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
Arising from an abdicative act
A prerogative of the right of ownership
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
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.
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 State then becomes the owner until the property is appropriated by someone else
[State always refers to the Provincial government]
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
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
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
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
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
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
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
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
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.
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
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?
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
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]
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.
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
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.
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