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



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Art. 1397 If there is an accepted offer between A and B and A sells the property to C, the sale is legitimate and executed; the only recourse is for B to sue A for damages, as well as C is that person was acting in bad faith


  • Art. 2946 where two acquires from an immovable hold the same title from the same vendor, then the property goes to whomever registers the sale first

    On advanced registration



    • Not possible under the old code; the registration system was only supposed to deal with real right, which is not the case of an order of purchase

    • The new code allowed for some protection to the purchaser

      • Art. 2966: any judicial demand considering a real right may by means of notice subject to advanced registration

      • Art. 2968 allows for these rights to be transferred

      • Advanced registration enables you to register your action, and in case there is a legal claim, the registration would go retroactively to the purchaser who did advance registration; B would have retroactively deemed the owner since then

      • So if a third person buys the property from A when he goes to register, it will be shown that another registration is in action

    Note: Art. 2968 uses the word transaction which refers to the involvement of the parties in a process of litigation

    Principal real rights


    • Related to ownership

    • Modes of ownership and the dismemberment of the rights of ownership

    • 3 types: ownership, dismemberment and modes

    Accessory rights


    • Certain rights enjoyed by a creditor, holding security for the fulfillment of an obligation



    Real Rights
    3 elements of the rights of ownership

    • The right to use a thing

    • Right to derive a profit from the thing

    • Right to dispose the thing

    • These are indicated in Art. 947




    Art.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.


    Dismemberment of the right of ownership defined in Art.1119 and they are real rights


    Types of dismemberment
    Usufruct

    • Arts. 1120, 1172

    • The right of use and enjoyment for a certain time of property owned by someone else

    • It is hence a kind of dismemberment

    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.



    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.

    Real servitude



    • Often referred to as easement in common law

    • Art. 1177

    • A charge imposed on an immovable in favour of some other property

    • E.g. a passage through someone’s property for someone to be able to access a garage

    • Unlike tolerance, which is just permitting someone else to use you property

      • If the owner were to sell the land, the servitude will gave to be respected by the new owner, while the tolerance does not need to be respected




    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.


    Emphyteusis



    • Art. 1195

    • A long term lease or agreement where the holder of the rights has a full enjoyment of the property for no less than 10 years and no longer than 100 years

    • The lessee is considered as an owner with real rights

    • Obligations may change over time

    • Used extensively for development process in one time


    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.



    Pincipales modalités (special modes of ownership)



    • Art. 1009 Two principal modes

      • Co-ownership: equal ownership of something with a share

        • Divided or undivided in fractions

        • Art.1010

      • Superficies (droit superficié)

        • 1011 ownership of construction of building and other kinds of property over the land of someone else




    Art.1009

    Ownership has two principal special modes, co-ownership and superficies.

    • Principal modes




    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.


    • Co-ownership




    Art.1011

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

    • Superficies


    Accessory real rights




    Art.2644

    The property of a debtor is charged with the performance of his obligations and is the common pledge of his creditors.




    Art.2645

    Any person under a personal obligation charges, for its performance, all his property, movable and immovable, present and future, except property which is exempt from seizure or property which is the object of a division of patrimony permitted by law.

    However, the debtor may agree with his creditor to be bound to fulfil his obligation only from the property they designate.




    Art.2646


    Creditors may institute judicial proceedings to cause the property of their debtor to be seized and sold.

    If the creditors rank equally, the price is distributed proportionately to their claims, unless some of them have a legal cause of preference.






    Art.2647

    Prior claims and hypothecs are the legal causes of preference.

    Hypothec


    • Real regime to create security

    • In the old code there was a reference to privileges which doesn’t exist any longer

    • Define in art. 2660

      • A real right in immovable or movable property that ensures the fulfillment of an obligation

      • A real right created in the benefit of the creditor

      • Accessory to a principal obligation

      • Gives a right to the creditor to take over property, sell it, rent it, etc

      • When the principal obligation is paid out, the hypothec will extinguish

    • The creditors claim will be preferred (droit de préferenece)

      • In relation to the other creditors; the creditor will not have to go into the common pledge of a debtor but will have privilege over the property

      • If the debt is less than the value of the property, then the creditor is paid and then the rest becomes part of the common pledge

    • Gives the right to the creditor to follow the property wherever it goes; even if it fall outside the hand of the previous owner (droit de suite)
    • Unlike a mortgage, the property still belongs exclusively to the debtor. In common law there is conveyance of property and transfer from the debtor to the creditor


    • The accessory nature of the hypothec is further stresses in art. 2661

    • Art. 2797 yet another articles that states that a hypothec is extinguished when the obligations are paid




    Art.2660

    A hypothec is a real right on a movable or immovable property made liable for the performance of an obligation. It confers on the creditor the right to follow the property into whosever hands it may be, to take possession of it or to take it in payment, or to sell it or cause it to be sold and, in that case, to have a preference upon the proceeds of the sale ranking as determined in this Code.




    Art.2661

    A hypothec is merely an accessory right, and subsists only as long as the obligation whose performance it secures continues to exist.


    Art.2647

    A hypothec is extinguished by the extinction of the obligation whose performance it secures. In the case of a line of credit or in any other case where the debtor obligates himself again under a provision of the deed of hypothec, the hypothec, unless cancelled, subsists notwithstanding the extinction of the obligation.



    Summary on rights
    The number of obligations that can be established is unlimited


    • There are certain restrictions, rules of public order

      • E.g. art. 8 no person may renounce their civil rights

      • Abusive clauses that are detrimental to the consumer are not accepted




    Art.8

    No person may renounce the exercise of his civil rights, except to the extent consistent with public order.

    With respect to real rights there is an ongoing discussion as to whether the number of rights can be established is determined or not



    • Some believe it is

    • This is distinguished from personal rights, which are unlimited given that people can establish as many relationships with others as they want

    • The old code restricted the real rights to ownership, use, usufruct, servitude

    • The new code is somehow more open

      • Art. 911: a person may hold a right of ownership or other real right in property

      • Usufruct, servitude and emphyteusis are methods of dismemberment and are real rights; the fact that the wording is limited to not stating that these are the only types of real rights, makes is conceivable that other real rights can be established

      • Art. 1009 which deals with principal modes is yet another example


    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.


    The number of accessory real rights is in fact limited and not open to much fiddling and sophistication



    • Real rights are attached to the thing and follow the thing

    In the area of personal rights, the relationship is limited to the debtor



    • When personal rights are established there is liability created in the patrimony of the debtor and an asset in that of the creditor

    • Real rights, on the other hand, do not necessarily create liabilities on the debtors



    Intellectual Property
    In our system this comes under legislation of the Federal Parliament and the constitution,

    s.91(2) Constitution Act 1867



    • The Canadian system is influenced by common law’s tradition on patents (on a specific creation) as well as continental rules on droits d’auteur (focused on the author)

    It is a very difficult field, because it deals with something that goes beyond physical objects, which is unlike most concepts in civil law property

    It is not a real right, as it cannot be physically specified but it is not a personal right either, because it is not about creating obligations between a debtor and a creditor

    • Nonetheless, there is tremendous value that surrounds this kind of property today




    Publication or Rights and Registration

    An important issue usually ruled under a wide variety of regulations


    The system is there to protect rights and gives reliability to the protection of security

    • Plays a fundamental role in the security of commercial transactions and ownership

    Given computerization, the system can become a very powerful tool



    • Registration can be used to carry put social research (such as demographic) and implement social programs

    • You can group areas depending on specific needs

    Where the system is inaccurate and not properly functioning, you can have social and commercial problems



    • A major problem in developing countries

    • In foreign aid, UN work and development activities, this concept keeps arising

    Where does it start? - Cadastre



    • Refers to the system of mapping and defining your territory

    • Creating townships, villages, etc

    • From a private law perspective, it becomes the way in which you divide your territory to reflect your ownership units

    • In Quebec, for instance, this happened by measuring the territories and then labeling them depending on the ownership of the different parts; in the signories this will happen along long strips of territories




    1


    2


    3

    4


    5





      • Corresponding to this system there will be an index which will have entries of all the transactions that will affect every particular lot

      • This was kept by the provincial government

    • The cadastre became outdated, as subdivisions would arise within a same lot and all the transactions that took place within it would become too complicated

    • The system was completely reformed and it was made to match ownership so that each number reflects one property unit

      • There are millions of units - parcel identification units

      • If a unit breaks, then a new number to identify the new one is created

    • Cadastre refers particularly to the plan that shows all the ownership units and the parcel identification system

      • A representation of ownership units in the territory

      • In Canada there are no Federal cadastres, each province has its system

      • It is important to keep this plan up to date so that it reflects the ownership of the territory

      • There are some territories and units that are un-cadastred, Crown land which hasn’t been given identification

    This can makes us think of a registration of publication system



    • The basic objectives of such a system are to:

      • Provide a system that would enable the opposability of territories; make this real right known

        • Every one needs to respect your real rights over something because it is opposable

      • Establish rank between competing rights on the same property
        • This is based on the date of registration or publication


        • E.g. whoever has the first date of a hypothec gets priority

      • In certain cases, to give effect to specific real rights

    The difference between different provinces of jurisdictions depends on the reliability, accessibility of the system



    • There are two types of systems

    1. A system that allows for the registration and publication of ownership – registration of deeds

      • This was the first to develop and more traditional

    1. Systems that provide for the publication of rights – title registration

      • Developed in Australia by a person Torren – hence the Torren’s system

      • Publication gave an absolute certainty of what is registered

    In the registration of documents there is a record of the transactions that took between the different owners, while the other merely establishes how the absolute owner of some property is



    • If there was some mistake somewhere, you can see where it happened through the registration of documents

    The system is Quebec is a system of publication of documents (even though it is called a system of representation of rights)



    • In the civil code there was an initiative to move to second phase that would have incorporated a title system from the publication of ownership system, but this never became possible

      • The legislature would have had to make many changes that would have been costly

      • A statute abrogated all the provisions that had been adopted in the new Code and established a system with what was at place prior to 1991
      • In this area, the reform failed; people would have lost rights and the recourses to compensate for this in the case of mistakes would have been too difficult for individuals (by suing notaries for negligence in their job)


      • Title registration uses real rights, but nowhere in the Code is there a real definition of what they are

    • A lease that dealt with personal rights would require that the registrar knew whether the document deals with real or personal rights; this system did not exist in Quebec

    • The government never supported this system

    • In countries where this system is in place, the government acts as an insurance fund so that the state compensates someone who can prove that her rights have been extinguished; the Quebec government was not willing to do this

    Art. 2941 defines the scope and subject matter of publication



    • Opposability

    • Rank

    • Effect

    • Registration does not create the right, but it gives evidence of them and makes them known

        • The transfer creates the right

        • The only exception is when registration decides on who owns a property when two people are sold the same property but one register the deed before the other




    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.




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