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



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There is an obligation now in the Code to ensure that when people use water they do not change it and pass it on a different form to neighbours


  • Avoid pollution



Art. 981

A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course.
No riparian owner may by his use of the water prevent other riparian owners from exercising the same right.

  • Riparian owner is someone who own property that touches water




Art. 920

Any person may travel on watercourses and lakes provided he gains legal access to them, does not encroach on the rights of the riparian owners, does not set foot on the banks and observes the conditions of use of the water.



Art. 982

Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or used up, require the destruction or modification of any works by which the water is being polluted or dried up.

  • This article is new law, did not exist before and does not exist in France
  • This is an exceptional power given to individuals and not through an environmental statute but the Code


  • The balancing provision is “unless it is contrary to the general interest”


Calvé c. Gestion Serge Lafrenière inc

  • A case dealing with a fish farm on a small lake in the Gatineau area

  • The fish farm is given permits by the Minister of the Environment to discharge toxic fluids into the lake and the lake was dying

  • The neighbours who owned property on this lake took action invoking the above articles

  • The Superior Court gave an interim injunction to stop the polluting activity, though the C.A. modified this judgment to allow a certain level of operation though still protecting the lake

  • It was found that there was mismanagement on the Ministry and even some of these certificates had been issued improperly, so the government had to compensate in the end

  • This case shows how civil law provision that enable civilians to protect a lake, while a business was entitled by the Ministry to carry out such an activity

    • There is conflict between private and public law

    • The C.A. allows the public law to override private law, as these provisions are deemed as suppletive

    • When public law is not specific enough with regards to the limitations of an activity, principles may be drawn from private law

  • The courts are careful to not override provisions made at the administrative level and give great deference to them (they try to maintain the separation of powers)

    • This is why they are hesitant to allow private law to overwrite public law


Roy c. Tring-Jonction

  • Water of the plaintiff had been contaminated by a sewage treatment plant, which had all of the required permits from the Ministry of Environment
  • The court couldn’t agree that the plant should be demolished at the request of one property owner, given that it would be against the public interest as it belonged to the community and has been paid by the community


  • The plant was then ordered to organize itself better


Trees

  • Arts.984-86

  • The articles have been modified as compared to the Old Code

    • Under the old code the rules tended to be fairly absolute, while nowadays you have to show that the objects at stake (branches etc) are significant

  • Their effect is tampered by the concept of tolerance in art. 976



Art. 984

Fruit that falls from a tree onto neighbouring land belongs to the owner of the tree.



Art. 985

If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so.
If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it.




Art. 986

The owner of land used for agricultural purposes may compel his neighbour to fell the trees along and not over five metres from the dividing line, if they are seriously damaging to his operations, except trees in an orchard or sugar bush and trees preserved to embellish the property.

You can’t do justice to yourself



  • If you get into a disagreement with you neighbour you cannot simply fix it yourself by cutting your neighbour’s tree

  • You have to convince the judge that it is warranted to remove the object in dispute

E.g. Provost


Access to the land of another

  • For the purpose of fixing your property



Art. 987

Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it if that is necessary to make or maintain a construction, works or plantation on the neighbouring land.




Art. 988

An owner bound to give access to his land is entitled to compensation for any damage he sustains as a result of that sole fact and to the restoration of his land to its former condition.



Encroachments

  • Also a new element in this Code

  • To deal with situation in which someone inadvertently and in good faith builds and encroaches in the neighbour’s property




Art. 992

Where an owner has, in good faith, built beyond the limits of his land on a parcel of land belonging to another, he shall, as the owner of the land he has encroached upon elects, acquire the parcel by paying him its value, or pay him compensation for the temporary loss of use of the parcel.

If the encroachment is a considerable one, causes serious damage or is made in bad faith, the owner of the land encroached upon may compel the builder to acquire his immovable and to pay him its value, or to remove the constructions and to restore the place to its former condition.


  • The owner of the encroached land cannot ask the other to demolish the property

  • There are only two remedies

    • Acquire the parcel by paying him its value

    • Pay him compensation for the temporary loss of use of the parcel

  • The choice of the remedy is upon the person whose land has been encroached

  • However, if the encroachment causes serious damage to the property, or it was done in bad faith, the owner of the encroached land may compel the other to buy his immovable or to remove the constructions

    • These standards are based on questions of proof

      • Based on equity, serious damage, etc

E.g. Gosselinc c. Doiron



  • There was a minimal encroachment on a neighbour’s property and the encroached wanted to force the other to sell him the land and the other wanted the encroacher to demolish his property

  • The judge dismissed the case


Distances between buildings

  • Arts. 993-996

  • The distance is 1.5 meters

  • If the view if too close to the legal line, it is an illegal view and can be legalized through a servitude of view




Art. 993

No person may have upon the neighbouring land direct views less than one hundred and fifty centimetres from the dividing line.

This rule does not apply in the case of views on the public thoroughfare or on a public park or in the case of panelled doors or doors with translucid glass.





Art. 994

The distance of one hundred and fifty centimetres is measured from the exterior facing of the wall where the opening is made and perpendicularly therefrom to the dividing line. In the case of a projecting window, the distance is measured from the exterior line.




Art. 995

A person may make fixed translucid lights in a wall that is not a common wall, even if it is less than one hundred and fifty centimetres from the dividing line.




Art. 996

A co-owner of a common wall has no right to make any opening in it without the agreement of the other co-owner.


Right of way (enclave)

  • One that exists by law (not by servitude) and is very important

  • Arises when a property is enclosed and has no access to a road

    • The Code provides that you are entitled to an access and can obtain from you neighbour
  • Under the Old Code this was very strict, and it is more flexible under the new code





Art. 997

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 him with the necessary right of way to use and exploit his land.
Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause.

  • The CCLC just dealt with now access, while the new code encompasses the situation when the access is inadequate

  • The court will try to find a right of way that affects the other neighbours the least though provides the person with a good and proper access



Art. 999

If land is enclosed as a result of the division of land pursuant to a partition, will or contract, right of way may be claimed only from a co-partitioner, heir or contracting party, not from the owner whose land affords the most natural way out, and in this case the way is provided without compensation.

  • If the enclosement resulted from a partition, then the right if way will be forced through the land of the co-partitioner of her/his heir




Art. 1000

The beneficiary of a right of way shall build and maintain all the works necessary to ensure that his right is exercised under conditions that cause the least possible damage to the land on which it is exercised.

See Whitebirth c. Martin

There are legal rights that give public entities access to private property

These are not really servitudes, but real rights



  • E.g. allowing Hydro Quebec access to put poles, electricity lines, etc

    • These rights are given bus statute

  • Subject to compensating any damage

  • Some of these companies also have power if expropriation to acquire access and servitudes that they can’t negotiate with property owners

More on Voisinage


The origin of Art. 976

  • New law

  • It clearly tampers with the right of ownership and tries to introduce the idea of tolerance amongst neighbours while recognizing that tolerance has its limits

  • Were does this come from?

  • Is it a right, servitude, obligation?

Traditionally this comes from Roman law where there was an interest in dealing with the damages that arose between neighbours



  • The interaction between different interests surrounding the right of ownership led to development of the idea if vosinage

  • After some time a balance was struck between allowing some respect for different individuals while letting businesses and people carry out their activities

At the beginning of the 19th C, the courts in France tried to find a balance


  • The faulty exercise of the right of ownership becomes a source of liability


  • Abusive right was introduced into legal systems; now art. 1457 of the CcQ

    • The notion of fault is important in this context; it is essential to have an unreasonable action




Art. 1457

Every person has a duty to abide by the rules of conduct which lie upon him, according to the circumstances, usage or law, so as not to cause injury to another.

Where he is endowed with reason and fails in this duty, he is responsible for any injury he causes to another person by such fault and is liable to reparation for the injury, whether it be bodily, moral or material in nature.

He is also liable, in certain cases, to reparation for injury caused to another by the act or fault of another person or by the act of things in his custody.

The legislature in the new code, however, was looking to introduce a distinct regime that arises from the exercise of the right of ownership, more than the concept of fault



  • Art. 976 is as the introductory article to this whole section

When does this of voisinage concept come into play?



  1. There has to be a damage of some sort

    • Not mere an annoyance, but there needs to be proof that some damage arise from the neighbours actions

    • The court will often not interfere unless there is some real prejudice taking place

      • The articles are designed to reflect reality and the concept of tolerance
  1. There is also the idea of a regular occurrence of an event


    • If it was a single event, then it would fall under civil responsibility

    • In here, you need to take into consideration the context of where this regular annoyance is occurring


Léo Pilon c. St-Janvier Golf & Country Club Inc

  • The court establishes that while the golfers were sending golf balls to the property of the person, he was rarely there so there was no real damage

  • Other cases, however, have gone the other way




  1. The concept of fault


Katz v. Reitz, [1973] C.A. 230

  • The fundamental case eliminating the concept of fault from the trouble de voisinage

  • Someone was getting a general contractor to build on his property and the neighbours house start to fall on the hole

  • In a well notorious remark the judges ruled that it is not a matter of fault but the entitlement of the neighbour to his right of ownership

Christopolous v. Restarurant M



  • The judges here came to opposite conclusion and distinguished this case from Katz v. Reitz

The question of fault is still discussed, though the doctrine seems to go in the general direction of no fault



  • We are not looking at whether the defendant was ill-intentioned, but the consequences of the actions


Gourdeau
c. Lettelier de St. Just

  • The court is quite empathic that fault is not a necessary element

  • Since we have created an article in the book of property, separate from the book of obligations, there is an intent of generating a separate regime
    • It should be a matter of real rights and their exercise, where the characteristic is a matter of the effects in the exercise of the right of ownership rather than fault

There are defences that can be made



  • The legality of the activity

    • Being authorized to carry out the activity; licence to cause damage

    • Most of the cases take the view that this is not really an excuse

  • Economic or social utility

    • Again, courts are not very sensitive to this kind of damages

  • Who arrived first? Did the plaintiff enter a place where the damages were already taking place

    • Again, the courts are no sensitive to that, in the sense that you have not acquired rights to damage your neighbours

Remedies


  • Stop the damages

    • In Calvé c. Tring-Jonction the courts were hesitant to stop the action but tried to make sure that it would be run in an organized manner

      • In Tring-Jonction the courts were trying to balance the interests of the plaintiff as well as public interest

  • Punitive damages

    • This issues comes out quite regularly

    • Generally punitive damages in our system are very unpopular

    • There is the possibility to award them under the Quebec Charter of Rights and Freedoms

    • S.6 of the Canadian Charter is also often used (the right to free enjoyment and disposition of property) while s.49 of the Charter opens the possibility of punitive damages where there is unlawful and intentional interference of the rights protected by the Charter

    • Art. 1621



Art. 1621


Where the awarding of punitive damages is provided for by law, the amount of such damages may not exceed what is sufficient to fulfil their preventive purpose.

Punitive damages are assessed in the light of all the appropriate circumstances, in particular the gravity of the debtor’s fault, his patrimonial situation, the extent of the reparation for which he is already liable to the creditor and, where such is the case, the fact that the payment of the damages is wholly or partly assumed by a third person.



    • Even if there is potential for this, art.1621 gives great discretion to the court to assess and quantify them

    • [There is a proposal for possible amendments to this article for exceptional cases where there has been an intentional and reprehensive damage; the proposed amendment also specifies rigorously in which kind of situations these kind of damages may be awarded]


Construction

  • These are new articles which reflect the cases that arose under the old code regime




Art. 990

The owner of land shall do any repair or demolition work needed to prevent the collapse of a construction or works situated on his land that is in danger of falling onto the neighbouring land, including a public road.



Art. 991

Where the owner of land erects a construction or works or makes a plantation on his land, he may not disturb the neighbouring land or undermine the constructions, works or plantations situated on it.


Effects of Katz c. Reitz
Again here we are under art.976 so we are not obliged to take questions of fault

  • This is different from articles in the book of extra-contractual liabilities that deal with things

  • Arts. 1465 and 1467




Art. 1465

A person entrusted with the custody of a thing is liable to reparation for injury resulting from the autonomous act of the thing, unless he proves that he is not at fault.




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