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

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Res nullius

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.

Examples of this

  • Abandonment

  • Arising from an abdicative act

  • A prerogative of the right of ownership

  • Wild animals

  • Vacant estates, estates with no heirs

So the difference between res nullius and res communis is that they do not have a particular owner at a specific time, but may be appropriated; arts.914 and 935

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. 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.

Can you abandon an immovable?

  • There is a doctrinal discussion on whether this is feasible or possible

  • There are many examples in the case of dismemberment

    • Presumably it should be possible by making a declaration to the registrar’s office and this would be published; but this never happens

  • The code has a provision that allows for this possibility; Art. 936

    • The State then becomes the owner until the property is appropriated by someone else

    • [State always refers to the Provincial government]

Art. 936

An immovable without an owner belongs to the State. Any person may nevertheless acquire it by natural accession or prescription unless the State has possession of it or is declared the owner of it by a notice of the Public Curator entered in the land register.

On treasures, Art.938

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.

Jacques Boivin Et Gaétan Fournier C. Le Procureur Général Du Québec

  • Some scuba divers found some golden bars in a lake. Some days after other individuals found more golden bars and it was debated who legitimately owned this treasure

  • Was it owed by both the person who originally found it and the government, who owned the property where the lake was?

  • The Superior Court held that it in fact was a treasure and belonged half to the person who found it and half to the government

  • The C.A., however, ruled that it was abandoned property and it could be appropriated by the people who found them separately

Vacant estates

  • The old code has a number of provisions that dealt with estate with no heir

  • Art.696 of the new code is to the same effect ultimately

    • The State is the owner if fact of the asset

    • Under the second paragraph, it is not possible to leave your assets to no one but not allow the State to get it

    • The commentaries of the Minister of Justice discuss how the State has ultimate rights of ownership, when an estate has no other owner

      • It doesn’t mean that there is a transfer of the previous owner to the State (it is not a an heir), but the State is the ultimate owner

Art. 696

Where the deceased leaves no spouse or relatives within the degrees of succession, or where all the successors have renounced the succession, or where no successor is known or claims the succession, the State takes of right the property of the succession situated in Québec.

Any testamentary disposition which would render this right nugatory without otherwise providing for the devolution of the property is without effect.

Whit regards to things that are not part of commercial transactions, “hors commerce”,

  • In the old code, only things that were object of commerce could became an object of an obligation

  • Today this concept is not used to the same extent or given the same importance

    • We have property in the public domain which under certain provisions ins considered hors commerce and not subject to transmission

    • Some rights are non-transmissible

      • Use and habitation

      • Or right to an estate that has not yet arisen; Art. 631

    • Some articles cannot be seized; e.g. religious property

    • Some articles are not alienable; Art. 1212

    • Extra-patrimonial rights are also not subject of alienation and are hors commerce; Art. 3

  • In the new code very little reference is made to hors commerce property; Arts. 2795 and 2876

  • By statute when religious or sacred object are subject of hypothecation, they can be taken by the creditors and are not deemed hors commerce

Public and Private Ownership - “Domaine”

[Note] The material on Native land in the CP will be dealt with later (only section 1 of the part III will be dealt with now)

The concept of ownership has undergone vast transformations over time moving from the collective to the private, public to private

Under the old cold many provision dealt with this, many of which have been imported to the new code

  • Arts 911-920 and 934-946

We start from the idea that there is always ownership

  • Everything has an owner (even abandoned objects are owned by the State)

  • Exceptions are res nullius, res communis, and the trust

  • Art.915: everything is owned by a person, a legal person or the state

Art. 915

Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.

There has always been a discussion about what is part of the public or private domain

  • There are some statutes that delimit mixed property and public/private partnership though traditionally there has been resistance to this in Quebec

    • There is a recent push towards this partnership (in hospitals, bridges, even penitentiaries)

There is significant number of state corporations which are formed in a very peculiar manner

  • They are legal person though with special provisions

How did this start? How did we get into the discussion of private/public property?

  • There has been a big evolution within this

  • The word domain, for instance, has many conceptions

    • Traditionally “domaine” refers to public property

    • But the State enjoys of property in the public and private domain (this is a clear distinction that exists in France)
      • Public domain: Goods destined to the defence of the State; inalienable property which is exclusive to the State

      • Private domain: where the State owns property which use is not incompatible with private ownership; e.g. forests, land, etc

  • It is important to not that this issue is difference in France as compared to Quebec

    • Issues that arise on the private and public domain belong to different courts and are dealt with different rules; this is not the case in Quebec

  • Usually in conversation, when we speak of the public domain we usually do so when we talk about the state, and private domain as referring to private ownership

By definition, everything is public unless you can prove it is private

  • Public property is the general rule

  • There is a presumption that the State owns property unless you can prove otherwise

  • This is stipulated in art. 918

Art. 918

Parts of the territory not owned by natural persons or legal persons nor transferred to a trust patrimony belong to the State and form part of its domain. The State is presumed to have the original titles to such property.

Many portions of the territory which do constitute private property, belong to the crown

Art. 919

The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water line.

The beds of non-navigable and non-floatable lakes and watercourses bordering lands alienated by the State after 9 February 1918 also are property of the State up to the high-water line; before that date, ownership of the riparian land carried with it, upon alienation, ownership of the beds of non-navigable and non-floatable watercourses.

In all cases, the law or the act of concession may provide otherwise.

Originally we had the system that prevailed in France under the Feudal system, but this changed through the conquest with the system that prevailed in England

The story starts when Jacques Cartier arrived (The history of “domaine”)

  • In accordance with rules of international law at the time, he ascertained sovereignty to the French crown

    • This was done by putting the famous crosses

    • This vested the right of ownership on the King of France who could then dispose of the territory directly or indirectly, through delegations/concessions

      • A principle understood by international law at the time

  • The king then gave a mandate to develop the New France by settling and developing catholic religion also

    • From there onwards many seigniorial concessions were made by the crown

    • The law for these transfers came from Feudal law in France at the time

      • Coutume de Paris

      • The king maintaining the right to income and the seigneur acquiring many rights but with obligations to the king

      • There was a split in title between the seigneur and the censitaire

        • Domaine direct, right of ownership held by the seigneur

        • Domaine utile which was transferred to the colon or censitaire

  • The system provided for very honorous charges that the censitaire had to fulfill (paiements censirents)

    • This acknowledged that the owner was the seigneur and the censitaire rented the land (ownership was split)

    • This notion has filtered up to the new code; Art.923

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.

This was the first obligation the censitaire had

  • A second one was the lodsventes; a tax to transfer his rights to someone else (12% of the price) that had to be paid to the seigneur

  • Another obligation was la banalité du moulin

    • The censitaire had to use the seigneur mill to grind his food

  • La corvé

    • The censitaire had to give the seigneur a certain number if days of free work to the seigneur for whatever he wanted

What is important is that this obligations where carried by the censitaire but were intimately linked to the land and you could not free the property for these burdens

  • A purchaser would have to fulfill these obligations

So the king of France became the owner of these lands through occupation

  • The king of England became the owner through conquest, though with the concessions that had been granted already by the king of France

    • Had these concession not been respected by the British, the English crown would have just done with the land as it did elsewhere

In 1763, the British introduced a new concept: transfers in free and common soccage

  • People acquired complete title

  • The burden of the split title did not exist
  • There were certain obligations to develop property and line in it, but nothing like the rules under the French feudal system

  • Two different types of tenure developed simultaneously

    • Those which existed under the French system, and the new developed under the British system

In 1854 the British Parliament abolished the seigniorial system of France

  • This was designed to re-establish am equilibrium for the owners of these concessions

  • It made it possible for the censitaires to re-purchase rents

  • It also abolished all feudal duties and obligations from the French system

    • The seigneur could still receive rent but not the other obligations

  • This change had significant on the population

  • The feudal system was then abolished, but not everyone had enough capital to re-purchase the rent

  • The Quebec government passed a statute to try and abolish seigniorial rents by raising capital through a syndicate to be able to re-purchase rents from the seigneurs at the municipal level

    • The amount of money used to pay for this (lent by the provincial government) was raised later through property taxes and paid back to the government

    • This process lasted up to 1974

    • The process excluded some fairly important areas, however

      • The mission de St. Sulpice in Montreal is an example

As a result two systems of tenureship existed

  • Free and common soccage and francalleu roturier (lands now free of the feudal system)

  • Some land to day are townships and other are signories/parishes which are part of the francalleu roturier

There were some different concessions made under the French and English regimes

  • One was with regards to mining rights

What is pubic domain?

  • All property, whether land or subsurface, which hasn’t specifically been granted or conceded

  • You also add those assets that have been specifically acquired by the State through expropriation, contract or abandoned land

What kind of characteristics does this property have?

  • In France there is a very clear distinction with different sets of rule

  • There is a different between State property itself and the one that belongs to legal persons established in the public interest (owned by State entities or corporations)

The Crown is a peculiar person in Canada

  • Divided to the Crown in the Right of Canada, or the Crown in the right of individual provinces

There is a distinction between ownership and authority

  • For instance Indian land is with the province, by the authority to deal with this land fall in Federal affairs

  • The residual right of ownership in Canada is with the provinces; what is not specifically delegated to the Federal government

  • Looking at authority it is the opposite

    • The Constitution gives the Federal government residual political powers; everything that is not specifically designated to the provinces

Public property has a sense of collective property, which gives it some special characteristics

  • The State has right of ownership to the extent that the use of this property does not affect the general public and that these collective property is not diminished
  • We use the expression that the State has “power of administration” over property which is different from the traditional right of ownership that individuals can exercise

  • The representative of the State can exercise all the rights inherent to the right of ownership

    • Usually supposed to be based on the public interest

Where legal person of the State are involved, they are ruled by statutory laws that are particular to them

  • However they are also governed by the rules of the Code

Art. 300

Legal persons established in the public interest are primarily governed by the special Acts by which they are constituted and by those which are applicable to them; legal persons established for a private interest are primarily governed by the Acts applicable to their particular type.
Both kinds of legal persons are also governed by this Code where the provisions of such Acts require to be complemented, particularly with regard to their status as legal persons, their property or their relations with other persons.

  • Obligations apply to state; (something like art.876)

What are these special characteristics of State property?

  1. Property is in-prescriptible

    • Prescription has to do with the acquisition or loss of rights through time (acquisitive v. extinctive) prescription

    • Time doesn’t run against the king

Art. 2876

That which is not an object of commerce, not transferable or not susceptible of appropriation by reason of its nature or appropriation may not be prescribed.

      • [The two different meanings of appropriation are used in the same article: appropriation as acquisition and appropriation as destination]

Art. 916

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

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

  1. Property in inalienable: exempt from seizure, expropriation and hypothecation

  • Historically State property was made of very few and specific assets like fortresses, ports, protection against war

      • It was destined for the public interests so it was deemed inalienable

      • As the State became more involved with property as an ordinary citizen, there are a few exceptions of property that can be inalienable

      • It is hard to find things today that the State Crown cannot dispose of

  • This idea then has no much meaning today

  • Bu the ability to seize property certainly does not apply to State property

      • This too come from traditional rules where the king could do no bad and you could not establish claims against the king
      • Art.94.9 of the Code of Civil Procedure; all sections that deal with execution, seizure etc, are not applicable to State property

      • Property exempt from seizure cannot be hypothecated; Art. 2668

Art. 2668

Property exempt from seizure may not be hypothecated.

The same rule applies to movable property belonging to a debtor which furnishes his main residence and which is used by and is necessary for the life of the household.

  1. Immunity from taxation

  • S.126 of the BNA 1867; No land belonging to the dominion or a province shall be liable to taxation

  • Given that some municipalities need some money and it would be a strain for them to not receive money from government entities, governments have decided to provide voluntary money to them for their corporations

      • Payments are made in lieu of taxes “c’est un en-lieu

      • The amount paid by the government usually equals what the taxes would be

      • They claim, however, that these are voluntary and they are not required to pay taxes on land

  • Service taxes are still paid by government entities, however

  • E.g. ss. 16 and 40 in the Hydro Quebec Act

Within the public domain there are two types of property, the private and public domain of the State, which are subject to different regulative regimes

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