Droit des Biens (DDB) – PRV1 - 144Professor: Pierre-Emmanuel Moyse

Author: Adrian Pel

This document summarizes concepts and directs readers to relevant cases/articles/doctrine. I found that making it was an excellent review tool, and that there was little point in making another set of summaries given the great DDB resources already available (see summaries by Michael Shortt; Mark Phillips. see also the summary of Sylvio Normand’s textbook). Treat it more as a reference guide than an exhaustive summary of the course materials/lectures.

In the words of Prof. Moyse: Bon courage!

PS: For those that are not aware of it, the Faculty has a helpful online dictionary that is helpful for learning about unfamiliar DDB concepts. See https://nimbus.mcgill.ca/pld-ddp/dictionary/

[Taken from a pubdocs summary by Mark Phillips]

CATEGORIES OF PROPERTY + OBLIGATIONS The CCQ has no clear definition of property. The Civil Code uses property as a synonym for “right” and sometimes to refer to physical objects. The CCQ has evolved to reflect the modern world in which intangibles are increasingly significant (e.g. software; intellectual property) rather than just movables. While the CCLC treated ownership as rights to things, the CCQ treats ownership as rights to property (both physical objects and intangibles like IP).

1. PERSONAL RIGHTSPersonal rights are patrimonial rights established by contract between two parties. The mode of acquisition per 916 is therefore “by contract”. They permit their holder, the creditor, to claim the performance of a prestation from another person, the debtor. Any claims by the creditor upon the debtor apply to the entirety of his patrimony, and not to specific objects. Personal rights have no effects on third parties and do not follow in subsequent transactions (Tremblay c Boivin; 1440). Personal rights do not need to be published. Personal rights fall into the residual category of movables (907).

A. Unlike real rights, personal rights cannot be abandoned. An exception to this rule is (1972), which allows lessors to resiliate lease contracts where a building becomes unfit for habitation

B. Personal rights may entail either doing something or not doing something.

2. REAL RIGHTSReal rights are patrimonial rights that are exercised directly on property. Within the category of real rights, a distinction is generally made between principal real rights and accessory real rights. The accessory real right (e.g. hypothec, construction privilege) differs from the principal real right in that the former constitutes security that is necessarily attached to a claim for which it guarantees performance. Real rights are opposable to all third parties, subject to publication requirements in the CCQ (2938; 2941). Real rights confer the right to follow (953), the right of preference (2660), and the right to have one’s right acknowledged through legal action (912).

A. Real rights can be abandoned. One can abandon ownership (movables (934) and immovable (936) (note though that movables become vacant property and immovable become property of the state). This might be done to avoid paying property taxes, avoid obligations/restrictions imposed by a servitude, or where one does not want to maintain a commonly owned wall (1006). One can also abandon dismemberments of ownership: emphyteusis (1208; 1211), usufruct (1169), servitude (the dominant land-owner may renounce the servitude) (1191) and the servient land-owner may abandon the land that is subject to the servitude (1185), and presumably the right of use (1176 points to 1169). One can also abandon permanent co-property such as a boundary fence (and related obligations to maintain it) by renouncing one’s ownership of the subsoil (1006). Moyse: we are not covering common walls.

i. While the ability to abandon real rights appears to resemble abusus, this cannot be completely correct. Usufructaries do not enjoy abusus, and yet they are able to abandon their real rights. Abusus is better understood as the right to destroy property to transfer it to a new owner. As abandoning a dismemberment of ownership does not affect a transfer of title (the bare owner holds title throughout the existence of a dismemberment) it is not correctly classified the right to abandon a real right as part of abusus. Although abandonment is inherent in the right of abusus, it does not follow that one need to enjoy abusus to abandon a real right.

B. Real rights can be either movable or immovable

i. E.g. ownership of a car (movable) vs ownership of land (immovable).ii. Immovable real rights are immovable. This includes hypothecs on immovables and dismemberments of

ownership (904).

3. PROPTER REM OBLIGATIONS Propter rem (AKA real obligations) are correlative obligations that accompany the enjoyment of real rights. They are essentially obligations that are charged directly on property. Accordingly, the

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owner of property (or the owner of a dismemberment) is bound to fulfill these obligations so long as they are the real right holder. These obligations are excused when a person abandons the property charged with real obligations. Real obligations are transmitted with the sale or acquisition of an object, passing from the old owner to the new (e.g. the obligations of a servitude).

A. Examples of Propter Rem Obligations Include:

i. The obligation of a third person acquirer of a hypothecated immoveable to surrender it upon an hypothecary action

ii. The obligation to maintain a roadway which is the object of a servitude of right of way (1178).

iii. The obligations to improve and maintain an immovable in an empheteutic lease (Sun Life c Metro; 1195)

iv. The obligations attached to a usufruct such as insurance, maintenance and making an inventory (see 1142-1161)

B. Doctrine: The obligations that are bundled with a usufruct are real obligations, not real rights. If they are not fulfilled they merely give rise to a personal right to compensation and do not involve power over a thing itself (hence not real rights). They are imposed on the holder of the usufruct only because they come along with his real rights (i.e. the dismemberment he holds). If he abandons the usufruct, the real obligations no longer bind him. Thus they are intermediate between real and personal rights (Terré & Simler - Droit civil: Les Biens).

i. Real obligations are strange in the case of dismemberments because real obligations bind an owner to perform obligations that appear similar to personal rights. For instance, a usufructary is obligated to maintain the property. However, unlike personal obligations (i.e. contractual obligations), real obligations are excused when the real right is abandoned.

ii. Even though they can be abandoned like real rights, real obligations don’t fit properly into real rights either. Real rights can can only exist on property, and persons that are owners/dismemberment holders are certainly not property. One cannot have obligations owed to property (e.g. the usufructary’s obligations are not rights enjoyed by the usufruct over him).

iii. Real obligations are best understood as accessory obligations (not to be confused with accessory real rights!) that support the enjoyment of another’s real rights. Examples of this include a servient landholder who is obligated to maintain a road in favour of the servitude holder (dominant owner), a usufructary’s obligation to maintain the property of the bare owner, or the obligation to leave the hypothecated house (hypothecs being real rights).

4. OTHER CATEGORIZATIONS

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A. Fungible Property: Fungibility is the characteristic of property that is identifiable in kind. Fungible property is that which may be interchanged with other objects of the same type as it is not unique. Most goods are fungible (money, cars, commodities, groceries, appliances, etc.). Immovable property is rarely fungible. When characteristics of a thing are unique (e.g. a work of art) it is said not to be fungible (Droit Civil: Les Biens - F. Terré and P. Simler)

i. Fungibility is important as it affects the nature and timing of the transfer of real rights. For instance 1An indeterminate material object is not a object of a real right because the thing has to be identified for it to be the object of a real right, e.g. a car constructed but not assigned to a specific owner. However, when the property to be transferred is certain and determinate the right vests to the acquirer (1453). On the other hand, if one orders a custom-made car it becomes yours once it is finished, and not when you pick it up from the dealership/factory. As such, if there is a warehouse fire one will not suffer a loss when the car has not yet been identified as yours, but will bear the loss when it is a customized car (950).

B. Consumable Property: Consumable objects are those that cannot be used without being consumed. When one has a real right (usually a usufruct) on an object owned by somebody else, at the end of the period of use one cannot possibly give back the exact same object. Rather, one has to give back an object that is in kind or where this is impossible, cash (1127). Thus, there is a degree of abusus entailed in a quasi-usufruct.

i. This is legally significant because consumables cannot be the object of rights requiring them to be returned in identical condition after use. Consumable things are subject to a special kind of usufruct, a quasi-usufruct. A quasi-usufruct can apply to some parts of the property transferred as part of a usufruct (example: a store plus the goods in it. The store is held under a usufruct, while the goods are held under a quasi-usufruct since you need to be able to sell them, and have no abusus with an ordinary usufruct) (Répertoire de droit: Biens (Cantin Cumyn).

ii. 1127: “(1) 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 at the end of the usufruct (2) Where the usufructuary is unable to return similar property he shall pay the value thereof in cash.”

iii. 1128: “(1) 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.”

C. Corporeal/Incorporeal Property: The CCQ accepts the existence of incorporeal property (899), reflecting its broader acknowledgement that property is rooted in rights rather than just objects. However, the very existence of a corporeal/incorporeal binary reflects the remaining influence of conceptions of property as physical that the CCQ harbours.

i. Waves and energy are categorized as “corporeal movables” (906)ii. Since incorporeal goods are not explicitly defined as immovable they fall into the

category of movables (907).iii. Beginning with the classification of all things as either movable or immovable

implies physicality and a focus on the corporal thing rather than the rights attached to it. But many goods are incorporeal (intellectual property, bank accounts, mortgages) and thus neither movable nor immovable. In fact, incorporeal property has steadily grown in importance, yet our property laws remain based on notions of physicality. “la notion de beins s’éloigne de la chose corporelle…” (Problèmes contemporains de la notion de biens - Batiffol)

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iv. Moyse: Digital objects have changed our understanding of incorporeal. Files physically exist within hard drives, but the manifestation is a complicated one. As such, they are typically treated as incorporeal.

D. Res Communis: Res communis is the CVL principle that some things cannot be appropriated as property in light of them being “common to all” (913). The purpose of res communis is to stop certain things from being appropriable. This is done for policy reasons. To give any person the right of ownership would compromise the communal utility of something to society (e.g. fresh water). Everyone has an interest in res communis, but no one has a right of ownership over the object.

i. Res communis is not defined in the code; this is left to legislators and courts. Quebec typically does this through the Environmental Quality Act, but also recently passed the Act to Affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection (2009) to reiterate the status of water as res communis. The act clarified that res communis extends to groundwater rather than just navigable watercourses. For the CCQ’s treatment of watercourses/lakes see articles 919 & 920.

ii. Air and space are not susceptible to ownership and fall in to the category of res communis. This was a supplementary reason for rejecting the claim by the landowner in Lacroix c The Queen that he owned the airspace above his land through accession.

iii. Limitations on Res communis: 913(2) provides an exemption from the prohibition on res communis that enables the appropriation and sale of bottled water and compressed air

E. Vacant Property/Things Without an Owner: A category that covers things that do not have an owner. This category includes things that belong to no one or that have been abandoned. Ownership of movables is acquired through occupation (914), which is instantaneous (935). An immovable without an owner belongs to the State, but can be acquired through prescription (936).

i. Note that res communis does NOT fit in this category as res nullius only encompasses things that are susceptible to appropriation.

ii. Res Nullius previously included wild animals (Tremblay c Boivin; 934); however, in 2015 the CCQ was amended by removing the reference to wild animals in 934 and adding 898.1, which establishes that “Animals are not things. They are sentient beings and have biological needs.”

iii. Res Derelictae/Abandoned Property: a category of things, the ownership of which its titulary has renounced.  For example, domestic articles which are discarded (934(2). There is a lack of clarity as to the impact that the property’s value has on its classification as abandoned or not. In Carl Malette c La Sûreté du Quebec, the money that Malette found was held not to be abandoned as it was not “of slight value” per 934. However, the Court of Appeal ruling in Boivin c PCQ held that gold bars (obviously valuable) found in a shallow lakebed should be classified as abandoned property, reversing the Superior Court’s ruling that they were treasure. The CofA ruling in Boivin was in part justified on the basis that no owner had come forward to claim the bars despite significant media attention (thus, not lost or forgotten property).

iv. Treasure: The CVL has special rules for treasure. It is divided half and half between the owner of the land and the finder if they are different (unless the finder was acting for the owner as his agent – would then get nothing). Treasure must be hidden, otherwise it is liable to be classified as lost property (939; Carl Malette c La Sûreté du Quebec). When property is classified as treasure, there is no need to declare it (per 940) as the presumption is that it has been put there for the purpose of being treasure.

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F. Lost Property: Lost and forgotten property must be distinguished from property without an owner. Just because one loses something does not mean that they lost ownership (939(1)). Such movables cannot be acquired by occupation. Instead they can be acquired by acquisitive prescription (939(2)).

i. Finders of lost property are obligated to search for the rightful owner (940).ii. The finder of a thing becomes the holder (detenteur) when he maintains corpus.

Upon declaring to a peace officer that he has found lost property, he becomes the possessor (941). Dentention can NEVER serve as the basis for gaining ownership through acquisitive prescription (Article 2913), unless interversion of title occurs (2914)

iii. When one is a possessor, the period of acquisitive prescription begins. This period may be either 3 or 10 years depending on good/bad faith (2917-2919; Carl Malette c La Sûreté du Quebec).

DETENTION AND POSSESSIONDetention and Possession are factual situations (rather than rights over property) that are relevant for the purposes of acquiring ownership through occupation and prescription. Moyse: possession is the “shadow of ownership”. Between detention and possession is an abyss (Vinelette).

5. DETENTIONA. A person is a holder (detenteur) of property when they have physical possession of property

(corpus) with no intention to obtain possession (no animus). Detention is the factual situation where the holder recognizes that there is a title held by another. Article 921 provides that where the intention to obtain possession is lacking, one is merely the holder.

B. Leases are an example of detention. The lessee occupies property while acknowledging the ownership right of the lessor. Lessees are thus NOT possessors. Signing a lease involves recognizing that the counterparty is the holder of title. We can see here that while detention is a factual situation, it may arise in the context of a legal operation (the signing of a contract that establishes personal rights to use an apartment).

C. Dentention can NEVER serve as the basis for gaining ownership through acquisitive prescription (2913).

D. A party detaining the property of another (e.g. a drycleaner with a suit) can detain the object until full repayment is received (1592). The denenteur here acknowledges that they are merely holding something that they do not own.

E. The finder of lost property is the dententeur at the time they find this property. To become the possessor (and begin the period of acquisitive prescription) one must declare that they have found such property (Article 941; 2919).

6. POSSESSION

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A. Possession: An exercise in fact of a real right with the intention of becoming the titular. Intention is presumed by law. Where it is lacking, there is merely detention.” (921).

B. A holder can gain possession through interversion of title (2914; see section 7 below).

C. To be valid, possession must meet several characteristics according to 922. However, possession is presumed to be perfect according to 928.

i. Peaceful: Non-violent transfer of physical control, and no theft. (see also 927)ii. Continuous: No interruption of either animus or corpus. (see also 926)

iii. Public: Can’t hide good away, since this contradicts animus. (927)

iv. Unequivocal: There must be only one person exercising possession. (see also 925)

D. After being in possession of property for 1 year, the possessor gains rights to prevent the disturbance of his possession (929). However, the original owner retains the right to revindicate it (953).

E. Thieves and those knowingly in possession of stolen goods cannot be possessors, and thus cannot benefit from the rights conferred by 929 (927)

F. Someone who buys a movable or immovable from a non-owner acquires ownership. The original owner retains the right of revindication and may have the sale invalidated (953; 1714). After acquisitive prescription has occurred, the original owner cannot assert his claim.

G. When does possession end? For movables, possession ceases when one ceases to have control over the object. For immovables, possession can be preserved solo animo. This means that possession is not lost just because one has voluntarily abstained for a time from material possession or because another is occupying it. Possession can lead to the acquisition of ownership via acquisitive prescription. Possession can also be ended by the revindication of property by the rightful owner.

H. Merely facultative acts, or acts of sufferance do not found possession.

7. INTERVERSION OF TITLEInterversion of title (923) occurs where someone who was detaining property has decided that he intends to possess it. He is attempting to transform gain animus like that of a possessor. This must be proved on the basis of unequivocal facts. Instead of holding for the owner, the detenteur holds it for himself (thus demonstrating animus). This demonstration requires a firm, public and proven intention to henceforth act as the owner. Interversion must amount to an act performed by the holder that is “incompatible with precarious holding” of the owner (2914). The holder becomes the possessor when the owner learns of the act of the holder. The period of prescription then commences. Interversion applies to both movables and immovables.

A. Interversion can occur in two ways (2914):

i. Through title originating from a third party. A third party that neither the holder nor the owner acquires possession (e.g. I buy something that is stolen, but I do now know. as they have a legitimate intention of obtaining ownership (and thus animus). This allows for prescription to begin. 2914 thus protects purchasers in good faith, as they can acquire title through prescription and thus eventually prevent the original owner from revindicating their property.

ii. Where the holder engages in acts that are incompatible with the title of the owner. These acts can be legal, juridical or material. These must be clear and

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intentional. There is a high threshold. Refusal to pay rent is not enough to invoke 2914. One would need to do something more extreme such as using force or violence to prevent the owner from retaining the property. However, in this example violence would preclude possession as possession must be peaceful.

Diagram explaining how detention/possession relate to lost property and prescription, and how possession may be cease/be maintained. Correction: 946 should be 953

THE ACQUISTION OF PROPERTYArticle 916 establishes that “Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law // No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.”. Note that the CCQ uses the term “property” here rather than “ownership” as 583 CCLC did.

8. CONTRACTBoth real and personal rights can be created or transferred by contract. Remember that the transfer of real rights is subject to publication in order to be opposable to third parties (2941).

1. Note that promises of sale do not give rise to the transfer of real rights, but do establish personal rights (Ouimet c . Guibault). An exception to this is if there is a promise of sale with delivery and possession (1710).

2. When publication requirements are not followed, or a contract is not explicit that a real right is being created, real servitudes will not be created (Tremblay c Martel).

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3. Moyse: The distinction between real and personal rights is a fiction. For instance, contracts of sale are personal rights that give rise to the creation/transfer of real rights.

9. SUCCESSIONWe did not cover this. It relates to wills and trusts.

10. OCCUPATIONOccupation is mode of acquisition that only applies to movables without an owner. Occupation occurs by obtaining physical control of a thing without an owner with the intention of becoming the owner (914; 935). Unlike possession, there is no current owner. The acquisition of ownership through occupation is instantaneous to the benefit of the occupant (935; Tremblay c Boivin). Only movables without an owner or abandoned movables can be acquired by occupation. Lost or forgotten movables continue to belong to their owner and thus cannot be acquired by occupation (939).

A. See Section 4.E for examples of what can be acquired through occupation.

B. Moyse: The notion of occupation is also applied in the digital world. For instance, domain names are assigned based upon a first come first served basis. This has led to the practice of “cyber-squatting”.

C. Note that 916(2) places limits on occupation of property belonging to the state. However, an exception applies that allows people to occupy property that the state has acquired belong to the state. However, this is clearly a strange legal fiction as 934(2) and 935 clearly state that such movables can be appropriated, and 916(2) clearly allows acquisition of such movables through occupation. This legal fiction seems to exist only due to the CVL’s abhorrence for vacuums in ownership.

D. Occupation is limited to movables. One cannot acquire immovables through occupation. However, historically, occupation was a process through which land could be acquired (e.g. how colonization was justified).

E. Occupation can occur even where a movable is on the land of another person (Tremblay c Boivin). The exception to this rule is where the property being occupied is treasure, in which case half of the treasure belongs to the owner of the land (this was the case in Boivin c PGQ before the Court of Appeal held that the gold bars were abandoned and thus the sole property of Boivin).

11. PRESCRIPTIONPrescription is a change in rights through the passage of time. Acquisitive prescription (2910) is the acquisition of property through the effects of possession over time. Extinctive prescription also exists, but we did not study it. Acquisitive prescription requires possession; detention cannot serve as the basis for prescription (2911). To this end, the declaration that one has found lost property (941) serves to demonstrate a holder’s animus, thus making him a possessor. Acquisitive prescription involves competing claims for ownership, but not the loss of ownership due to non-use. See diagram below Section 7.

A. For prescription to apply, possession must be valid. This means that possession must be peaceful, continuous, public and unequivocal (922).

B. Only objects of commerce and property susceptible to appropriation can be prescribed (2876). Res communis and Extra-patrimonial rights therefore cannot be prescribed.

C. Lost and forgotten movables are acquired through acquisitive prescription (939(2)).

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D. Prescription takes effect in favour of or against everyone, including the State, subject to express provision of law. See 916. In Sani Sport c Hydro Quebec, Sani Sport tried to assert that the state’s servitude had been extinguished due to acquisitive prescription. The Quebec Court of Appeal rejected this argument

E. Acquisitive prescription is a mode of acquiring both ownership (including superficies) and its dismemberments (2910). Servitudes cannot be acquired through acquisitive prescription, as their establishment requires title rather than just possession (1181); it is also.

F. The time period for acquisitive prescription varies. For immovables, it is 10 years and it requires a court order (2918). For movables it is 3 years if the possessor is in good faith (2919); if a movable is held in bad faith the period is 10 years (2917; Carl Malette c La Sûreté du Quebec).

12. ACCESSION Accession is a mode of acquiring ownership (and only ownership, not dismemberments) whereby an owner gains ownership over everything that is attached to his property. Accession applies to both movables (951; 971-975) and immovables (954-970). Accession extinguishes the real rights of previous owners, but concurrently creates an obligation of repayment (956; 958; 973).

A. Immovable Accession: Through accession, the owner of an immovable becomes owner of the “constructions, works, or plantations” that they make. Works are material products “which are located on land and which have a permanent nature are immovable” (900 CCQ). A construction is that “which is built by human labour.” A “plantation” is vegetation planted in the ground by a person. Article 900 stipulates that all three of plantations, constructions, and works constitute immovables on the condition that they are affixed to the land. Immovable accession rests upon the “triple presumption” that disbursements are made, owned, and paid for by the owner of an immovable (955). These presumptions can be rebutted with factual evidence. At the termination of a superficies, the owner of the soil acquires by accession ownership of the superficies by paying their value to the superficiary, assuming that the soil is worth more than the superficies (1116).

B. Movable Accession (971-975): When movables are put together in such a way that they cannot be separated without ruining them, the new movable that results from the amalgamation belongs to the person who has contributed the most, either by the original value of their movable or by work put in (971; Location Fortier Inc c. Pacheco). The person who has worked on or processed material that does not belong to him/her acquires ownership if the value of the work done is worth more than the material used (972 CCQ). The new owner must compensate the person who has lost (973 CCQ). In complex cases, movable accession is entirely subordinate to the principles of equity, which gives judges substantial flexibility in determining a remedy (975).

C. Moyse: The Accession and the immobilization regime contained in 900-907 interact in complex and important ways. Neither of the two makes sense without the other.

13. OTHER MODES PROVIDED BY LAWA. Expropriation of property by the state is one such example. In Ouimet c . Guibault, the

state expropriates land. Another example is seizure by the state (e.g. of an illegal substance).

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ATRIBUTES OF OWNERSHIPOwnership has three classic attributes: usus, fructus and abusus (947). Dismemberments of ownership do not change the attributes of ownership, but rather involve the assignment of usus, fructus and abusus. In all dismemberments, the bare owner always retains abusus for himself. Accession must also be understood as an attribute of ownership, in addition to being a mode of acquiring ownership of property. Moyse: The trifecta of usus, abusus, fructus gives the impression that the modern CVL’s approach to ownership is derived from Roman law. This obfuscates the major differences between roman and modern CVL, especially in that roman law was resistant to dismemberments, instead preferring to use co-ownership. Note: usus and fructus can be granted separately and are not always bundled as a usufruct (e.g. a servitude is essentially just the granting of usus to the dominant land owner).

14. USUSUsus is the attribute of property that confers the right to use and enjoy it. Usus does not allow the transformation of the good (except for consumable goods, for which usus and abusus are inseparable). Usus can be transferred to anther person (i.e. through a dismemberment like a usufruct).

15. FRUCTUSFructus is the attribute of property that allows the owner to benefit from the fruits and revenues of the property. Ownership of property confers this attribute (949). Fructus can be transferred to anther person (i.e. through a dismemberment such as a usufruct). E.g. If I have a usufruct on a farm I am entitled to all the crops that grow. Note that the extent of fructus differs between a usufruct and the right of use; in the former the owner/dismemberment owner is entitled to all the fruits, while in the latter the user is only entitled to fructus to the extent of meeting one’s needs (1172). See also 908-910 for a description of what “fruits” and “revenues” are.

16. ABUSUSAbusus is the attribute of property that entails right to sell, destroy, transform in significant ways, create dismemberments, and grant certain personal rights involving the use of property (e.g. leases). Abusus cannot be transferred to another person through a dismemberment of ownership; the bare owner always retains it.

A. Note that holder of superficies enjoys abusus, as it is a mode of ownership and not a dismemberment of ownership.

B. While holders of emphyteutic leases enjoy a degree of freedom in modifying immovables held under such leases (indeed, they are obligated to make improvements (1195)), they do NOT possess abusus (see 1202-1204).

17. ACCESSION (VIS ATTRACTIVA) – (910; 951; 955)See Section 12 for a detailed description of Accession. Accession is a characteristic of ownership only; even holders of emphyteutic leases do not enjoy the attribute of accession. Accession does not confer ownership of the air above one’s land except to the extent that one actually has buildings (Lacroix c The Queen).

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18. OWNERSHIP AS PERPETUAL?In principle the right of ownership is perpetual. One does not lose the right of ownership due to non-usage. This is an important point as other real rights are subject to this condition. One can lose a real right by not using it (e.g. a servitude). However, the existence of acquisitive prescription appears challenges this. Moyse: acquisitive prescription involves competing claims for ownership, but not the loss of ownership due to non-use.

A. Among dismemberments, only servitudes can be perpetual. Emphyteusis and Usufructs (and the right of use by extension) are limited in their duration by the code (1123; 1197).

B. All dismemberments of ownership are subject to extinguishment due to non-use after 10 years. Servitudes (1191), Usufruct/Use (1162) and Emphyteusis (1208). Ownership is not extinguished by non-usage, but may be prescribed or abandoned.

C. “Only the physical destruction of an object destroys rights upon it” (Cantin-Cumyn - Essai sur la durée des droits patrimoniaux). It should be noted that this view is predicated on the conception of ownership as rights on objects rather than rights on property. What about intangible property? One loses IP rights after a number of years (e.g. expiry of copyright), and the loss of rights therefore has nothing to do with a physical object and its destruction. This claim is also not true in the case of quasi-usufructs, as the usufructary is obligated to repay the bare owner if they are consumed.

RESTRICTIONS ON OWNERSHIPOwnership is often purported to be absolute, complete, perpetual and exclusive. However, ownership lives in a context in which many constraints and limits have been placed upon it. These constraints include restrictions on the exercising of rights, restrictions on modifying one’s property, and even the notion that one’s property is opposable to all claims against it (e.g. state expropriation). The following are examples of how ownership is not absolute.

19. ABUSE OF RIGHTS DOCTRINEThe civil law accepts that rights can be abused. Abuse of a contractual right is a breach of the obligation of acting in good faith (7; Houle v National Bank). Abuse of right involves harming somebody through the use of one’s rights. Nuisance is the classic example of abuse of rights (Drysdale v Dugas; Ciment St Laurent). Despite some case law establishing that rights can be abused, there is a doctrinal controversy over the concept of of abuse of rights.

A. Josserand argues that rights have a social function. If one exercises rights in a manner that is excessive or unreasonable, they can be seen as abusing them.

B. On the other hand, more individualist conceptions of property view abuse of rights as a contradictory idea that is hampered by the fact that good faith/bad faith are ill-defined categories to begin with (Ripert).

C. Moyse: One of the reasons why it is not commonly used or used by itself is its instability. There is no clear definition of what good faith or abuse of rights is.

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D. Moyse: Article 976 is difficult because it is in the book of property, but is closely linked to torts. It is a sort of hybridization of property law and torts. In theory, if one is within one’s rights, one cannot logically commit a fault. How can we accept abuse of rights then?

20. ZONING BYLAWSA. Wallot c Québec: Wallot, a riparian owner along Lac St-Charles, claims that new municipal

legislation requiring a vegetation buffer to protect water quality amounts to expropriation, since W loses efficient usage of his property. Court of Appeal rules that Ownership isn’t absolute; it is limited by the interest of the public, and by law. In this case, environmental protection was deemed to be in the public interest.

B. Height restrictions: Zoning laws restrict the heights of buildings.

21. CULTURAL PROTECTIONA. Cultural Property Act s.35: No person may make on an immovable owned by him or others

excavations or surveys to find archaeological property or sites without having previously obtained an archaeological research permit from the Minister.

22. PROPERTY ABOVE AND BELOW ONE’S IMMOVABLEA. Airspace is res communis (Lacroix c The Queen)

B. The state owns mining rights, which are immovable real rights (Mining Act).

23. NUISANCE / TROUBELES DE VOISINAGE A. Ciment st Laurent

B. Drysdale v Dugas

C. 976 does not give rise to legal servitudes (Yazedjian c Hassan).

24. EXPROPRIATION (952)A. Expropriation by the state is not absolute. It must be based upon public utility and

compensation must be provided.a

B. Sula v. Cité de Duvernay: Sula owns property that is re-zoned as a park. S claims that this amounts to de facto expropriation. Court of Appeal holds that this amounts to expropriation

because After re-zoning, Sula’ rights in the property were no different than anyone else’s, which goes against the concept of ownership, so this has the same practical

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effect as expropriation and should be subject to its laws. Thus the re-zoning did amount to de facto expropriation.

25. LEGAL SERVITUDESThe owner of land whose plot is enclosed from access to public roads by neighbouring land may require one of them to give him a right of way (997). This right only exists so long as it is necessary for the exploitation/enjoyment of the land (1001). Such servitudes can also arise through the creation of a superficies (see 1111).

26. TOUR D’ECHELLEThis is a codal provision that justifies access to a neighbour’s land in order to repair/improve one’s house. Only requires giving notice, and not obtaining permission (987). If damage is caused, the owner of the land must be reimbursed (988).

27. CONDO BYLAWSCondo Bylaws restrict the use of one’s privately owned section. “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 complies with the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable.” (1063). Even non-written aspects of a condo’s destination can limit the use of one’s property (Kilzi c Syndicate L’Acadie; Bergeron c Martin).

THE DOMAIN OF THE STATEIn civil property law, the concept of the ‘domain of the state’ is important. This domain constitutes property that is owned by the state. This is significant as property in the state domain may rest in the patrimonies of legal persons (e.g. Hydro Quebec) or exist vested in the Crown (e.g. land in Northern Quebec). The States includes the federal and provincial governments, the Crown, municipalities, public corporations. Note however, that the terminology of “domain” is misleading in that public domain does not resemble feudal property regimes with superior domain and multiple sets of rights on the same land. Also, remember that the CCQ is is a code governing private law, and accordingly it faces some problems in addressing the state especially in that the domain of the state does not have a single patrimony that can be used to establish a common pledge!

28. PROPERTY OWNED BY THE STATE

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A. Article 918 provides that “Parts of the territory not owned by natural persons or legal persons nor transferred to a trust patrimony belong to the State and form part of its domain. The State is presumed to have the original titles to such property”

B. Ownership of the soil requires owners to respect the rights of the state in mines and watercourses (951) The state owns Mining rights & minerals, even those below privately owned land (Mining Act).

C. Properties acquired by the state by law; e.g. confiscated property (917)

D. The beds of navigable waters up to the high water line; non-navigable watercourses/lakes alienated from the state AFTER 1918 (919)

E. Abandoned property that is not appropriated by anyone through occupation is owned by the municipality in which it is located (935)

i. This seems like a strange legal fiction as it relies on the idea of a “public patrimony” that is passive and does not assert claims against lost property obtained.

F. Immovables without owners (936).

29. UNIQUE CHARACTERISTICS OF PROPERTY IN THE STATE DOMAINA. State property is not subject to taxation (Constitution Act 1867, s.125)

B. Ordinarily, state-owned property cannot be seized. However, this can be changed by statute. In Construction SOCAM v ECE Electrique, the immovable in question was a police station (thus an essential public service). The court ruled that the legal hypothec was valid. This was justified by examining the Loi sur la Communature Urbaine de Montreal, which gave the C.U.M. the right to hypothecate its immovables.

C. Property in the public domain is inalienable and imprescriptible, except pursuant to the exceptions provided in 916(2).

D. No one may acquire the property of legal persons established in the public interest that is appropriated to public utility (916(2). A test for public utility was established in Construction DRM c Baitments Kalad’Art. This tests (to broadly interpreted) is that property will be assigned to the public interest if:

i. It is intended for public and general useii. It is essential to the operation of the municipality

iii. Is freely available to the general public

30. LIMITS ON THE ACQUISITION OF STATE PROPERTYA. The CCQ imposes restrictions on the prescription, occupation and accession of state property.

B. Article 916(2) provides that “No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.”

31. EXPROPRIATION

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A. For a discussion of expropriation by the State see Section 24.

DISMEMBERMENTS OF OWNERSHIPDismemberments carve real rights out of the owner’s property rights and transfer them to non-owners. Dismemberments are comprised of a combination of usus and fructus. Abusus is never transferred and is always retained by the owner (AKA the “bare owner”), but not that emphetutas have a great deal of flexibility in modifying/improving an immovable. Dismemberments are real rights that place a person into a direct, unmediated relationship with a piece of property Dismemberments, or any other right held by a person can be sold to third parties (1708). Dismemberments result from the influence of the feudal tenure system in which one had an interest in land owned by another. Note that superficies are not a dismemberment, but a mode of ownership. It is important to note that while dismemberments are property, they also give rise to real obligations (AKA Propter Rem obligations – see Section 3) that extend to subsequent holders of a dismemberment.

32. USUFRUCT (1120)A usufruct is a real right upon property (movable or immovable) that allows the usufructary to enjoy usus and fructus but not abusus. A usufruct creates a direct relationship with the object, which is unmediated by the object’s owner (this is despite the fact that it is created by a contract between owner and usufructary). Unlike a lease where a debtor is obligated to repair the property, in a usufruct the bare owner is under no obligation to repair the property.

A. Established by: contract, by will or by law (1121)

B. Duration: Maximum of 100 years; if not specified it is for life (natural person) or 30 years (moral person) (1123).

C. Usufructs can be forfeited/renounced (1162)

D. Usufructs can be prescribed (930; 2910)

E. Usufructs give rise to real obligations (AKA propter rem obligations). These obligations bind the owner only as long as he remains the owner/rights-holder over that piece of property. For usufructs, such obligations include insuring (1148) and maintaining (1151) the property.

F. Usufructs must be in existing property; a usufruct in a house not yet built is actually a promise of sale, not a transfer of real rights (Cantin Cumyn - De l’usufruit, de l’usage, et de l’habitation)

33. THE RIGHT OF USE (1172)

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A. The right of use is highly similar to a usufruct (1176). The key difference is that the right of use only confers usus and fructus “to the extent of the needs of the user and the persons living with him or his dependants” (1172). Moyse: this will almost certainly not appear on the exam!

34. EMPHYTEUSISEmphyteutis is a real right that only applies to immovables. It involves a long-term lease in which the lessee is obligated to make improvements to the immovable that they are renting. In return, the lessee gets far greater rights over the property (and presumably a reduction in rent). At the end of the lease, the entire property plus improvements return to the lessor. An advantage of emphyteusis for the lessee is that they do not need to buy land, which is especially appealing in cities where it is expensive. Emphyteutic leases confer usus, fructus and a degree of abusus; holders enjoy a degree of freedom in modifying immovables held under such leases (indeed, they are obligated to make improvements (1195)), although they do not possess abusus in its full capacity (see 1202-1204).

A. Established by: contract and will. Moyse: Empyteusis by will is strange/potentially problematic as it involves the conferral of a right and potentially significant obligations

B. Duration: 10 to 100 years (1208).

C. Can be abandoned (1208)

D. Article 2910 suggests that it can be prescribed (930).

E. In the contract establishing an empyteusis, it is possible to specify that the emphyteuta can destroy the building if they rebuild another one (Cohen v MNR).

F. It is also possible to own the building through superficies where the contract states that it is an emphyteusis. In Cohen v MNR, a number of clauses in an unusual emphyteusis contract (including on that said that at the end of the emphyteusis the owner would have the right to “purchase the building.”) led the court to determine that it was in fact a superficary right (and thus ownership rather than a dismemberment of the bare owner’s title) that was created rather than emphyteusis.

G. The obligations and rights relating to an emphyteusis cannot be separated. Creditors that seize Emphyteutic accept all aspects of the lease, since the CCQ does not allow selective seizure, or prejudice to the emphy. lessor’s rights (1199; Sun Life v Metro).

35. SERVITUDESA.

36. INNOMINATE DISMEMBERMENTS

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A question that has emerged is whether new real rights not enumerated in the Civil Cod can be created by contract. This question is known as the issue of Numeris Clausus. A. Arguments in favour:

i. Proponents of this view argue that Article 1119 is merely illustrative and is not an exhaustive list of dismemberments.

ii. A further argument is that the dismemberments that we have are historically contextual and must be allowed to evolve to reflect changing societal needs and forms of economic organization (e.g. urbanization).

iii. No text prohibits the creation of new real rights or modifications of existing ones, as long as they do not contradict public order

iv. Instrumentalist argument: allowing people the freedom to establish novel dismemberments leads to the optimal economic use of property, which we shouldn’t prevent.

v. Moyse: property is a technology of commerce. It is created by lawyers to facilitate and enhance commerce. Accordingly, we should be accepting if lawyers want to create more forms of property to support commerce

B. Arguments against:

i. Opponents hold that to allow the establishment of new dismemberments would fly in the face of the Code’s rationalist framework and create instability.

ii. Since predictability is important in law, yes.

iii. Real rights must be published. Since it’s hard to publish a right that is not statutorily recognised, it’s hard to find a real right.

C. Cases: Matamajaw Salmon Club

MODES OF OWNERSHIPCo-Ownership

Indivision Divided Co-Ownership (Condos)Other kinds of Indivision (e.g. personal rights;

dismemberments of ownership

Undivided Co-Ownership

Modes of co-ownership: Note that superficies is not a mode of co-ownership. However, it can be subjected to forms of co-ownership as it is a form of complete ownership.

37. UNDIVIDED CO-OWNERSHIP (AKA INDIVISION)Undivided co-ownership is the general regime of the mode of ownership where two or more people are the owners of property, but there is no material division in their respective shares (e.g. the co-owned building of the shareholders in Allard). Any rights can be held in undivided co-ownership

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including rights on movables, immovable, and even incorporeal property such as intellectual property (Desputeaux v. Éditions Chouette). Even personal rights can subject to undivided co-ownership (Régime Complémentaire v Bandera) Every owner has usus, abusus, fructus to the object. Because we cannot physically divide such things, ownership is managed by shares (1015).

A. Established by (1012): contract (Allice c Potashner), a succession, a judgment or by operation of law (e.g. 973)

B. Duration: Variable. Partition of undivided co-ownership may be obtained at any time, unless the co-owners have signed an agreement (1030). Even so, such agreements can only postpone partition for a maximum of 30 years, although this can be renewed indefinitely (1013).

C. Publication: Indivision by agreement with respect to an immovable shall be published if it is to be set up against third persons (See 1014).

D. Marriage:  Property over which the spouses are unable to establish their exclusive right of ownership is presumed to be held by both in undivided co-ownership, one-half by each (487).

E. Where there is undivided co-ownership and one party has exclusive use and enjoyment of the property, this person is liable for an indemnity paid to other co-owners (1016; Robin c Nicole). The party that enjoys exclusive use and enjoyment is also liable for ancillary fees such as taxes (Robin c Nicole).

F. Despite indivision, co-owners can agree by contract that they enjoy liberty in administration of discrete parts (e.g. of separate floors of a co-owned movable; 1017). In Allice c Potashner, such an agreement was held to be valid in allowing Potasher to rent out her apartment in a co-owned immovable even though the CCQ says that normally such leasing would requite a unanimous vote of co-owners (1026). This demonstrates Cantin Cumyn’s argument that large portions of the regime on indivision can be avoided by contractual stipulation.

G. Critique: The CVL has historically shown a distrust towards indivision, especially due to the belief that it creates disagreement, litigation, tragedy of the commons and general inefficiency in the enjoyment of property rights (Brierly & MacDonald). Indivision’s perceived unnaturalness is reflected in article 1030, which establishes that no one is bound to remain in indivision. One can demand partition (end of indivision) at any time. Administration can therefore be complicated/stressful (Allice c Potashner). Undivided co-ownership is thus problematic when it is over something like a building where one party wants to sell and the other(s) does not. The CVL likes to associate one owner with one piece of property, especially as sole ownership optimizes the use of an object by integrating negative externalities and avoiding tension/conflicting attempts to enjoy property by co-owners.

H. Critique: Indivision has approached the judicial regime for partnerships in many ways, (management, duration, representation, etc.) but a fundamental difference between the two remains, which is the positive goal of the partnership. (2186) Indivision has as its goal the joint enjoyment of property only (Cantin Cumyn). Allard provides a useful example of this distinction. In Allard, the partnership is a temporary grouping based around a particular object (the immovable) rather than the longer term engagement in an activity.

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38. PERMENANT CO-OWNERSHIP (FORCED INDIVISION)Permanent co-ownership (AKA forced indivision) arises in situations where an immovable is an essential accessory of two immovables. The classic example is a fence between neighbouring properties. Moyse indicated that we are not covering this.

39. DIVIDED CO-OWNERSHIP (CONDOMINIUMS)Divided Co-Ownership is a mode of ownership in which an immovable is divided into private parts held by individual owners as well as common parts (e.g. hallways, amenities, garages, etc). This mode of ownership only applies to immovables (1038). The great advantage of divided co-ownership is that it provides a strong framework with which to administer property and control nuisances within a community of people living in the same building. Unlike undivided co-ownership or superficies divided co-ownership provides organizational principles through destination and bylaws and creates a legal person (the syndicate) that can make administration much easier (a condo board can hire people; execute contracts, etc). There are many particular and specific rules that apply to divided co-ownership. The two most significant sets of rules governing an immovable under undivided co-ownership are CCQ articles and the Destination.

A. The CCQ establishes that condos are governed by a legal person called a syndicate (aka condo board) (1039). The declaration of co-ownership serves as a sort of constitution for the immovable; it contains bylaws that apply to residents, a description of the shares of ownership and a description of the immovable (1038; 1052-1055). Co-owners have free use and enjoyment and the right to dispose of their as they observe bylaws and do not disturb others (1063).

B. The recurring concept of an immovable’s “destination” has been defined as “its established use, the purpose to which it is devoted” (Brierly & MacDonald) as well as “en quelque sorte sa personnalité” (Gagnon - Copropriété divise). Destination reflects a number of factors including the type of immovable (residential/commercial, luxury/non-luxury) and the raison d’etre of the immovable. Note the connections between the concept of destination and the CCLC’s process of immobilization that immobilized movables if they had a sufficient logical relationship with the destination of the immovable (Horn Elevator; Rousseau c Nadeau). Destination can be changed with a near unanimous vote of co-owners (1098), but this is subject to 1056, as Wilson c. Syndicat Le Champlain illustrates.

i. Destination justifies restrictions on the right of exercising ownership rights (1063; 1016), but these restrictions are limited as they just be justified by the destination (1056).

ii. Wilson c. Syndicat Le Champlain establishes a three factor analysis to examine an immovable’s destination. This test is also applied in Bergeron c. Martin and Kilzi c. Syndicat des copropriétaires. The analysis is as follows:

1. Objective characteristics: physical characteristics; location; luxury

2. Subjective characteristics: what motivated people to buy the condo.

3. Collective characteristics: collective interests/purpose of the condo.

C. Divided co-ownership involves strange hybridization of rights. There is private ownership of one’s condo unit (1042; 1063). At the same time, there is undivided co-ownership of the common

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portions; while this is proportional to one’s ‘share’ in the building, condos are evidently pre-disposed to some of the same squabbles as undivided co-ownership (1046). However, the rules of indivision do not apply to these common areas. The key aspect that divided co-ownership brings to this bundling of individual and shared rights is a set of rules governing the relationships between residents and between residents and the syndicat.

40. SUPERFICIESSuperficies is a mode of ownership (1009), a change from Marler’s categorization of it as a dismemberment of ownership. Superficies entails ownership of the constructions, works or plantations situated on an immovable (900;901) belonging to another person, for instance subsoil (1011). Note that identical language is used in describing Accession (948; 955); this is in light of the fact that superficies can be created through the transfer of renunciation of accession, in addition to division of the object of owner (1110). The superficiary possesses usus, fructus, abusus, and accessio. Superficiary owners can change the destination of their property, transform it, demolish it, remove it from the soil, hypothecate it, and create dismemberments. Superficies can only be created as physical objects (either above OR below soil). Superficiaries need to ensure that they do not impair the rights of the soil-owner (after all they do not enjoy any rights on the soil – no abusus or usus!).

A. Established by: Contract, implied permission or Statute (e.g. Mining Act)

B. Created in three ways: (1110):

i. The division of the object of ownership of an immovable (Lafontaine c. Gravel; Morin c. Gregoire)

1. In the case of division of the object, superficiary property comes into existence when the property the is divided

ii. The transfer of the right of accession

iii. Renunciation of the benefit of accession (Stone-Consolidated c Gestion)

1. If accession is waived and nothing is built, no superficiary right exists! Superficies can only exist on physical objects.

C. The establishment of superficies can be read into contracts where it was not explicitly mentioned. In Stone-Consolidated c Gestion, it is held that the Crown’s permission to Stone to build a garage amounted to a renunciation of the benefit of accession. In Morin c. Gregoire, the contract that gives rise to superficies is a verbal contract to build a house.

D. Duration: perpetual, unless a term is provided (1113)

E. Publication: Superficies, like all other immovable real rights, normally require publication to be opposable to third parties, especicially the subsoil owner (2938-41). However, in Quebec jurisprudence superficies only require publication to be opposable to third parties when they are explicit (e.g. created by agreement). Gravel suggests that superficies acquired through prescription do not need to be published.

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i. Explicit: The explicit establishment of superficiary rights requires publication. Morin c Gregoire is an anomalous exception in which the judge massaged the law using natural obligations.

ii. Implicit: The implicit establishment of superficies (for example, through the implied renunciation of the benefit of accession) does not require publication (Stone-Consolidated c Gestion). The reason behind this is that jurisprudence treats such acquisition of superficies as being highly similar to prescription.

iii. The acquisition of a superficies through prescription does not require publication (Gravel)

F. Superficies can be acquired through prescription (2910). Note that building on someone’s immovable will not create superficies, as it will trigger accession (955; 957)!

G. The use of the subsoil is governed by a contract. Where this fails, the subsoil is charged with servitudes necessary to enjoy one’s superficiary rights; these are extinguished at the termination of the superficies (1111).

H. Superficies are terminated (1114):

i. By the union of the qualities of subsoil owner and superficiary in the same person, subject to the rights of third persons

ii. By the fulfilment of a resolutive condition

iii. By the expiry of the term.

I. Superficies are not terminated in the case of either:

i. The total loss of the constructions, works or plantations occurs to superficies created through the transfer or renunciation of accession (1115).

1. However, total loss WILL lead to the extinguishment of superficies where superficies resulted from the division of the object of ownership (1115)

ii. There is expropriation of the constructions, works or plantations or expropriation of the subsoil (1115).

J. When superficies are terminated, the subsoil owner acquires by accession ownership of the constructions, works or plantations by paying their value to the superficiary, UNLESS the superficies are worth more than the soil (see 1116-1118)

K. Note: superficies could be used in the context of a residential building (floors stacked on top of each other) instead of divided co-ownership or undivided co-ownership. However, like undivided co-ownership, superficies does not provide organizing principles like divided co-ownership does. Where superficies is co-owned, there is no contractual basis binding neighbours, no bylaws/destination, and no syndicat!

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