law (when enclave). It can be solved by giving a real servitude of passage. However, not always the case. May be debate – who must provide (there are articles which say that the cheapest…etc….). If no title – deal with real obligations (propter rem) which stays with the title.EXAM o No part seven  trusts o In substance it is book 4 of the code and related subjects. o Patrimony, first articles of the code. E o Acquisitive prescription o Registration o Object o What you understand. Comprehension. o How familiar you are with the code. o Methodology of the civil law. o Expectation is greater than x.mas o Reasoning o Logic o Structure o Use of terminology o When get questions o Read o Do not misread o Answers must be well organisedMethodolgy of Civil law o First source is code – where we start o Doctrinal – should try to include it o Application and Interpretation by courtsNote – most often there is a doubt o Say so if this a case. Say both points of view and then can give your opinion and say you are not absolutely certain.Length has no merit in itself. 80% exam. Three questions of different weight. 3.5 hours.Page 57 Civil Law Property Summary Kirk ShannonPatrimony Feudal tenure Opposability Dismemberments Perpetuity.Page 58

Civil Law Property Summary Kirk Shannon

Details

Download

Copyright

We respect the copyrights and intellectual property rights of all users. All uploaded documents are either original works of the uploader or authorized works of the rightful owners.

Support