Civil law property final exam notes (robert godin) april 2007

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Whitworth v. Martin (CA) 1995

  • Baudouin J.:

  • ptf’s land was enclosed (enclave) and could not access public road. The previous owners of the def’s lot allowed for the owners of the ptf’s land to use a passage on their land to access a public road. Now there is a new owner who does not want the ptf to use the passage that has been used since 1914.

  • 997 CCQ  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 with the necessary right of way to use and exploit his land.

  • The judge found that the road that was meant to be accessed could be qualified as a “public road” – what is meant by “public road” in 997 CCQ is not that the road must necessarily be public per se (i.e. municipal, provincial road, etc.) – but also includes any private road that is leads to a public road.
  • Therefore in this case, the law requires the neighbours to grant the enclosed landowner a right of way since the private road that leads to the public road is on the land of the neighbour the neighbour compelled to give access by the law. The judge found that other ptfs were not entitled to that passage b/c they actually did have access to the public road in a way that was not “inadequate, difficult or impassable”. This was not the case for one the ptf in the case  only solutions the enclosed owner had to access the public road was (1) to go through another neighbour’s land (which did not allow for a car to be driven through) or (2) build a real road on that kind neighbour’s land which would have been very expensive.

  • Moreover, the def’s land was the most suitable land for the passage to be granted  a/c to 998 CCQ Right of way is claimed from the owner whose land affords the most natural way out, taking into consideration the condition of the place, the benefit to the enclosed land and the inconvenience caused by the right of way to the land on which it is exercised.

  • The court seems to treat the right of way as a servitudethe court recognized that a servitude cannot be acquired through prescription – however the “mode of exercise of the servitude” – l’assiette (location) of the servitude can be acquired by prescription (10 yrs – 2917 CCQ) The “DL” would no longer get access (1001 CCQ  right if way is extinguished when it ceases to be necessary for the use and exploitation of the land)

  • Cantin-Cumyn she does not like that the court treated the right of way as a servitude – if say that it is a RS then you are saying that it is perpetual  the intention of the law however seems to be that once the access to the road is available then the owner could no longer use that right of way – the right of way could no longer benefit the SL.

  • Cantin-Cumyn thinks that in this case makes more sense to attach to the land of the non-enclosed land a real obligation – it is a lesser right that would allow the neighbour to have access to the public road and that will give access so long as it is needed.


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.

Art. 1184

The owner of the dominant land may, at his own expense, take the measures or make all the works necessary for the exercise and preservation of the servitude unless otherwise stipulated in the act establishing the servitude.

At the end of the servitude he shall, at the request of the owner of the servient land, restore the place to its former condition.

  • The initial responsibility rest on the owner of the dominant land

  • But it can be contracted otherwise

When this becomes complex is when trying to secure the performance of obligations through servitudes

  • It is important to remember that positive obligations cannot be secured by Quebec law through servitudes (they must be passive)

  • This happened when the Hyatt Hotel in University (now the Delta) was developed. It wanted to receive heating and cold water from the building adjacent to it but it was not possible, as this would impose a positive obligations on the owners of this building

Terré et Simler - Servitude et Obligation Réelle; 1998

-a personal obligation tied to the titulary of a real right—but only in that regard

-can be transmitted to successive titularies

-very close to servitude

-servitude, however, is a state of the property, and does not call up any positive obligations on the part of the subservient owner

-this is what arises when servient owner has additional positive obligations (e.g. obligation to maintain)

-There are limited in French law, to those prestations necessary for the enjoyment of the servitude
Dorion v. Les Ecclésiastiques du Séminaire de Montréal, (1880) 5 A.C. 362, Sir Montague Smith:

  • "No doubt by the old French law founded on the Roman law and by the law of Canada before the Code, a servitude was understood to be that the owner of the servient tenement was only to suffer, and not to do any act...It is admitted by writers on the French Code, which contains a definition and enumeration of servitudes similar to those found in the Canada Code, that the principle of the old law has been invaded, and that under the Code some active servitudes may be imposed upon land.  But they qualify the admission by affirming that only such active servitudes as are ancillary to servitudes in their strict meaning are contemplated by the Code....The obligation to repair was not an independent servitude separately created, but was part of the entire servitude imposed upon the land on the grant of it."

  • No doubt that in a servitude the owner of the land was only to suffer but not be forced to do to something

  • You can have an obligation, however, provided that it is ancillary to the servitude

  • But you cannot establish a servitude for the sake of an obligation

  • Art. 1178 confirms this

Art. 1178

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

Wasserman Stotland Bratt Grossbaum & Pinsky Inc.v. Édifice 9500 Incorporée; CS 2003; Fraiberg J

  • This is an important case

  • There was an agreement to supply heat and steam from one property to another

  • Was this agreement from the nature of a servitude or not?

  • “The essential difference between that case and the facts here lies in the relative passiveness expected of the owner of the servient land in permitting or not interfering with a benefit conferred by a servitude, as opposed to the active obligations that arise from a contract of successive performance.”

  • “An obligation of performance can therefore never be the principal obligation of a servitude.  The jurisprudence   and the doctrine   confirm the principle”

If it is a personal obligation, it is not a servitude, thus it is not binding

  • To be binding it has to be attached to the immovable itself and will follow the changes in the right of ownership

Cadieux v. Hinse & Morin

  • Two adjacent owners wanted to create reciprocal rights of first refusal on their neighbour’s property

  • If anyone wanted to sell, they would have to offer it to the neighbour first

  • They tried to establish this through a servitude

    • (Note these type of servitudes are called reciprocal servitudes)

  • The judgment established that a real servitude cannot establish an obligation to do

Cadieux v. Hinse & Morin (1989) (QC Superior Court)

  • Steinberg J.:
  • owners of neighbouring immovables signed a K in which they included “a real servitude of sale preference” to the other owner.

  • The presence of the word “servitude” in the clause does not mean that there actually is a servitude. Need to look at the characteristics of the created act to see if they correspond to the characteristics of servitudes. Need to look at the content of the right that is granted.

  • The purpose of the clause is essentially to obligate each of the parties to offer his immovable to the other party prior to selling it to a third party  a real servitude cannot impose obligation on the owner of the land that carries the charge (i.e. the SL). Moreover, the disposition does not establish a juridical link b/w the dominant land and the servient land. None of the parties has a direct and immediate right in the land of the other – no RR. The benefit is for the owner of the building and only indirectly for the benefit of the immovable. The benefit is neither a real servitude nor a personal servitude (that’s a RR).

  • The right in question is a right of preference – it is a personal right.

Hamilton v. Wall
(BR) 1879

Facts: H sold property to W with the following clause: “Il est encore entendu que tout bâtisse qu’érigera le dit aquérer sur le dit terrain, sera en linge avec celle du dit vendeur.”

Issue: Does this establish a real servitude?

Holding: Yes

Reasoning: CCLC: “Servitude is a charge imposed upon one property for the benefit of another” (Art 499)
-easy cases where ‘servitude’ is used

-harder here because that language is absent, but:

--if the charge is necessary for enjoyment or substantial advantage of the dominant owner, it will be considered a real right, a servitude
-crucial issue is whether it is stipulated for the benefit of the land or for a person
-Cour de cassation has found clauses of the kind in question to create real servitudes

Ratio: A clause which attaches an obligation to a buyer’s land will be considered a servitude if it is does for the benefit of another immovable, rather than a person.
Economic servitudes

  • A matter of much discussion in the doctrine

  • Some land is charged with a servitude and forced to be used for a particular business purpose

  • But this is not much like a regular servitude where some land is charged for the benefit of another land

    • Here the land is charged for the benefit of someone else, or a business

  • Businesses tried to settle these instances out of court so the issue was maintained out of the courts for a while

Segal v. Ross

  • Someone bought a property and realized that it had a servitude and thus did not want to acquire the property

  • The judge decided that there was in fact a servitude created

Standard Life c. Centre commercial Victoriaville; 2001 (CA); Rochette J

  • Leading decision on this issue

  • You can have these kinds of restrictions from a contracts perspective, but not as a real servitude as part of a real right that will bind future owners of the land

Similarly, in the Standard Life Assurance Co. (2001) (QC CA)

There was a non competition clause in a K b/w two parties (owner of a commercial center and a commercial owner) and it was qualified as a real servitude. The court held that the content of the right was not that of a real servitude  the prohibition was found to benefit the owner of the “DL” rather than to the land itself – as a matter of fact, the clause stipulated that once the lease expired or once the business closed, the benefit would no longer sustain  this does not make the servitude perpetual – the attachment of the servitude to the immovable makes it perpetual (1182 CCQ). The benefit was not of perpetual nature, it was only attached to the owner’s choice in business affairs and not to the immovable itself.

Obligations and servitudes

  • A servitude of which the object is to oblige someone to do something cannot be valid

  • An obligation can only be part of servitude when:

    • The obligation to do something has is an accessory obligation to the servitude

    • It has to be specifically for the exploitation of the immovable (not the business within it)

  • As long as the debtor does not hold the servient land, he is no longer bound, but instead the new property owner

    • Unlike a hypothec whereby you are still bound to pat your debt even after you sell the property which is charged with a hypothec

  • You can be released of you obligation by abandoning the portion of the servient land to the favour of the dominant land

How are servitudes established?

Art. 1181

A servitude is established by contract, by will, by destination of proprietor or by the effect of law.

It may not be established without title, and possession, even immemorial, is insufficient for this purpose.

  • The most common is through contract but with certain conditions

    • For the benefit of land, etc

    • The identity or the quality of the owner (whether he is an investor, private individual) is irrelevant

  • It can also be established by will, which is a more traditional way though not very common

    • An ancestor leaving property to more than one individual establishes a servitude as he divides his line

  • By destination of proprietor

    • When a property is being divided by the owner and in the transfer a servitude is created in anticipation that the property will be divided and owned by more than one person

  • By effect of law

    • Not many situations where this arises

      • One could be the reference to proprieté superficiel (art. 1111)

      • Some companies like Hydro-Quebec, have access to land provided by statute

  • The second paragraph is important

    • There is never a presumption of servitude, there must be a title

    • It must be put in writing and published

    • Possession is insufficient

    • You cannot acquire a real servitude by prescription in Quebec law

Administrative servitude

  • A terms used in France

  • E.g. Q2 s.118.2 – Environment Statute

  • Statutory obligations are converted into real right and affect immovables and bind successive owners by registration

  • E.g. the right to put phone lines, power lines

    • In France these would be called administrative servitudes

    • In Quebec these really doesn’t exist, it is more like restriction on the use of land by individuals

How is the servitude exercised?

  • Always interpreted restrictively by the courts

  • There has to be a document, contract, as clear evidence of the establishment of the servitude

  • The courts have no ability to vary or change the servitude but only apply it

    • If they do change something they would do so in a very restrictive way, it is not to be interpreted generously

    • They are to follow the document and not add suppletive laws

  • There is a general reluctance to accommodate dismemberments to the right of ownership, these are exceptional situations

  • Doubts are interpreted in favour of owner of the servient land

Depsite these restrictions, there is a certain amount of flexibility to be found in the exercise of servitudes

  • See second paragraph of art. 1177

  • E.g. aggravation (art. 1186)

    • In no case may the owner of the dominant land make the onus on the servient land greater
    • The second paraharph shows that the rule also applies to the owner of the servient land

      • This paragraph also allows for the owner of the servient land to transfer the site of the servitude


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.

Art. 1186

In no case may the owner of the dominant land make any change that would aggravate the situation of the servient land.

In no case may the owner of the servient land do anything that would tend to diminish the exercise of the servitude or to render it less convenient. However, he may, at his own expense, provided he has an interest in doing so, transfer the site of the servitude to another place where its exercise will be no less convenient to the owner of the dominant land.

Action confesoire: when a servitude is granted

Action negatoire: when a servitude is negated
How is it terminated?

Art. 1191

A servitude is extinguished

(1)   by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;

(2)   by the express renunciation of the owner of the dominant land;

(3)   by the expiry of the term for which it was established;

(4)   by redemption;

(5)   by non-user for ten years.

  • It is not necessary for a servitude to be perpetual

  • Redemption is a new concept, refereed to by art.1189

    • Can only be recognized for the right of way

  • Sub-paragraph 5 shows that while you may not acquire a servitude by prescription, you may still loose it

    • The prescriptive calculation of how it can be lost is in art.1192

Art. 1189

Except in the case of land enclosed by that of others, a servitude of right of way may be redeemed where its usefulness to the dominant land is out of proportion to the inconvenience or depreciation it entails for the servient land.

Failing agreement, the court, if it grants the right of redemption, fixes the price, taking into account, in particular, the length of time for which the servitude has existed and the change of value entailed by the servitude both in favour of the servient land and to the detriment of the dominant land.

Art. 1192

In the case of discontinuous servitudes, prescription begins to run from the day the owner of the dominant land ceases to exercise the servitude and in the case of continuous servitudes, from the day any act contrary to their exercise is done.

  • For discontinuous it begins in the time the owner of the land ceases to use the land

  • For continuous servitude is when an act contrary to the exercise of the servitude is made

Art. 1193

The mode of exercising a servitude may be prescribed just as the servitude itself, and in the same manner.

Judicial sale

  • Art.696 of the Code of Civil Procedure

  • Servitudes are not cleansed even in the case of a forced sale

A mode of dismemberment as per art.1119
Traditionally arose in Roman law to develop agricultural land

  • Used during feudal times and usually limited by 99 years

  • CCLC Minimum of 9 years and maximum of 99
  • New code minimum of 10 years and maximum of 100 years

There is a split in the title which resembles the division of the feudal tradition

  • Two concurrent owners of real right

  • The lessee enjoys almost all the rights attached to ownership and the emphyteutic lessor has a right of ownership and entitled to receive rent and also the improvements made on the land at the end of the lease

It was rarely used in Quebec law but become popular during the boom of the 1960s as a development tool

  • The development of Place Ville Marie began this process, which is on emphyteutic lease

  • This building was developed over land owned by CN where the trains would come through

Definition art.1195

Art. 1195

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.

  • Though by will is ridiculous

  • It doesn’t say that emphyteusis contains the same qualities are the right of ownership, as this was removed from the previous code due to the litigation from Nun’s island

    • The Court of Appeal restricted what was permitted by emphyteusis but the Quebec legislature passed retroactive legislation to overturn what was decided in Nun’s island
    • The amended articles were carried into the new code

The two parties are called the emphyteutic lessee and the emphyteutic lessor

In the old code if an emphyteutic lease was not deemed emphyteutic then it would be taken as a normal lease

  • This doesn’t exist any longer

Emphyteutic rights are real rights

Art. 1199

The creditor of the emphyteutic lessee may cause the latter’s rights to be seized and sold, subject to the rights of the owner of the immovable.

The creditor of the owner may also cause the latter’s rights to be seized and sold, subject to the rights of the emphyteutic lessee.

  • Both can hypothecate separately, because the object of the real right is different (this is not a situation of indivision)

Sun Life Assurance Company of Canada v. 137578 Canada Inc. (2000) (QC CA)

  • Metro was the emphyteutic lessee of a building owned by another party. The term is 60 yrs, and Metro engaged itself to build on the immovable another building – Metro borrows money from Sun Life for financing of the project. The loan is secured by a hypothec that is placed on the building. Eventually, Metro does not meet its payments and Sun Life seizes its securities.

  • La Rochette J.:
  • The issue is on the nature of the right of the hypothecary creditor over the immovable. The creditor acquired a dismembered right, which is a real right – it is therefore opposable to the creditor. Real obligations are attached to the title and therefore whoever gets the title will be bound by these obligations. By seizing and acquiring the right of the emphyteusis, the creditor is bound by the obligations of the emphyteusis.

1 Les commentaires du ministre de la justice: documents highlighting the reasons for the change in the code and why and where they were adopted from, article by article

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