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

This didn’t turn out to be an operational concept in Quebec

Download 1.13 Mb.
Date conversion18.06.2018
Size1.13 Mb.
1   ...   4   5   6   7   8   9   10   11   ...   21

This didn’t turn out to be an operational concept in Quebec; it wasn’t seen as something that really worked

  • They tried to copy the French position, but this is sent on a different structure and set of rules which we don’t have here

      • For instance all property of the State was in-prescriptable, inalieanable and non-taxable

      • In France the private domain of the State did not enjoy these benefits

  • There is one exception of this duality: the municipal level

    • The idea of a division with municipal property emerged from some articles on prescription

    • Arts.2220 and 2221 CCLC

      • 2220 refers to public property for the general use of the public

      • 2221 refers to other municipal property which was subject to other restrictions

    • This was maintained in municipal statutes

Duality only takes place at municipalities and corporations, legal bodies, etc.

  • It does not operate the State level.- It’s only in a restricted area that it operates

  • This comes art.916 (see above).

      • Art 916 is a very important notion and only place in CCQ where dualité domaniale is addressed. Second paragraph excludes it but last sentence brings it back…i.e. confusion.

      • The duality of the last sentence of Art 916 is applicable only in the case of legal persons established in the public interest (personne morale de droit public) (municipalities, school boards state corporations, etc).
      • It is specific to this area: property that is appropriated to public utility, i.e. property that wouldn’t be appropriated to public utility would not be subject to exclusions. Backward reasoning due to way it’s worded.


  • Two articles in CCLC dealing with prescription.

  • There isn’t much legislation to reflect this situation.

  • Old Montreal charter had power to adopt by-laws to transfer lands from public domain to private domain.

  • With the new charter, there are special rules dealing with Mount Royal and Mount Royal Park – this property is given a very special status. It is public domain in a strong way. The charter restricts the city’s ability to do anything with the mountain.

  • There is one article mention in Cities and Towns Act which is difficult to understand, and the cases also are not sure what it means. There aren’t too many cases that deal with this article: 604.  no distinction between public and private domain. Cases tend to temper effect of this, but language of statute seems to make any property of the municipality open to seizure.

  • Municipal Code s. 1125 basically says the same thing.

Cases dealing with duality deal more particularly with situation involving legal hypothec - The whole question of construction privileges.

Les Bâtiments Kalad’art c. Construction D.R.M. [2000] C.A.


- Contract between city Rimouski and Construction DRM for salt depot

- Legal relationship between city and DRM, which subcontracts to Kalad’art

- Kalad’art is not paid, and does not have a legal relationship with the city, so cannot sue them for payment, so it attempts to take a legal hypothec on building.

- The building will be used by city to store salt and sand for street maintenance.

Issue: Is the building destined for public utility pursuant to the last sentence of CCQ 916?

Holding: Yes.


- Tests used in previous cases and CCLC applied

- Even if depot’s public utilty is indirect, it still is public public domain.


- Biron J.: Complains to legislator – agrees it is for public utility but acknowledges that it is a pity for the people in the construction industry who take part in contracts at municipal level. The legislator should find an alternative way to protect people in the construction industry, without changing the laws of public and private domain. Fears it may discourage entering into construction K’s w/ municipalities.

- In the real world this hope of Biron J. is a stretch since construction business is so competitive.

- Godin thinks this case is an example of the proper approach to the problem.

Historical cases:

Concrete Column Clamps Ltd. v. City of Quebec S.C.R. [1940]


  • Federal government in Quebec City as owner of the Plains of Abraham (a federal park), authorized the city of Quebec to build a reservoir on it as part of its aqueduct.

  • City did not pay the builder and tried to take out a hypothecary privilege on it. A subcontractor did the work to install the reservoir, the sub tried to take out a hypothec on the area when they were not paid.

Issue: Is the reservoir public or private domain? (May the subcontractor obtain a legal hypothec on the area?)

Holding: Public. (No)  Quebec City wins.

Ratio: Taschereau, J.

- The land Plains of Abraham belongs to Crown (public domain) – cant be subject to privilege.

- Quebec obtained permission to build reservoir tank upon the land (created droit de superficie).

- The reservoir is attached to the aqueduct of the city.

- The aqueduct is public domain in municipality.

- Therefore, the tank is not susceptible to be charge by a privilege.

- BUT if you consider the reservoir to be a separate immovable, it might be subject to this privilege (if so then not part of the public domain).

- BUT then they said that the reservoir belonged to the municipality and this is clearly the public domain so it cannot be subjected to this privilege, therefore, the privilege is invalid. This is regularly referred to as an important case in the future.

J. Serrentino Construction v. Laval sur le Lac [1966] C.S. 425

Facts :

- Laval sur le Lac was an exclusive municipality and the city decided to build a curling rink.

- During the construction, the city decided that it did not want to pay and so J. Serrentino decided to take out a construction privilege on the rink.

- The city said it is the public domain and therefore invalid.

Issue: Is this rink part of the public domain or not?

Holding: NO. Is not part of public domain but “bien privé proprieté de la municipalité”


- Municipality with a curling rink is an object of commerce (dans commerce) and is therefore private property and the construction company had the right to seize it and can take out a hypothec on it.

- City could continue to do its function without the rink, therefore it is a saleable item and therefore the hypothec is valid.


- An example of duality based on the function and destination of the asset with respect to the activities of the municipality.

- Uses CCLC 641 and Concrete Columns case. (see above)
City of Montreal v. Hill-Clark-Francis [1968] C.A.


- Work was done for Montreal partly 1) on its aqueduct and 2) partly with respect to garages where the city stored its equipment.

Issue: Can HCF take out privilege on whole thing? Just on the garages?

Held: No. Yes.


- The court here made a distinction between the aqueducts and the garages as two types of property.

1) The aqueduct was considered property for general and public use pursuant to CCLC 2220 and 2221. The water system is for the public domain – the general use of the public, so they are imprescriptable.

2) The garages are for private use, since it was not accessible to the public.

- As the garages were private, this property had the right to be seized.


- Godin thinks this is a strange judgment and could have been argued the other way.

- Also uses CCLC 399 to 405.

- This is the gist of dualité domaniale.

- Consider that if same distinction of “public access” had been used in Serrentino (above) where rink was accessible to all, the ruling would not hold.

These two (Serrentino and Hill-Francis-Clark) became the two roads to take in interpretation. For a number of years, the two 1960s cases would either one way or another depending on how courts determined accessibility.

Concordia Concrete Floors Ltd v. Louis Laflamme Construction Inc. [1980]

Dealing with municipal installations. The issue is of taking security or privilege.

- The court held that the changing houses at municipal pools are used only for enjoyment and this property is not essential for municipal purposes.

- Therefore, it is not public domain but private domain and is therefore subject to seizure.

- Similar to Serrentino.

Ville de Sherbrooke v. Pelouse de la Capitale [1983] C.S. 758

Similar facts to above, making distinction between being dans commerce or being hors commerce.

- Dealt with parks and was deemed to be public domain.

- Note that parks are seen as required for municipal functions.

Construction Socam Ltée V. Communauté Urbaine De Montréal (WebCT)

  • If the law allows a public person to contract like a person in the private domain, then it would seem improper to give this power to the municipality without allowing for it to be hypothecated

  • What needs to be taken into account, however, is whether the property has a public utility, and as such deserves special protection and should not be subject to regular seizures

Macconerie Demers v. AMT (WebCT)

  • Here the judge has the power to hypothecate in order to secure financing

  • However, a legal hypothec with a subcontractr does not have to do with financing so it should not be valid

Société Des Traversiers Du Québec V. Produits D'acier Écan Inc [not sure] (WebCT)

  • Given that the objects in question were for a public purpose (using art.916) they cannot be hypothecated

Centre Hospitalier Sainte-Marie De Trois-Rivières V. Jacques Roy (WebCT)

  • This deals with another public corporation (a hospital centre)

  • Here the courts tracks down the word of art.916

    • S’approprié is one thing but to hypothecate is another
      • Even though there is an exception is s’approprié, this does not necessarily comprise hypothecation

  • This is a strict definition of art.916, nonetheless

It is interesting to note that through the Code of Civil Procedure, the government has isolated themselves from their agencies and corporation

  • Before the 1950s you could not sue the State directly, but as the State become more and more involved in the dealings of society this came to an end

    • Art.94 of Code of Civil Procedure allows for this, to sue the state

    • But art.94.9 of the CCP does not allow to seize the property of the State

  • It is still insulated from the workings of State agents such as corporations

In extra-ordinary cases, statutes are amended to allow for hypothecation within certain companies given the magnitude of what is to be developed by these companies

A subject specific to civil law, where there is a clear distinction between the common law and the civil law
In the old code the concept of ownership found its expression in art.405 CCLC, where people could hold ownership, derive enjoyment of property, or derive servitudes

  • Art. 911 of the new code expresses these sentiments

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 second part of the article is also new, and allows for the administration of someone else’s property

Indivision under the new code is dealt with and specifically specified, which wasn’t the case of the old code

In France during the Feudal period ownership was split

  • This has continued into the English common law system but not in civil law

  • The distinction between the domaine util and prive was a significant accomplishment of modern times

With origins in Roman law, ownership was established as a unitary, personal and fundamental right

  • There was a necessity, deriving from post-revolutionary France, to establish an individual and absolute right of ownership

When the seigniorial system was abolished, the same was done in terms of unification of the right and title of ownership

  • In art 406 of the old code ownership was the right to use and dispose of property

  • In this context, ownership is an absolute right

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.

Art. 952

No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in consideration of a just and prior indemnity.

Certainly, the enjoyment of the right of ownership has become difficult with what is happening in the environment and due to the social changes that have taken place lately

  • There are many limitations today to exercise our right of ownership in an egoistic and all-powerful way

There is always a tension between the private and public ownership

  • Even though the right of ownership is personal and absolute, it has to take into account a social dimension and the rights of others

  • The rights is absolute, but the exercise has to have a public dimension

What are the traditional characteristics of the right of ownership?

  • 4 fundamental characteristics; right of ownership is:

    • Absolute

      • You cannot be forced to transfer your right of ownership except by expropriation by the law (art. 952)

        • The Code tracks the philosophy that this is an inviolable right, as per art.7 of the French Declaration of Human Rights

        • Also found in the 5th Amendment of the US Constitution

    • Total

      • The three aspect of the right of ownership: Usus Fructus and Right to Dispose of property encompass the totality of the right of ownership (art. 947)

    • Exclusive and individual
      • Must be respected by third parties

      • The owner has exclusive right and does not have to share the rights with anybody (unlike the seigniorial system)

      • The only exception is expropriation

      • Indivision was originally not so well-accepted

        • We have moved away from this, however, we have condominium, indivision, etc

        • So the idea of exclusivity has become less significant as it was

    • Perpetual

      • The person has a right over the thing as long as the object exists

        • I don’t have to do anything to express the right of ownership (i.e. I can left my property unused and will continue to own it )

      • The right of ownership does not disappear, in case of abandonment it then belongs to the State

At some point it became evident that you couldn’t have absolute rights competing with each other

  • There needed to be a socially accepted balance that would restrict the exercise of this absolute right while respecting its freedom

  • This can be seen in environmental issues, where neighbors need to take into consideration the environment oh those than surround them in exercising their right of ownership

  • There are also economic restrictions in the right of ownership

    • Rental control, consumer protection

  • Also voisinage


  • The relationship between neighbours

  • Bon voisinage is acting with respect to one neighbours

  • Traditionally there were provision in the civil code called legal servitudes that would create a framework to deal with this relationship
  • Under the old code this came under the heading of servitudes

  • The new code has separated the former legal servitudes and other real (conventional) servitudes

    • The former legal servitudes are now part of the section on “legal restriction imposed on the owner’s property”; arts. 976 -1008

    • The part of servitude, referred to as real servitude, makes part of dismemberment of the right of ownership in the new code; arts.1177-1194

  • Legal servitudes were not deemed as real servitudes in the legal sense as they simply imposed limits on the use of neighbouring property

  • Real servitudes are a charge put on someone’s property for the benefit of someone else’s, which is based on an agreement

  • This distinction has an impact on their interpretation and application

    • The regime applicable to legal servitudes is quite different than that of real servitudes

  • In France they still have the same regrouping that Quebec had in the old code

Art. 1177 defines the real (conventional servitudes)

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.

  • It is an obligation tied to the ownership of some specific property

  • The idea of servitudes established by the act of man (which was present in the old code) is now part of voisinage

Voisinage is a new grouping of rules in the Code and introduces a new concept

Art. 976

Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.

  • Introduces the idea of who is a neighbour and how far this neighbour can go in the use of her property

  • What is normal annoyance? Beyond the limit of tolerance

    • There is space for flexibility

  • There is some recognition that actions may vary depending on location

  • The location of this article is significant, as it is deemed to affect the interpretation of the articles that follow in that same section

[Note:] Ciment St. Laurent is an important case on this topic but will be covered on the second semester

  • Res comunise: should not belong to no one and not susceptible of appropriation

  • The issue of underground water is still not settled (see Morin c. Morin)

    • Art.951 ties it to the ownership of the surface

    • But, underground water is part of a body that extends beyond a person’s property
    • A group of professors, consultants, lawyers etc suggested to come up with a legislation that would deal with the issue of water broadly speaking given that at the present time there is a different status given to underground and surface water

      • Instead there should be one general regime for water

      • There should be a dissociating of the ownership of water and ownership of 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.

There’s a series of rules dealing with water and the situation of voisinage

Art. 979

Lower land is subject to receiving water flowing onto it naturally from higher land.
The owner of lower land has no right to erect works to prevent the natural flow. The owner of higher land has no right to aggravate the condition of lower land, and is not presumed to do so if he carries out work to facilitate the natural run-off or, where his land is devoted to agriculture, he carries out drainage work.

1   ...   4   5   6   7   8   9   10   11   ...   21

The database is protected by copyright © 2017
send message

    Main page