I. The Distinction between Property and People ......................................................................................... 3 Moore v. Regents of California, Supreme Ct of Calif. (1990)...............................................................4

II. Relationship Between Persons & Patrimonies ........................................................................................ 4 Aubrey & Rau – Du patrimoine en général............................................................................................5Ghestin, Traité de droit civil, chap. II.....................................................................................................5R.A. Macdonald, Reconceiving the Symbols of Property: Universalities, Interests, and Other Heresies.................................................................................................................................................................7

III. Distinction Between Patrimonial & Extra-patrimonial Rights ........................................................... 8 Baudouin & Jobin, Les Obligations........................................................................................................8Philipps v. Montreal General Hospital, (1908) Que C.S........................................................................9Deschamps v. Renault Canada, [1972] Que C.S....................................................................................9Aubry v. Vice-Versa [SCC 1998].........................................................................................................10LaPrairie Shopping Centre Ltd (Syndic de) [CA QC 1998].................................................................10Société Québécoise d’Initiatives Agro-Alimentaires v. Libman [CQ 1998]........................................11

IV. Property in Commerce and Outside of Commerce ............................................................................. 11 Fabrique de la Paroise de l’Ange-Gardien v. Quebec [CS 1980].........................................................11

V. Real Rights & Personal Rights ............................................................................................................... 12 Principal real right vs. Accessory real right...............................................................................................12

Hamilton v. Wall (1879) Que...............................................................................................................14Segal v. Ross (1962) Que C.S...............................................................................................................14Zigayer v. Ruby Foo’s [1976] C.S........................................................................................................14Cadieux c. Hinse, Morin [1989] R.J.Q.................................................................................................14

Publicity of rights......................................................................................................................................15VI. Intellectual Property/ la propriété intellectuelle ................................................................................... 15

Ghestin, Traité de droit civil: Introduction générale (extrait)...............................................................15Moral rights...............................................................................................................................................15

Buffet v. Fersing, 1962, France............................................................................................................16Crimi v. Rutgers Presbyterian Church, 1949, S.C. of NY - CML.......................................................16Snow v. Eaton Centre, 1982, Ont – CML.............................................................................................1785831 Canada Ltd. v. Bitton, 1991 Que. C.S.......................................................................................17Canadian Copyright Act.......................................................................................................................17

Copyright...................................................................................................................................................17Information................................................................................................................................................18

VII. Distinction between Movables and Immovables ................................................................................ 18 Belair v. Ville de Ste-Rose (1922), Que. C.A.......................................................................................19Nadeau v. Rousseau (1928) 44 B.R. 545..............................................................................................19Horn Elevator Ltd. v. Domaine d’Iberville Ltée, 1971, Que C.A........................................................20Cablevision v. Dep. Minister of Revenue of Quebec [1978] S.C.R. 64...............................................21Banque d’Hochelaga v. Waterous Engine Works, 1897, SCC.............................................................21

Movables....................................................................................................................................................21Construtek G.B. Inc. v. Laforge (1998)................................................................................................22Axor Construction v. 3099-220 Quebec, 2002 C.A..............................................................................22

VIII. Tenure and Domain ............................................................................................................................ 23 A. Private Property and its Origins............................................................................................................23

QC (Procureur Général) c. Houde [CA 1998]......................................................................................24B. Public Domain and Private Domain......................................................................................................24

Dupuis v. St. Jean (1910) Que C.S.......................................................................................................25Legal Persons in the Public Interest...........................................................................................................25

Construction D.R.M. Inc. v. Bâtiments Kalad’Art Inc., 1999 Que C.A...............................................26Construction SOCAM v. ECE Electrique, 2001...................................................................................26

C. Rights in Land of Native Peoples.........................................................................................................26Pronovost v. Le Ministere des affaires indiennes (1985) Federal C.A.................................................27Delgamuukw v. British Columbia........................................................................................................27

IX. Ownership ............................................................................................................................................... 28 A. Nature & Scope.....................................................................................................................................28

Portalis, Discours prononcé devant le Corps legislatif (1804).............................................................29

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B. Possession and its Effects.....................................................................................................................30C. Acquisition of Right of Ownership.......................................................................................................31Occupation.................................................................................................................................................31

Tremblay v. Boivin, 1960 Que S.C.......................................................................................................32Prescription................................................................................................................................................32

Malette v. Sûreté du QC, 1994 R.J.Q...................................................................................................33Accession...................................................................................................................................................33D. Restrictions on the Right of Ownership................................................................................................34Limitations in the private interest..............................................................................................................34

Léo Pilon c. St. Janvier Gold and Country Club, 1975 Que C.S..........................................................35Côté v. Baie St-Paul, 2000 Que............................................................................................................35

Limitations in the public interest...............................................................................................................36Le Procureur-Général du QC c. Clement Globe Inc [1984 CS]...........................................................36

X. Modalities of the Right of Ownership .................................................................................................... 37 A. Simple Indivision (Co-ownership)........................................................................................................37

Stem Corporation v. Pulos, 1959..........................................................................................................40Allice v. Potashner, 1988 Que S.C.......................................................................................................40

B. Forced Indivision and Common Things Destined to the Perpetual Service of Several Immovables...41Zambito-Orazio c. Meneghini [CS 1994].............................................................................................43Zambito-Orazio c. Meneghini [CA 1999]............................................................................................43Groleau v. Société Immobilière du Patrimoine Architectural de Montréal [CS 1999]........................44

C. Divided Co-Ownership in an Immovable (Condominium)..................................................................44Time-sharing/ La propriété à temps partagé..............................................................................................47D. Superficies / Propriété superficiare.......................................................................................................47

Morin v. Gregoire [SC 1967]................................................................................................................48LaFontaine c. Gravel [CS 1997]...........................................................................................................50Stone-Consolidated c. Pierre Desjardins Gestion [CS 1998]................................................................50

XI. Dismemberments of ownership ............................................................................................................. 52 A. Emphyteusis..........................................................................................................................................52

Cohen v. Minister of National Revenue [1968 Ex Ct]..........................................................................54Sun Life Assurance Co. v. 137578 Canada Inc, 2000, Que CA...........................................................55Procurer Général du Canada c. Constuction MIS Inc, 1989 Que SC...................................................55H.L.P. Societe en Commandite c. Ville de Beauport, 2000 Que CA...................................................56

B. (Real) Servitudes and Real Obligations................................................................................................57Hamilton v. Wall (1879) Que...............................................................................................................58J. Carbonnier, Droit Civil......................................................................................................................59

C. Usufruct.................................................................................................................................................59Migneault, Le droit civil canadien........................................................................................................61Larocque v. Beauchamps, 1975 Que C.S.............................................................................................63Banque Nationale du Canada v. Gravel, 1984 Que. C.S......................................................................64

D. The numerus clausus (closed list/fixed number) of real rights.............................................................65Duchaine v. Matamajaw Salmon Club Limited, [1919] 58 S.C.R. 222...............................................68Matamajaw Salmon Club Limited v. Duchaine, [1921] Privy Council................................................69

XII. Restrictions on the Free Disposition of Certain Property ................................................................. 73 A. Stipulations of alienability....................................................................................................................73

Robinovitch v. Banque de Montreal, [1999] Cour du Que...................................................................73B. Substitutions..........................................................................................................................................74

Minister of National Revenue v. Smith, [1960] SCR 377....................................................................76Derosiers v. Paradis, [1963] SCR 52....................................................................................................76

XIII. The Trust and other Patrimonies by Appropriation ....................................................................... 78 A. Concept of the Trust in Anglo-American Law.....................................................................................78B. Introduction of the Trust in Quebec......................................................................................................79

Royal Trust Company v. Tucker, [1982] 1 SCR 250...........................................................................81C. The Trust under the Civil Code of Quebec...........................................................................................82

Brierley, “De la fiducie” ............................................................................................................................... 82

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I. The Distinction between Property and People

How to define property? What gives an object the attributes of property?

Property is (criteria identified by law): Susceptible to economic/exchange value and monetary terms Susceptible to appropriation / can be possessed Not human: an antithetical relationship between property and the human Materiality is an unreliable criterion for property Object of rights

We can refer to a material thing as an object, but property is also viewed as a right that bears upon the thing, e.g. the right of ownership. This renders all property intangible b/c the concept of a right is intangible. We view property in terms of its relationships with the holder.

Whether or not an object constitutes property appears to be a socio-political choice and a cultural phenomenon. Property is very much a Western, individualistic concept: the distinction between persons and things. In other cultures, less division between individuals in terms of property rights (e.g. social ownership) and less division between humankind and nature.

Person is: Subject of rights 1 CCQ: has juridical personality - capable of holding rights and obligations

o (Legal persons also have juridical personality – 298 CCQ)

Animals: Considered movable property - of a special kind?

o Owners have subject/object relationships with their domestic animals, although the distinction is often blurred as they develop close relationships and impose human attributes onto them. Culturally, we are uncomfortable defining animals are mere property.

o Animals are the object of rights, but owners seem to have obligations towards them too. Criminal Code protects animals from mistreatment and suffering and requires owners to care for their pets.

o Explanation: obligation is not for the benefit of the animal, but because animal cruelty is an offence against society, anti-social behaviour. Law is an anthropocentric entity that ignores laws of nature; we don’t refrain from harming animals for ecological reasons.

As property, cannot hold rights or obligations – 1466 CCQ 934 CCQ – animals without owners – shows primacy of human beings

Control/ownership of other people’s bodies is complicated; e.g. wigs made of human hair.392 CCQ: marriage contract includes an obligation to be faithful: implies ownership/control of another person’s body.525 CCQ: presumption of paternity: that a child of a union belongs to the mother’s spouse. Ancient concept that the body of the mother ‘belongs’ to the father.

947 CCQ: Ownerships is the right to use, enjoy & dispose of property fully & freely We don’t want the right of ‘disposal’ over human body, the possibility of appropriation.

It must stay out of commerce.

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541 CCQ: Surrogate motherhood agreements prohibited – use of body for commercial purposes considered violation of human dignity.

19, 22 CCQ: People have the right to alienate body parts (e.g. organ donation) of their own free will if that part is capable of regeneration and removal poses no serious health risks, and to donate them for research purposes.

If you don’t give your consent, it’s actionable.25 CCQ: The alienation by a person of his body part shall be gratuitous; it may not be repeated if it involves a risk to his health. An experiment may not give rise to financial reward other than payment of indemnity for loss/inconvenience. You can’t sell your body parts. They are objects hors commerce.

Moore v. Regents of California, Supreme Ct of Calif. (1990)Facts: Plaintiff brought action against defendant alleging conversion (transfer of property to another for the other’s use, without authority from the owner), claiming proprietary interests in the creation and breach of physician’s fiduciary obligations.Materials removed from plaintiff’s body were used in cell research without permission. Defendant was attempting to patent a cell line from which they would benefit financially.Issue: Did plaintiff retain right to ownership or possession of his body parts after they removed? Was there an interference with this right, giving cause to claim for conversion? Held: Allegations accepted for breach of fiduciary duty or lack of informed consent but not for conversion. Ratio: There was a breach of duty to disclose facts material to patient’s consent and lack of informed consent by concealing economic interest and research intentions. For conversion claim to be successful, plaintiff would have to be able to establish that he has ownership rights over the excised human cells. No other cases have held this before. Laws governing the use of human body parts treat them as objects sui generis and not as personal property. Only property can be converted.Dissent: The patient may not have a post-extraction right to her cells, but he does have a right to decide what will be done with them once they are taken out. The statement that bio-materials can never be property is too sweeping; if the lab is broken into & the body parts stolen, isn’t that theft of property? Recognizes awkwardness of the distinction between persons and property.Comments: Even though plaintiff’s body part had economic value for defendant, court was still reluctant to consider it property. Plaintiff won on different grounds (lack of informed consent), having nothing to do with property interests, because human dignity demands that the person exercise control over one’s body. Policy issue raised:

Allowing conversion to succeed in this situation would hinder scientific research by restricting access to the necessary materials: a market-driven argument.

Notion of the ‘sacred’? Refusal to see human body as susceptible to appropriation. The body is not equivalent to the person, the subject of rights. Why should it not be seen

as property, the object of rights? This indicates that human bio-materials should be regulated via policy, not property law.

II. Relationship Between Persons & Patrimonies

PATRIMONY: defined as the whole of the rights of obligations of a person having economic value, forming a universality of law.

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A “balance sheet” of rights/assets/debts and obligations/liabilities/credits, which answer for each other. The factor of cohesion between the rights and obligations is the individual. Only things of economic value are calculated. Doesn’t include inalienable rights.

2 CCQ: Every person has a patrimony.The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.

Aubrey & Rau – Du patrimoine en général

Classical view: Patrimony emanates from personality. It is indivisible (from the person), as is the personality. It includes all property & debts of a person – abstract representation of the wealth and

poverty of a person. Inherited property is separate within the patrimony of the heir, though it is part of it.

1. Only physical and legal persons have patrimonies.2. All human beings have patrimonies.3. Each person has only one patrimony.

a) The patrimony is inherent to the personality.b) The patrimony is inalienable, cannot be detached from the person.c) A person loses the patrimony only at death.

Ghestin, Traité de droit civil, chap. II

Assets answer for debts.Only subjects of rights can have patrimonies.Modern view: 2 CCQ: The patrimony may be divided or appropriated to a purpose. Patrimony by

appropriation – e.g. in commerce, same person can be in charge of more than one patrimony.

Patrimonial vs. extra-patrimonial rights: Pat. rights are susceptible to monetary evaluation; ex-pat. rights are not. Pat. rights are about ‘matter’: property, claims, etc. Expat. rights are about ‘spirit’: right to name, honour, etc.

Patrimonial right = Property Every person has a patrimony even if he doesn’t have any property. Patrimony is the container; property is the contents. Legal universality – the potential for ownership The personality is the element of cohesion between assets and debts. Dynamic – the contents change continuously, though the container is stable.

Patrimony cannot be divided, but one can create a legal person, i.e. a corporation, to attempt to shelter one’s property from creditors. This must be done in good faith.

This doesn’t really work, since at first the patrimony will be empty and the property that is given to it will respond to debts of the enterprise (loans to get it started).

1631 CCQ: if debtor fraudulently seeks to render himself insolvent, creditor can obtain declaration to nullify the act.

Theory of the patrimony is designed to protect creditors

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Theory of the patrimony is an individualistic concept stemming from Classical liberalism. Each person has one unique patrimony that is an extension of who he is; a bank will not consider family’s/spouse’s patrimony. Thus, if a debtor fails to pay back a loan, his creditors are entitled to this other assets.

2644 CCQ: the property of a debtor is charged with the performance of his obligation and is the common pledge of his creditors.

Creditors can demand liquidation of assets to fulfill debts. Creditors are in competition for debtor’s assets.

Individualistic concept: no one is responsible for the debts of another.2645(1) CCQ: all one’s property, present and future (all assets), is charged by one’s obligations.

Property exempt from seizure: 2645(1) CCQ: certain property is exempt from seizure by reason of its nature Code of Civil Procedure, Art 552-53 enumerates these: trade tools, personal clothing,

certain family heirlooms, etc.

Inheritance:Although patrimony is inalienable and not transmissible, it disappears at death and the contents pass to heirs (who already have patrimonies).625(1) CCQ: The heirs are seised… of the patrimony of the deceased… (i.e. its contents). But, for a little while, until the estate is administered, the patrimony is detached from the person (who has died) until the administration is complete. This is why the funeral costs are paid for by the succession and executed by the administrator.Heirs are responsible for the deceased’s debts as his obligations are ‘emptied’ into the heir’s patrimony.625(2): The heirs are not… bound by the obligations of the deceased to a greater extent than the value of the property they receive…

Patrimony by appropriation (Patrimoine d’affectation): ability to create a patrimony without a person. Violates classical theory. (France doesn’t recognize non-personal patrimonies; this is distinct to Quebec law.)

A set of goods/property appointed to a particular purposeo One person could have severalo Special patrimonies could be transitiveo Someone could easily detach property and create a foundation

CCQ: advent of the idea that patrimonies may be divided or appropriated to a purpose. Facilitated development of the trust (la fiducie) and the foundation (la fondation) in the civilian tradition. Property is taken from the patrimony of a person and placed in a trust, which is administrated by a trustee who has no real rights in it. Permits existence of a “floating” patrimony without a holder.(A foundation can be either a legal person or a patrimony by appropriation, depending on the way it is set up.)

Trust: 2(2) CCQ: patrimony appropriated to a purpose 1260 CCQ: A trust results from an act whereby a person, the settlor, transfers property

from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer.

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1261 CCQ: The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.

1297 CCQ: At the termination of a trust, the trustee shall deliver the property to those who are entitled to it. (2) Where there is no beneficiary, any property remaining when the trust is terminated devolves to the settlor or his heirs.

Focuses on a goal/purpose rather than on another person: factor of cohesion is no longer a personality, but the goal

Property contained within no longer accessible to creditors of the settlor: perhaps violates notion of individual responsibility – 1631 CCQ: if debtor fraudulently seeks to render himself insolvent, creditor can obtain declaration to nullify the act.

Trust is neither a physical or a moral person.

R.A. Macdonald, Reconceiving the Symbols of Property: Universalities, Interests, and Other Heresies

-CCQ contains reformulation of some of the basic symbols of property-CCLC: distinction b/w person and property underwrote that between patrimonial and extra-

patrimonial Practice soon showed this limits of this classic view Personal vs. real patrimonial rights: lots of grey area between the two

-Traditional concepts do not define what they seek to define.-So, to what extent should we do away with patrimony?

Patrimony is the juridical universality comprising assets and debts with pecuniary valueo The view that patrimony and legal personality are complementary aspects of one

reality denies the possibility of creating new nexi of property. It made more sense when physical persons and immovables were the center of the legal universe

o This subjective conception (unitary and indivisible) proved insufficient for e.g. succession and the common pledge of creditors

o Practically, it has become contingent on the purpose for which it is being invokedo Inconsistent with trusts because it insists that all property must have a titulary

Patrimonies of appropriation are the objectivist alternative o The end pursued become the criterion for juridical universality, rights become

constitutive of the patrimony, not just objects in the container of patrimony. There is no necessary connection with legal personality

Contrast and conflict between the objective and subjective visions was reflected in the Civil Code Revision Office

Article 2 is an amalgam of both visionso No longer true that only legal/physical persons have oneo Everyone still has oneo Single and indivisible no longer true

Two things become possible:o Divided patrimony by appropriation (with respect to common pledge)

CCQ allows for a hypothec over a universality of movables, i.e. for the creation of a new juridical universality

o New one created via trusts—ownerless property (becomes more of an accounting procedure).

What is the utility of saving appearances (maintaining the subjective view)? Why not just define juridical universality and real subrogation as such?

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Why not just highlight the distinction between factual and juridical universalities as such? And, the distinction between patrimonial and extra-patrimonial is proving tenuous

Family patrimony: attempt to introduce economic equality in marriage in Quebec. Not a true patrimony, each spouse retains formal ownership of each piece of property. Not a universality of law, maybe a universality of facts. Joint property may be divided at divorce or death but there is no factor of cohesion (i.e. a single person) between assets and liabilities. 414 CCQ: Marriage entails the establishment of a family patrimony consisting of certain property of the spouses regardless of which of them holds a right of ownership in that property.415 CCQ: lists property that is included under a “family patrimony”: family residence, furnishings, motor vehicles etc.

At dissolution of marriage, family patrimony is equally divided

Children: 4 CCQ: Children have patrimonies and have the right to representation/assistance; C.C.Q 192(1) parents administer patrimonies of children Foetus – C.C.Q 192(2): patrimonial interests alluded to, not the same as patrimony

o C.C.Q 617: foetus may inherit, if it ends up being born alive – inheritance validated expos facto.

Future children (yet unconceived) can inherit by leaving property in a trust.

III. Distinction Between Patrimonial & Extra-patrimonial Rights

Baudouin & Jobin, Les Obligations

Extra-patrimonial rights: Non-transferable, not measurable in monetary terms, disappear along with rights-holder, not

subject to prescription, out of commerce, cannot be seized. e.g. right to life, dignity, privacy, reputation, rights of parents to hold custody of their

children. 3 CCQ: Every person is the holder of personality rights, such as the right to life, the right to

the inviolability and integrity of his person, and the right to respect of his name, reputation and privacy. (2) These rights are inalienable.

Patrimonial rights: Economic value, subject to prescription, transferable, survive the rights-holder through

patrimonial transmission. e.g. rights of ownership, lease, copyright

Not mutually exclusive categories: violation of an extra-patrimonial right creates a claim for pecuniary reparation in the right-holder’s patrimony.

Extra-patrimonial rights have no pecuniary value, but some of them have financial coloration “patrimonialization”: inalienable rights that cannot be seized by the creditor but are expressed in patrimonial terms.

The right to have a patrimony, i.e. the right to hold ownership, is also an inalienable (E-P) right

Such rights are outside of legal commerce, ‘innate property’ Claims to compensation for extra-patrimonial rights (i.e. the monetary damages paid)

may be transferred, but the extra-patrimonial rights cannot. They are inalienable.o 625(3) CCQ: The heirs are seised of the rights of action of the deceased against

any person or that person’s representatives for breach of his personality rights.

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1610 CCQ: Claims from extra-patrimonial breach cannot be seized by 3rd parties/creditors or assigned, but they may be transmitted to heirs. However, once claim materializes into damages, this can be seized.

Violation of an extra-patrimonial right creates a cause of action, which is a patrimonial right. 1610 makes no sense because once a right has been patrimonialized, it is no longer a personality right.

302 CCQ: Legal persons have extra-patrimonial as well as patrimonial rights

392 CCQ: Marital rights & obligations appear to be extra-patrimonial (respect, fidelity, succour, assistance)

Philipps v. Montreal General Hospital, (1908) Que C.S.

Facts: Authorities of defendant carried out autopsy on cadaver of plaintiff’s husband against her wishes.Issue: Does plaintiff have any right in the cadaver of her husband? Have any of her rights been violated?Held: No, but yes. Judgment for plaintiff.Ratio: Widow has no claim/right in husband’s body after death; there is no property in a dead body to inherit. Court found that plaintiff has right to control remains of deceased; she has the right not to be aggressed with regards to this control, which has been violated. Violation of the extra-patrimonial right to privacy.Comments: 35(2) CCQ: Every person has a right to the respect of his reputation and privacy. This case

awards reparation for moral prejudice of plaintiff’s own violation of privacy, not of anything she has inherited from her husband. Not analogous to Moore, even though his body parts were not property, because his body parts were ‘of a person.’

Due to the violation of her E.P. right, a cause of action is created, which is patrimonial. 42 CCQ: right to determine disposal of body – if no express wishes of deceased, wishes of

heirs prevail – related to who is responsible for funeral expenses, since property of deceased will transfer to heirs.

46 CCQ (The “Philipps Rule”): consent to autopsy can be given by ‘close relations’ – for protection of their E.P. rights.

19, 25 CCQ: Alienation of one’s body parts must be done gratuitously – suggests that the body is property that can be disposed. Not a regular act of disposal of property. 10 CCQ: right to bodily integrity/inviolability, which can be renounced with free and

enlightened consent – one can consent to a violation of personality rights – does not indicate that the nature of their body parts changes to property.

Deschamps v. Renault Canada, [1972] Que C.S.Facts: Def used two actors’ images and names in a printed advertisement without consent of the actors. Defendant acted in good faith and was unaware that the film distributor, Mojac Film, had negotiated use with them without obtaining consent of plaintiff.Issue: Were rights of plaintiff violated?Held: Yes. Interlocutory injunction granted.Ratio: There was no consent, real or implied. Plaintiff has the right to limit the advertisers with

which they are associated. Court considers the “real commercial value of image.”

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Court uses patrimonial language in discussing plaintiff’s rights. This is not because right to name and reputation are patrimonial, but because of the potential claim that would result from violation, which has economic value. Because of their fame, the actors’ images have both patrimonial and extra-patrimonial value. In doing the analysis before violation of the right, we are still considering the value of the claim that would be created after violation.

Comments:Had the actors consented to having their images used and received compensation, this would not have been a transfer of extra-patrimonial rights, because these are inalienable.Patrimonialization:

Creation of claim and payment after violation of E.P. right In its potential to be connected to $, actors’ rights to reputation and privacy have a

‘patrimonial aspect’

Aubry v. Vice-Versa [SCC 1998]Facts: (a) A photo of Aubry was printed in Vice-Versa without her permission (b) She is suing

for damages resulting from the unconsented use of her image (c) Aubry won in first instance and in the CA.

Issue: Was Aubry’s right to privacy (the use of her image) infringed?Holding: YesReasoning: Though the right to privacy must be balanced with the freedom of expression, an

artist’s expression does not validate the infringement of a right to one’s image unless it can be shown to be in the public interest to do so, which is not the case here.

Dissenting Judges: The respondent failed to establish prejudice and an infringement without injury does not constitute a liability. Differs from Deschamps, in which damages were suffered because actors are famous.

Chief Justice Dissenting: Agrees with dissenting opinion, adding that right to image is not just a subset of right to privacy (i.e. it may be tied up with commercial interests).

Comments: Infringement of Que Charter rights is subject to CVL principles of recovery. None of the lower judges even brought up the issue of patrimonial damage—i.e. the material injury caused by not sharing profits with the Pl.

-What exactly are the patrimonial elements here?

LaPrairie Shopping Centre Ltd (Syndic de) [CA QC 1998]Facts: (a) The appellant, the syndic for the bankrupt party, wanted some information from the

respondent, the lawyer for the same party. (b) the respondent lawyer didn’t want to answer (c) the syndic said he renounced confidentiality on behalf of the party that went bankrupt (d) the lawyer claims that he cannot renounce such confidentiality (e) respondent won in superior court

Issue: Is it within the rights of the syndic to renounce confidentiality for the party he represents? Is the right to secrecy part of the patrimony that the syndic acquires?

Holding: NoReasoning: Professional secrecy is an extra-patrimonial right, and the syndic, whose interest and

rights were with respect to the property alone, cannot renounce extra-patrimonial rights without the consent of the bankrupt party.

Ratio: A syndic does not have access to the personal and extra-patrimonial rights of the represented party, which includes the right to privacy/confidentiality.

Comment: p. 454 of the Case: quote from Baudouin: corporations do not enjoy extra-patrimonial rights. This is no longer true, and Baudouin’s book had been updated, see p. 61

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Société Québécoise d’Initiatives Agro-Alimentaires v. Libman [CQ 1998]Facts: (a) Libman wanted access to the financial records of Socomer, but was denied that access

by SOQUIA. (b) The Access of Information Commission forced SOQUIA to hand it over, and they are appealing that decision (c) Socomer has ceased its activities

Issue: (1) Does right to access information come into effect because the cessation of activities nullifies the right to confidentiality? (2) Does Socomer retain a right to privacy after ceasing activities?

Holding: (1) No (2) YesReasoning: (1) The burden of proof lies with the respondent to show that cessation leads to loss

of confidentiality, and the trial judge merely presumed that it did. (2) The financial status of an enterprise is not directly relate to the extra-patrimonial rights of the legal person of the enterprise. Cessation does not entail that this person loses a right to privacy.

Ratio: Moral/Legal persons have extra-patrimonial rights.

IV. Property in Commerce and Outside of Commerce

Object of commerce/dans le commerce: thing which can be the object of a juridical act of a patrimonial nature. Can be exchanged and disposed of at will

Object not in commerce/hors commerce: thing which cannot be the object of a juridical act of a patrimonial nature. Imprescriptible, unseizable and in principle, inalienable.

Such objects take on a “sacred” dimension

2876 CCQ: 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.2217 CCLC: Les choses sacrées, tant que la destination n’en a pas été changée autrement que par l’impiètement souffert ne peuvent s’acquerir par prescription. (2) Cemeteries can’t be changed by destination until remains are exhumed – as they are sacred things by nature.

There is a distinction between things out of commerce by appropriation/destination and things out of commerce by nature.By appropriation/destination: a purpose is vested in the objects; however, they can potentially be part of a patrimony. Ange-Gardien’s objects had a sacred purpose until desanctified by the Bishop.By nature: inherently sacred objects, e.g. dead bodies. Can never be part of a patrimony and can never be seized under 2644 CCQ.

Fabrique de la Paroise de l’Ange-Gardien v. Quebec [CS 1980]Facts: (a) A bunch of Fabrique’s religious objects were sold in good faith to various parties,

including government museums. As such they were treated as property. (b) Fabrique claims that it has been illegally disposed of a part of its patrimony because the objects in question are sacred and not in commerce.

Issue: (1) Does Fabrique have an exclusive right to these objects? (2) Can patrimonial objects be outside commerce?

Holding: (1) Yes (2) YesReasoning: Sacred objects are hors commerce. Canonical law did not give the seller the right to

de-sanctify those objects. Objects could only be de-sanctified by a specific procedure of the Bishop, and because this never happened, they could never be the object of patrimonial transactions. The purpose of these objects remained sacred, not commercial.

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Ratio: Sacred objects, though part of the Church’s patrimony, are nevertheless not in commerce, and to determine sacredness they make a reference to canon law (the internal policies of the institution).

Comment: These objects hors commerce are nonetheless church property and part of its patrimony. So, it seems that the church can divide its patrimony by appropriation to sacred and commercial purposes.

V. Real Rights & Personal Rights

Real rights and personal rights are patrimonial rights and therefore unequivocally property.

Real right: the right a holder has which gives him a direct relationship with a thing: jus in re (right in the thing)

947 CCQ: Ownership is the right to use, enjoy, dispose of property – a direct relation to/right in the thing, ‘jus in re.’ Most complete real right.

953 CCQ: Owner’s right of revendicate property against the possessor or person detaining it without right – opposability, which doesn’t exist with personal rights.

Limited real right: e.g. Usufruct = the right of use & enjoyment, for a certain time, of property owned by another as one’s own, subject to the obligation of preserving its substance (1120 CCQ). If owner goes bankrupt or sells the article to a 3rd party, usufractuary can evoke her real right in the article and continue using it (right to follow).

Personal right: the relationship between two persons. A relational right, not in physical property, but in the fulfillment of a debt/obligation by another person: jus ad rem (right to a thing).

e.g. debtor/creditor; lessor/lessee; all of a debtor’s property is the common pledge of its creditors

1371, 1373 CCQ: An obligation between persons, with prestation as its object, which consists of doing or not doing something, is a personal right.

Lease: a contract by which the lessor provides the lessee, for a rent, with the enjoyment of a movable or immovable property for a certain time (1851 CCQ). If lessor goes bankrupt, the lessee’s claim is in jeopardy.

However, there are CCQ provisions designed to protect the lessee (1853 CCQ ff.) For example, property must be in good state of repair (1854). [Whereas usufructuary accepts the thing in the condition in which he finds it.] Also, sale of an immovable doesn’t permit the new lessor to resiliate the lease (1937).

Criterion of distinction: whether the relationship is with a thing or a person.

Characteristics of real rights:1) Right to follow (droit de suite) into the hands of the wrongful user. Permits holder to

assert his or her real right to the thing.2) Right of preference : right to enter into a contract by preference to others. This right

flows either from a first refusal agreement or from the law.3) Faculty of abandonment : right to abandon your real right4) Opposable erga omni : a person holds real rights against ALL others

Principal real right vs. Accessory real right

Principal real right: the holder of such a right can directly use/control the object of rights. Includes right of ownership.

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Accessory real right: a real right that serves to guarantee the payment of a credit. Holder doesn’t benefit from all the prerogatives of ownership, but has an advantage over other creditors.

Hypothec (only example of accessory real right): 2660 CCQ: A hypothec 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.

A specific property in patrimony of debtor is used to guarantee an obligation (e.g. a loan). Creditor (e.g. the bank) has an accessory real right in that property, but the property remains in the patrimony of the debtor. If the debtor defaults on the obligation, the bank can seize the property charged with the hypothetic, sell it or force it to be sold, and claim the amount of the loan. Creditor has prerogative before all other creditors. If the debtor sells property charged with hypothec, the creditor has the right to follow it.

2647 CCQ: Prior claims and hypothecs are legal causes of preference. 2661 CCQ: A hypothec is merely an accessory right and subsists only as long as the

obligation whose performance it secures continues to exist. 2662 CCQ: Hypothec is indivisible 2663 CCQ: Hypothecary rights require a regime of publicity of rights

Hypothecs differ from legal hypothecs. Conventional hypothecs are established by contract. A legal hypothec is established in the absence of an agreement by operation of law. When the property is in the public domain (under art. 915 or 916.2), there can be no hypothec (2668).

Servitude (another example of a principal real right): 1177(1) CCQ: a charge imposed on an immovable, the servient land, in favour of another

immovable, the dominant land. Obligation between two lands, not people – servitude must benefit (any owner of)

dominant land itself, not just a particular owner, otherwise only a personal right has been created

All subsequent owners of servient land are seised by the servitude. Owner of the dominant land retains right to follow.

Only the party benefiting from the servitude has the right to abandon it. 1183 CCQ: Servitude by destination of proprietor is evidenced in writing by the owner

of the land who, in contemplation of its future parcelling, immediately establishes the nature, scope and situation of the servitude on one part of the land in favour of the other parts.

1425 CCQ: having the word ‘servitude’ in a contract doesn’t necessarily make it a servitude – the intention of the parties is crucial in interpreting a contract

It helps to reinforce the real right of a servitude if it has been purchased with sufficient money to show its weight, and that the owner of the servient land consented to it.

Publicity regime (land register) required because the servitude will remain even when ownership of lands changes.

Successors by particular title (sale) distinguished from successors by universal or general title (inheritance). Successors by particular title inherit only real rights imposed on property. Successors by universal title inherit both real and personal rights. Real rights follow into the hands of all future holders.625 CCQ: The heirs are seised… of the patrimony of the deceased.

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Hamilton v. Wall (1879) Que.Facts: Hamilton sold a lot to Perrault with clause in deed not to build house in front of line prolonged from appellant’s house next door. Perrault sold lot to Wall who ignored clause and built in front of line. Hamilton claims it was a real right – a servitude that was created. Wall claims that it was merely a personal right.Issue: Was a servitude created?Held: Yes. Appeal allowed, offending part of house must be demolished.Ratio: It is considered a servitude in that it is for the benefit of the dominant property. Wall

assumes all obligations to which Perrault was bound in the deed. In considering the text of the deed, it is noted that future owners were contemplated, as it

implicates ‘ses loires et ayant cause,’ perhaps meaning successors. Respondent was a successor ‘à titre particulier’ (sale), not ‘à titre universel’ (heirs). If the clause was found to be a personal right and not a servitude, then this would have been a redundant clause as personal rights are transmitted to heirs anyway, but not to successors ‘à titre particulier’ (625 CCQ).

Segal v. Ross (1962) Que C.S.Discussion: Clause in deed prohibits use of property for sale of groceries or parking lot in favour of another property. Court is of the opinion that a servitude exists, conferring a commercial advantage on the owner of the dominant land. This is a servitude of non-competition. The right in the deed is an obligation not to do something, and it exists in favour of a dominant property.

Zigayer v. Ruby Foo’s [1976] C.S.Facts: Plaintiff seeking to cancel servitude on property sold to him by the defendant, which prohibits owner from selling food or operating a restaurant on the property. Plaintiff argues that the servitude is a restraint of trade, prevents competition, injures commerce and is contrary to public order.Issue: Is this a real servitude?Held: Yes. Action dismissed.Ratio: Court found it is a servitude as it benefits the dominant land, and is not contrary to public order as society is not deprived or affected by it. The restraint of the servitude affects a small portion of land. In the locality are “several categories of businesses where the public and the society may obtain the services they require.

Servitudes of non-competition seem to be really personal rights, as they appear to confer benefit on the person as an individual, as someone in a particular industry. If owner changes his type of commerce, then the servitude is useless. Being a grocery store owner is a subjective quality of the individual owner, not of every subsequent owner of the property.

Cadieux c. Hinse, Morin [1989] R.J.Q. Facts: Cadieux owns property next to Fleuve St. Laurent, adjacent to Hinse’s property. Cadieux claims that a servitude of “préférence d’achat” was created between properties when agreement was made between Cadieux and deceased husband of Hinse that they would each be given first chance to purchase the buildings on their properties. Hinse has leased the building on her property for a 99-year period, which the appellant claims is a sale in disguise. Cadieux requests the court declare his right to purchase the building, and that the monies he paid for the ‘servitude’ are sufficient.Issue: Is a “préférence d’achat” a servitude?Held: There is no servitude. Appeal denied.

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Ratio: A “préférence d’achat” benefits the individuals involved in the agreement, it creates no legal relationship between the properties. There is no dominant/servient relationship between properties. Only a personal right could be created through this arrangement, whose only recourse is damages, not “droit de suite”.

Publicity of rights 2938 CCQ: When an immovable real right exists, it is opposable to everyone, so people

must be able to know which properties are charged with them (hypothecs and servitudes) through publication of rights.

2941 CCQ: The rights exist between parties instantaneously, but are not set up against 3rd

parties until publication.

VI. Intellectual Property/ la propriété intellectuelle

Includes copyright, patent, trademark. Intermediate category between real and personal rights. Intellectual property rights are patrimonial rights, but what part of the right is patrimonial? Does the artist retain any ownership over the work? Can the purchaser destroy or change part of the work without infringing upon the artist’s right?

Ghestin, Traité de droit civil: Introduction générale (extrait) Intellectual property rights are rights in incorporeal things (abstract conceptions, objects

with no physical existence but having a pecuniary value), whereas regular property rights are in corporeal things (having substance, perceptible by the senses)

899 CCQ: property may be corporeal or incorporeal. Protection of creative genius. Intellectual property is 3rd category of rights (after real & personal) The protected value must not be confused with its material supports. It is an exclusivity, right to a monopoly on the economic exploitation Not a real right, no right to follow (see Copyright Act provisions below)

Moral rights

What is the juridical nature of a moral right? Not a patrimonial right: not part of common pledge, extends past death. Extra-patrimonial rights are inalienable; however, moral rights can be transferred to heirs

– who often have a stake in the artist’s reputation (e.g. descendants). Seems to be invested with the right to follow (see Buffet). Beaudoin & Jobin: “Les droits intellectuals ne sont pas des droits patrimoniaux ni des

droits extrapatrimoniaux, ni entièrement des droits réels ni des droits personnels.” Kasirer: this is a bit extreme.

Extra-patrimonial aspect: moral right exists to protect artist’s reputation as it is embodied in his work

Patrimonial aspect: moral rights have economic value; can be sold, rented, ceded. But, moral right is not a real right, or even a patrimonial right at all. No direct

relationship with the object; instead, linked to the reputation of the author. Must separate material object from intellectual right.

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Buffet v. Fersing, 1962, FranceFacts: Defendant purchased a fridge decorated by plaintiff. Defendant sectioned the panels of fridge to create separate artworks for resale.Issue: Have plaintiff’s moral rights been infringed? If so, what is the recourse?Held: Claim allowed. Defendant pays symbolic damages as well as cost of publishing decision in 3 journals.Reasoning: Defendant infringed on plaintiff’s moral right to the integrity of his work on display/for sale. Defendant has right to do as he wishes with the artwork in private, but he is forbidden to publicly display or sell the pieces of the fridge he mutilated, as it affects the reputation and honour of the artist. The artwork was intended as a totality. Buffet has a moral claim, not a financial claim, over the work. Fersing performed a civil wrong against Buffet’s artistic reputation, which has patrimonial value (recall Deschamps).Ratio: Moral rights follow the work into the hands of future owners , as opposed to what happens

when you sell a patrimonial right on something. Moral rights are extra-patrimonial, no pecuniary value. Involves reputation, honour and name of the artist, which are affected if the oeuvre is

deformed – protection of integrity of artwork. Violation of these extra-patrimonial rights creates a claim in the patrimony of the artist,

which has a pecuniary value (patrimonialization).o Artist can also renounce right in exchange for money as well.o ‘Modifying’ another artist’s work and creating your own in the process =

creating a new moral right (not the case here) The right to claim (or deny) one’s paternity and to protect one’s reputation follow the work’s

new owner, but it’s not a right in the material work of art itself.

Crimi v. Rutgers Presbyterian Church, 1949, S.C. of NY - CML Facts: Artist Crimi completed contract with Church to paint a fresco mural on its wall, for which he was paid in full. The work was copyrighted and assigned to the owner – the church. Mural was painted over 8 years later. Pl claimed that this violated his proprietary interest in the mural and damaged his reputation as an artist.Issue: Does the sale by an artist of a work of art wipe out any interest he has therein?Decision: Yes.Ratio: Court disagreed with contention that destruction of the mural was prejudicial to Crimi’s

reputation: it merely shows that the present congregation disapproves of his work. The church was not a public building.

U.S. law doesn’t fully recognize concept of ‘moral right.’ The artist may, by contract, reserve his copyright upon sale of the work, but if he doesn’t do so, the patron becomes the sole owner and has all the rights of reproduction.

Because the mural was truly incorporated into the church building, it became a part of the real estate. Thus, any interest, proprietary or otherwise, would have to have been in writing according to property law. Because no rights were reserved at the time of K, the artist transferred all his right, title and interest in the mural to the defendant.

Berne Convention for the Protection of Literary and Artistic Works (1971):

Defines moral rights: Independently of the author’s economic rights, and even after the transfer of the said rights, the author has the right to claim authorship and to object to any distortion,

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mutilation or other modification of the said work, which would be prejudicial to his honour or reputation.

Snow v. Eaton Centre, 1982, Ont – CMLFacts: Snow’s sculpture of 60 geese in flight was used in a Christmas display by Eaton’s, who attached ribbons to the necks of the geese without the knowledge or consent of the plaintiff. Snow claimed that the work as presently displayed was “ridiculous” and prejudicial to this honour and reputation. Relied on s. 12(7) of the Copyright Act, which gives the author the right to restrain any distortion, mutilation, or other modification of his work that might harm his reputation.Decision: Snow wins. Ribbons ordered removed.

85831 Canada Ltd. v. Bitton, 1991 Que. C.S.Discussion: The freedom of building’s owner to do what he wants with his property because his building is within “une aire de protection,” which is classified as a historic site under the provincial Loi sur les biens culturels. This is a “legal/administrative servitude” – not a real servitude – as the building is servient to artistic value. Illustrates the awkwardness of law in reducing absolutely everything to monetary value.

Canadian Copyright Act Incorporates theory of moral rights 14.1: Moral rights are for the protection of reputation – also a right to anonymity. They

are inalienable, and not part of common pledge. 14.1(3,4): However, moral rights may be waived in whole or part in anticipation of their

violation. 14.2(1): Moral rights and copyright have same longevity – extinguish 50 years after death

of artist. 14.2(2): After death, moral right passes to whomever those rights have been bequeathed,

or if not, to person to whom copyright is bequeathed, or to the person entitled to any other property left by the artist. Author’s reputation has an impact on his heirs’ financial opportunities and so deserves to be protected for their benefit.

At death, moral rights are transmitted to heirs (as opposed to other E.P. rights). 28.1: Attaches to the person of the artist, as well as to the work of art to a degree (by

preserving its integrity) – a limited right to follow.

Copyright Protection of a work of art; seeks to protect artistic idea itself Exclusive right to reproduce the work and publish it Gives someone monopoly over exploitation of the idea once it is made concrete in some

form (written, painted, danced) Someone else can hold/own the material support, but the idea itself is intangible and

immaterial. Patrimonial right/property: is alienable, can be seized (common pledge), has pecuniary

value. At first moment of creation, both the material work (assuming he owns the materials) and

the copyright belong to the author, but copyright and work need not have same owner. Copyright is separate from right of ownership of material object.

As intellectual property, falls into 3rd category of patrimonial rights. Owner of copyright more accurately described as ‘holder’ or ‘titulaire’ of a patrimonial

right other than a real right of ownership.

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In a work of art, there are 3 kinds of rights:1. Property rights on material supports – part of common pledge2. Moral rights of the artist3. Copyright – part of common pledge

Other kinds of intellectual property:-Patents: protect the right to an invention; creates monopoly of exploitation of the invention during the life of the patent. Not a right in a thing, but has economic value.-Trademarks: embody the quality/good will/assurances of company in a symbol on the product.

Information Other types of IP not recognized or protected by legislation: e.g. trade secrets, breaking

news, recipes, client lists Value turns on rarity; information treated like property by holders, has pecuniary value. 1612 CCQ: The loss sustained by the owner of a trade secret includes the investment

expenses incurred for its acquisition, perfection and use; the profit of which he is deprived may be compensated for through payment of royalties. Trade secrets are treated in the Code in language of property, but value ascribed to them only after violation (“loss sustained”). In fact, ‘owner’ should be ‘holder’: information not part of the patrimony. U.S. Supreme Court treated the theft of a trade secret as a civil wrong, invasion of privacy when trade secret is lost. Oversteps legal boundaries of language.

-Test of knowing whether or not something is property is 2644: seizability by creditors.-Copyright is susceptible of appropriation because of the Copyright Act. But away from the statute, the object becomes an ephemeral, unseizable idea.

VII. Distinction between Movables and Immovables

899 CCQ: Property, whether corporeal or incorporeal, is divided into immovables and movables.

A fundamental classification or summa divisio. Not a definition, but a principle/description used to organize different regimes, e.g. taxation, transfers of property. Movables and immovables are regulated by law in different ways.

Part of the droit commun or jus commune of Quebec. Also has bearing on legislation found outside the Code. Used to solve problems in statutes, Ks, etc. The distinction is therefore functional in nature.

Stems from Roman law’s predilection toward land, symbol of wealth and power. Physical criterion: fixity with the soil.

Any immovable is made up of movables, and any object can be moved. Examples of “incorporeal” things: principal real rights in immovables (servitudes,

usufructs) and accessory real rights in immovables (hypothecs). So “corporeal” and “incorporeal” don’t necessarily mean physical entities. (See below.)

899-907 CCQ sets out a structure of analysis to determine whether something is movable or immovable. Replace 374-398 CCLC.

Immovables (in order of decreasing fixity with the soil): 900(1) CCQ

1. land; “immovable par excellence” : includes surface of soil and sub-soil2. constructions & works of a permanent nature located thereon; participates in fixity of soil

(can’t merely rest on top of the soil); “immovable by adhesion”

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900(2) CCQ3. plants and minerals; as long as they are not separated or extracted from the land. (Doesn’t

include mines, which belong to the State.) Can become movables when object to an act of alienation.

900(1), 901, 902 CCQ4. things forming an integral part thereof; “immovable by integration” – lose individuality

and ensure utility of immovable; may be temporarily detached. (Utility must be considered in light of contemporary technology and lifestyle.) Even if integral parts are temporarily detached (902), they retain their immovable character if they’re destined to be put back.

903 CCQ / Act Respecting the Reform of the Civil Code…Art 48:5. movables which are permanently physically attached, without being incorporated

(doesn’t lose individuality), and serve utility of immovable, as long as they remain there; “immovable by attachment” (under CCLC, “immovable by destination”)

904 CCQ: immovable by reason of the object to which it is attached6. real rights in immovables, and actions to assert such rights or to obtain possession of

immovables (e.g. servitudes, usufructs, hypothecs)

Real rights in movable and immovable objects are classified depending on the thing to which they are attached. A servitude is classified as an immovable as it bears upon land. A hypothec on a vehicle (which is movable) would be classified as a movable.

Belair v. Ville de Ste-Rose (1922), Que. C.A.Facts: City of Ste-Rose took action against Belair to recover taxes imposed on part of a bridge that he erected between Ste-Rose and Ste-Therese. The taxing power is conferred by the Cities and Towns Act, which contains no definition of the word ‘immovable.’ Judge turned to CCLC to ascertain scope of the term.Issue: Is the bridge an immovable and therefore a taxable part of the municipality?Held: Yes and yes.Ratio (decided under CCLC): CCLC 375: Property is immovable “either by its nature or its destination or by reason of the

object to which it is attached, or lastly by determination by law.” 376: Lands and buildings (“bâtiments”) are immovable by their nature. 377: Windmills and watermills, built on piles and forming part of the building, are also

immovable by their nature when they are constructed for a permanency. Judge interpreted “buildings” to mean “structures” in CCLC 376; a bridge resting on piers is

“a structure permanently affixed to the soil or bed of the river.” Quality of fixity with the soil leads to bridge’s classification as immovable. In judging “permanence” of the property, looking for durable quality with significant

connection to the soil, rather than a temporal quality. “Permanence” = placed there without the intention of moving it. Intensity, rather than permanency, of the attachment is the most important.

CCQ 900(1): immovable by adhesion

Nadeau v. Rousseau (1928) 44 B.R. 545Facts: Rousseau built a furnace system into a house, with an agreement with Proulx that until the system is paid off, the Rousseau remains the owner of it. Proulx went bankrupt. The house was seized and sold in justice to Nadeau by sheriff before payments were finished. Nadeau claimed that the furnaces were incorporated into the house such that they ha lost their identity and could not be revendicated. Issue: Has the furnace system become immobilized? Can Rousseau retain ownership of it?

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Held: Yes, it is immobilized. Rousseau has no ownership claim.Ratio:

Although the furnaces were placed in the basement and could be taken out, they were also built into the walls, physically attached to a complicated system of water and gas pipes. The furnaces form an integral part of the house and therefore loses its individuality.

Judge states that in this day and age, “une maison d’habitation bourgeoise” would be incomplete without a heating system; thus, the furnaces are indispensable to it.

The agreement between Rousseau and Proulx cannot change the immovable nature of the furnaces, which is determined by law.

CCQ 900(1), 901: immovable by integrationCCQ 2672: Moveables charged with a hypothec which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable are deemed, for the enforcement of the hypothec, to retain their movable character for as long as the hypothec subsists.

Horn Elevator Ltd. v. Domaine d’Iberville Ltée, 1971, Que C.A.Facts: Horn Elevator seeking order to seize elevator from building. Horn sold and installed elevator with the clause that they would retain ownership until it is fully paid off. Building owner went bankrupt before payment completed. Domaine has seizure notice cancelled on grounds that the elevator is an immovable.Issue: Is the elevator an immovable, meaning that appellant is no longer the owner?Held: Yes, appeal dismissed.Ratio: Elevator is integral part of a 15-storey building and completes it (same argument as made in Nadeau). It was incorporated with the immovable and lost its individuality. Physically connected and plays functional role. Therefore, Horn no longer owns it, the owner of the building does.The fact that the elevator could be removed without serious damage to the building does not preclude it from being immobilized: parts of an immovable that are temporarily detached retain their immovable character (902).Comments: The integrity of the whole must be considered in terms of the building’s destination. Things can be integral to the utility of a building without becoming immovable, e.g. an air conditioner. A movable will become more incorporated if it was made specifically for the immovable.CCQ 901, 902: immovable by integration

Whether something is movable or immovable is not dependent on ownership. Immobilization means that the initially movable thing becomes immovable in the eyes of the law, and belongs to the owner of the immovable. When a painter arrives to paint your house, the paint becomes incorporated with the building and the house owner becomes the new owner of the paint by accession.956 CCQ: The owner of an immovable becomes the owner by accession of the constructions, works or plantations he has made with materials which do not belong to him.

How do you reinforce the personal right of the owner of a movable that becomes incorporated into an immovable? Through an accessory real right: a legal hypothec over the immovable.2724(3) CCQ: A person who takes part in construction of a building and is unpaid can create a legal hypothec in the building.

Conventional hypothecs are established by contract. A legal hypothec is established in the absence of an agreement by operation of law. 

State-owned immovables are immune to legal hypothecs.

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In this way, the law ensures that the newly formed personal right is fulfilled via an accessory real right.

If there’s already a hypothec on the building, they are settled according to the rules delineated by the Code.

Cablevision v. Dep. Minister of Revenue of Quebec [1978] S.C.R. 64.Facts: Appellant bought cable network, respondent sent tax assessment based on system being ‘movable.’ Appellant challenged characterization, saying system is immovable and not taxable. Network composed of 2 antennae (1 anchored in ground, 1 anchored to top of building) and cables connected to poles (owned by Hydro QC & Bell Canada), which are immovable.Issue: Does attachment to other networks that are immovable, as well as immovable poles, make cable network immovable?Held: Yes, appeal allowed.Ratio: Antennae anchored to ground and building are immovable. Cable system attached vertically to ground via poles is immovable – has a fixed foundation, fixity to another immovable.Comment: Nadeau and Cablevision did not analyze the utility of the property in question – under the new Code, they would be classified under 900.CCQ 900(1): immovable by adhesion

Banque d’Hochelaga v. Waterous Engine Works, 1897, SCCFacts: Movable machine belonging to Waterous placed in Kelly’s mill, not physically attached. When Kelly goes bankrupt, Waterous wants to remove the machine, but the bank claims that its hypothec on the mill has extended to the machine.Issue: Does the association between the machine and the mill render the machine immovable?Held: No.Ratio: (decided under CCLC) -The Code said movables can become “immovable by destination” by being “incorporated by the owner with his own real property for a permanency” (379 CCLC 903 CCQ).-At the time, the common destination of the immovable and the movable were enough to immobilize the machine, except that they were not owned by the same owner. Conversion was never effected. This extra condition was added to functionality requirement to protect third parties and give them a right to follow their movable if it hadn’t been paid for. Only the owner of the movable could immobilize it by merely placing it on an immovable he owns as well. It is “contrary to natural justice” that an owner of an immovable, by incorporating a stranger’s chattel onto his property, can immobilize it.-Under the CCQ, immobilization does not depend on whether the properties have a common owner.-Under 903 CCQ, immobilization by attachment has a much weaker demand for fixity, no need to be incorporated with immovable as long as it participates in the functional whole of the immovable.-2671 CCQ: If this case were decided today, the hypothec would extend to the machine, as it would to things united to the property by accession. CCQ allows hypothecs to be applied to movables.

Movables

905-907 CCQ: if the property doesn’t fall into a specific type of immovable, it is movable: 905 CCQ: things which can be moved by themselves or by an extrinsic force are

movables (e.g. animals) – not very helpful category

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906 CCQ: waves or energy harnessed and put to use by man, whether their source is movable or immovable, are corporeal movables

907 CCQ: all other property, if not qualified by law, is movable (residual category) 2660 CCQ: in the civil law, hypothecs can be charged on movables 2672 CCQ: a movable that would normally be immobilized by attachment to an

immovable (via 903) but that is charged with a movable hypothec remains a movable for the purposes of the hypothec, for the duration of the movable hypothec.

Construtek G.B. Inc. v. Laforge (1998)Facts: Husband bought ex-wife’s house at auction (sole owner of plaintiff company is defendant’s ex-husband). Plaintiff gave wife eviction notice. Wife removed many articles from the house that plaintiff claims are immovables and belong to him, along with the house.Issue: Are electrical appliances immovable? Are light fixtures immovable?Held: Appliances are movable, defendant may keep them. Light fixtures are immovable. Husband must compensate for them.Ratio: Appliances and curtains do not have enough fixity to the house to immobilize them. They don’t sufficiently serve the utility of the house to qualify as immovables by attachment. However, the light fixtures are sufficiently attached and serve the utility of the house enough to be considered immobilized by virtue of 903.Judge makes distinction between contributing to utility vs. contributing to the comfort of the individual. Thus only light fixtures are immobilized, while curtains, furniture, and major appliances are not. The immovable itself dictates the destination. You need lights in a building, but the building is not necessarily used as a residential home so furniture is not an essential part.CCQ 903: immovable by attachment

Axor Construction v. 3099-220 Quebec, 2002 C.A.Facts: Respondent installed rink boards in an arena which are anchored in the concrete of the floor. Respondent had published a legal hypothec on the immovable, which appellant claimed did not exist because the rink boards had been immobilized by attachment to the building. First instance judge threw out the legal hypothec.Issue: Are the rink boards immobilized?Decision: Yes. Appeal dismissed.Ratio: CCQ 903 and s. 48 work together. Judge used Nadeau rationale: an arena can’t exist without rink boards, they ensure its utility– common destination is enough to immobilize a movable. But there is a grey area between the movable ensuring utility of the immovable and the exploitation of the movable for business purposes (esp. where building is designed for a very definite purpose). Five criteria identified within 903:

1) Must be an immovable2) Physical attachment between M and I – destination alone not enough3) Conservation of individuality of movable; non-incorporation4) Must be permanent – placed there indefinitely.5) (s. 48) must ensure utility of the immovable without serving the utility of a business:

DESTINATION CIVILE. Examine the nature and function of the building and the nature of the link between the movable and the movable.

Dissent: Art. 48: “any movables which, in the immovable, are used for the operation of an enterprise or the pursuit of activities are to remain movables” – extremely broad. Dissenting judge thinks rink boards remain movables, just as CCQ 2724: Only the following claims may give rise to a legal hypothec… (2) claims of persons having taken part in the construction or renovation of an immovable. CCQ 903 + s. 48 of Implementation Act: immovable by attachment

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VIII. Tenure and Domain

A. Private Property and its Origins

Discussion limited to immovables, specifically land in Quebec.Domain = the basis upon which property is susceptible, or not, of private or State ownership

Public domain = belongs to the state Private domain = belongs to private actors

Tenure = the legal rapport between the title holder and the title (how land is held, how rights bear on the land)

Identity of the holder of property affects the nature of the property right. Both physical and legal persons have special prerogatives affecting the regulations and cultural concepts of land title: aristocrats, Crown corporations, municipalities, Aboriginals.

911-920 CCQ lay down ideas respecting division of property among persons and the State.

911 CCQ: A person, alone or with others, may hold a right of ownership or other real right in a property – egalitarian ideal, one’s status does not affect one’s rights in property.

Liberal tradition of private property stemming from Roman law. Emphasis on individual ownership and ‘jus in re’ (direct right in land).

New idea following abolition of seigneurial title in 1854. Marler, “The Law of Real Property” (1932): Prior to 1854, status determined rights in

land. Land tenure was Quebec’s system of governance, the principal source of wealth and social control. Development was a form of colonization, ensuring power relationships. Division of land between different concessions, received payments in return.

King seigneurs censitaires (lords) formed a hierarchical relationship, owed duties to each other. Right of ownership limited in that each party laboured under various obligations. English Montreal saw seigeurie as encumbrance to commercial development.

1854: Act Respecting the General Abolition of Feudal Rights and Duties (pg. 321) replaced feudal tenure with free tenure, abolishing rights and charges of seigneurs. Section 30: Every seigneur must hold his land “free and clear of all… feudal and seignorial duties.” Sets bedrock of 947 CCQ.

947 CCQ: 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.

Nowadays, the only time you can have a “feudal” obligation is through a servitude. Since 1854, social status is no longer an explicit variable of land tenure. In theory, nothing inherent in the right of ownership precludes members of any class from enjoying it.

911(1) CCQ: sole or joint ownership by natural or legal persons, direct relationship with the land (‘jus in re’). 911(2) CCQ: patrimony by appropriation: a person may hold or administer property of others or be trustee of property appropriated to a particular purpose.913 CCQ: common goods, may not be appropriated; e.g. water, air914 CCQ: things without an owner, but have the potential of appropriation915 CCQ: property belongs to persons, to the State, or is appropriated to a purpose916 CCQ: the State is treated differently than other property owners. (see below)

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QC (Procureur Général) c. Houde [CA 1998]Facts: (a) In 1852, the ancestors of Houde received land from the Crown on the banks of the

Petit-Saguenay (b) the survey of the land in 1947 included 1/2 of the river bed, including a salmon-run, as part of the land. (c) Non-navigable river-beds remained part of private concessions. The trial judge found the area to be non-navigable, that the letters patent didn’t exclude ownership of the river bed, and that Houde’s ancestors therefore were owners of the river bed (i.e. retained exclusive fishing rights).

Issue: Can Houde own exclusively part of the river-bed?Holding: Yes.Reasoning: Under 400 CCLC, non-navigable river/waters beds remain part of private

concessions. Navigability is a question of fact, and there is no reason to think the trial judge erred here. At time of acquisition (1854), it was not navigable, and the 1947 survey is enough to prove possession. In 1921, the PC recognized the specificity of QC law for lands in QC, under which public fishing rights accrue only in navigable waters.

919 CCQ: The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water line. (2) Non-navigable lakes and watercourses alienated by the State after 9 Feb 1918 are also property of the State. Before that date, ownership of riparian land carried with it ownership of non-navigable lakes and watercourses.

Navigable = able to travel on itFloatable = able to float timber along it

B. Public Domain and Private Domain

Property in the public domain:1) State (provincial/federal) 915 CCQ2) Legal persons in the public interest 916(2) CCQ

911 establishes that property can be held by natural or legal persons.a) Legal persons in the private interestb) Legal persons in the public interest

Property can be:o Not appropriated to public utilityo Appropriated to public utility

916(2) CCQ: (a) Property of the State and (b) property of legal persons established in the public interest that is appropriated to public utility cannot be acquired by occupation, prescription or accession, except for property the State has acquired by succession, vacancy or confiscation.

Public property appears to be out of commerce

Property of the State is treated differently by virtue of its identity. What belongs to the State is collective wealth, shouldn’t be susceptible to prescription by a private person.

Prescription = means of acquisition or of being discharged by a certain lapse of time and under conditions determined by law. Can be acquisitive or extinctive. Acquisitive prescription is when ownership or other principal real rights are acquired as a result of possession in good faith for a period of time determined by law (2917 CCQ ff).All land is subject to acquisitive prescription except that belonging to the State. These are imprescriptable and exempt from seizure.

Ordinary rules of hypothecs (2644, 2645, 2724) don’t apply to State property.

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State is ordinary property holder with certain prerogatives/advantages – all State property is considered to be in the public domain:

inalienable (can’t be sold) not susceptible to prescription has fiscal immunity (doesn’t tax itself) not seizable for debts

o 2668 CCQ: property exempt from seizure may not be hypothecated.

State-owned immovables are immune to legal hypothecs C.C.Q. 2724(3): a person who takes part in construction of a building and is unpaid can

create a legal hypothec in the building

Caisse de Dépot et Placement du Québec and Hydro Québec are both Crown Corporations – legal persons in the public interest whose shares are part of the public domain (H-Q Act, s. 3.3), despite the fact that the Crown does business like any private actor. In their statutes, they renounce some of their Crown immunities with regards to holding property

“The Caisse may bind itself in any way whatsoever, using the property as security or encumbering it as though it were not state property” (C-D Act, s. 4) – can be seized, etc.

917 CCQ: Property confiscated under the law is, upon being confiscated, property of the State or in certain cases, of the legal person established in the public interest authorized by law to confiscate it.918 CCQ: Territory not owned by persons or transferred to a trust patrimony form belongs to the State and forms part of its domain. The State is presumed to have the original titles to such property.

No mention of Aboriginal title in the Civil Code. Disregards Native claims to territory, implies there was no ownership of land pre-contact

935 CCQ: Abandoned movables (res nullius), if no one appropriates them, belong to the State.936 CCQ: Immovables without an owner belong to the State.951 CCQ: Mines, sheets of water and underground streams belong to the State. If you own land, you also own the subsoil and everything above it, but the State has claimed any minerals of value.

Dupuis v. St. Jean (1910) Que C.S.Facts: The government of QC had contract with plaintiffs, giving them exclusive right to cut and sell ice from Gâtineau River. Defendants contravened the K and took some ice. Plaintiffs seek injunction to stop defendants from removing ice.Issue: Is contract valid? Can ice be appropriated?Held: No. Judgment for defendant.Ratio: Water/ice of a navigable river is for use by all, outside of commerce. State was not supposed to give a monopoly on ice to a private actor.CCQ 913: Certain things may not be appropriated…

Legal Persons in the Public Interest

916(2) CCQ: When property of legal persons in the public interest is established as being in the public utility, it is treated as State property.

Property of legal persons in the public interest not for public utility is considered in the private domain and does not enjoy State prerogatives.

State draws immunities directly from the Crown, whereas legal persons in the public interest draw immunities from the statutes that constitute them.

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If the statute doesn’t specify which property is in the public interest, it is determined by 916 – how the property lends itself to the accomplishment of the legal person’s mission.

Construction D.R.M. Inc. v. Bâtiments Kalad’Art Inc., 1999 Que C.A.Facts: Appellant furnished materials to respondent to build a warehouse to store salt & sand for the municipality. Respondent defaulted on payment, and appellant took out a legal hypothec on the building. Respondents took action to cancel the hypothec on the grounds that the building is for public utility and is immune to legal hypothecs.Issue: Is the building appropriated to public utility?Held: Yes, appeal dismissed.Ratio: It is indirectly appropriated to public utility in that the materials stored within are for the maintenance of roads, an essential service provided by the municipality.(Theory of la dualité domaniale: legal persons in the public interest possess goods appropriated to (1) public utility and (2) private utility)Judge opted for a broad definition of ‘public utility’, allowed indirect utility in accomplishing mission.(Concurring judge suggested that legislature should create a mechanism to guarantee these debts lest contractors hesitate to contract when there is a risk of immunity to legal hypothecs.)916(2) CCQ: When property of legal persons in the public interest is established as being in the public utility, it is treated as State property and is thus immune to occupation, prescription or accession.

Construction SOCAM v. ECE Electrique, 2001Discussion: Facts very similar to Construction D.R.M. In this case, the item in question is a police station, which is considered an essential public service. However, it was ruled that in this case, the legal hypothec is valid. This was justified by examining the Loi sur la Communauté Urbaine de Montreal, which gives C.U.M. the right to hypothesize its immovables. Should always check for exceptions to the rule.300 CCQ: 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.

Does the State have a patrimony? You could argue no, because its property isn’t seizable. When property belongs to the state, it is totally removed from the domain of property law.

C. Rights in Land of Native Peoples

98% of the province of Quebec is claimed by Aboriginal title, but no provisions for Aboriginal title in Code. How does one reconcile the various relationships of Aboriginal people to their lands and resources with the treaties and de facto settlement resulting in the application of western legal property systems to these very same resources?

Aboriginal rights: protected in s. 35 of the CA 1982, encompass a wide variety of legal and property-like rights.Aboriginal title: conceptually frames the relationship Native peoples have to land and land resources. Was once defined as a “personal and usufructuary right” or “mere burden on Crown’s underlying title.” Dickson in Guerin characterizes Aboriginal title in terms of its general inalienability (except to the Crown), and that on alienation to the Crown it gives rise to a fiduciary relation on the part of the Crown to Aboriginal peoples. Delgamuukw further articulated the scope of Aboriginal title (see below).

Two ways to understand Aboriginal title:

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1) Through the study of Aboriginal law, which is sometimes expressed in non-Western modes. This often results in trivialization of the issue, as relationships with land become subordinate to concepts of Native ‘spirituality’ as opposed to mercantile issues.

2) How does the State legal system recognize Aboriginal title? Often in colonial ways.

Pronovost v. Le Ministere des affaires indiennes (1985) Federal C.A.

Marceau J. struggles to define Aboriginal title, but his legal lexicon is inadequate because it has never been defined in terms of usual concepts of law. Calls it a “hybrid right, which is both patrimonial and personal” and is applied formally to the land without specifying what becomes of buildings or improvements on the land. Also called a sui generis right – in a category by itself –which defies any rational classification under traditional property law. A right which is extinguished and disappears upon the Indian’s death.

Delgamuukw v. British Columbia

Facts: First Nations chiefs making claims for 58,000 square kms of land within province of B.C. Original claim made was one of ownership with right to exclusion and use without the paternalistic presence of the Crown, knowing that Aboriginal title didn’t grant them this. The most they could get was limited use of the land according to traditional practices (e.g. hunting, fishing, etc., but not opening a business). Sought ‘jurisdiction’ over the land. Trial judge didn’t accept oral history establishing attachment to the land prior to the Royal Proclamation of 1763. No “documented” evidence of title, which is traditionally key to CML, esp. regarding land holdings. SCC overturned evidence of lower courts, despite criticism that “courts were at mercy of anthropologists.”Issues: What is the content of Aboriginal title? How is it protected by s.35(1) of the Constitution? What is required to prove Aboriginal title?Discussion: 1. Aboriginal title is a right in land, which goes beyond a mere right to engage in specific activities (these can be classified as Aboriginal rights). Aboriginal title gives a right to use the land for many activities, not only those which are practices or customs integral to the distinctive culture of Aboriginals. “Aboriginal title is a sui generis interest in land” as it cannot be completely explained by common law rules of real property or by the rules of property found in Aboriginal legal systems. How is it sui generis? a) inalienable to 3rd parties, b) the source of title arises from possession prior to the assertion of British sovereignty, c) title is held communally - by all members of an Aboriginal nation.2. There are two key aspects of the content of Aboriginal title: a) “Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that title for a variety of purposes, which need not be aspects of those Aboriginal practices, customs and traditions which are integral to distinctive Aboriginal cultures” and b) “protected uses must not be irreconcilable with the nature of the group’s attachment to the land” (p. 1083).3. There are limits to the ways in which lands held under Aboriginal title can be used. This is based on the fact that Aboriginal title seeks to determine the historic rights of Aboriginals to land, but also to give Aboriginals legal protection based on their prior occupation of land today. There is a focus here on the continuity of the relationship. This is relevant in that it applies to the future use of the land as well: e.g. a traditional hunting ground cannot be strip-mined.4. The test for proof of Aboriginal title is three-fold: i) land must have been occupied pre-sovereignty, ii) if present occupation is relied on as proof for (i), there must be a continuity between present and pre-sovereignty occupation, and iii) occupation must have been exclusive at sovereignty.

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5. Aboriginal rights recognized by s. 35(1) are not absolute, but any infringements on those rights must be justifiable. The test of this is also two-fold: i) infringement must further a legislative objective which is compelling and substantial (e.g. conservation of fisheries), ii) the infringement must be consistent with the fiduciary relationship that exists between the Crown and Aboriginal peoples. When Aboriginal title is infringed, compensation will ordinarily be required. Comments: Many people celebrated this decision, but must keep in mind that this decision was still made within the white man’s paradigm.

The ownership of land by the Crown is a construction based on ‘discovery,’ which makes no sense to Natives. It superimposed itself on a system that was already here. The concept of ownership to the exclusion of all others counter to Aboriginal cultural view.

The notion that ‘ethnicity’ can give someone a claim in land is against our regular principle that identity doesn’t affect ownership of property.

Legal sources of rights giving rise to claims:1. Aboriginal title – historical reality2. Indian Act (giving Natives control over reserves)3. Treaties4. C.A. 1982, and other constitutional rules acknowledging Aboriginal rights

Aboriginal Title Inalienable except to the Crown (fiduciary duty of the Crown) Historical fact of occupancy before the Crown Held collectively: outside CVL perspective of property as belonging to legal or natural

persons or the State Territory can be exploited in any way not irreconcilable with nature of band’s attachment

to land

Federal Indian Act: s. 2(1): Crown is owner of land of reserves, but it is dedicated to the use of Aboriginals –

fiduciary relationship (paternalistic), based on colonialist framework s. 18(1): Crown retains ownership, but band draws all profit – collective system – the

right is diffuse on the patrimony of the band lesser right than ownership, the right of possession

s. 29: Reserve lands are exempt from seizure

Constitution Act 1982: s. 35(1) constitutionalizes traditional Aboriginal rights. Basis of many land claims.

Quebec’s regular regime of land ownership is not fully applicable to lands held by Aboriginals. Aboriginal title is set outside commerce, e.g. not subject to 2644 CCQ.

IX. Ownership

A. Nature & Scope

OWNERSHIP: the paradigmatic real right or jus in re. A direct relationship with the thing. 947 CCQ: Ownership is the right to use, enjoy and dispose of property fully and freely (usus, fructus, abusus), subject to the limits and conditions for doing so determined by law.

Classical prerogatives of Romanist conception of ownership. e.g. a house:

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Use: owner can live in a house Enjoy: owner receives rents or “fruits” of leasing the house Disposal: owner can sell house or create a parallel right in the house carved out of

ownership; i.e. transfer usus and fructus to someone else. “limits and conditions determined by law”: State intervention in regulating how right is

exercised

The right of ownership is: 1) Absolute: the right to use, enjoy and dispose of property fully and freely. The most complete real right you can have. Holder can exercise total control over property. Other rights can exist concurrently: e.g. copyright.2) Exclusive: ability to exclude others, and gives the right to follow. Also allows recourse for victims of dispossession, illegal detainment (953 CCQ), nuisance (976 CCQ), abuse of rights (7 CCQ) or expropriation without compensation (952 CCQ). Can be thought of as regulating the holders’ relationships with everyone else. 3) Perpetual: the right exists as long as the property exists. Outlasts the life of the holder (625 CCQ: patrimony of the deceased passes to heirs) and owner can always assert his right even if he never uses the thing.

Ownership is generally private – liberal, individualist conception. But other forms of ownership exist:

1. Res communes – 913 CCQ: common or public goods, e.g. air and water2. Res nullius – 934 CCQ: things without an owner, e.g. animals in the wild & abandoned

movables (slight value/deteriorated)3. State-owned property – 915, 916 CCQ– State is an owner who may appropriate

property of others for public utility, but must indemnify them – 952 CCQ4. Co-ownership –1010 CCQ

Portalis, Discours prononcé devant le Corps legislatif (1804)

Portalis was largely responsible for drafting the French Code Liberal, individualistic view of ownership. However, doesn’t preclude co-ownership and

other modalities of ownership. Ownership is limitless and derived from nature rather than the social contract. Pre-dates society, stems from necessity of fulfilling basic wants and from industry, and is

required to make nature more habitable. Unclaimed land isn’t in the public domain ; it is vacant and waiting to be appropriated. Thus

ownership is inevitable. State grants freedom of ownership by providing legal protection/guidance against public

disorder. Holds the right to govern, but doesn’t have superior title. Administers our enjoyment of property. Must act to limit the right of ownership through intervention into to the unrestricted nature of ownership.

State can also be an owner like private owners, without superior title. However, it must tread carefully when acting to limit the right of ownership.

Ownership was originally associated with freedom. Portalis believes inequality is tempered and softened by ownership. Viewed as the atomistic division of wealth.

The ownership provision of the Code has stayed the same, from 544 CN to 406 CCLC to 947 CCQ. Portalis’s view is the dominant discourse: for many, ownership is a right that need not be questioned.

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B. Possession and its Effects

Ownership is a right in one’s patrimony, whereas possession is merely the exercise in fact of the real right.

921 CCQ: Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right. (2) The intention is presumed. Where it is lacking, there is merely detention.

911 CCQ delineates relationships to property:1. Real right (e.g. ownership)2. Possession3. Holder/administrator of property of another: e.g. 1301 CCQ ff.

Cdn political theorist Macpherson views property as a political relation between parties. Possession only becomes a right with ownership a necessarily social construction because society must recognize the right as such. Possession only becomes a right when society agrees to see the fact of possession as a right. So does the possession of property manifest itself in the patrimony in any way?

928 CCQ: Possessor is presumed to hold the real right he is exercising – assumed to be the owner. Person contesting that presumption has the burden of proving his own right.

1. Indirectly reinforces ownership (usually possession and ownership coincide)2. 922 CCQ: Only peaceful, continuous, public and unequivocal possession produces

effects in law.3. 927 CCQ: no thief, receiver of stolen goods, or defrauder may invoke effects of

possession.4. Protection of public order5. Economic efficiency: without 928, it would take a lot of resources to track transactions

and prove ownership each time.

932 CCQ: Distinction between ‘good faith’ & ‘bad faith’ possession.Good faith: possessor is justified in believing he holds the real right he is exercising. Ceases when his lack of title or defects of his possession are made known to him by a civil proceeding.

931 CCQ: Good faith possessor receives fruits and revenues of property and bears costs incurred to produce them. Bad faith possessor must return fruits and revenues from time he began possessing in bad faith.

930 CCQ: Possessor vested with real right he is exercising if he complies with rules on prescription.

912 CCQ: The holder of a right of ownership or other real right may take legal action to have his right acknowledged. Called petitory action. Claimant has burden of proving ownership, which is easier with immovables due to the publicity regime, but a disadvantage with movables.

929 CCQ: Possessor has right of action against anyone disturbing possession or to recover possession of that of which he has been dispossessed. Called possessory action.

Existence of possession requires meeting of 2 elements, corpus & animus (921 CCQ):Corpus = the exercise in fact of a real right (use, enjoyment, disposal)

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Animus = intention of acting as the holder of the right

Thief: possessor, intends to own and exercises the real right as if he holds it.Borrower: has detention, no intention of acting as holder of right – corpus, no animus. Owner remains in possession through intermediary of a detainer who recognizes right of owner throughout. Has no real right in property.Detention/precarious possession: the physical holding of corporeal property. Implies acknowledgement by the holder of the superior rights of another in the thing held; e.g. usufructary or lessee. Produces no legal effects. Detentors have NO ANIMUS. (Mazeau’s Classical argument is that they don’t have corpus, either. If the person with detention has no right over the thing, then owner is still in possession.)Existence of detention doesn’t prevent owner from continuing to be in possession. For example, if you leave your bag in you car and walk away, you are still exercising corpus and animus over it.Finder: depends on intention; probably possessor if looking for owner with intention of keeping property if owner is not found. Distinct from detentor: not holding the property on behalf of owner.-If I lend you my watch and you decide to steal it instead, animus changes and detention becomes possession.

Possession and detention are neither real nor personal rights not patrimonial rights, but exercises in fact. Personal rights, i.e. relationships between people, are not susceptible to possession by someone else.Possession and detention therefore can’t be seized by creditors. It is predicated on an ongoing legal relationship with the owner: e.g. loan contract, lease.

C. Acquisition of Right of Ownership

Modes of acquisition determined by the rapport with/nature of thing.916 CCQ lists modes of acquisition – contract, succession, occupation, prescription, accession (not exhaustive).

1453 CCQ: Transfer of a real right in a certain and determinate property vests acquirer with the real right upon formation of the K, even though the property is not delivered immediately and the price remains to be determined.

Occupation

CCQ 934-7 – Things without an owner.

OCCUPATION: mode of original acquisition of ownership of a corporeal moveable which belongs to no one, by the act of taking possession of it with the intention of becoming the owner.

Possession confers immediate ownership by occupation (934 CCQ). Res nullius: never had an owner: e.g. wild animals, animals formerly in captivity but

returned to the wild, aquatic fauna Res derelictae: abandoned objects; includes movables of slight value or in very

deteriorated condition that were left in a public place.

Occupation does not apply to:

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934 CCQ: Lost or forgotten movables in hands of a 3rd party or in a public place continue to belong to the owner. Objects are “lost” if owner continues to want them.936 CCQ ff: Immovables without owner belong to State. Not susceptible to acquisition through occupation.

Mignault: perhaps occupation is the origin of all ownership; gives birth to new legal right.

Tremblay v. Boivin, 1960 Que S.C.Discussion: Two groups of hunters claiming right on dead moose. Decision turns on who possessed it by delivering the mortal blow occupation. Acc to judge, a hunter appropriates the wild animal once it kills it or hurts it so that it can’t escape. Droit de chasse can be defined as the right of acquisition of wild animals. Occupation results from taking control of the res nullius – gives the corpus, while both parties have animus. Possession becomes ownership when corpus is perfect.Comments: Owning land, or the rights to hunt on land, does not confer ownership over wild animals

thereon. Occupation confers ownership as reward for work; it’s for the common good that someone

possess res nullius and derive benefit. Can be compared to claims of New France regarding “occupation of Canada from Natives.”

Implies that land was vacant, res nullius because Natives not considered political actors. Rewarding colonizers for their ‘work.’

Abandonment/res derelicta: also a juridical act, opposite of occupation. Abusus, the right to dispose of your property, is a real right of ownership. Must be properly achieved, with both sufficient physical disassociation and intention to end one’s association with the thing. Exercising power of abandonment can be detrimental to others: pollutants, nuclear waste.

Prescription

2875 CCQ: PRESCRIPTION is a means of acquisition or of being discharged by a certain lapse of time and under certain conditions determined by law. Can be acquisitive or extinctive.

2910 CCQ: Acquisitive prescription is a means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession.Period for acquisitive prescription is 10 years (2917 CCQ).

936 CCQ: Immovables without owners belong to the State but any individual can acquire them 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.

Immovables and movables are treated differently because the act of possessing an immovable is inherently different. If someone wants to abandon their immovable, they alert the public curator and the State immediately becomes the owner.However, a State can’t abandon property.

If a lost or forgotten object has an owner, the owner has a right of follow. It continues belongs to him.

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Malette v. Sûreté du QC, 1994 R.J.Q.Facts: Malette finds $20,000 and brings it to the Sûreté. When they fail to find an owner, he requests the unclaimed money to be returned to him.Discussion: Mallette can acquire ownership after 10 years through acquisitive prescription. It is lost property (not abandoned because of its value). Mallette is not in good faith (knowledge that he isn’t the owner but wants to exercise ownership/not justified in believing it’s his) so delay is 10 years (2917 CCQ).Comments: In this case, Mallette is not merely a detentor (acknowledgement of a superior title held by another), which never leads to ownership.

938 CCQ: If you find buried treasure on your own land, you become owner; found on land of another, divide 50:50. Rewards work of treasure-finder.

Accession

948 CCQ: ACCESSSION is the acquisition of ownership of an accessory thing because it is attached to/produced by something one owns, the principal thing. C.C.Q. 948.

Occurs by default through operation of law, not by will of parties. e.g. Tree growing on your lawn is yours by accession; it is accessory to a principal.

If construction is erected on X’s land using Y’s materials, real right on construction passes from patrimony of Y to X, which is replaced by a claim for its value in patrimony of Y against X (e.g. Nadeau). Code prefers individual ownership. Private expropriation must come with compensation. Law prefers to unite accessory and principal than heed will of the parties, for reasons of economic efficiency.

955, 956 CCQ: construction on an immovable is presumed: To have been made by the owner at his expense To belong to owner of immovable.

Location Fortier v. Pacheco (1997), Que C.S.Facts: Pacheco rented a truck from Location Fortier and towing equipment from Barbaré. Pacheco defaulted on payments and Location Fortier got order to repossess truck. Since Pacheco had modified truck with towing equipment, Barbaré is requesting his equipment returned, but it can’t be removed without greatly depreciating value of the truck.Decision: Location Fortier keeps truck and pays Barbaré compensation for towing equipment.Ratio: 971 CCQ: moveable accession: states that where movables belonging to several owners have been intermingled in such a way as to be inseparable without massive deterioration/labour costs, the new things belongs to the owner having contributed most to its creation. -Case decided via 975 CCQ: in unforeseen circumstances, the right of accession is subordinate to principles of equity.

All three modes of acquisition seem to be based on economic efficiency and reward labour:1) Occupation: prefers that property be used and use will be rewarded with ownership2) Prescription: rewards user with ownership after long period of time.3) Accession: unites principal and accessory if it seems economically viable.

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D. Restrictions on the Right of Ownership

-Ownership is most extensive property right in CVL, but the exercise of use, enjoyment and disposal, though in principle broad, is heavily limited by public policy and individual rights.-947 CCQ places limits on the exercise of ownership, both in the interest of the public and in the interests of individuals: “subject to the limits and conditions…determined by law.”-To this extent, the right of ownership is socialized, particularly by 976.-Limitations are necessary in order to co-exist in society-952 CCQ: 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.

Limitations in the private interest

Interests of the family: CCQ 401 ff. limit certain transactions affecting the family residence and its contents.

Married people are precluded from dealing with certain things they own without respecting the rules associated with their chosen matrimonial regime.

CCQ 414-426: provide for constitution of a “family patrimony” whose net value is subject to “partition” at dissolution of the marriage, etc. Protects the poorer spouse.

Neighbours: maintenance of a healthy distance

CCQ 6: Every person is bound to exercise his civil rights in good faith.

Owner of property has a duty to avoid injuring others. An owner cannot construct or use property so as to compromise the safety, independence or peaceable enjoyment of his neighbour’s property.Under extra-K obligation, behaviour limited by the fault principle.

Abuse of rights: right = prerogatives of ownership, abuse = exercise of that right that is abusive

CCQ 7: No right may be exercised with the intent to injure another or in an excessive and unreasonable manner contrary to good faith.

Consecrates the theory of abus du droit Is applicable even where the act in question is legal A matter of respecting the rights of others.

e.g. X has a rose garden; Y is his next-door neighbour. Y hates X and maliciously builds a wall on the property wall, exercising 947, blocking the sunlight and killing the roses. X brings Y to court.e.g. Y owns a building and his next-door neighbour X grows poplars in her yard, whose roots wind across property line and damage Y’s building. Assuming that X took all the reasonable precautions to prevent damage, she would not be liable under ordinary civil liability.

So under CCQ 7, malicious intent is necessary to gain an injunction.

Voisinage principle: CCQ 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.

Varies with custom, locale and character of neighbourhood Guiding principle is tolerance, which varies from person to person Obligation exists even in the absence of fault

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Actions must take place in the context of the right of ownership, and the situation must be repetitive or persistent

Injunctions are used to protect integrity of a person’s ownership An expansion of the principle of abuse of rights Illustrates the inherent equality of the rights of ownership. Both neighbours have an

absolute right of ownership, but all rights of ownership are equally absolute. Some sort of modus vivendi (social harmony).

Léo Pilon c. St. Janvier Gold and Country Club, 1975 Que C.S.Facts: Pilon owns a farm adjacent to a golf course, and is seeking an injunction to force them to take necessary measures to prevent balls from rolling onto his land and players from retrieving those balls. He isn’t on his property for most of the year. He has already been awarded damages for the prevention of his full exploitation of his land (i.e. he can’t sell it for as high a price anymore).Issue: To what extent is the absolute right of use contained in ownership protected? Is 947 fault-based?Holding: Only in so far as the right is being exercised. No.Reasoning: Negligence, intention, and presence of damages are the basis for liability here. Both parties have the right to full enjoyment of their property, and the correlative obligation to not abuse that right to the detriment of the neighbour’s right to the same. But, Pilon had not been using his land for 12 yrs and wasn’t even there during golf season—he therefore was not damaged or injured in any way by the loose balls. Furthermore, the golf course had already taken steps to prevent the escape, in good faith; there was no abuse of rights because there was no negligence or malicious intent.Ratio: The right to full enjoyment and use of one’s property is limited by (a) one’s neighbour’s corresponding right to the same and (b) one’s actual use and enjoyment of one’s property. Before the voisinage principle came in to being, neighbour issues were resolved through fault, to find the normal limit of tolerance that people owe one another. Indicates that damage must be significant and identifiable, and that intention must be present as well as negligence. Comments: This case was decided pre-CCQ 976.

Côté v. Baie St-Paul, 2000 Que.Facts: Action in civil liability by Côté against the Ville de Baie St-Paul for a loss of tranquility and enjoyment of his property due to the large number of golf balls (over 500 in 1999) that land in his yard from the golf course adjacent to it. C. had been living there since 1975, long before the golf course was built. Golf course committed no act of negligence. Discussion: Primary authority cited is CCQ 976 – the voisinage principle. Judge states that 976 expands upon the notion of abuse of rights such as to include the notion of voisinage. This obligation exists even in the absence of fault; the proof of damage and causal link between the golf course’s antisocial actions and C’s injury is enough. However, damage must be of an intolerable level: the large quantity of balls is taken into consideration.Ratio: 976 establishes no-fault liability, which requires only injury and causation. (Contrasted with Pilon, which also requires fault with intention. 976 is more restrictive of the right of ownership than before.Comments: Most scholars are leaning toward a more objective way of finding liability under 976: Côté over Pilon. You’re more likely to be found liable under Côté, which restricts your right of ownership further.NK: The notion of fault shouldn’t be completely irrelevant. No reason to confer an advantage on someone just b/c he’s your neighbour. The right of ownership in 947 is a fundamentally self-interested idea.

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Limitations in the public interest

The State, as representing public interest, legislates a variety of ways to limit or restrict the absolute character of ownership. Assertion of a collective, not an individual, right 947(2)Examples: Orders to develop land for agriculture, “zoned green” lands. Government is imposing usus of

property, prohibiting urban development for commercial uses with the added goal of checking urban sprawl. Limits market value of land in service of the public interest. Implies a social value in keeping the land agricultural.

Environmental trusts (experimented with in U.S.): property conveyed to a holder who undertakes never to develop the land and receives tax exemptions.

Cultural property : can’t alter, restore, repair or change the exterior of heritage buildings without permission; recognized property cannot be alienated or transported outside Quebec without permission; State has preference over other purchasers in the sale of photographic, cinematographic, audiovisual, radio or TV documents deemed cultural property, etc.

Expropriation : State can expropriate private property, but it must be (a) in the public interest and (b) they have to indemnify the owner 952 CCQ. This is an extreme example.

Imperium: Portalis says State has power to govern to limit an individual’s right of ownership, in service of the public service.

Le Procureur-Général du QC c. Clement Globe Inc [1984 CS]Facts: Globe demolished its building and dumped the debris (rocks and bricks) on the lot of another private owner, who wanted to use them for construction. AG wanted to prevent Globe from transporting debris of a building anywhere except to a location approved by the sub-minister of the environment. AG Que won an interim injunction. At the full hearing, it was held that the demolition and transportation of the materials would not be restricted by the government.Issue: Does the material in question constitute a “solid waste” as defined by the Loi sur la qualité de l’environnement? Holding: NoReasoning: Jurisprudence favors a restrictive interpretation of all statutes that limit rights of ownership. Property owners in this case who are merely exercising those rights and improving their patrimony should not therefore be subject to the Loi sur la qualité de l’environement. Crushed rock does not fall under the definition of a “solid waste.” The object of that law is to protect against contamination and pollution, and its application in this case does not directly further those ends, so it should not be applied so as to restrict the right of ownership.Ratio: Statutory provisions that limit property rights should only be interpreted to do so when such an application furthers the purposes of those statutes. Comments: Anti-statist reading of the law. Strong assertion by the courts that even in pursuit of the common good, the State must restrict the right of ownership with great precision. Otherwise, restriction of the freedom value associated with ownership.

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X. Modalities of the Right of Ownership

Modifications of the right of ownership are provided for in CCQ 947(2).CCQ 1009: Ownership has two principal special modes, co-ownership and superficies. It is only one of the rights that can be held jointly by more than one person.

A. Simple Indivision (Co-ownership)

Juridical nature of indivision:

INDIVISON: Judicial situation of persons who are joint titularies of a right to a thing or group of things, without there being material division of their respective shares.

E.g. 3 students (A, B, and C) co-own a 3-volume set of books. If one student rips out a page for herself, she is violating the rules of co-ownership b/c her co-owners also hold a right to that page.

1010 CCQ: 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. No owner has a right to the whole of the property.

1010(2): Co-ownership is called undivided where the right of ownership is not accompanied with a physical division of the property. Suggests that the right is divided, but not the property itself Each of the co-owners A, B and C own together ALL of the molecules of the object. A may live on the first floor of an undivided building, but she has no exclusive claim on it. Instead, each owns a share of ALL the “molecules” of an immovable. Each co-owner’s share is part of her patrimony and thus part of the common pledge of her creditors. But she has no exclusive right to any of the three floors, so none are seizable in themselves. Instead, the creditor will want to seize A’s share of the entire right of ownership – “a third of each of the molecules.” No one can be bound to remain in indivision. A, B, and C can force the sale of the property at any time. New development: ‘bargain’ concept of indivision, which is more widely accepted.

1010(3): 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. Example: condominium. A, B, and C each own a different floor of a condo. A will have a fraction of the right to the whole immovable (e.g. the ground floor) and a share of the common portions (e.g. the garage). Owners have the right to private enjoyment of a share of the condo. Does this mean you own a share of the condo?

1013: The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision.(2) Such an agreement may not exceed 30 yrs, but is renewable. An agreement exceeding 30 yrs is reduced to that term.

1015: Shares of undivided ownership are presumed to be equal.(2) Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it.

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A, B, and C not owners, because this would suggest there existed 3 different rights of ownership. Instead, they are holders/titulaires of shares of one right of ownership.Alternatively, A, B, and C can be viewed as holding a third of the title to the right of ownership, which is an abstract whole.

The rules for undivided and divided ownership are very different:CCQ 1016: Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners.(2) If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation

There exists a right of option to exclude third parties from an indivision. Protects the integrity of the original ‘bargain’: CCQ 1022: Any undivided co-owner, within sixty days of learning that a third person has, by onerous title, acquired the share of an undivided co-owner, may exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid. This right may be exercised only within one year from the acquisition of the share.(2) The right of redemption may not be exercised where the co-owners have stipulated pre-emptive rights in the indivision agreement and where such rights, if they are rights in an immovable, have been published.

Migneault sees indivision as unnatural and abnormal because he could only imagine cases of impending bankruptcy or broken bargains. He claims that co-ownership is unnatural because it forces one object to “bend itself” into two or more lives. The endeavour of trying to eke out individual rights within common spaces will inevitably lead to disputes.

There is a hesitation in the literature WRT co-ownership because ownership developed in response to a liberal vision of society. Individual ownership emerged from the “tragedy of the commons” and is viewed as the “natural state of affairs,” while indivision was contrary to the public interest b/c it did not favour maximum exploitation of goods, as each owner had to be aware of the rights/obligations of their co-owners.

Administration of undivided property:

1018: The fruits and revenues of the undivided property accrue to the indivision…1019: The undivided co-owners are liable proportionately to their shares for the costs of administration and the other common charges related to the undivided property.1022: Successor of an undivided co-owner must be reimbursed for the transfer price and the expenses he has paid. 1025: Undivided co-owners of property administer it jointly.1026: Administrative decisions are taken by a majority in number and shares of the undivided co-owners.(2) Decisions in view of alienating or partitioning the undivided property, charging it with a real right, changing its destination or making substantial alterations to it require unanimous approval.

1015(1): The shares of undivided co-owners are presumed equal.(2) Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it. Each undivided co-owner cannot hypothecate the entire building, so bank acquires a fractional interest. Thus, banks prefer to lend to divided owners, because 1010(3) stipulates that fractional

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interests are autonomous and localized in divided co-ownership. In the case of divided co-ownership, banks would have no trouble selling the hypothecated share without consulting the other co-owners.

CCQ 1016: Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners.(2) If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation Under undivided co-ownership, each has the right to use the entire building, but must do so subject to the rights of co-owners.

Accession: if a movable is incorporated with the immovable, and the immovable passes to a new owner, it becomes part of the immovable and belongs to the new owner. Each co-owner’s share will therefore increase in value 1017

Former owner of the movable has a personal right on each of the co-owners.

Partition/End of indivision:

CCLC 689: No one can be compelled to remain in undivided co-ownership. Under CCLC, you could end co-ownership at any time as a matter of public order. This principle was formulated within the title on successions, i.e. when an estate passed to, and shared among, many successors – yet it applied to all cases of indivision. now CCQ 1030.

CCQ 1030: No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of the law, or unless it has become impossible b/c the property has been appropriated to durable purpose. The new CCQ suggests there is a bargain element to co-ownership, which can be economically viable and trumps the successor model. That partition may be “postponed by agreement” indicates that there are benefits to the parties to remain in indivision. Doesn’t apply to forced indivision: alleys, but not walls.

1013: The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision.(2) Such an agreement may not exceed thirty years, but is renewable. An agreement exceeding thirty years is reduced to that term.

Under 1013, any of the co-owners can sell her share on the market, subject to the rule of 1022 (successor of an undivided co-owner must be reimbursed for the transfer price and the expenses he has paid). Even if there’s an agreement to postpone partition, they have a right to do this by selling their shares or changing the destination of a movable. Indicates openness to partition, but underlying suspicion of the state of affairs.

The right to end indivision is imprescriptable, but the immovable itself is susceptible to prescription. So, a squatter, with requisite passage of time, could acquire the building. In this case, any of the co-owners can assert their right to the building to stop the prescription.

1037 CCQ: Indivision ends by the partition or alienation of the property… (2) In the case of partition, the provisions relating to the partition of successions apply, adapted as required. (3)

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However, the act of partition which terminates indivision, other than indivision by succession, is an act of attribution of the right of ownership. Buyer receives whole, not “undivided” ownership. The act of partition = attribution of a new right of ownership (not declaration, as A, B, and C were originally declared owners – indicating that they were considered owners from the moment they received it). Attribution is not retroactive. The bargain is closed, and a new bargain struck. Reinforces the idea of partition = a bargain rather than succession. (1012: Indivision arises from a contract, succession or judgment or by operation of law.)

Stem Corporation v. Pulos, 1959Facts: Three co-owners in indivision, one of whom is Pulos. Pulos’ co-proprietors entered a lease with Stem Corp. Pulos did not consent to the lease and took an action to break the lease. He won in C.S., and Stem appealed.Issue: Is unanimity necessary for a valid lease in undivided co-ownership?Holding: Yes.Reasoning: -Co-proprietors cannot be considered mandatories of their fellow co-owners, they cannot make decisions for them.-No co-owner has the freedom of action enjoyed by sole owners (quotes Pothier, who thinks it can be, at best, only a temporary condition)-Solution is to split title: co-owners should have sought a partition of the title—not to impose the will of the majority on the minority-Lease is not binding because it requires unanimity.Ratio: Undivided co-ownership requires the consent of all co-owners, even if the lease is unquestionably to the advantage of the whole group. Economic efficiency or bargaining within the group is irrelevant. Co-owners cannot, even in a majority, act as sole owners. In this case, the best outcome was partition, i.e. to end the indivision and divide the property materially.Comments:-Quote from Pothier reflects civilian mentality: indivision would have been ok long ago when humans were innocent, but now ownership requires division to maintain peace. “Il faut, pour entretenir la paix entre les hommes tells qu’ils sont que chacun ait le sien séparément; c’est ce qui est établi par l’éxperience et l’exemple de tous les siècles.”-Mignault: Co-ownership is contrary to the general interest and public order-Unanimity is necessary to maintain bargain model. Even if 2/3 of co-owners agree to lease the building to a Stem Corp, they do not possess freedom of action enjoyed by individual owners, even if the lease is to the advantage of the whole group. The same logic applies in this commercial context.-While all the co-owners may not agree, they receive a benefit to pooling resources and buying together. Former law did not see the enormous economic efficiency of the bargain.-Present model is a new juridical device to manage rare commodities such as immovables, in a modern setting.

Allice v. Potashner, 1988 Que S.C.Facts: Allice and Potashner were co-owners of a house since 1956. They agreed, in 1956, that each would be responsible for the floor she occupied, and they would split the cost of structural repairs outside the two flats. Each co-owner had autonomy in her flat with respect to expenses & upkeep; each owned ½ of all the “molecules” in the building. In 1977, Potashner moved to TO and offered to end the indivision by buying the other ½ or selling her ½ to A, who refused. P began renting her flat to L. Issues: (1) Can Allice force the annulment of Potashner’s lease to her lessee? (2) Can Potashner force the sale and division of profits of the whole building?

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Holding: (1) No (2) YesReasoning: -Though, in general, a co-owner cannot act as sole owner and unilaterally act as lessor of the whole or part of the undivided immovable, this case is sui generis. The two parties clearly agreed to each being solely responsible for a distinct portion of the immovable. Therefore, Potashner was justified in unilaterally entering a lease. -Judge made a distinction btw administration of property and the right of ownership. Ordinarily, leasing the upper floor to L. requires unanimity. But the purpose of the agreement was more than mere expense sharing, it was meant to give them absolute freedom of administration within their respective flats. Holds the lease to be valid. -According to Art 689 CCLC, no one may be forced to remain in indivision (a rule of public order). Although it’s included in the chapter on succession, the doctrine unanimously declares its validity general and applicable to all cases of indivision.-Because the building’s ownership cannot be divided (one heating and electric system), judge orders forced sale (licitation) and a division of the proceeds to end the indivision.-Equity and economic arguments fail in this case to prevent forced division.Ratio: Possible to establish de facto division within a de jure indivision. No one is compelled to remain in indivision.Comments:-Judgement reads like a denunciation of current legislation. Collapse of a housing agreement which appears to be in the best interests of the owners. -The two decisions seem to be contradictory. But the power to lease an immovable is a power of administration, not abusus. Judge allows one co-owner to take out a personal right with a 3rd party, not a jus in re. Therefore it is logical to hold the lease valid.-Distinction made on the basis of the reading of the agreement, which could have divided the indivision and created a condominium.-The judge observed the bargain that was made and noted that the owners were entitled to demand partition.-Movement away from the old Code toward the new one. It was to the co-owners’ advantage to allow indivision to continue.

Conclusion:Old Code (689) Successoral model: Co-ownership will inevitably lead to disputes and is even contrary to public order, while individual ownership is natural state of affairs. As a result, you should be able to end indivision whenever you want. Also, unanimity is required to make decisions.New Code (1013, 1026) Bargain model: Don’t need unanimous consent for partition. But if you choose to leave, your co-owners have first option of buying out your property. Indivision is perceived as having potential benefits. You have struck a bargain with your co-owners.

Under undivided co-ownership, the “bargain theory” is fragile. It is more reliable under forced indivision and divided co-ownership.

B. Forced Indivision and Common Things Destined to the Perpetual Service of Several Immovables

1002-1008 CCQ: provide for cases where, because of the situation of immovable property, some further exceptions to the principle of partition are allowed and a regime of forced indivision is established.

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Indivision is created, and people cannot get out of it (even under CCLC):1) Common walls, hedges, diteches, fences, etc (mitoyennetée)2) Things destined to the perpetual service of several immovables3) In divided co-ownership, the ownership of the common area

Forced Indivision: Indivision forces co-owners together for an indefinite period of time. People bound together as in a marriage. This overturns concept of 947 and confuses the notion of the “patrimony”; even though A & B each hold their patrimony, they are perpetually linked. Does marriage force indivision of certain property that is shared in use and title? e.g. family residence. A & B get married and buy a house together. If no title is specified, the right of ownership belongs to the one who paid more.

414 ff.: outlines rules for family patrimony. The contents of the family residence (i.e. furniture) belong to both spouses during the life of the marriage (despite rules of 947).

401 ff.: rules for protection of family residence. Adopted for purpose of imposing economic equality on spouses; their vital assets are listed in 415 and includes the residence.

At end of marriage, each spouse has 50% right to value of joint property. This is not forced indivision.

But, legislator continues to allow persons to view their patrimonies as individual & separate, while administrating their property jointly.

The common wall/mur mitoyen = a wall, fence, hedge, etc.A’s and B’s rights of ownership extend to the property line (upon which rests the common wall) – which geometrically has no breadth. So a common wall will always encroach on each owner’s property. It is accessory to each owner’s land.A & B are co-owners of the wall and forced to share maintenance costs in perpetuity – example of a real obligation.Same rules as undivided co-ownership, but adapted to particular circumstances: 1015 does not apply undivided shares cannot be alienated or hypothecated. So X cannot buy A’s share of the wall. A & B are forced to share the wall so long as they are owners of the property.

1002: Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence. (2) He may also require his neighbour to make one-half of or share the cost of making a fence which is suited to the situation and use made of the premises, on the dividing line to divide his land from his neighbour's land. 1003:  A fence on the dividing line is presumed to be common. Similarly, a wall supporting buildings on either side is presumed to be common up to the point of disjunction. forced acquisition of property not subject to 1030 (stating that partition can come to an end) – in this case, co-owners are bound to remain in indivision. Common walls do not belong to one owner alone. Each of its “molecules” is owned “perpetually” by both co-owners, until one alienates her property.

Abandonment:1006: The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right. (2) An owner who does not use the common wall may renounce his right and thereby be relieved of his obligation to share the expenses… The renouncement must be registered and other owners notified.

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Conditions for alienation: (a) not using wall(b) registering the renunciation

You’re renouncing your right to the wall itself, not the dividing line or the property or the subsoil on which it sits.

What if you don’t want the wall to be erected at all? You can argue 976 (voisinage) – e.g. it’s spoiling your garden – and go to court.

1004: Any owner may cause a private wall directly adjacent to the dividing line to be rendered common by reimbursing the owner of the wall for one-half of the cost of the section rendered common and, where applicable, one-half of the value of the ground used. The cost of the wall is estimated on the date on which it was rendered common, and account is taken of its state. Law trying to balance private ownership with forced indivision.

Rules of abandonment:-If repairs are needed, one owner could try to abandon the wall to avoid paying for his share (renouncing the obligation of 1006.1)-If A abandons her share of the wall, B automatically becomes its full owner*Can you argue that up until the abandonment, the A was a co-owner and thus obliged to pay?

Zambito-Orazio c. Meneghini [CS 1994]Facts: M was ordered by a court to contribute to the reconstruction of the common wall separating its property from Z-O’s. 30 days later, M informed Z-O that they had applied to renounce their mitoyenneté, and therefore have no obligation to pay under 1006(2). M claimed they never used the wall. Z-O nevertheless proceeded to seize M’s property in execution of payment. M challenges the seizure on the grounds that (a) the debt was annulled by their renunciation (b) the seizure was premature because construction hadn’t begun (c) the judgment didn’t order stipulate a payment and (d) the sum demanded by Z-O was too high.Issue: Can they avoid payment by renouncing their interest in the wall?Holding: NoReasoning: The fees for repair or reconstruction of common walls fall proportionately to all parties with rights in the walls. A co-owner can free herself from such an obligation by renouncing the use of the wall. But when M signed the renunciation, the judgment establishing their contribution was already executory. Also, doctrine recommends that the abandonment of common rights free the abandoner only for the future. Ratio: To avoid liability for repairs etc. on common walls, one must renounce use thereof prior to the judgment ordering payment. Abandonment only applies to the future, so until it is effective, M has an obligation to pay for the wall’s upkeep.

Zambito-Orazio c. Meneghini [CA 1999]Facts: M appealing CS decisionIssue: Can abandoning rights to the wall defray current obligations?Holding: Yes (reversed lower court decision).Reasoning: -The first judgement merely established that the wall was common, and costs were to be shared. The obligation to pay is the result of a real right in the wall, not a personal obligation, so abandoning the property right discharges it. This is an obligation propter rem – an obligation by reason of a real right in a thing (ownership). After it was established that they were co-owners, M retained their right to renounce co-ownership. The freedom to renounce is open to anyone with

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an obligation to contribute, no matter the source of that obligation.-The legislature didn’t specify the issue, but French doctrine and jurisprudence can be relied upon because 513 CCLC is derived from 655 CN. In France, it’s recognized that renouncing ownership is in effect an exchange—you can have my share of the wall, but I don’t have to pay for it. So, it can’t be totally retroactive, but can certainly apply to pending maintenance. Idea of abandonment likened to a K: M agrees to abandon his right to the wall against the debt that has accumulated for its repairs – a bargain propter rem, only Z-O receives a broken wall in exchange.Ratio: Can renounce ownership in common walls at any point, including when the obligation to pay for repairs arises, and that renunciation will discharge the renouncer of obligation for pending repairs. The debt is a real obligation—attached to the real right of ownership. Therefore renunciation of real right in wall entails renunciation of the real obligation.NK: Nature of the right is real, but nature of the obligation to repair the wall – usually a personal right with respect to the creditor – is a “real obligation” because it relates to the right in the wall. This obligation is “anchored” in the thing, just like the right of ownership is. Therefore, abandonment results in discharge from obligations.

Groleau v. Société Immobilière du Patrimoine Architectural de Montréal [CS 1999]Facts: The common wall between G and SI’s property collapsed. G advised SI of the need to repair and asked SI share the costs. SI refused, and published a notice of abandon of its right in the wall (CCQ 1006). Six days later, G quickly repairs the wall at high cost (urgently needed), then makes claim against SI, arguing that the right to renounce must be exercised in good faith. SI claims they should have had the amount determined in court.Issue: Is SI’s renunciation effective?Holding: No.Reasoning: CCQ 1006 operates on notion that co-owner isn’t using the wall. If he is using it, he should be responsible for repairs; otherwise, unjust enrichment at expense of neighbour. In this case, the repairs were necessary long before the renunciation. SI was acting in bad faith by abandoning the wall after it had collapsed.Ratio: Renunciation does not free a co-owner of a pending obligation. Comment: This directly contradicts the CA decision in Orazio and follows the C.S. position in Orazio. Groleau was refused leave to appeal to the C.A.NK: Filing the renunciation cannot have a retroactive effect, especially when the necessity of the repair had already been agreed upon. SI feels value of wall has amortized and no sense in paying for its repair. But should you be bound by the accumulated debt in the wall?In both cases, courts do not address a major issue: where is the exchange of wealth?Better decision than Orazio C.A.

Discussion of modalities shows how ownership can be manipulated from within, as provided in 947(2). In all instances, the same right of ownership is being dealt with – no new right is created.CCQ 1010 suggests that in undivided co-ownership, all co-owners hold a fractional interest in the property, but the right remains intact – so it seems that the right itself is divided.Forced indivision is perpetual; co-owners are forced to live together. Abandonment, however, is permitted under 1006.

C. Divided Co-Ownership in an Immovable (Condominium)

The Condominium: co-ownership of immovables established by declaration. [Proletariat meets the right of ownership.]

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1038 CCQ: Divided co-ownership of an immovable is established by publication of a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons. A divided co-owner’s share in the right of ownership is actually localized in part of the building. Divided co-ownership leaves property intact, but the way in which the rights are held suggests a new phenomenon bearing upon the right. A group of people manipulate the right of ownership be creating fractional interests. Declaration binds them together into a communal life. The same culture of ownership prevails: exclusion, individuality, privacy, including economic exclusivity over a given physical space. But divided co-ownership provides advantages of pooling resources to purchase a building. Divided co-ownership avoids disadvantages of a lease: personal right not real right, relationships with object modified/mediated through lessor, a more fragile right Co-owners not at mercy of bankruptcy of co-owners – not subject to 1030. Economic autonomy established with physical division.

CCQ 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…(3) 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. Divided co-ownership is perpetual.

Juridical nature: Each fraction is defined to include a private (physically separate) part and a share of the undivided portions of the immovable (e.g. roof), and perhaps a share of the common portions for restricted use (e.g. wall btw two apartments). This comes in a package when you buy 1 unit. Private parts reminiscent of superficial ownership, while common spaces associated with indivision.

Common and semi-common portions: Common = roof, hallways, etc. Semi-common = for example, a balcony across two units and the owners could exclude others in the building from using it.Fractional interests created by registering the ‘portions’ of the building (i.e. units of the condo).When you buy a condo unit, you are buying:

a) a patrimonial rightb) a real rightc) a fraction of ownership, or a fraction of the immovable?

Registration is driven by planning rather than litigation – meant to advise people before problems arise rather than solving them after the fact.The building will often be owned by a corporation instead of a group of individuals. In the event of bankruptcy, creditors seize none of the building, but a share of the corporation.

Each unit may have different relative values, e.g. penthouse > 2nd floor. The share of common portions + costs of maintenance are congruent and based on these relative values in Que. [Other parts of America calculate relative maintenance costs based on space, market value, etc.] It’s desirable to have a technique of calculating costs based on real (not K-based personal) rights.

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CCQ 1063: Each co-owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he observes the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable. restriction of ownership in the private interest when individuals agree to buy a condo together, they sign an agreement to respect by-laws, etc. proves, once again, that the myth of absolute ownership died with Portalis

Recall 1038: “Divided co-ownership … [established by] a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons.” Sounds like ownership bears upon an immaterial concept – a “fraction” of ownership rather than a thing. But a right cannot bear upon a right, i.e. you can’t own a fraction of a right! Are you buying a fraction of ownership or a fraction of an immovable?

CCQ 1047: Each fraction constitutes a distinct entity and may be alienated in whole or in part… Entity suggests something different from a thing. The relationship between the holder and the building sounds like ownership of a fraction. Calls into question the jus in re idea.

[Practically, it doesn’t matter b/c the “fraction” has already been defined in the Code WRT the rights and obligations of the co-owners (1063 ff).]

NK: Only one right of ownership, which remains intact. 1038 should read “held by,” not “belonging to.” Condo owners hold a real right that is lesser than the 947 right of ownership.

Administration:CCQ 1039: Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.(2) The legal person is called a syndicate.

CCQ 1070 ff. lays out the rights & obligations of the syndicate.Lessors are bound by the declaration of co-ownership. The K is binding on 3rd parties. Apportionment of maintenance, etc. is fixed via a method established in the original declaration of divided co-ownership (1053).

The syndicate becomes a new person in law, not a group of persons. It’s a sort of Parliament that votes on maintenance and destination of the building. Has a fund of money generated by contributions by all co-owners.

CCQ 1098: stipulates the “constitution” of the syndicate.(3) protects minority views for important decisions.

CCQ 1047: Each fraction constitutes a distinct entity and may be alienated in whole or in part; the alienation includes, in each case, the share of the common portions appurtenant to the fraction, as well as the right to use the common portions for restricted use, where applicable. economic autonomy within each unit

CCQ 1048: The share of a fraction in the common portions may not, separately from the private portion of the fraction, be the object of alienation or an action in partition.

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Time-sharing/ La propriété à temps partagé

Can this be divided co-ownership? Each fraction is divided according to time of year (e.g. 1 week/yr) for perpetuity of the building. It’s easy to lease out a building according to time rather than space, but “time-sharing” is a real right.“Buying time” is a sticky concept. Declaration of co-ownership would have to be crafted to account for temporal as well as spatial fractioning, which isn’t congruent with 1038. Doesn’t appear to be a real right.Most time-shares in Que. are sold by a corporation which owns the immovable, so it’s really a personal right you’re getting.

CCQ 1058: Unless express provision is made therefore in the act constituting the co-ownership, no fraction may be held by several persons each having a right of enjoyment periodically and successively in the fraction, nor may a fraction be alienated for that purpose.(2) Where the act makes provision for a periodical and successive right of enjoyment by holders, it indicates the number of fractions that may be held in this way, the occupancy periods, the maximum number of persons who may hold these fractions, and the rights and obligations of these occupants. How do you make ownership exclusive in time rather than space? Plays w/ dimensions.

Not formally dealt with in CCQ, but 1058 suggests that they’re possible anyhow.

D. Superficies / Propriété superficiare

1011 CCQ:  Superficies is ownership of the constructions, works or plantations situated on an immovable belonging to another person, the owner of the subsoil.

Example:X is the owner of land and Y builds a construction on his land. How do we describe the relation between the building and the subsoil? Conflicts with 948. Normally, the building would be subject to accession and merged with the land. Also conflicts with 951: Ownership of the soil carries with it what is above and below the surface. Also conflicts with 955: Constructions, works or plantations on an immovable are presumed to have been made by the owner of the immovable at his own expense and to belong to him; and 956: The owner of an immovable becomes the owner by accession of the constructions, works or plantations he has made with materials which do not belong to him, but he is bound to pay the value, at the time they were incorporated, of the materials used.(2) The previous owner of the materials has no right to remove them nor any obligation to take them back. 2 distinct rights bearing upon 2 distinct immovables: the land and the building.

o Superficies are counter-intuitive when we think of accession – because X’s land could be the “principal” and Y’s stones and bricks could be the “accessory.” Usually, what is united to the principal thing becomes the property of the principal thing’s owner. So superficies break the assumption we make with 948. CCQ 1110: Superficies results from division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession.

o A second broken presumption is that what is on the land belongs to the land-owner.

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Morin v. Gregoire [SC 1967]Facts: Morin gave his brother-in-law Gregoire permission to build a chalet on a portion of his land after G’s daughter was released from the hospital. He was invited onto the land because he had a sick daughter, and M had authorized him to build and provided him with materials. A verbal contract was made. M has now filed a action, and G claims that M therefore owes him $5,000 indemnity for good faith improvements during his possession. G is asking to be recognized as owner of chalet. Issue: What is the nature of G’s right?Holding: He has a droit de superficie.Reasoning: -M’s title to the land is clear, but he gave permission for G to build on it – he did not agree to tolerate G’s presence. M purposely renounced his right of ownership (although at trial he argued otherwise).The default rule is Art 414 CCLC: accession. But, that presumption is rebutable—and here it is rebutted by the oral contract between the two, which did not entail M’s ownership.-The permission given was not a gift but the discharge of a natural obligation, so gift formalities do not apply.-So, G has a right of superficie—a real right inferior to ownership.-There is no ground for the counter-claim because G is not a possessor, but a holder of a superficie.Ratio: Granting permission for a construction on one’s land may entail granting a right of superficie to the constructor—who becomes the owner of the improvements.Comments: Mayrand J.’s judgement was published in the McGill Law Journal; case reporters decided not to publish it because it was too “rogue” and might change the law too much. The judgement was criticized by the Law Journal – gifts of immoveable property must be notarized, on pain of absolute nullity, by notarial act and must be published (1824 CCQ).

There is an alternative argument that G is entitled to build upon M’s land due to a natural obligation. Natural obligation: between legal (binding) and moral (non-binding) obligations. For special relationships of proximity, e.g. between brothers. No (legal) obligation to support each other (such as exists between parent & child) but it arises from conscience. Thus acted upon, the agreement between G and M is thus binding and G is the superficial owner of the building.

What is the juridical nature of the rights of the parties?Superficie is a “droit réel inférieure” – a lesser real right than ownership. But, 1010 CCQ says it IS ownership:CCQ 1009: Ownership has two principal special modes, co-ownership and superficies.

In Morin, M renounced a right in their verbal K, and a right of superficie was conferred on G: “il a conféré au défendeur un droit de superficie sur cette partie de sa terre, et les bâtisses qui s’y trouvent appartiennent au défendeur qui les a construites” (pg. 245 para.1).

G became the owner of the building while M remained the owner of the land (including the land on which the building exists); and an added “droit de superficie” exists. What is its nature?

“La Cour estime qu’elle peut lui reconnaitre le droit de superficie, droit réel inférieure au droit de propriété.”

M’s right of ownership has been diminished. G has (1) a real right of ownership in the building + (2) a lesser real right than

ownership in the land upon which the building sits.

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Is that lesser real right a usufruct? (1120: Usufruct = 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.) No, because there is no time constraint on this right.

Is it a real servitude? (1177: A servitude is a charge imposed on an immovable, the servient land [land on which building sits], in favour of another immovable [the building], the dominant land [can a building be land? In French it’s “fond”], belonging to a different owner. No, the servient land (the building) doesn’t exist yet – you need two immovables.

Is it a personal right? No, the right has to include a right to follow. If G sells to a third party, M must be able to retain his right of ownership. Also, too fragile under 2644.

1110: Superficies results from division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession. In which category does G fall? Renunciation. M gave him permission to build on his land, and thus renounced part of his right in it.

1111: The right of the superficiary to use the subsoil is governed by an agreement. Failing agreement the subsoil is charged with the servitudes necessary for the exercise of the right. These servitudes are extinguished upon termination of the right. The servitudes allow the superficial owner to, for example, cross the land-owner’s land to reach his house. What about the area of land b/f the building was built? Is the airspace now part of G’s patrimony? The right to use the subsoil directly beneath the building is characterized as a servitude, but this is incorrect, according to NK. It cannot exist as a servitude (which is a relationship btw two immovables) until the construction is actually built.

1011: Superficies is ownership of the constructions, works or plantations… We assume that prior to the existence of the constructions, etc., there is no right of ownership in them.

Mayrand suggested that it was ownership of the building + something else, that inferior real right which he refrained from naming which is not included in the Code. Before the building is built, how do you characterize the underlying right to build? You don’t OWN a right to build, you hold it. Therefore, you can’t own a superficie until the construction is built, and there is a thing to be owned.

Therefore, superficies are not a modality of ownership, but a dismemberment of ownership. NK: G’s superficial ownership = ownership [the building] + dismemberment (personal servitude) [the right to build] + renunciation of the right of accession by the land-owner [the strip of land]. *This goes against the Code, which calls superficies a modality of ownership.*Why is this? Because M must retain a real right of ownership over the piece of land because at the end of superficie, M regains the right of accession and in order to receive the house in his patrimony, he must own the land on which it sits.*Ownership of the right to build is not really ownership, unless you’re prepared to say that you own a “block of air” minus the land underneath it. NK calls it a personal servitude, defined as “a servitude, temporary by its nature, establishing a charge on the property of one person in favour of another” – rather than bearing upon an immovable.

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*The Code doesn’t consider the strip of land a “common wall,” as in forced indivision. This would mean that M and G each own 50% of all the molecules of that strip, but M would not use the strip of land at all! CCQ 1006: An owner who does not use a common law may renounce his rights.

LaFontaine c. Gravel [CS 1997]Facts:

In 1929, land was sold to Rainville, but Athanase Gravel retained the logging rights In 1952, the logging rights were acquired by Fernand Gravel In 1964, Beaulieu seized the property of Rainville because of the latter’s failure to pay his

taxes In 1988, Fernand Gravel sold the logging rights in the land to his brother Yvon Gravel In 1988, Beaulieu also sold the property to Lafontaine Lafontaine now claims, under CCP 840, that the transfers of logging rights were

registered without right and should be annulled, while the Gravels claim a right of superficies.

Issue: Is the logging right held by Gravel a right of superficie?Holding: Yes, it’s a right of superficie.Reasoning:-In 1929, the logging right could have been a personal right or a real right – but, this could not be a real servitude because there are not two immovables-Looking at the intention of the parties at the time, the court found that this was a right of superficies-Right of superficies can be perpetual or it can have a term attached to it (CCQ 1113) – looking at the intention of the parties, it seems clear that it was not intended to be a perpetual right – instead, it was intended for Athanase Gravel and his direct heirs-A right of superficies is a real right and thus can be alienated, hypothecated, etc. It is also subject to acquisitive prescription – therefore the acquisition by Fernand Gravel and the later sale to Yvon Gravel was valid.Ratio: -Look to the intention of the parties to determine if the right was intended to be superficies-Superficies can be perpetual or it may be subject to a term-Superficies is transferable like any real right, and can be acquired by prescription

Stone-Consolidated c. Pierre Desjardins Gestion [CS 1998]Facts: S-C had permission to build a garage on government land and subcontracted PDG to build it. S-C failed to pay for the garage and PDG tried to publish a legal hypothec on the garage to force its sale judicially and settle the debt. S-C argued that one can’t have a legal hypothec on government land, which is in the public domain. Issue: Is the legal hypothec valid?Holding: Yes. Reasoning: You can’t give up land that belongs to the government, but the right to the garage consists of superficial ownership. Superficie is a modality of ownership (1009) that results from the division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession (1110). The landowner ceded her right of accession, so the superficiary is the owner of the building and the hypothec is valid.Ratio: Holder of a superficie is the full owner of the building.Comments: Courts willing to recognize superficie as a modality of ownership. Does the superficie extend to the piece of land on which the garage sits? It is impossible to think of the right of ownership in the garage without it.

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Termination:

CCQ 1113: Superficies may be perpetual, but a term may be fixed by the agreement establishing its conditions.

In Morin, M claimed that the arrangement was only supposed to last 2 years, but as Mayrand pointed out, it would be foolish to invest so much if the term would expire in 2 years.

Imagining this as a suspension of the right to accession would force M to have to compensate G for unjust enrichment.

Rules of termination of superficies at CCQ 1114:Superficie is terminated:

1) by the union of qualities of the subsoil owner and superficiary in the same person i.e. owner of the land buys building – more natural to Portalis

2) by the fulfilment of a resolutive condition (i.e. obligation ends when the condition is realised)

3) by the expiry of the term

CCQ 1115: The total loss of the constructions, works or plantations terminates superficies only if superficies is a result of the division of the object of the right of ownership.(2) Expropriation of the constructions, works or plantations or expropriation of the subsoil does not terminate superficies.

CCQ 1116: At the termination of superficies, the subsoil owner acquires by accession ownership of the constructions, works or plantations by paying their value to the superficiary.

This makes sense because superficie is considered ownership itself. This looks like a transaction, and is in contrast with usufruct – which is the use of property owned by another and a real right less than ownership – where the fruits and revenues of the property automatically go to the owner at the end of the usufruct.

The rules on termination operate to explain superficie as truly a modality of ownership, i.e. as ownership itself. It is on the same ‘level’ as co-ownership.

Is the right of superficie, as ownership, subject to dismemberments and modalities? CCQ 1011: “Superficies is ownership of the construction, work or undertaking.” For example, G holds the ‘box’ for the building, while M holds the ‘box’ for the land on which it sits.

Mayrand J (Kasirer concurring): G had a real right of ownership in the building + a real right less than ownership (a dismemberment of a real right – a real right in property owned by another/ jus in re alinea) on the strip of land. M remains the owner of the strip. So the analogy is closer to servitude than indivision.

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XI. Dismemberments of ownership

CCQ 1119: Usufruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights.These are real rights and patrimonial rights, representing the “carving up” of ownership. A jus in re alinea: a real right in a thing belonging to another.

Example: In usufruct, usus and fructus in the hands of one party (the usufructury), while the right to disposal stays in the hands of the owner. Thus, the right of ownership has been dismembered or divided.

How does this impact the structure of ownership itself? Do we think of ownership as a whole? In CML, it is considered a “bundle” of rights. With dismemberment, ownership is diminished as rights are gradually carved away, and it can possibly disappear.

In CVL (947), ownership is considered as a box. With dismemberment, you open the box and take out things (usus, fructus, abusus) but ownership always remains. The “box” is not divisible, and always has to remain in the hands of an owner.

Example: You die and leave use and enjoyment of your house to your surviving spouse. The house itself is left to the children – who become owners, although they are “bare owners” – nu- propriétaires. Children don’t have use of the house, nor can they benefit from fruits of it, until spouse dies and it passes to them. Ownership is indivisible and is in the hands of the children. Spouse has a real right of follow in her patrimony, assuming that it was published. Even if the children sell the house, spouse has a right to live there.

But, spouse could also transfer rights of usus and fructus to a third party or to the children. Spouse has a jus in re aliena in the house – a real right in a thing belonging to another. Unlike modalities, dismemberments are jus in re aliena – rights in a thing belonging to someone else.

A. Emphyteusis

1) Juridical nature2) Termination

CCQ 1195: Emphysteusis 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. (2) Emphyteusis is established by contract or by will.

It’s called an emphyteutic lease, but it’s not a lease, because this implies personal rights, whereas emphyteusis is a real right on property owned by someone else (jus in re alinea).

CCQ 1197: The term of the emphyteusis shall be stipulated in the constituting act and be not less than ten nor more than one hundred years. If it is longer, it is reduced to one hundred years.

CCQ 1200: The emphyteutic lessee has all the rights in the immovable that are attached to the quality of owner, subject to the restrictions contained in this chapter and in the act constituting emphyteusis. (2) The constituting act may limit the exercise of the rights of the parties, particularly by granting rights or guarantees to the owner for protecting the value of the immovable, ensuring its conservation, yield or use…

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This is one of the most oft-used techniques in real estate development, especially in urban settings where owner of land is a public body, which does not want to get involved in the building process but wants value of land to increase. e.g. Place Ville-Marie, Place Desjardins, Anglican Church.

The E.L. is entitled to full benefit and enjoyment of the immovable, including revenue from commercial leases (1195).

Many emphyteusis contracts state that for the period of the lease, the E.L. is the superficial owner of the immovable, while the owner, has a right of ownership in the land. Normally, the agreement will be via contract and the land-owner will ask for certain nominate improvements.

The Code suggests that superficial ownership is the right classification:CCQ 1206: The owner has the same obligations towards the emphyteutic lessee as a vendor. It is as if the owner sold the right. Suggests that during the lease, the owner (like a vendor) is stripped of his claim of the property.CCQ 1205: The E.L. is liable for all real property charges affecting the immovable.CCQ 1203: The E.L. is bound to make repairs, even major repairs, concerning the immovable or the constructions, works or plantations made in the performance of his obligation.

Typically, E.L. must pay the land-owner rent during the life of the lease – the emphyteutic canon /canon de l’emphyteuse. This is not mandatory. The land-owner looks at the arrangement as a way to improve the long-term value of the land.

Normally, the owner bears the cost of the risk of loss. Here, it seems that the E.L. is the owner as he is made liable for losses.CCQ 1202: The E.L is liable for partial loss of the immovable; he remains liable in such a case for full payment of the price stipulated in the constituting act.CCQ 1210: Upon termination of the emphyteusis, the E.L. shall return the immovable in good state of repair with the constructions, works or plantations stipulated in the constituting act, unless they have perished by superior force.

CCQ 1208: Emphyteusis is terminated:(1) by the expiry of the term stipulated in the constituting act;(2) by the total loss or expropriation of the immovable;(3) by the resiliation of the constituting act;(4) by the union of the qualities of owner and emphyteutic lessee in the same person;(5) by non-user for ten years;(6) by abandonment. Total loss or expropriation of the immovable terminates the emphyteusis. This suggests that E.L. is really the owner (see Cohen).

But, the most compelling argument that the emphyteutic lessee is NOT the owner of the constructions:

CCQ 1209: Upon termination of the emphyteusis, the owner resumes (reprend in French) the immovable free of all the rights and charges granted by the E.L., unless the termination of the emphyteusis results from resiliation by agreement or from the union of the qualities of owner and E.L. in the same person.

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(2) Any additions made to the immovable by the emphyteutic lessee which he is under no obligation to make are treated as disbursements made by a possessor in good faith. This article indicates a difference btw superficies and emphyteusis. At the termination of superficies, the owner has to pay the superficial owner for the constructions. During the lease, E.L. is not an owner; he has a very substantial dismemberment of ownership.

CCQ 1210(2): Any additions made to the immovable by the emphyteutic lessee which he is under no obligation to make are treated as disbursements made by a possessor in good faith. The only thing that the owner must pay the E.L for are improvements made by E.L. that went beyond the agreement.

CCQ 1208(5): Emphyteusis terminates after non-use for 10 years – unlike superficies, which includes the right to do nothing with the property.

On the other hand, if a superficial owner abandoned her immovable, the land-owner would receive it in her patrimony – natural accession (936).The reason stems from the nature of emphyteusis vs. ownership. Ownership is the most superior/absolute of all rights. Thus, in emphyteusis, the owner remains a “brooding presence.”

Sylvio on Emphyteusis, pp. 227-242

o Emphyteusis is a real right on a corporeal immovable, constituting the most extensive dismemberment of ownership, because it transmits to the holder nearly all the attributes of the right of ownership.

o Emphyteutic lessee holds the right to use and enjoyment of the immovable, as well as a limited right of disposal. The only limit on the right to abusus is that you can’t compromise the existence of the immovable (1195).

o E.L. also has an obligation to improve the immovable. He benefits from accession, which allows him to make constructions, works or plantations, of which he is the “superficial owner,” because the owner has ceded the right to material accession for the duration of the dismemberment (1200(1), 1110).

o Emphysteusis serves landowners who don’t have expertise/desire to add value to them and who turn them over to entrepreneurs. Superficie, which is much more flexible, is often preferred.

Cohen v. Minister of National Revenue [1968 Ex Ct]Facts: Cohen acquired a 99-year “emphyteutic lease” on property which included the lessee’s interest in the lease and a building erected on the land, which was transferred to him with 58 yrs left on the lease. The original lease contained a number of unusual clauses, including: (a) in the case of default of lease, lessor becomes owner (b) at end of term, lessor entitled to purchase building.Issue: Are appellants owners or lessees of the building, for tax purposes?Holding: They are superficial owners.Reasoning:-The document may call it an emphyteutic lease, but if you read it carefully, what Cohen acquired was not a personal right or emphyteusis, but a real right in the building. (Common intention of the parties: 1425 CCQ). -The lease states that in the case of default of payments of rents or taxes, the buildings and improvements “shall become the property of the Seminary” but have to pay for it, indicating that until then, the Seminary is not the owner of the building. It wasn’t “rememberment” under 1209

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CCQ; they had a right to acquire it.-Ordinarily, at termination of emphyteusis, the owner of land automatically gets the building. Here, the landowner has the right to “purchase the building.” 1209 helps us to determine the difference btw superficial ownership and emphyteusis – the owner must purchase the constructions from the superficial owner.Ratio: The appellant are superficial owners and not emphyteutic lessees their real rights are not dismembered, but complete. This was not emphyteusis.

Sun Life Assurance Co. v. 137578 Canada Inc, 2000, Que CA.Facts: Owner ceded its property in emphyteusis, and the lessees constructed a building with a loan from Sun Life. SL seized the property and owner claimed payment of the emphyteutic rent. SL refused, saying that the seizure didn’t confer any rights on the owner.Issue: Is Sun Life bound by the obligations of the emphyteutic lessee?Holding: Yes.Reasoning:

Emphyteusis is a real right, not a personal right, so a creditor so a creditor may seize the real right that an emphyteutic lessee has in an immovable, but this is subject to the rights of the owner (CCQ 1199).

Upon termination of the emphyteusis, the owner resumes the immovable free of all the rights and charges granted by the emphyteutic lessee (CCQ 1209). Empyteusis is a real right, so when a creditor seizes hypothecated property with emphyteutical rights attached, the creditor assumes those obligations under the emphyteusis the real right (along with its obligations) is transferable (2783). This extinguishes the obligation of the debtor (2782).

Ratio: The obligations of the lessee are transferred when her real rights as emphyteutic lessee are transferred.

Procurer Général du Canada c. Constuction MIS Inc, 1989 Que SCFacts: Canada leased land to a 3rd party for 40 yrs. MIS signed a contract with the contractor hired by the lessee to build a hangar that was stipulated in the emphyteutic lease. MIS registered a privilege after not being paid. Canada is demanding that it be cancelled because the lease is not emphyteutic, stating: (a) it is not registered as an emphyteusis conforming to Art 2098 CCLC (b) lease contains restrictions contrary to Art 569 CCLC (c) some clauses foresee resiliation prior to end of term.Issue: Is this emphyteusis?Holding: Yes.Reasoning:

Art 2098 requires registration for all transfers of immovable real rights. The effect of failing to register the transfer is merely to render it inopposable to 3rd parties; there is no change in the character of the right transferred.

The restrictions in the lease are compatible with Art 599 CCLC because they (a) serve to protect the value of the property (b) ensure the preservation of the lessor’s rights

The possibility of resiliation does not preclude emphyteusis because Art 567 CCLC permits other charges and restrictions to be added.

Therefore, the privilege, having been validly registered, is applicable to the leaser.Ratio:

The lessor may make restrictions with the aim of protecting her interests without precluding the existence of emphyteusis the court looks at the nature of the right to determine if it is emphyteusis

Non-registration does not change the character of a real right, but merely renders it inopposable to 3rd parties

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H.L.P. Societe en Commandite c. Ville de Beauport, 2000 Que CAFacts:

Emphteutic lease was entered into for 20 years between Hydro-Quebec (lessor) and Herve Pomerleau (lessee); the latter constructed an immovable on the land

Pomerleau ceded all his emphyteutic rights along with the immovable to H.L.P. The City of Beauport sought payment from H.L.P. for “des droits de mutation sur

l’immeuble” (but did not seek payment for the land on which the building sits) – the city argued that this was not emphyteusis, it was actually superficies, so H.L.P. had become the owner of the building and thus must pay

Issue: Is this emphyteusis or superficies?Held: EmphyteusisReasoning:

Rejects the municipal court’s interpretation of emphyteusis – that during emphyteusis, the owner renounces his right of accession to any improvements made to the immovable, so the lessee has a superficial right over these improvements this is wrong!

Emphyteusis and superficies are distinct – one is a dismemberment of ownership and the other is ownership itself!

In emphyteusis, the lessee acquires rights like that of the owner, but he does not have the right of accession because he really isn’t the owner

At the end of the emphyteusis, ownership (held by the lessor) becomes whole again As a result, Pomerleau only ceded emphyteutic rights and not ownership

Ratio: There is a sharp distinction between emphyteusis and superficiesCCQ 1195: “Emphyteusis is the right which, for a certain time, grants a person the full benefit and enjoyment of an immovable owned by another.”

Third parties are bound to recognize dismemberments in ownership, subject to their publicity.

1199 CCQ: The creditor of the emphyteutic lessee may cause the latter's rights to be seized and sold, subject to the rights of the owner of the immovable. The object seized is not the building itself, but the emphyteutic right. This is because the building is owned by another.(2)The creditor of the owner may also cause the latter's rights to be seized and sold, subject to the rights of the emphyteutic lessee. The object seized is the future value at the present time of the building (i.e. the ‘box’). At the end of emphyteusis (usually 100 yrs), owner receives building.

Maintenance, repairs and tax payments are undertaken by the emphyteutic lessee. But, non-use of the asset is the basis for the end of the emphyteusis (1208.5) – you MUST use the property.

Why is emphyteusis necessarily of a finite duration? A perpetual emphyteusis would mean that the ‘box’ of ownership would be transferred to the E.L. It is of the nature of a dismemberment (with the exception of a servitude) that it be temporary.

Who has the right of abusus? The right to dispose of the property belongs to no one person. The owner can transfer/alienate his right to a 3rd party subject to the E.L’s right to follow. Similarly, the E.L. can transfer his emphyteutic right to a 3rd party subject to the owner’s right of ownership. Both have a limited right of disposal. (Transfer = succession, sale, seizure by creditor.)

1208(4): Emphyteusis is terminated… by the union of the qualities of owner and emphyteutic lessee in the same person.

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If a third party wanted to acquire the property, he should convince the owner to end the emphyteusis and cancel the dismemberment, then sell it to him.

Emphyteusis is an ancient juridical device (derived from Greek). Widely used in Quebec but rarely used in France.

B. (Real) Servitudes and Real Obligations

1177 CCQ: 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. (2) 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. (3) A servitude extends to all that is necessary for its exercise.

Servitude is a dismemberment. It is a relationship or connection between two immovables, but conceptually constructed as a jus in re alienea: a real right in property belonging to another.

The exercise of the servitude is regulated with a view to protecting the rights of both the owner and the holder, who exist in a situation of co-habitation.

Offers a technical means for establishing a measure of cooperation btw landed properties, as well as an instrument to the benefit of persons other than and in addition to the actual owner.

The value of the servient land is increased by the servitude.

Servitudes must be distinguished from obligations (mere personal rights) and “real obligations.”

Why must it be a passive charge? 1177(2) stipulates passive, not active, obligations on the owner of servient land: tolerating certain acts of use and abstaining from exercising certain rights. e.g. Hamilton v. Wall: obligation not to block the view of the building on dominant land.

What if the agreement was that B was to work in A’s field? This is not a servitude; it’s feudalism! Sharecropping would also be invalid as a servitude; it’s a violation of public order because it binds B (not his land) in perpetuity. In court, it would be read down as a mere personal right, or declared invalid.

Intention of the parties (as per the original agreement) would be examined. If A is granted the right to cross B’s land; then A’ invites crowds of people to cross the land to board a cruise ship, the judge would examine the original contract to see if this is what A and B intended.

1181 CCQ: A servitude is established by contract, by will, by destination of proprietor or by the effect of law. It may not be established without title, and possession, even immemorial, is insufficient for this purpose. There is no acquisition of a servitude by prescription. Only the title-holder can grant a servitude.

Why best imagined as real, and not a personal right? Where the transfer of dominant land to a new owner is by particular title (sale) and not universal title (succession), it is likely that the owner will not continue the relationship with the owner of the servient land.

Why is it described as a relationship between immovables?Servitudes must exist between two immovables by different persons. But a person may also divide his land in his will between 2 persons and add a servitude to the relationship btw them.

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What can we tell about its duration, given that it is a dismemberment of ownership? Other dismemberments, like emphyteusis, for example, are temporary by nature. A servitude can be established for a certain term, but it can also be perpetual. This is possible because the servitude is a much more limited dismemberment. It only concerns usus, so the ‘box’ of ownership is not only intact, it contains many other prerogatives. Moreover, there is nothing that makes the right given by a servitude exclusive; e.g. B could also use A’s path to go the lake. But, nothing in the servitude makes it inherently indefinite in time.

Can a relationship between a person and land be a permanent right? A dismemberment can be permanent if it’s compatible (B’s right to cross A’s land) with the ongoing presence of the right of ownership (A’s).Ownership is always viewed as material – it’s the only conceivable relationship btw a person and a thing. You don’t really have a relationship with the thing – you have a relationship with all other people with respect to that thing.

Hamilton v. Wall (1879) Que.Facts: Hamilton sold a lot to Perrault with clause in deed not to build house in front of line prolonged from appellant’s house next door. Perrault sold lot to Wall who ignored clause and built in front of line. Hamilton claims it was a real right – a servitude that was created. Wall claims that it was merely a personal right.Issue: Was a servitude created?Held: Yes. Appeal allowed, offending part of house must be demolished.Ratio: It is considered a servitude in that it is for the benefit of the dominant property. Wall

assumes all obligations to which Perrault was bound in the deed. In considering the text of the deed, it is noted that future owners were contemplated, as it

implicates ‘ses loires et ayant cause,’ perhaps meaning successors. Respondent was a successor ‘à titre particulier’ (sale), not ‘à titre universel’ (heirs). If the clause was found to be a personal right and not a servitude, then this would have been a redundant clause as personal rights are transmitted to heirs anyway, but not to successors ‘à titre particulier’ (625 CCQ).

Extinction of a servitude:CCQ 1191:  A servitude is extinguished:(1) by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;(2) by the express renunciation of the owner of the dominant land;(3) by the expiry of the term for which it was established;(4) by redemption;(5) by non-user for ten years.

Real servitude: a charge upon an immovablePersonal obligation: a charge upon a person rather than a real rightReal obligation: an obligation to which a person is bound only by reason of his or her quality as titulary of a real right, in particular the right of ownership a distinct category within the family of patrimonial rights sometimes known as the propter rem obligation obscured by the principle of relative effect of K (i.e. CCQ 1440: Ks have effect only btw contracting parties, not 3rd parties, except where provided by law). evokes feudal duty, and thus frowned upon.

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J. Carbonnier, Droit CivilThe real obligation is an obligation attached to property rather than to a person and her patrimony. A person is bound to the obligation only by reason of being an owner of that property.Upon alienation of the property, the obligation is transferred to the new owner.Example: the obligation of a 3rd party acquirer of an hypothecated immovable to surrender it upon an hypothecary action.

Distinguishing the servitude from the real obligation:A personal obligation can be imposed on the holder of a real right by virtue of her title. This obligation is transferred to successive owners.Similarly, a servitude is imposed on the owner of a particular immovable, it is attached to the immovable, it is possible to free oneself from this obligation by abandoning the land to which it is attached. With respect to dominant land, the servitude is an accessory real right automatically transferred to the holder of the dominant land. With respect to the servient land, the servitude is a dismemberment of ownership – a real right less than ownership. It is stipulated as a passive charge on the immovable rather than a positive obligation. There is an obligation only if a prestation is imposed upon the debtor.

C. Usufruct

1120 CCQ: 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. a jus in re alinea or right in a thing owned by another two persons have concurrent rights in the same thing.

1121 CCQ: Usufruct is established by contract, by will or by law; it may also be established by judgment in the cases prescribed by law.

1123 CCQ: No usufruct may last longer than one hundred years even if the act granting it provides a longer term or creates a successive usufruct.(2) Usufruct granted without a term is granted for life or, if the usufructuary is a legal person, for thirty years. Time limit of usufruct distinguishes it from ownership: “for a certain time.” It is limited in time because the right of dismemberment is so considerable. Default time span is a lifetime, unless it’s a legal person. It is a life-right.

1124 CCQ: The usufructuary has the use and enjoyment of the property subject to usufruct; he takes the property in the condition in which he finds it.(2) Usufruct also bears on all accessories and on everything that is naturally united to or incorporated with the immovable by accession.

Usufructuary has certain obligations to preserve the substance of property:

1151 CCQ:  Maintenance of the property is the responsibility of the usufructuary. He is not bound to make major repairs except where they are necessary as the result of his act or omission, in particular his failure to carry out maintenance repairs since the opening of the usufruct.

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1152 CCQ: Major repairs are those which affect a substantial part of the property and require extraordinary outlays, such as repairs relating to beams and support walls, to the replacement of roofs, to prop-walls or to heating, electrical, plumbing or electronic systems, and, in respect of movables, to motive parts or the casing of the property.

1153 CCQ: The usufructuary shall notify the bare owner that major repairs are necessary.(2) The bare owner is under no obligation to make the major repairs. If he makes them, the usufructuary suffers the resulting inconvenience. If he does not make them, the usufructuary may make them and be reimbursed for the cost at the end of the usufruct.

1125 CCQ: The usufructuary may require the bare owner to cease any act which prevents him from fully exercising his right. (2) The bare owner's alienation of his right does not affect the right of the usufructuary.

Usufructuary: has right of enjoyment in the thing (a jus in re), as would the proprietor.Proprietor: has right of ownership without the enjoyment bare ownership / la nue-propriété. Antithetical relationship: they are rivals!

Division between capital and income interests in property. Normally, owner has a right to capital and whatever income can be generated by it. Usufruct divides these: usufructary holds the right to the income interest, while the owner holds the rights to the capital interest. CCQ 1126: The usufructuary appropriates the fruits and revenues produced by the property. The usufructuary owns the fruits and the revenues, even if she chooses to live elsewhere.

CCQ 1129: The usufructuary is entitled to the fruits attached to the property at the beginning of the usufruct. He has no right to the fruits still attached to it at the time his usufruct ceases.(2) Compensation is due by the bare owner or by the usufructuary, as the case may be, to the person who has done or incurred the necessary work or expenses for the production of the fruits.

Classic case: Farm owner dies and wants to ensure that surviving spouse has income from the profits of the house and farm. Leaves house and farm to the children, subject to the rights of the spouse to live in it and operate the farm to her advantage as long as she is alive. Usus & fructus with spouse; ownership with kids. There exists rival rights: while kids are waiting for their mother to die, they only have access to capital interests. Mother has direct relationship with the house that is opposable to third parties and to the kids. She can also transfer her rights to a 3rd party. If she moves to a new home, she still owns the fruits and revenues of the house & farm. This is done because the strength of family ties (mother leaving house to kids in her will; kids supporting mother in her old age) cannot be trusted. A third party can provoke the partition of the ownership, but the widow retains a real right in the farm.

*Rival rights have interesting ramifications on “economic efficiency” and sustainability. Mother has no interest in, for example, letting the land lie fallow (which is good for it) because she wants to exploit it quickly and to the maximum. The Code encourages a balance of interests.[Usufruct as sustainability argument?]

1139 CCQ ff: The tree rule: Bare owner of the trees wants them to stay there as long as possible (capital interest). Usufructuary wants to cut them down and exploit the resource ASAP.

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1139: In no case may the usufructuary fell trees…except for repairs, maintenance, or exploitation of the land…(2) The usufructuary replaces the trees that have been destroyed, in conformity wit the usage of the place or the custom of the owners… interest in preserving the capital value of trees

1140: The usufructuary may begin agricultural or sylivicultural operations if the land subject to the usufruct is suitable therefor… If it’s a tree farm, then the trees are sources of income and are not subject to the same rules, but they have to be careful not to “exhaust the soil or prevent the regrowth of the forest.”

“La vente des murs” (used in France): Elderly person has expensive Parisian apartment but no income. Sells the ‘bare ownership’ to X and retains usus and fructus, thus transferring capital into an income stream. So she can continue to live in the apartment for the rest of her life, while X speculates on her life expectancy.

*This distinction between capital interests and income/revenue interests drives the whole of the deep logic of the law.

Migneault, Le droit civil canadien The owner has ceded his right of enjoyment; he is not obliged to ensure that the usufructary is able to enjoy the property. The owner, like all other persons, must refrain from all acts that could prevent usufructary from exercising his right, but the obligation ends there. Il est tenu, non pas de faire jouir l’usufruitier, mais de le laisser jouir.

The usufructary has a direct relationship with the thing. Therefore, maintenance of the property is the responsibility of the usufructary (1151), and the usufructary cannot expect that the property be transferred to him in good condition (1124). This is distinguished from a lease, in which the lessee does not have a real right in the thing she is leasing – rather, it’s a personal right, an obligation held by the lessor toward the lessee to provide him with the right of enjoyment.

Usufruct on a corporeal object = a real right and is classified as movable or immovable according to the character of the object. e.g. rare paintings: the owner can sell the bare-ownership of the painting to a state museum as an income stream, but retain its use and fruits during his lifetime.

When a usufruct is constituted on a debt (droit de créance) its nature is modified and it will be classified as a movable like the personal right subject to it. Migneault: L’usufruitier a une action réelle pour revendiquer son droit contre tous ceux qui détiennent la chose sur laquelle il est établi. Similarly, the right of the lessee is opposable to third parties – exception to the rules governing personal rights.

Usufructary has obligation to preserve the substance of the property he enjoys, unless the usufruct is constituted on a consumable object a quasi-usufruct. Debts/claims are also quasi-usufructs (see below).

1127 CCQ:  The usufructuary may dispose, as though he were its owner, of all the property under his usufruct which cannot be used without being consumed, subject to the obligation of returning similar property in the same quantity and of the same quality at the end of the usufruct.Where the usufructuary is unable to return similar property he shall pay the value thereof in cash.

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1128 CCQ:  The usufructuary may dispose, as a prudent and diligent administrator, of property which, though not consumable, rapidly deteriorates with use.(2) In the case described in the first paragraph, the usufructuary shall, at the end of the usufruct, return the value of the property at the time he disposed of it.

Rival rights:Usufruct is a distinction between income value and capital value of the property, or present enjoyment and future interest. Usually, capital and revenue are held by the same person: the owner, who is presumed to want to manage these interests according to a single interest. Once you begin separating the prerogatives of ownership, a situation of conflict arises.

What is the juridical nature of the rights of the usufructuary and the bare owner?

Recall 1120 CCQ: 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.

“For a certain time” indicates temporary nature of the right.“Owned by another” = bare ownerUsufructuary is obliged to preserve the substance of the property, i.e. to retain its economic value.

Example of an apple tree: Apples = “fruits” (literally) and belong to the usufructuary.Tree = capital value and belong to the bare owners, who nonetheless don’t have use and enjoyment of the trees.Who is responsible for upkeep, spraying the tree, etc.? The usufructuary, although this may be contrary to her personal interests.What if she can’t afford to maintain the tree? Usufructuary does have the right to abandon the tree, upon which case she would lose usus and fructus, which would fall back to the owner.

What about amortization? If the value of the thing (e.g. a car), depreciates over the passage of time, the rules take into account the nature of the property. Capital value also declines, so owner can’t hold the usufructuary to maintaining it or replacing it when it depreciates.

CCQ 1126: The usufructuary appropriates the fruits and revenues produced by the property. Usufrucutary owns the fruits; realized income is in her patrimony.

CCQ 1129: The usufructuary is entitled to the fruits attached to the property at the beginning of the usufruct. He has no right to the fruits still attached to it at the time his usufruct ceases. At the end of a usufruct, fruits are characterized as capital property; they go to the owner because capital and income interests become one.

Can the widow resell the right to use of the farm? Yes, it’s a real right held in her patrimony. Subsequent acquirer remains subject to 1120. When the right collapses (i.e. the widow dies), the new owner of the usufruct will have to remit the use and fruits of the farm to the children. Widow can also rent out the property.CCQ 1135: Usufructuary may transfer his right or lease a property included in the usufruct.

What if usufructuary builds on the property? Who owns the building at that moment? 1124 says that usufruct bears on all accessories and that which is “naturally united to or incorporated with the immovable”, not artificially. NK: Probably prerogative of use would extend to messing with the economic value of property.

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CCQ 1136: A creditor of the usufructuary may cause the rights of the usufructuary to be seized and sold, subject to the rights of the bare owner. (2) A creditor of the bare owner may also cause the rights of the bare owner to be seized and sold, subject to the rights of the usufructuary.

Can the children sell the property? Yes, without affecting their mother’s right.1125(2): The bare owner’s alienation of his right doesn’t affect the right of the usufructuary.

Compare usufruct to lease:-Maintenance/upkeep of the farm: Lessee has no obligation to maintain the property, while usufructuary does. -Major repairs, like a new furnace, are the responsibility of the bare owner.1151 CCQ: Maintenance of the property is the responsibility of the usufructuary. He is not bound to make major repairs except where they are necessary as the result of his act or omission, in particular his failure to carry out maintenance repairs since the opening of the usufruct.1152 defines major repairs.1153 CCQ: The usufructuary shall notify the bare owner that major repairs are necessary. (2) The bare owner is under no obligation to make the major repairs. If he makes them, the usufructuary suffers the resulting inconvenience. If he does not make them, the usufructuary may make them and be reimbursed for the cost at the end of the usufruct. Why? Usufructary has a real right in the property, while the lessee has a personal right against her landlord. So lessee has the right to demand habitable premises. Unlike the lessee, the widow doesn’t have the right to be provided with enjoyment of the property, but a right to take the enjoyment from the farm. If she makes the repairs, the usufructary will only be reimbursed at the end of the usufruct. This is because it will only be an advantage to the children once they have the right to use the property back in their hands. Repairs increase the capital value and thus merit reimbursement.

Legal heirs: heirs designated not by will, but by law according to a set “formula.” Children receive more than spouses, who receive more than second cousins.

Larocque v. Beauchamps, 1975 Que C.S.Facts: B inherited the usufruct in a building, for which she paid $100/mo. Ownership of the building was left to someone else. L loaned the owners some $, then exercised her creditor’s hypothecary right. She obtained a court order declaring her sole and unique owner, retroactive to the date of the loan. She is trying to kick B out and demanding damage payments, i.e. the fruits and revenues of the building since the judgment declared her owner.Issue: Does B’s usufruct include a right to follow (i.e. can she be evicted)?Holding: Yes, it’s valid.Reasoning: The usufruct was in place before the loan was granted, therefore none of those proceedings affect it. B has a right to enjoy her usufruct as long as she lives, and it will not extinguish until she dies. Nature of the right is a real right which includes the right to follow. L’s right is subject to the usufruct, so she has no right to evict B from her home. Ratio: Usufruct is a real right opposable to new owners.

What if the farmer leaves the farm in usufruct to his spouse, but in bare ownership to his unborn-yet-conceived grandchild? Who has ownership? Not the farmer (he’s dead), not the spouse (she only has usus and fructus), not the child, not the grandchild (who doesn’t yet exist!) – but ownership has to go somewhere. So, a person must be conceived in order to inherit bare ownership of property.

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Conclusion: Usufruct creates rival rights between bare owners and usufructuary, capital and income, present and future. Many criticize this device as encouraging poor management of property.

Example: If a dividend (profits distributed to shareholders) is declared on property that is a usufruct, who gets the share of profits? The usufructary, because it falls under fruits and revenues (909-910). Unless the nature of the dividend is capital (distribution of the capital among shareholders), upon which it goes to the owner.

Back to the farm: Farmhouse has a wood-burning furnace with a pile of wood beside it. The wood is necessary for the usus of the farmhouse, but to use firewood is to consume it – in this case, use and ownership are one. Problem: 1120 confers the obligation to preserve the substance of the property. So, does the usufructuary have to refill the woodbox? Yes. Using the firewood, which is fungible, she creates a debt in her patrimony and has the obligation to compensate the bare owner, while the bare owner has a personal right to reclaim the value of the wood (1127).

What if the usufruct bears not upon a thing, but on a claim? X leaves all his property to his widow as usufructuary and his child as bare owner – house, car, shares, and a GIC – bank owes $100 plus 5% interest to X. Who is the creditor? According to the logic of the usufruct, income value ($5) goes to widow, while capital value ($100) goes to child.

What if the debt becomes due during life of the usufruct? At the moment of repayment, all $105 goes to the widow. A new claim is born and the real right is transformed into a personal right whereby the widow becomes debtor and has to remit the capital value to the child at the end of the usufruct.

When a real right bears upon a personal right (such as a claim or debt), that usufruct owes to the bare-owner – value of the capital (1127). Like the firewood, this is classified as a quasi-usufruct.

Banque Nationale du Canada v. Gravel, 1984 Que. C.S.Facts: Mme. Gravel bought a house from her adoptive mother, Mme. Benoit-Beaudry, for $1, granting B-B a right of perpetual habitation in the house, while G pays all the costs. G hypothecated the house and defaulted. The court, giving effect to the hypothec, is ordering a forced sale. B-B is intervening, demanding that her right to live in the house be recognized in any such sale. Issue: Does B-B retain her right to live in the house (usus) in face of the forced sale?Holding: YesReasoning:

The act of sale clearly stipulates a right of usage and habitation. All costs are to be paid by the owner. Bank recognizes the opposability of the right of habitation, but claims everything else is a personal right.

676 CCP allows B-B to bring this claim once the seized immovable is announced to be for sale, because she has a real right recognized in the deed of sale.

Have to read the $1 contract as one of “libéralité” (benefit) rather than one of sale, so it should be interpreted in favour of seller. So B-B definitely has a right of habitation and usage that will last until she dies, and that is for the entire house.

Art 496 CCLC: ‘Habitation’ is restricted to that which is necessary for it. In Quebec, this is read to allow B-B all the normal amenities of a residence: e.g. heat, electricity, repairs.

Intention of the parties was to grant B-B the right of to live in the house for free and use it entirely, a right that will be opposable to any future owner.

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Ratio: Right of habitation is a type of usufruct, and therefore a real right, which is opposable to all and has a right to follow.

Usufruct is not as prevalent in Quebec as it is France, except in successions.

D. The numerus clausus (closed list/fixed number) of real rights

Can there be dismemberments other than those stipulated in the Code? These would be created by juridical act (usually K). Examples:

o A sells a lot to B. The deed of sale contains a clause stipulating that the vendor reserves the right, for him and his successors, to hunt on the property for a period of 50 yrs.

o X sells a lot to Y. The deed of sale contains a clause saying the property cannot be used for anything other than residential purposes. Any constructions built must be single-family units that cannot exceed two storeys.

Neither of the above can be classified as any of the known modifications of ownership. Wild animals are res nullii, appropriable by occupation, not “fruits” – so not usufruct. Is it right to use? Servitude?

Classified as:o Personal servitudes: a real right in property belonging to another,which is in favour of a

persono Rights of enjoyment other than the right of use and habitation:

often a distinction between droits de jouissance sur un bien and restriction à l’usage d’un bien, which is harder to recognize as a real right on property.

Is the list set out in 1119 exhaustive? Can there be a dismemberment of ownership that is not found in 1119?

Example: Y wants to plant flowers on X’s land – wants a real right in that land in perpetuity (i.e. if X decides to sell the land to Z)

Is this a servitude?NO – Y is not a land-owner servitude must be between two immovables

Is this an emphyteusis?NO – emphyteusis cannot be perpetual; but, even if we read this down to 100 years, the condition for emphyteusis is that the lessee must improve the land.

Is this a usufruct?NO – usufruct cannot be perpetual; but, even if we read this down to 100 yrs, if this is a usufruct, then this is a very narrow usus and fructus of the land.

Is this use? 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.NO – not to the extent of the needs of the user

As a result, this right does not fall under the list in 1119 – if we interpret this list as a closed list, then, by definition, this right must be a personal right… BUT, if the list is a closed one, what about freedom of contract? Freedom of K leaves the law open to create rights and duties

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according to their own tastes. Does it go so far as to say there can be an innominate real right/ droit réel innomé? The question of whether or not the list is open or closed engages some fundamental ideas in Western law.

Why is this an issue of natural justice? o Because of the problem of opposability. Parties are free, by contract, to create rights and

obligations for one another, but only the parties are bound by a contract.o 1433: A contract creates obligations and, in certain cases, modifies or extinguishes them.

(2) In some cases, it also has the effect of constituting, transferring, modifying or extinguishing real rights.

o 1440: A contract has effect only between the contracting parties; it does not affect third persons, except where provided by law. It would be unfair to impose X and Y’s contract onto Z. It is a question of fairness!

o There is an exception to 1440: “except where provided by law.” And it is in the nature of a real right to have a right to follow . This means that it is OK to impose X and Y’s obligation onto Z, because of the nature of the real right.

o If the 1119 list were closed, it would mean that when you buy land, it is free of any real rights. If, however, the list is open, and there could be any number of real rights. So as an issue of fairness, most civil law jurisdictions prevent the creation of inominate real rights.

Protection of fairness in the CCQ (2938): Any real right must be registered in order to be opposable. 2938: The acquisition, creation, recognition, modification, transmission or extinction of an immovable real right requires publication. must always look in the land registry2941: Publication of rights allows them to be set up against third persons, establishes their rank and, where the law so provides, gives them effect.

There is a question of fairness…1. If the list is closed, then Z can discover if X has title in the land just by going down the

list and determining if the right is emphyteusis, servitude, or usufruct (if not any of those three, then he has full ownership and he has clear title)

2. If the list is open, however, then Z must discover the juridical nature of the real right on his own

Therefore, to be fair to Z, there can be no innominate real rights the system would be much more transparent and fair if we just stuck to the list! Rules on publication are in line with natural justice – it says that what is on the list should be published, but doesn’t say anything about what is not on the list. Question is: if it is not on the list, should I have to publish it? In Matamajaw the answer is no. However, at the very least, publication indicates that the right will be opposable.

Sample Question: Two plots of land:

o Lot 177 – recently purchased by Donna, predecessor is Ronaldao Lot 176 – owned by Sara, predecessor is Fred

Fred had sold 177 to wife Ronalda in 1959; in the contract of sale, it said: “I assign to my dear daughter Sara, in full ownership, the right to cut the wood in that is to be found on Lot 177…” Sara had the right to cut wood on lot 177 upon charge of paying 100$ per year to Ronalda for alimentary support. It is understood that Sara will use the wood to heat her home.

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Sara argues that this is a real right and seeks to exercise that right. Donna wants to know if she can stop Sara from returning to lot 177.

What is the nature of Donna’s right in 177? Ownership (with one stick taken out of the box).

What is the nature of Sara’s right in 177? What are the possible qualifications of the right that is created? (Don’t be fooled by the language: remember how some parties called rights “servitudes” while they were not servitudes.)

Must look at the clause (common intention of the parties – a. 1425) – “full ownership” is the term used… so what are the possibilities?Could it be ownership?

1. Sara owns by anticipation the trees as movables (this is ownership – see a. 900 and 901).2. Sara owns the right to cut the trees – but, this is problematic because the Romanist

conception is ownership bears upon a thing (you cannot own a right; can only hold a right – idea of jus in re. This is a challenge to the theory of the box: a right bearing upon a right).

3. Sara owns the trees as superficies. NO – Donna has the right to cut down trees also.Could it be a dismemberment of ownership?

1. This is an emphyteutic lease – NO, because there is a condition to improve the land and is limited in time (the clause doesn’t seem to be limited in time).

2. This is a usufruct – NO, because this would be a very narrow segment of usufruct (only the ability to cut the trees) and usufructs are limited in time if this is a usufruct, it is a very limited one.

3. This is use – NO, because this is not to the extent of the needs of the user (even though the clause says that it is to heat Sara’s home) and use is limited in time (1172).

4. This is a real servitude – NO, because, although this is a relationship between two immovables, it doesn’t look like it’s benefiting Lot 176, or that it is transferable. This looks like a family arrangement which is intended to profit Ronalda – question of interpretation.

5. (innominate) personal servitude – a relationship btw a thing and a person, made in favour of a person. If the list is closed, then there’s no such thing provided for in the Code. A personal servitude allow Sara to sell the right to anyone, and that doesn’t seem like what the father intended.

Or, it is a personal right? (this is the “catch-all” if nothing else). It looks like a lease because Sara must pay rent to Ronalda; thus, it isn’t opposable to anyone.

How far can you go to characterize this right as a real right? This is what Matamajaw gets to. Matamajaw does something very fundamental to the box. It presents a conflict of worldviews between the SCC and the common law JCPC.

Deed says « au moyen de quoi les parties se dessaisissent respectivement de ce que dessus par elles cédé en échange et en contre échange et s’en saisissent réciproquement, ainsi que leurs représentants légaux. »

Could it be a perpetual personal right? Yes. Personal rights are not limited to the right of debtors and creditors (they can be passed to their heirs). But personal rights don’t pass to third parties by particular title (sale).Is it a servitude? No, not btw two immovables.Is it a usufruct? No, it’s a perpetual right?

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Not use: Stephen is well fed… doesn’t need that fish…

Is it an inominate real right? Brodeur : it’s a limited usufruct (ends at the end of the life of Stephen) Brodeur was against

extending the list of real rights. Mignault : can’t be ownership – he just holds a right to fish, not to the land. It is not servitude,

because not between 2 parcels of land – but there is a right of enjoyment. It’s a usufruct limited to certain fruits; essentially temporary and limited to the lifetime of Stephen.

NK: Mignault makes more sense.

But what’s the problem with calling it a usufruct?Fish are not fruits! Fish are things without an owner – res nullius. So Mignault and the Supreme Court are wrong, says NK. Maybe there is a right to use the land, but it is not a usufruct.SCC forces that maladroit right into usufruct because it insists with staying stuck within this framework of reasoning (the reason why Idington is not stuck is that he doesn’t know anything about CVL).

Duchaine v. Matamajaw Salmon Club Limited, [1919] 58 S.C.R. 222Facts:

In 1889, J. Pinault sold Lot C to RA Blais. Lot C was on a river that was neither floatable nor navigable – so the river bed was

owned by the owner of the riparian land (up to the median point) by right of accession Blais ceded to Lord Mount Stephen all the rights to fish in the river (during fishing

season), who then sold those rights to the Restigouche Salmon Club, who then assigned them to Matamajaw Salmon Club

Duchaine bought the land and Matamajaw renewed its rights Duchaine goes bankrupt and Matamajaw tries to assert its fishing rights in the context of

the bankruptcyIssue: Is Matamajaw’s fishing right perpetual? (What is the juridical nature of the right?)Decision: No - ends at the death of Lord Mount Stephen (usufruct)Reasoning:

CCLC 405: A person may have on property, either a right of ownership, or a simple right of enjoyment, or a servitude to exercise.

Matamajaw argued that they owned the fishing right and thus the right was perpetual and didn’t need republication.

Duchaine argues that, at best, it is a right of usufruct or personal servitude that expires at the death of the usufructuary.

Brodeur: There are three categories that the right to fish must fall under (CCLC 405): right of (1)

ownership; (2) enjoyment; (3) servitude This is a right of usufruct, which is a type of “personal servitude” – reads out the perpetual aspect of the right because usufructs cannot be perpetual (ends at the death of the original usufructuary). Brodeur was against extending the list of real rights.

Mignault: There are three categories that the right to fish must fall under (405 CCLC): A person

may have on property either a right of (1) ownership; (2) simple right of enjoyment [usufruct]; (3) servitude

1. This is not a right of ownership because Lord Mount Stephen purchased no part of the land or river bed. Lines up with classical view: if you own something, it’s a jus in re and bears upon a thing.

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2. This is not a right of servitude because servitudes are relationships between two immovables

3. This is a right of enjoyment – a “restricted right of use or usufruct” – a right of usufruct can be restricted to certain (not all) fruits or products of a property by the title granting it This right can be assigned, but is a temporary right and cannot exist in perpetuity – ends with the death of the original usufructuary, Lord Mount Stephen (479 CCLC).NK: Problem is fish are not fruits, they’re res nullius – not yet owned. It is a right of use, and thus inherently temporary (1172 CCQ).Is it a dismemberment of ownership?

Anglin: This right cannot constitute a real servitude – so this must be (1) a lease; or (2) a

restricted use or usufruct regardless of whether this is a right of enjoyment (restricted use or usufruct) or if this is a personal servitude, it cannot be perpetual and must be temporary (must come to an end with the life of the person whom it is conferred).

Idington (dissenting): There is no prohibition in law against the dismemberment of property by an owners in

any way or shape he desires – so, he goes right to the intention of the parties this is obviously a perpetual right because they paid a lot of money for the right. (Idlington was a hardcore CML judge.)

Ratio: The SCC looks at this in terms of a closed system – i.e. the right must be (1) ownership;

(2) usufruct; or (3) servitude – and in this case, it’s usufruct.Comments:But, what about the fructus part of usufruct? Fish are not fruits (they are “things without an owner”)… there are no fruits at all in this case…

Matamajaw Salmon Club Limited v. Duchaine, [1921] Privy CouncilJCPC overturns decision of SCC.Viscount Haldane:

Examines language of the deed, which is unrestrained: doesn’t suggest a time limit. No restriction in the deed itself on the duration of the right.

Recognizes differences in Anglo and Quebec law. In England, “great latitude” is permitted in splitting up “the title to the fee simple” (i.e. full right of ownership). But under Roman law, ownership “cannot be so freely disintegrated.” It is necessary to enquire how far the system in Quebec has permitted encroachments on the right of ownership.

Right to fish could be perpetual if it were ownership itself. Of course, Quebec law allows for the dismemberment of ownership such that the owner can hold the ‘box’ and another can hold a right less than ownership – but this may indicate that it is temporary.

The right to fish “is a right to a separate subject or incident of property.” No inherent reason for refusing to treat a fishing right as a self-contained and separable subject. But he wants to treat it as something owned, whereas in CVL, you can empty the box, but the box remains with the owner. Making a jump from separability to a distinct right of ownership.

Refers to “ownership of a fishing right” held separately from the right of ownership of the land. But, this implies that ownership bears upon a right (which can then be subject to dismemberments and modalities). This threatens the Romanist conception of jus in re (i.e. that the right of ownership bears upon a THING).

Civilian paradigm is JUS IN RE ALINEA – the real right in the thing that belongs to another.

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Sample exam question: If D transfers the right to a third party X, 1440 won’t apply.Fairness vs. freedom of contract. A personal right is not opposable to third parties; only when the right to cut down trees is a jus in re should third parties be concerned about fairness.Nature of Donna’s right is ownership (she holds the “box”); while Sara has, at best, some real right less than ownership (assuming it’s a dismemberment). But, the language of the clause itself shows that the intention was to create for Sara a right of ownership in land held by someone else This is problematic. It seems like something that was abolished with seigneurial title. It could be:

co-ownership ownership by anticipation: something that is separable from the land, such as the trees –

movables that she anticipates will be cut down. superficies personal servitude: a right bearing upon a thing, but in a relationship between a person

and a thing. Sara holds a jus in re alinea. She holds the right to cut down the trees, not the trees themselves. (Emphyteuses are personal servitudes and must be limited in time.)

Romanist view doesn’t allow for the idea that Sara owns the right – she holds it. A right that bears upon a right, not a right that bears upon a thing. If you were allowed to own a right, then that would allow (according to 947.2) the right would also be susceptible of dismemberments. Therefore, rights should only bear upon things, not rights.

Matamajaw Club has some kind of (real or personal) right to fish:Text of the clause: “tous les droits de pêche dans la rivière…” Stephen holds right to cross the land to exercise his right to fish. Extends beyond the lives of the parties signing the deed, binding future generations a perpetual right, measured in temporal terms.

If we were to create a freestanding object of ownership (i.e. if you could own the right to fish), which itself could be subject to dismemberment, ownership could be carved up into nothing to an infinite degree.

If the right to fish is a personal servitude, wouldn’t it be limited by the logic of the list of dismemberments at CCQ 1119 (like usufruct and emphyteusis) – and therefore limited in time? Usufruct is limited in time because of the nature of the right of the usufructuary. It is so substantial that you end up excluding the bare owner altogether – unless the right is limited in time. Is the fishing right ownership, a dismemberment of ownership, or a personal right?

1. Personal right: the right to fish (but not the fish itself, which are res nullius). Could even be perpetual, but b/c it’s not a real right, it’s not opposable to third parties. NO.

2. Dismemberments (real rights less than ownership): (Real) servitude – could be perpetual, but must involve 2

immovables. NO. Usufruct or use – must be limited in time. NO. [SCC:

Matamajaw is a limited usufruct.] Personal servitude – a real right less than ownership,

restricted to use. Allows the holder of the right to think of the land as servient to himself: to a person, not a dominant land. Is it necessarily limited in time? Personal servitudes are relationships btw persons and immovables, which indicates that they are limited, but some ‘persons’ (corporations) never die. YES.

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The fishing right was a personal servitude that created a trivial burden on the land, not incompatible with unlimited time frame. The owner of Lot C is not precluded from doing anything with their land. As a result, the fishing right is in a new category, outside the list, which can be perpetual. [This saves ownership!]

3. Ownership: 947 usually described upon bearing upon a thing/ un bien (corporeal or incorporeal). Incorporeal = a right, such as copyright, a unit of a mutual fund, or a fishing right.

If we accept this, we recognize that property is dematerialized. So why not apply ownership to this, saying you own usufructs etc.? NK: Ownership can’t handle it.

O’Brien v. Ross [1984] Quebec C.A.Facts: Ross sold a piece of land to Brown, but the clause in the original deed was ambiguous as

to whether Ross granted hunting rights as a right of real servitude or whether those rights were only granted to Brown and his heirs (i.e. as personal rights)

Issue: Did the clause create a real servitude or a mere personal right to hunt?Held: Personal right.Reasoning:

Traditionally in Quebec, hunting rights are considered personal rights rather than real rights – it is possible that hunting rights could be real rights, but this would be exceptional and rare

It must be clear from the deed that the hunting rights are granted for the benefit of the dominant property in order for it to constitute a real servitude – must look at the intention of the parties

To the extent that there is any doubt about the intention, that doubt should be resolved against the existence of a servitude

Ratio: It must be clear that there was intention to create a real servitude in order for a clause to

do so – in case of doubt, the courts should interpret against a real servitude It must be shown that the right is for the benefit of the land, rather than the person in

order for it to be a real servitudeComments:

The judge mentions Matamajaw but says that it is inapplicable in this case because there can be no such separation of ownership in the case of hunting rights

A.G. Quebec v. Club Appalaches Inc. [1999 CA]Facts: QC acquired a piece of land by expropriation and by sale from D’Auteuil Lumber in the 1950s, at which time CA was the lessee. The lease gave CA the right to keep the right of superficie on constructions / improvements which it had made upon termination of the lease. Also, CA had been granted hunting and fishing on the land by Garneau in 1950 when he sold the land to D’Auteuil Lumber. QC claimed ownership of the constructions and that the hunting/fishing rights had extinguished upon their expropriation of the land.Issue: Does CA retain its hunting/fishing right (are they real right or personal rights)?Holding: Yes – they are real rights.Reasoning: -Quebec doctrine and jurisprudence has accepted the existence of innominate real rights.-QC argued that clause should be restricted to fishing right, not hunting right, citing Matamajaw. This was rejected because there had to be clear intention in the K to separate the hunting right.-By examining the terms used in the act of sale, it is clear that the intention was to create a perpetual hunting and fishing right (“reserved by the vendor for himself, his heirs and assigns forever”). They were clearly intended as a dismemberment of their right of ownership. -Quebec recognized the rights in its expropriation transfer. Expropriation could not have

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extinguished the rights because CA received no notice of it. The hunting and fishing rights remain exclusive and perpetual.-However, CA has no right of superficie and cannot restrict public passage on the land.Ratio:

Recognition of innominate real right! To determine if it is a real right or personal right, must look at the clause creating the

rightComments:There was also the question of whether Club Appalaches had a superficial right in the constructions that were built on the expropriated land the court decided that they did have a right of superficies over the buildings, but not the paths that were built (because these were part of the expropriated land).

Mighty conclusions:

1) Ownership bears upon things (material objects), not upon immaterial sources of wealth. This is the classical view: it only bears upon things, b/c the architecture of property law depends on real rights bearing on things. Whereas you hold title to personal rights, dismemberments, intellectual property, credit; you cannot own a right. Matamajaw suggests that the fishing right (an immaterial source of wealth) is susceptible of ownership – which is an assault on the ownership concept. If it’s a real right, it should fit on the 1199 list. You hold the fishing right, not own it.

At the same time, the right of ownership can be at once be considered an immaterial source of wealth. But, property might not be able to deal with this.

2) Ownership is unitary and indivisible: theory of the box. Since the abolition of seigniorial title, dismembered ownership leaves the ‘box’ intact. Should be viewed as a jus in re alinea.

Modalities of the right of ownership, while title is divided among different holders: Indivision is described as a “share of ownership.” Division is described, at 1038 ff., as a

“fraction” of ownership. Do you own the share or the fraction? The traditional theory of ownership says it can only bear upon things. Fractions/shares are immaterial, so you can only hold them. Otherwise, they would be further susceptible to modalities and dismemberments.

3) Ownership is perpetual, indefinite in time. It cannot be extinguished by non-use – as opposed to emphyteusis and usufruct, which expire upon non-use – unless it is taken by adverse possession. No higher right than ownership – not susceptible to appropriation.

4) Ownership is imagined by civilians as always exercised in the interests of the holder. Recall abuse of rights situation, which limited the exercise of the right (either by fault or by 976). Rules of usufruct don’t require usufructuary to confer an advantage on the owner. Everyone maximizes ‘profit’ according to their own interests. No obligation to help others. Unspoken assumption that if you own something, you exercise the prerogatives in your own interest [but what does this mean?? What if you value environmentalism or charity?]. Paradigm based on corrective rather than distributive justice.

But in the cases of substitution or trusts, people will act in the interests of others. Settlor leaves his property to the child with the condition that the child must leave the property to the grandchild. Trustee has an obligation to administer the trust for the beneficiary.

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Implications: -Ownership no longer depends upon free disposition of property. -Ownership no longer bears upon a thing, but upon a “portfolio of value.”-Challenges indivisibility of ownership: e.g. the trustee seems to exercise all the prerogatives of ownership while the beneficiary holds right of enjoyment.-Challenges perpetual character of ownership – child only holds for temporary time-Ownership normally held in the interests of the owner; in this case, the child must act in the interests of the grandchild.

In both substitutions and trusts, the juridical nature of the right is considered ownership. But this is problematic because the institute and the trustee have non-perpetual rights that must be exercised in the interest of other people.

XII. Restrictions on the Free Disposition of Certain Property

A. Stipulations of alienability (formerly “prohibitions to alienate”)

exist only in conjunction with acts by gratuitous title modify the right of ownership

1212.  No restriction on the exercise of the right to dispose of property may be stipulated, except by gift or will.(2) A stipulation of inalienability is made in writing at the time of transfer of ownership of the property or a dismembered right of ownership in it to a person or to a trust.(3) The stipulation of inalienability is valid only if it is temporary and justified by a serious and legitimate interest. Nevertheless, it may be valid for the duration of a substitution or trust.

The stipulation is valid only when it is: 1) temporary but it can last for the duration of a substitution or a trust2) justified by a serious and legitimate interest

Judicial discretion may police the appropriate of a stipulation of inalienability.1213. A person whose property is inalienable may be authorized by the court to dispose of the property if the interest that had justified the stipulation of inalienability has disappeared or where a greater interest comes to require it.(2) The court may, where it authorizes alienation of the property, fix any conditions it considers necessary to safeguard the interests of the person who stipulated inalienability, his successors or the person for whose benefit inalienability was stipulated.

This recognizes the power of the judiciary to affect individual liberty.(Under CCLC 968 ff., it was necessary to proceed by a private member’s bill in the National Assembly to lift or vary the stipulation.) Does 1213(2) authorize the courts to establish a trust by judgement (see 1262)?

Robinovitch v. Banque de Montreal, [1999] Cour du Que.Facts: Robinovitch is requesting the cancellation of a legal hypothec on her immovable, which was bought partly with $125,000 inherited from her uncle. Her uncle’s will contained a stipulation that all property bequeathed to legatees was to be “unseizable” (2668 CCQ), being intended for their maintenance and support. The stipulation was published (2649 CCQ). Bank

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claims that the money lost its “unseizable” character by reason of its use (with additional funds) in buying a building.Issue: Is the $125,000 seizable?Decision: Yes.Ratio: By ‘mixing’ the inheritance with other funds and using it to buy a house, R modified its nature. Once the nature of a “protected good” has changed, its unseizability can no longer be invoked.

B. Substitutions (formerly fiduciary substitution / substitution fidéicommissaire)

a specific variation of stipulations of inalienability for the goal of intergenerational wealth transfer

1218.  Substitution exists where a person receives property by a liberality with the obligation of delivering it over to a third person after a certain period.(2) Substitution is established by gift or by will; it shall be evidenced in writing and published in the registry office.

In usufruct, the grandchild is seised of bare-ownership immediately such that dismemberments of ownership are held simultaneously. In substitution, no part of ownership is conferred upon the grandchild (who may not even exist!) yet. Usus and fructus are never separated from ownership; the institute is considered the owner. Substitution is not a dismemberment of ownership. Does the institute, who is unable to fully alienate her property (no abusus), truly have ownership?

Creditors of the institute (2644) cannot seize this part of the institute’s patrimony.1223. Before the opening of a substitution, the institute is the owner of the substituted property, which forms, within his personal patrimony, a separate patrimony intended for the substitute. Inside the patrimony of the institute, there is a separate patrimony which will be conferred upon the substitute. As such, it is shielded from creditors. In order for this to work, we need to divide the patrimony in two, which is supposed to be impossible (Aubry & Rau).

Substitution can’t be a dismemberment because once the settlor gets rid of the house and the institute is granted temporary usus and fructus, you need a place to put the box – can’t give it to an non-existent grandchild. Civilians can’t handle that; they need to locate the box at all times.

Other differences btw this and usufruct? Usufructuaries are not allowed to alienate property (but they can lease it) or charge it with a hypothec.1229.  An institute may alienate the substituted property by onerous title or lease it. He may also charge it with a hypothec if that is required for its upkeep and conservation or to make an investment in the name of the substitution.(2) The rights of the acquirer, creditor or lessee are unaffected by the rights of the substitute at the opening of the substitution.

But the institute doesn’t have full right of abusus. She must remit a financial equivalent of the property to the substitute.1230.  The institute is bound to reinvest, in the name of the substitution, the proceeds of any alienation of substituted property and the capital paid to him before the opening or received by him from the grantor, in accordance with the provisions relating to presumed sound investments.

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What happens if the grandchild doesn’t appear?In usufruct, the settlor would grant bare ownership onto the grandchild and use and fruits onto the child. If the grandchild doesn’t appear, the residual heirs of the settlor would receive the house.In substitution, the substitute doesn’t need to be conceived at the time the institute receives the property. If the grandchild doesn’t appear, the substitution lapses and the child keeps the house.

1252.  Lapse of a testamentary substitution with regard to an institute does not give rise to representation and benefits his co-institutes or, in the absence of co-institutes, the substitute.(2) Lapse of a testamentary substitution with regard to a substitute benefits his co-substitutes, if any; otherwise, it benefits the institute.

If B pre-deceases A, who gets the property, B’s heirs or A’s heirs?In the case of usufruct, usus and fructus move to B at the end of A’s life – the usufruct ends. So B’, heir of the full owner B, receives the property. In the case of substitution, A’ would receive the property because of 1252 – lapse of substitution creates ownership.

Substitution can be considered an “eventual right”:1235. Before the substitution opens, the substitute has an eventual right in the property substituted; he may dispose of or renounce his right and perform any conservatory act to ensure the protection of his right.

This eventual right is not a future right; it’s a present right which may not actually be fulfilled. B is receiving something in his patrimony. It’s not a real right – that would indicate a dismemberment of ownership. Is it a modality of ownership? No. Is it a personal right – debtor/creditor relationship? No. Hypothec – a real right that serves to secure an obligation (2673), accessory to the obligation and cannot be separated from it. But the substitute may dispose of his right! It’s a juridically original right – not seen before.

This is not ordinary ownership. The Code, in calling it ownership, means something other than what we’ve been calling ownership. This ‘owner’, the institute, has several obligations:

1) must remit the property (1218)2) must maintain and preserve the property (1226)3) has the power to alienate the property by onerous title (but can’t give it away),

which suggests there is abusus (1229)4) must reinvest the property (1230)5) must make an inventory of the property (1221)6) must insure the property (1227)

These limitations are not like 976, or the kind of limitations that are established in the public interest. 1223 confirms this: the property enters a separate patrimony within the patrimony of A. When a creditor wants to seize these funds from A, the bank must seize the entire patrimony – “obligation to discuss” the patrimony. To this end and others, substitution must be published.

CCQ 1243: The substitute who accepts the substitution receives the property directly from the grantor and is, by the opening, seised of ownership of the property. Only after the opening of the substitute does B become the owner. This indicates that A is the owner during the substitution.

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The object of substitution does not appear to be a thing, but a fund of value. The capital has to be preserved; it doesn’t have to be fruitful, and if it is invested, it must be done soundly. But A can benefit from the income interest all she wants so long as the capital is maintained.Real subrogation: substitution in a juridical relationship of one thing for another; ownership bears upon whatever is there.

Minister of National Revenue v. Smith, [1960] SCR 377Facts: Testator left residue of estate to his wife for her free use and disposal; undisposed portions to go his legatees upon her death. The wife took out a deed leaving the property to the legatees and reserving the income for her own use. At her death, the Minister of Revenue calculated the residuary estate as part of wife’s estate, calling it a taxable succession from her to her husband’s heirs (the legatees), under the Succession Duty Act. The heirs challenged this.Issue: Is the residuary estate a (taxable) gift from the wife to the legatees?Decision: No.Reasoning: This was a case of substitution; two successive benefits were conferred. In substitution, two liberalities (benefits) are granted at the same time but separated by a lapse of time. Both the wife and the other legatees received the property from the settlor. Wife (the institute) delivered the property in anticipation to the other legatees (the substitutes). As she was not invested with a power of disposition at her death (i.e. it wasn’t a gift), the Act does not apply.Ratio: Essential elements of a substitution are two liberalities (benefits) conferred upon two parties at the same time, but separated by a lapse of time.CCQ 1234: The institute may, before the substitution opens, renounce his rights in favour of the substitute and deliver over the substituted property to him in anticipation.

Derosiers v. Paradis, [1963] SCR 52Facts: In his will, husband leaves his wife the “usufruct” of all his property. Clause 4: At her death or in the event of her remarriage, $1000 + title to the property is to go to testator’s legal heirs. Clause 5: If she dies childless & single, the remaining property after Clause 4 divided btw his legal heirs and widow’s legal heirs. The son dies before his mother, having left everything to his wife. The mother dies, leaving her son's wife and widow’s legal heirs (her siblings) to argue over ownership. Reasoning: Clause 4: Widow received only the usufruct; ownership passed to legal heirs at time of husband’s death (i.e. widow & son). Son alone takes title, which passes to his wife usufruct: double gifts taking effect simultaneously and without a time lapse.Clause 5: Widow was substitute, legal heirs (son & his mother) were institutes. Since son died before opening of the substitution (i.e. before his mother), he couldn’t have acquired or passed any rights of ownership to his wife. So, siblings are entitled to it (as per CCQ substitution: two successive benefits with a time lapse.CCQ 1241: Where it is stipulated that the share of an institute passes, on his death, to the surviving institutes of the same rank, the opening of the substitution takes place only on the death of the last institute.However, an opening so delayed may not prejudice the rights of the substitute who would have received on the death of an institute but for the stipulation; the right to receive is vested in the substitute but its exercise is suspended until the substitution opens.CCQ 1252: Lapse of a testamentary substitution with regard to an institute does not give rise to representation and benefits his co-institutes or, in the absence of co-institutes, the substitute.Lapse of a testamentary substitution with regard to a substitute benefits his co-substitutes, if any; otherwise, it benefits the institute.

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Questions to be asked re usufruct, substitution, trust:o What is the box? What has happened to ownership in each instance?o Where is the box – who holds ownership? In whose patrimony?

settlor

B:A: bare owner

usufructuary substituteinstitute beneficiarytrustee

Characteristics of (traditional) ownership: absolute yet subject to limitations provided for by law, indivisible, material, perpetual, no higher right, appears to be exercised in a way that is beneficial to the owner.

Usufruct: Bare owner has ownership immediately at creation of usufruct, while usufructuary has usus and fructus. A jus in re for both bare owner and usufructuary. Bare owner’s right is indefinite; no higher right. The box is at B, and will always be found in one place in one patrimony. Exception: res nullius – things without an owner subject to appropriation. 1120 defines usufruct as “right of use and enjoyment… of property owned by another as one’s own”. Emphyteusis is similarly defined: “has all the rights… that are attached to the quality of owner.”

Substitution: Settlor leaves property to child and yet-un-conceived grandchild.Before opening: The box is at A: institute owns the property and holds usus & fructus, but there is a restriction on abusus (1229). Ownership is temporary (as in superficies, time-shares). Is it truly ownership? Test: is there any higher right than that of the owner? Does A’s obligation to deliver the property to non-existent B make B’s right higher? 1235: B has an eventual right (not a future right), which becomes an actual right when A dies. But B, not being alive, cannot hold rights! 1229(2): The rights of the acquirer, creditor, or lessee are unaffected by the rights of the substitute at the opening of the substitution. 1230: Curtailed right of disposal: although you can sell the property, you can’t give it away, because you are charged with preserving the capital. Still, it seems that A has a right less than ownership (1223 ff.– separate patrimony intended for substitute, rules for maintenance & preservation, must act with prudence, take an inventory, take out insurance) all done in view of B’s eventual right. 1252: Should the substitution lapse, institute (not the settlor’s heirs or B’s representatives) gets the property. It is a fund of value / fonds de valeur: immaterial claims of wealth. By contrast, classical view of ownership bears upon things; you can’t own a line of credit, you hold it. 1223: says that A is the owner. Creation of a separate patrimony held by A. But does A actually hold that patrimony? Test of this is 2644 – is it seizable? 1233: Creditors holding a preference or hypothec on substituted property have, in respect of that property, the rights and remedies conferred on them by law. The other creditors may cause substituted property to be seized and sold by judicial sale, after discussion of the personal patrimony of the institute… This

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violates “common pledge of creditors” theory of the patrimony – that assets answer for liabilities. How can this be ownership? It seems that B has a higher right than A. This is, rather, fiduciary ownership.After opening: At the moment of opening, B becomes the absolute owner, and that’s where the box is. 1243: The substitute who accepts the substitution receives the property directly from the grantor and is, by the opening, seised of ownership of the property. This is fictitious, because the grantor probably died many years before. 1245: The institute delivers the property in the condition it is in at the opening of the substitution.(2) The institute is liable for any loss caused by his fault or not resulting from normal use.

Recall Matamajaw: Does A own a right which is not ownership, thus proving that it is possible to own a right less than ownership? No, this is ownership merely because the Code explicitly says so!

XIII. The Trust and other Patrimonies by Appropriation

A fundamental legal idea relating to the law of property. The relationship btw the parties is closely regulated by the law with a view to what is happening to ownership.

A. Concept of the Trust in Anglo-American Law

Anglo-American Trust: an arrangement in which a person, the ‘trustee’, holds and controls property and applies it (or the income arising from it) to the benefit of another person called the ‘beneficiary’, who is not ready/able to manage the property himself. The person creating the trust is called the ‘settlor’, and is preoccupied w/ the intergenerational transfer of wealth. This is an Anglo-American legal ideal. Predicated on the separation of management and enjoyment of property. This isn’t possible under any of the dismemberments of civil law, where both are held under usus. Must be personal relationship btw beneficiary and trustee, who can be made liable if he wrongfully mismanages the property. Their relation is called a ‘trust’. Neither owns the property in the strict Roman sense, but each owns a different interest in it, called the legal estate – powers of administration; and the equitable interest/estate – beneficial title. Not one object of ownership, but two separate ones. Trustee has legal title; beneficiary has equitable title. At Law, trustee is the owner; while at Equity, beneficiary is the owner. Neither has complete ownership. The beneficiary and the trustee both have a right to follow the property. Only the trustee’s name is registered. His powers are restricted to management. Beneficiary has legal power to force trustee to pay for the value of the enjoyment of property.

Example: Property is an apartment building. Settlor creates a trust for B, conveys the property to the trustee A as the legal owner (A pays the taxes, collects the rent, decides when it’s appropriate to sell). These powers / responsibilities are not matched by the ordinary profits of ownership – these go to B, the beneficiary. What a civilian would call abusus lies in hands of A, but he can only exercise it in the interests of B.

Ownership isn’t a classic notion in CML, which is based on two streams of law – courts of common law and equity. Common law judge would see only the trustee as the owner, while the chancellor in equity would be sensitive to the equitable nature of the transaction, and recognize the beneficiary’s right. Civil law can’t cope with this because ownership is indivisible.

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Juridical nature of these CML rights? Although the trustee may be the sole registered owner, he has a mere legal title. The beneficiary’s title is recognized as the equitable title-holder – the ‘owner’ of the property’s enjoyment.

In English law, absolute titles of ownership are rare – ownership is something “better than mere possession”. No technical significance is attached to the term.

B. Introduction of the Trust in Quebec

In CVL, there is no concept of a jurisdiction of equity. Ownership refuses to allow title to be divided except into dismemberments and modalities. It’s a juridical impossibility.

Unitary character of ownership appears to present an obstacle to the creation of a trust. The trustee can’t be owner b/c some of the prerogatives of ownership (usus, fructus) are incompatible with the trust. Similarly, the beneficiary cannot be the owner b/c he does not have administration/disposal of the property.

So how does one create a trust in Quebec law? Classical civilian response is Royal Trust. Historical background: In the 1870s, some (especially Anglo) Quebeckers began to look upon absence of a trust as an obstacle. CCLC was amended to allow for a narrow trust. Arts. 981 ff., governing the creation of trusts, were incorporated into the CCLC in 1888. The English distinction btw legal title and beneficial ownership (dual ownership – a concept foreign to Quebec law) was not introduced. In Quebec, ownership remained indivisible and vested in a single individual.

But this presents a problem, as in Royal Trust: In cases where the beneficiary did not exist at the time when the trust was created, who owns the property? Common law allows for two different boxes; but civil law cannot. SCC decided that the trustee was sole owner of property – a form of sui generis ownership.

How trust is created in Quebec civil law:1260.  A trust results from an act whereby a person, the settlor, transfers property from his patrimony to another patrimony constituted by him which he appropriates to a particular purpose and which a trustee undertakes, by his acceptance, to hold and administer. a patrimony by appropriation is created.

Where is the box? It seems to be with the patrimony by appropriation, but nobody is holding that patrimony! Is it held within the patrimony of the trustee?

1261.  The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right. But, this conflicts with the classical (Aubry et Rau) definitions of patrimony and ownership, in which a patrimony must always be attached to a person. What happens to ownership? We can’t find the box!

Settlor’s objective is to separate management and enjoyment of property.

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Trustee (A) is not supposed to have any enjoyment. It is charge with the administration of property that notionally belongs to someone else, for the benefit of someone else. Registered as titulary and accountable for taxes, actions in civil liability, etc.

Beneficiary (B) holds right of enjoyment (use, fruits, increased capital value over long term), but is not in the position to manage the property.

Civilians have a hard time imagining this scenario, although the administration of property is not unimaginable in CVL. For example, parents are in charge of administering child’s property at law, even if that property rests in child’s patrimony. But in the trust, both A and B have prerogatives of ownership.

Why could settlor apply a personal servitude to separate management and enjoyment? Both A and B would be holders of patrimonial rights each would receive some

management and enjoyment.

Why couldn’t settlor just leave the property to A outright and tell A to convey the property to unborn grandchild B?

Ownership doesn’t allow the settlor to impose this obligation on A, who is supposed to be an absolute owner.

Furthermore, B has no claim to the property b/c she isn’t alive yet.

Usufruct as wannabe trust? Usus and fructus dismembered and left to A, while B inherits the box. B would not receive any rights of enjoyment (until A’s death). Ownership should be

more than a mere expectation. Usufruct leaves too many prerogatives to A: usus and fructus = administration AND

enjoyment.

Substitution as wannabe trust? Settlor creates a double-liberality: A benefits as institute, while B benefits as substitute.

A holds the box before the opening of the substitution, albeit with various obligations/charges. B has an eventual right to the property, but no box, and certainly no enjoyment.

Furthermore, B may not exist – so cannot hold the box anyway.

The trust appears to divide ownership; for civilians, this is an assault on the structure of ownership – the next step after Matamajaw. Ownership is now in two places at the same time!

What happens to 2644? Can creditors still seize the trust property from A? Introduces a new sense of ownership. How to recognize and protect B’s interest, such that

she can bring an action against A for breach of trust, and retain a right to follow the property in the hands of a 3rd party? B has no real right in the property (b/c she isn’t the owner), so how can she follow it? Beneficial ownership under the trust is not a right at all – it’s a feeling. CML can manage it through the law/equity administration of justice.

Publication: all real rights must be rendered public (CCQ 2938) including B’s right in the property.

We have to extricate ourselves from the box, and from 947. A can’t be the owner – because then he would have too much power (usus, fructus, abusus); B can’t the owner – because then he would have more than enjoyment.

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In the 1870s, 981A ff. enacted a form of trust in the CCLC. By gift or will, a settlor could advantage different generations. In determining whether a trust for a grantor’s sisters and unborn descendants was valid, it fell to the SCC to define the ownership of the trust properties:

Royal Trust Company v. Tucker, [1982] 1 SCR 250Facts: SCC has to decide the validity of a deed of donation and trust, made by the respondent/donor in favour of her unborn children (the primary beneficiaries) and her sisters (secondary beneficiaries). Royal Trust Co. is the trustee. Respondent has four minor children and two unmarried sisters, and changes her mind about the trust. She brought an action asking the court to void the deed and declare her sole owner of the property conveyed in trust, and to get it back. Respondent argues that the gift made in favour of the children is void b/c they didn’t exist at the time the trust was made (no one to hold the box!), and that the gift made in favour of the sisters is void because it is incidental to the foregoing and is a gift in contemplation of death.Decision: The trust is valid. Turns on question of juridical nature of the right. Reasoning: Beetz J.:

In the case where unborn children are secondary beneficiaries and primary beneficiaries exist, the trust is valid provided that the children are conceived at the time their benefit takes effect.

However, at the time the trust was enacted, the CCLC provisions in effect stated that in order to inherit is necessary to be civilly in existence, thus precluding unborn children (608 CCLC). The exception to this is when it takes place within a marriage. Gifts inter vivos required legal acceptance by the donee or a representative. But, these predated the chapter on trust.

Acceptance by the trustee suffices to make the trust irrevocable. Migneault used to think the beneficiary of the trust was the owner – this would make the

trust at bar void, because at one point no one would have owned the property. Then, he changed his mind: trust property owned by the trustee – this would make trust at bar valid. This fits with most recent theorists and is the most civilian explanation: the powers of the trustee over the trust property constitute a dismemberment of ownership. The ultimate beneficiaries are the owners under a suspensive condition, while the donor is owner under resolutive condition. While the trust lasts, the trustee is owner.

Faribault : There is quasi-personification of the trust, and the trust institution becomes the owner – it is a legal person, and thus holds the box. Rejected.

Cantin-Cumyn: The trust is a patrimony not vested in a person or a patrimony of assignment to a purpose. Rejected.

The grantor is no longer the owner of property conveyed in trust: if it’s by will, he’s dead; if it’s an inter vivos gift, the trust must be irrevocable. Ownership is not vested in the beneficiary until the trust terminates; beneficiary could not be owner when trust opened because they didn’t exist. Ownership is vested in the trustee.

This is not a traditional right of ownership: it’s temporary, no usus [right to use property to one’s own advantage] or fructus. It is a sui generis property right created by law (981 CCLC). Unlike in a CML case, Beetz was forced to call it ownership.

Trustee becomes owner of the property for the duration of the trust. It’s therefore not necessary that there be beneficiaries in whom ownership of the property conveyed is vested.

It is necessary for a trust to have actual or eventual beneficiaries. If it becomes certain that all beneficiaries whom the grantor seeks to benefit will never exist, the trust lapses, with retroactive effect. Normally, this would mean the trustee is perpetually seized of the trust property.

Ratio: The deed of donation and trust made for the benefit of unborn children of the donor is valid.

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Comments: You’d expect Beetz to be against the idea of division of ownership in the CVL…

C. The Trust under the Civil Code of Quebec

Major change to the Civil Code was the advent in the trust and its cousins through the device of patrimony by appropriation / patrimoine d’affectation .

CCQ 1262:  A trust is established by contract, whether by onerous title or gratuitously, by will, or, in certain cases, by operation of law. Where authorized by law, it may also be established by judgment.

CCQ 1265: Acceptance of the trust divests the settlor of the property, charges the trustee with seeing to the appropriation of the property and the administration of the trust patrimony and is sufficient to establish the right of the beneficiary with certainty. Trustee doesn’t own the property; he has the power to administer it – but to the advantage of the beneficiary. This isn’t a right per se; it’s a set of obligations and a duty to act reasonably. But to whom is it owed? Is the debtor the settlor (who is often dead) or the beneficiary (who is often unborn)?

CCQ 1278: A trustee has the control and the exclusive administration of the trust patrimony, and the titles relating to the property of which it is composed are drawn up in his name; he has the exercise of all the rights pertaining to the patrimony and may take any proper measure to secure its appropriation.A trustee acts as the administrator of the property of others charged with full administration.

The beneficiary clearly has rights (1279 ff.)1261: The trust patrimony, consisting of the property transferred in trust, constitutes a patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary and in which none of them has any real right.1285: The beneficiary of a trust constituted by gratuitous title is presumed to have accepted the right granted to him and he is entitled to dispose of it.(2) He may renounce it at any time; he shall then do so by notarial act en minute if he is the beneficiary of a personal or private trust What is the beneficiary’s right? It’s not ownership, nor a real right less than ownership. It’s not an extra-patrimonial right b/c it has economic value. Is it a personal right (a créance)? Not in the traditional sense: not in the patrimony of a person, but in the patrimony of a patrimony. It is a new juridical right: a patrimonial interest in the patrimony of a (floating) patrimony. By detaching itself from the person, the patrimony by appropriation has changed the nature of ownership (the box) itself

Brierley, “De la fiducie”

1260-1298 of the C.C.Q. define the trust as a “patrimony appropriated to a purpose” / patrimoine d’affectation.

3 essential elements:1) Intention of the settlor to place a distinct portion of his property into the hands of a

trustee2) Administration of the property by the trustee, according to the terms of the constituting

act and terms prescribed by law

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3) Appropriation of the property to the advantage of the beneficiary or for any other purpose.

Although the trustee holds the powers of administration and alienation, he does not have full 947 ownership over the property. Nor can the beneficiary be considered the owner, as this is what the settlor wanted to avoid.

The trust patrimony constitutes a distinct and independent “patrimony by appropriation,” separate from that of the trustee, the beneficiary, or the settlor, in which no one has a real right. This conflicts with the classical (Aubry & Rau) definitions of patrimony and ownership. You’re not supposed to have patrimonies without holders – they are by nature attached to persons.

However, property in trust are not “things without owners” susceptible to appropriation by simple occupation (via CCQ 914 ff.), as the trustee has “maîtrise” and “détention” (“control and exclusive administration”) over them (CCQ 1278).

The trust patrimony is thus made up of transferred rights or things and obligations assumed by the trustee for a particular purpose. Real subrogation functions within this patrimony: i.e. it is a fund of value with a variable content, whose destination remains constant.

Not a modality of gifts/wills; not a dismemberment of ownership (like usufruct, servitude, emphyteusis); not a modality of the right of ownership (co-ownership, superficial ownership). The trust is not based on the notion of a real right at all! It has a specific juridical mould – that of the patrimony by appropriation.

Conclusion: What has happened to ownership? What does the trust tell us about the nature of ownership – the indivisible, materialist conception of the box? Has the box been transformed?What is the juridical nature of the beneficiary’s right? What if a creditor tries to seize his property – what are they getting? It seems more like the CML “juridical feeling”; has yet to be defined by courts. The patrimony by appropriation might be a new legal actor, a new subject of rights with its own patrimony. The fundamental architecture of ownership is at stake. The CVL did not have the conceptual machinery to imagine the trust.

Organization of property around the framework of ownership – abstract rationality lends beauty to the system. Different from CML: “En Angleterre, remedies precede rights. En France et ailleurs, rights precede remedies.”

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Exam:

3 hours, 3 questions. Question 3 has two shorter parts. Start where you feel most comfortable.Type of questions in keeping with the course. The juridical nature of things, the character of things. Will have to take a position or make an argument. Take time to brainstorm / make an outline.

Sample question: O’Brien v. Ross

Came to conclusion that it was a personal right, not a servitude. When there is a doubt, you should err on the finding of a personal right.

-1st theme: interpretation of clauses, common intention of parties being source of right characterization of juridical nature. Not necessarily definitive acc. to the wording of the clause. e.g. Cohen: emphyteusis turned out to be superficial ownership.

-2nd theme: what could the hunting right be? Personal right, servitude, personal servitude (relationship btw a person and property – other than a usufruct), ownership (Matamajaw).

-3rd theme: differences btw personal right or real servitude. Personal right, because a real right is a huge right: opposable, contains a right to follow, etc. So, clauses should be read restrictively in terms of real rights. A servitude is a relationship btw two immovables – hard to imagine a hunting right that benefits land, rather than a person. Publication of rights.

-4th theme: what about an innominate real right? This could’ve been a perpetual real right.

-5th theme: Were parties free to describe hunting right as object of ownership. CVL doesn’t allow them to do this.

Review session: Tues, April 20 12:15 Moot Court.

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