1 Civil Law Property, Fall/Winter 2010-2011, Prof Veronique Belanger With some content from Michael Shortt’s summary, and other anonymous PubDocs summaries. PERSONS, THINGS, AND PROPERTY ................................................................................................................. 4 Persons ....................................................................................................................................................... 4 Physical Person ..................................................................................................................................... 4 Legal Person ......................................................................................................................................... 4 Property ..................................................................................................................................................... 4 PATRIMONY .................................................................................................................................................... 5 Common Pledge .................................................................................................................................... 5 Legal Persons ............................................................................................................................................. 5 Patrimonies by Appropriation .................................................................................................................... 5 Ville de Quebec v Cie d’immeubles Allard ltée. .............................................................................. 5 Roy v Carrier s.e.n.c. ........................................................................................................................ 6 Extrapatrimonial Rights ............................................................................................................................. 6 Laprairie Shopping Centre Ltd. (Syndic de) v Pearl ........................................................................ 6 Société Québécoise d’Initiatives Agro-Alimentaires v Libman ....................................................... 7 Torrito v Fondation Lise T. .............................................................................................................. 7 Laoun v Malo ................................................................................................................................... 7 CLASSIFICATION OF RIGHTS ............................................................................................................................ 8 Real Right .................................................................................................................................................. 8 Ouimet c Guilbault ........................................................................................................................... 8 Personal Right............................................................................................................................................ 9 Intellectual Rights ...................................................................................................................................... 9 Droit d’Auteur/Copyright ..................................................................................................................... 9 Tri-Tex c Gideonchem ....................................................................................................................11 Diffusion YFB Inc c Disques Gamma ............................................................................................11 Patent ...................................................................................................................................................12 Trademark ............................................................................................................................................12 Publication of Rights ................................................................................ Error! Bookmark not defined. CLASSIFICATION OF PROPERTY ......................................................................................................................12 Immovables ..............................................................................................................................................12 Bélair c Ste-Rose (ville de) .............................................................................................................14 Nadeau c Rousseau .........................................................................................................................14 Horne Elevator Ltd c Domaine d’Iberville Ltee ..............................................................................15 Cablevision (Montreal) v Deputy Minister of Revenue (QC) .........................................................15 Construtek GB c Laforge ................................................................................................................16 Axor Construction c 3009-220 Quebec Inc .....................................................................................16 Ville de Montreal c 2313-1326 Quebec Inc (Rock Sanna Café Bistro) ..........................................17 Movables ..................................................................................................................................................17 Other Distinctions .....................................................................................................................................17 Water....................................................................................................................................................18 Morin c Morin .................................................................................................................................18 Larouche v Quebec (PG) .................................................................................................................19 Quebec (PG) v Auger ......................................................................................................................19 PROPERTY IN RELATION WITH PERSONS.........................................................................................................20 Private and Public Domain .......................................................................................................................20 Quebec (PG) c Houde .....................................................................................................................20 Construction DRM c Båtiments Kalad’Art .....................................................................................20 OWNERSHIP ....................................................................................................................................................21 Limitations on the Exercise of Ownership ................................................................................................22 Drysdale v Dugas ............................................................................................................................23 Katz c Reitz .....................................................................................................................................23 Lessard c Bernard ............................................................................................................................24 Gestion Serge Lafrenière c Calvé ...................................................................................................24 2 Goudreau c Lettelier de St Just .......................................................................................................24 Ciment du St-Laurent c Barrette .....................................................................................................25 Sula c Cité Duvernay ......................................................................................................................26 Sutton (Ville de) c 9034-822 Quebec .............................................................................................26 Acquisition of Ownership .........................................................................................................................26 Possession & Prescription ....................................................................................................................27 Bolduc c Fortier...............................................................................................................................28 Boivin c Quebec ..............................................................................................................................29 Malette c Sureté de Quebec .............................................................................................................29 Occupation & Accession ......................................................................................................................30 Tremblay c Boivin...........................................................................................................................30 Location Fortier c Pacheco ..............................................................................................................30 Publication of Rights ................................................................................................................................31 Tremblay c Martel ...........................................................................................................................31 9164-2298 Quebec c Église episcopale St James de Hull ...............................................................31 MODALITIES OF OWNERSHIP ..........................................................................................................................31 Co-Ownership ...........................................................................................................................................31 Undivided.............................................................................................................................................31 RCR de la STCUM c. Bandera Investment Company ....................................................................32 Harel c. 2760-1699 Quebec .............................................................................................................33 Robin c. Nicole................................................................................................................................33 Forced Indivision (Permanent Co-Ownership) ....................................................................................33 Zambito-Orazio c. Meneghini .........................................................................................................34 Groleau c. Société Immobilière du Patrimoine Architectural de Montréal .....................................34 Divided (Condominium) ......................................................................................................................34 Talbot c. Guay .................................................................................................................................35 Amselem c. Syndicat Northcrest .....................................................................................................35 Bergeron c. Martin ..........................................................................................................................36 Kilzi c. Syndicat des copropriétaires ...............................................................................................36 Wilson c. Syndicat des copropriétaires de condominum Le Champlain .........................................37 Superficies ................................................................................................................................................37 Morin c. Grégoire ............................................................................................................................37 Stone-Consolidated c. Pierre Desjardins Gestion ............................................................................38 Québec (P.G.) c. Développements de Demain ................................................................................38 Lafontaine c. Gravel ........................................................................................................................39 DISMEMBERMENTS OF OWNERSHIP ................................................................................................................39 Usufruct & Use .........................................................................................................................................39 Larocque c. Beauchamps.................................................................................................................40 Banque Nationale du Canada c. Gravel ...........................................................................................41 Servitudes & Real Obligations .................................................................................................................41 Whitworth c. Martin ........................................................................................................................43 Cadieux c. Hinse, Morin .................................................................................................................44 Zigayer v. Ruby Foo’s (Montreal) Ltd ............................................................................................44 Standard Life Assurance Co. c. Centre commercial Victoriaville ltée ............................................45 Hamilton v. Wall .............................................................................................................................45 Pelletier c. Bui .................................................................................................................................45 Davidson c. Rosaire Nadeau & Fils ................................................................................................46 Emphyteusis..............................................................................................................................................47 Sun Life Assurance Co. Of Canada c. 137578 Canada ...................................................................47 NUMERUS CLAUSUS .......................................................................................................................................47 Duchaine c. Matamajaw Salmon Club Limited, Court of Appeal ...................................................48 Duchaine c. Matamajaw Salmon Club Limited, Supreme Court of Canada ...................................48 Duchaine c. Matamajaw Salmon Club Limited, Privy Council ......................................................49 Quebec (P.G.) c. Club Appalache ...................................................................................................49 ABORIGINAL TITLE ........................................................................................................................................49 3 4 PERSONS, THINGS, AND PROPERTY Persons Physical Person “Every human person possesses juridical personality and has the full enjoyment of civil rights” (art 1) “Every human being has a right to life, and to personal security, inviolability and freedom. He also possesses juridical personality” (Quebec Charter, s 1) o Juridical personality begins at birth (Tremblay c Daigle, [1989] 2 RSC 230) o A foetus is only treated as a person where necessary to protect rights after birth (ex. Succession, art 617) Legal Person Endowed with juridical personality (art 298) Have full enjoyment of civil rights (art 301) Constituted “in accordance with the juridical forms provided by the law, and sometimes directly by law” (art 299) Examples o Corporations Property Office de revision du Code civil suggested this definition (rejected by National Assembly): “All the personal and real rights which belong to a person constitute his property.” Things and the Rights associated with their use (chose vs bien) A thing is a material object (Prv Law Dic) o Not all things – some reserved for common use (art 913) o “Water and air not intended for public use may be appropriated if collected and placed in receptacles” (art 913 para 2) “La notion des biens”, Madeline Cantin Cumyn & Michelle Cumyn CB 30 Two definitions of “bien” o Material thing subject to appropriation o Ensemble of patrimonial rights – only juridical sense Real rights are patrimonial rights, along with, and opposed to, personal rights (“aussi dits droits de créance” at 31), and intellectual rights Roman law o Res is a material thing, but later develops res corporales (material things), and res incorporales (rights) o Property is res corporales it is subject to dominium o Res incoporales includes rights held on other people’s things (jus in re aliena) – servitudes, etc. Medieval law o Based on land, so allows for multiple uses of land, “notamment sous la forme de domains et tenures don’t aucun n’accorde à son titulatire un droit exclusif” (at CB 33) o Difference between durable things that can be passed on to maintain a family (heritages), and goods that are perishable or apt to be sold (chatels) – superimposed on these categories are the Roman categories of immoveables and moveables. CCLC – property is “le droit de jouir et disposer des choses” (art 406) CCQ – “Les droits de créance et les droits intellectuels sont meubles part détermination de la loi: en effet, le critère de mobilité ou fixité ne leur est pas applicable.” (at CB 37). CCQ uses “bien” in 3 ways o Synonym for patrimonial rights o “droits réels dits principaux” o “l’objet du droit de propriété our d’un de ses démembrements” (at CB 38). 5 PATRIMONY “Universality of rights and obligations and obligations having a pecuniary value in which rights answer for obligations” (Prv Law Dic) Real rights, personal rights, intellectual rights (see below) Cannot be transferred between living persons (inter vivos), only after death to heirs Common Pledge Gage commun “The property of a debtor is charged with the performance of obligations and is the common pledge of his creditors” (art 2644) “Any person under a personal obligation charges, for its performance, all his property, moveable or immoveable, except property which is exempt from seizure or property which is the object of a division of patrimony permitted by law” (art 2645) Legal Persons Personne morale Corporations Titulary of its own patrimony, distinct from those of its shareholders Have a patrimony, which may be divided or appropriated (art 302) Also have extra-patrimonial rights (art 302, also below at Pearl, SOQUIA) Regulated by statute o Loi sur les companies, RSQ c C-38; Canada Business Corporations Act, RSC 1985, c C-44. Patrimonies by Appropriation Patrimoine d’affectation Objectivist theory of patrimony o Responds to criticisms of the subjectivist theory Impossibility to divide patrimony in subjectivist theory (despite that it must, and did, happen, ex. separation of patrimony between deceased and heir, art 780; hypothecs, art 2260; family patrimony, art 414-5) Leads to creation of multiple fictional corporations, so one person can do business in multiple areas without being held personally liable (Ghestin & Goubeaux, at CB 49-51) Prevented institutions like trust, foundation o Creates a patrimony where the titulary is the purpose, not the person Trust (fiducie) o Patrimony by appropriation, autonomous and distinct from that of the settlor, trustee or beneficiary, in which none has a real right (art 1261) Settlor (constituant) – person who puts the property in the patrimony by appropriation (constituted by him, appropriated to a purpose) Trustee (fiduciaire) – accepts to administer the property Beneficiary (bénéficiare) – person for whom the trust is meant to benefit Foundation Partnership (société) o Created by a private agreement, in which partners work toward common benefit (art 2186) o No legal personality (only for humans and legal persons, art 915, see Allard below) o Partners are co-owners of all the partnership’s goods (share in partnership = part sociale)(see Roy below) o Partnership’s assets must be discussed before the partners’ patrimonies can be discussed in any claim against the partnership (art 2221, also Roy below) Ville de Quebec v Cie d’immeubles Allard ltée. [1996] R.J.Q. 1566 CB 52 6 Facts Two of four partners in the partnership sell their shares in the partnership to the other two partners. They also sell their parts in a building owned by the partnership. The city tries to claim taxes on the sale of the immovable Reasons Trial judge found it was not a sale, but a transfer within the partnership Historical analysis shows that the case could go either way Jurisprudence in Quebec has shown a tendency to assign partnerships a form of co-property (largely dependent on archaic French precedent – probably obiter) CCQ says legal personality only belongs to humans and corporations (CCQ 915) – meant to be interpreted as an exhaustive list Partnerships do things like sign cheques, etc, which resembles personality, but probably just a shorthand for all the partners signing The transfer was between one partner and another, therefore the transfer of a real right in an immoveable Holding For the City. Partnership is not a legal person and has no patrimony, therefore cannot own property. Roy v Carrier s.e.n.c. 2006 QCCS 2663 CB 76 Facts Motion within a larger case, in which R (fired lawyer) wants to sue C (a partnership, R’s former employer) and simultaneously sue each of the partners individually C brings the motion, arguing that art 2221 CCQ implies R must first obtain judgement against the partnership, before suing the partners; he can’t sue them simultaneously Reasons (Guthrie J) Partnership has no legal personality, so cannot own property But, property can be given to the partnership Partnership’s property is like a patrimony by appropriation, owned by the partners but separate from their personal patrimonies, in which they still enjoy real rights (real rights not normal for patrimony by appropriation) Must use up partnership’s assets before getting into the partners’ personal assets Holding For C. Must use up partnership’s assets before getting into the partners’ personal assets. Does not establish that partnerships have patrimonies, but uses it as a conceptual framework. Extrapatrimonial Rights Rights that are outside the patrimony, generally do not have pecuniary value (see exceptions below, ex. Malo) o Public and political rights – Charter o “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. These rights are inalienable.” (art 3) o Rights under family law (ex. Right to alimentary support, art 585) o Other rights (ex. Attorney-client privilege) Legal persons can hold some extrapatrimonial rights (not right to life) o “every legal person […] has the extrapatrimonial rights and obligations flowing from its nature” (art 302, also SOQUIA below) Laprairie Shopping Centre Ltd. (Syndic de) v Pearl [1998] R.J.Q. 448 (C.A.) CB 96 Facts 7 Shopping Centre went bankrupt, L (the union) was the trustee in bankruptcy L wants information from P (Centre’s lawyer), P claims info protected under privilege L claims, as the trustee, it inherited Shopping Centre’s legal personality, so it can waive the privilege Reasons Privilege is an extrapatrimonial right Extrapatrimonial rights do not transfer to the trustee in bankruptcy Only the bankrupt party can waive its extrapatrimonial rights Holding For P, extrapatrimonial rights can only be transferred with the consent of the owner. Société Québécoise d’Initiatives Agro-Alimentaires v Libman [1998] C.A.I. 463 (C.Q.) CB 101 Facts SOQUIA is a public company that had holdings in a bankrupt private company Socomer L, a MNA, wants SOQUIA to publicize Socomer’s records SOQUIA claims Socomer’s extrapatrimonial right to privacy prevents it from publicizing them Socomer ceased doing business, but the legal person was not dissolved Issue Does a legal person have the extrapatrimonial right to privacy? At what point does that right cease to exist? Reasons Legal persons have extrapatrimonial rights (arts 300, 301, 302 CCQ; CB 103) Legal persons have a right to privacy (art 5 Qc Charter) Financial statements are protected under the right to privacy (art 302, 35-36) Holding For S. Legal persons have a right to privacy, and that only ceases on their dissolution. Torrito v Fondation Lise T. [1995] R.D.F. 429 (C.S.) CB 104 Facts F used pictures and videos in publicity of T’s deceased child (after whom the F was named) T says daughter’s extrapatrimonial right to privacy passed on to her heirs F says using the pictures/video was in the public interest (awareness of handicapped people) Reasons art 653 CCQ guarantees rights of the deceased passes to heirs, incl art 35, right to privacy Holding For T. Right to privacy passes to the heirs. NB art 635 has been amended: “No one may invade the privacy of a person without the consent of the person or his heirs unless authorized by law.” Italics removed. Right to action on a breach extends to the heirs beyond the person’s death, but only if the breach occurred before death. Laoun v Malo [2003] R.J.Q. 381, [2003] R.R.A. 44 (C.A.) 107 Facts M is a model for Silhouette glasses L sells Silhouette glasses L gives a Silhouette promo photo of M to Larose, who publishes it in a catalogue M argues this is outside her agreement with Silhouette L argues consent was implied because he was using it to promote Silhouette glasses Reasons 8 L’s argument fails on three grounds o M’s contract with S was only for in-store posters; no re-publication o Contract between M and S cannot transfer rights or obligations to third parties (art 1440 CCQ, privity of contract) o a 3 CCQ says right to privacy is not transferable Right to privacy cannot be waived or transferred, only restricted (ex. selling one’s image) in such cases contract is to be interpreted narrowly o Therefore subject to pecuniary evaluation despite being an extrapatrimonial right o Breach brings damages Holding For M, with damages. Right to image/privacy can be restricted by contract, but not transferred, and interpretation must be narrow. Right can be subject to pecuniary evaluation. CLASSIFICATION OF RIGHTS Real Right Droit Réel Right of a patrimonial nature that is exercised directly upon property” (Private Law Dictionary, CB 119) Direct, one-sided relationship with property Principal Real Rights o Right of ownership (droit de propriété) – most complete right available (art 947) Use (usus) Fruits and products (fructus) Disposition (abusus) o Dismemberments of right of ownership (art 1119) Usufruct (right to use and enjoyment) (art 1120) Use (limited usufruct) (art 1172) Servitudes (limited use) (art 1177) Emphryteusis (art 1195) Accessory Real Rights (arts 2660, 2661) o On immovables Hypothec Prior claims and hypothecs are the legal causes of preference (art 2647) Hypothecary has preference on proceeds of the sale (art 2660) Hypothecs rank according to date of publication (art 2945) Attributes of Real Rights o Droit de suite – “Right that bears on property permitting the holder of the right to assert it regardless of whose hands property may be found.” (Prv Law Dic) Can be exercised by hypothecary (art 2660) o Droit de préférence – preferential right of claim on an immovable, as granted by a hypothec Prior claims and hypothecs are the legal causes of preference (art 2647) Hypothecary has preference on proceeds of the sale (art 2660) Claims o Remedy for real action: Titulary can be placed in possession of the property (the defendant is expelled or the property is taken from him)(art 565 Code of Civil Procedure) Abandonment – holder can renounce claims to real rights o To a common wall (art 1006) o To land with a servitude (servient land)(art 1185) Ouimet c Guilbault [1972] CS 859 CB 165 9 Facts 1964 – Promise of sale contract between O and G for land G owns (bilaterial – G promises to sell, O promises to buy) 1967 – Gov’t notices G of pending expropriation of land 1969 – O tries to initiate a sale contract via a action de passation de titre 1970 – land expropriated O claims real rights in the contract, as well as damages for breach Issue What rights did the contract create? Were the rights extinguished with expropriation? Can O claim damages? Reasons Promise of sale created personal rights, not extinguished by expropriation Promise of sale is not sale, so there are no real rights created Expropriation is a force majeur, making it impossible for G to transfer real rights (action pétitoire must fail) Government compensated G, allowing him to fulfil his obligation created by O’s personal rights O’s personal rights with respect to G cannot affect third parties (the government) Holding G owes damages to O. Promise of sale creates personal rights, breach of which leads to damages. Real rights are extinguished with expropriation. Personal Right Droit Personnel “Right of a patrimonial nature that permits its holder, the creditor, to claim the performance of a prestation from another person, the debtor” (Private Law Dictionary, CB 119) Relative, two-way relationship with another person, in which each person holds part of the right (credit, debt) Intellectual Rights “Difficult to define except in the negative” but that their objects are “incorporeal things” (Ghestin & Goubeaux CB 183) “Droits qui portent sur un produit de l’esprit humain” (Baudouin & Jobin, CB 184) “Monopole de l’exploitation de la création intellectuelle.” (Ghestin & Goubeaux, CB 183) Divisions of IP (from Mike Shortt’s summary) Intellectual Property Author’s Rights Copyright Moral Rights Trade Marks Industrial IP Patents Federal regulation per Constitution Act 1867 ss 91(22) patents, 91(23) copyright o Patent Act, Trademark Act, Copyright Act Provincial regulation per Constitution Act 1867 s 92(13), property and civil rights o Private law fills the statutory gaps (contracts, succession of rights)(Diffusion YFB)(Kasirer, 204) o CCQ hints intellectual property could be considered property “Capital also includes rights of intellectual or industrial property” (art 909) “Intellectual and industrial property are private property” (art 458) Droit d’Auteur/Copyright Trade Secrets Governed by the Copyright Act, federal legislation under 91(23), copyright. Includes economic rights (copyright), and moral rights. Protects “literary works” 10 o Only the written expression, not the idea (Tri-Tex) o Not chemical formulae (Tri-Tex) Kasirer (CB 259) – Ambiguity in Canadian copyright law o Civil “author’s law” = natural right, patrimonial and extra-patrimonial elements o Common “copyright = juridical monopoly, primarily economic o None of the aspects of Roman dominium o Private law acts as suppletive law to the statute, which has holes and ambiguities (ex contracts) o Western concept, too individualistic to mesh well with Aboriginal law. Copyright Patrimonial rights in economic side of a work Monopoly on the exploitation of a clientele (Ghestin & Goubeaux, CB 183) “sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof” (Copyright Act, s 3(1), CB 223) Term: author’s life + 50 years (s 6) Subject: “the author is the first owner of the copyright” (s 13(1)) o Subject of portrait is first owner if they hire the author o Employer is first owner of copyright to employees’ work (exception for newspapers etc) Assignment: in writing, can be subjected to limitations of scope and term (s 13(4)) o Can be assigned in advance of production (Diffusion YFB) Moral Rights (Gendreau, CB 208) Extra-patrimonial rights belonging to the author o Give legal effect to the link between the author and his work Uniquely civilian concept, present mostly in Europe but adopted by Canada through international obligations, specifically the 1866 Bern Convention, s 6bis o Art 1701 of NAFTA requires adoption of the same provision Protects expression of the work, not the ideas in it Four general components o Right of divulgation (when work is made public) o Right of withdrawal or repentance (withdraw or change) o Right of paternity (to be identified as author) o Right of integrity Expression in the Copyright Act o Author has the right to claim authorship of the work, as well as the right to restrain any distortion, mutilation or other modification of the work that would be prejudicial to his honour or reputation (s 12(7)) o Right of divulgation read into s 3(1), defining the right to publish. Can also be read into art 36(3) CCQ gives right to control use of manuscripts o Right to paternity, recognition by: real name, pseudonym, anonymous (s 14.1(1)) Only can assert the right “where reasonable in the circumstances) o Right of integrity: author can prevent “distortion, mutilation or other modification”; use in association with a product, location, etc Says nothing about destruction Infringed only if act causes damage to author’s honour or reputation (s 28.2(1)) Mere relocation does not trigger right of integrity (s 28.2(3)(a)) o Ownership of rights Separation of copyright and moral rights more common than not (copyright usually held by someone other than the author) Owned by author, who is the creator, or maker Can be a legal person o Term: same as copyright (author’s life + 50 yrs) o Waiver Cannot be assigned (see also Laoun, above in “Extrapatrimonial Rights” at 5) 11 Waiver can be limited by scope and term, or general Different aspects of the right can be waived separately (ex paternity, withdrawal, etc) Can be oral or tacit This is an example of a public order exception to the prohibition on waiver of rights found in art 8 CCQ o Succession (14.2(2)) By specific bequest Where economic rights bequeathed but not moral, moral follow economic If neither economic or moral rights are bequeathed, they both fall on “the person entitled to any other property” Tri-Tex c Gideonchem [1999] RJQ 2324 (CA) CB 190 Facts G paid a T employee to steal T’s secret chemical formulas G made chemical compounds with the stolen secret formulas G also stole clients lists and other confidential information T found out, and seized the formulas before judgement per the Copyright Act Issue Does T have a right to seize under either the Copyright Act or elsewhere? Holding No. Reasons (Nuss JA) Copyright gives the creator the sole right to reproduce and profit from works o Copyright extends to “literary works” per the Act o Only gives protection to the written expression of ideas, not the ideas themselves The ideas are public property o Chemical formulae are not literary works, even in their written expression, therefore no protection under the Act Trade secrets are not moveable property, therefore not liable to seizure per art 734 CCP o Confidential information does not constitute property for the purposes of theft or fraud in the Criminal Code o The similarity to property is not close enough to deem information property o It possesses many of the attributes of property: Can be sold, bequeathed, licenced, be the subject of a trust Product of labour, skill, and expenditure “unauthorized use would undermine productive efforts which ought to be encouraged” o Legal opinions were held to be incorporeal moveable capable of being appropriated o CCQ distinguishes between “property” and “information”/”intellectual property” Patent Act protects trade secrets o T didn’t apply for a patent, so no protection. Ratio Cannot copyright information, only its expression. Confidential information does not constitute moveable property. Diffusion YFB Inc c Disques Gamma [1999] RJQ 1455 CB 221 Facts L licensed DG to ¾ the royalties from his songs Later, he licensed YFB to royalties from his future works DG claims L could not give his copyright in advance of making the work, therefore his contract with YFB is void. Issue 12 Can L cede his copyright on work that does not yet exist? Holding Yes. Reasons Copyright Act is unclear on the point o Principles of civil law must therefore fill the gap Future property can serve as the prestation for a contract (art 1374) o To do so, it must be “determinate as to kind, and determinable as to quantity” o The future song fills these criteria. Ratio Copyright exists on works that have not yet been made, and can be assigned in advance of their creation. Patent Governed by Patents Act, 1985 Protection “inventions” = “any new and useful art, process, machine, manufacture or composition of matter” Application must be filed, and correctly describe the thing and the steps to make it No patents for abstract principles or theories Subject matter cannot be obvious Does not protect trade secrets Trademark Governed by Trademarks Act, 1985 Trademark = a mark used for the distinguishing of wares and services o Certification mark o Distinguishing guise – special shape, etc CLASSIFICATION OF PROPERTY Determined by law Contracts cannot change the classifications (Nadeau) Immovables Immovables under CCLC Immovables by nature (art 378 CCLC) o The land, or a building attached to it o “Building” is interpreted broadly (Belair) o Also any moveables that are sufficiently integrated into a building (Horne, Nadeau) Loss of identity Utility to the immoveable o Can be a moveable attached to an immoveable, horizontally or vertically (Cablevision) o Attachment does not need to be permanent (Cablevision) Immovables by destination (art 378-9 CCLC) o Moveable that does not lost its individuality o Accessory to an immovable by nature belonging to the same owner o Ex. things to work the land (beehives, rabbits, cattle) Immovables by Adherence “Land and any constructions and works of a permanent nature located thereon and anything forming an integral part thereof, are immovable.” (art 900 CCQ). Formerly immovables by nature in CCLC. Immovables by Integration 13 “Movables incorporated with an immovable that lose their individuality and ensure the utility of the immovable for an integral part of the immovable” (art 901 CCQ) Formerly immovables by nature in CCLC. Test (Construtek) o Physical integration o Movable loses its identity o Ensures the utility of the immovable Not just utility of business or occupant (Axor; Rock Sanna Café; An Act Respecting the Implementation of the Civil Code, s 48) Most important criterion (Horne) o Cannot be removed without breaking the movable or immovable Not as important (Horne) Remain immovables even if detached, as long as destined to return to the immovable into which they were integrated (art 902 CCQ) Immovables by Attachment “Movables which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable are immovables as long as they remain there” (art 903 CCQ) Formerly immovables by destination in the CCLC, but with some changes. o Do not need to have the same owner as the immovable, do not need to be placed there by the owner. o Utility criterion is new Test (Axor, quoting Lafond) 1. Presence of an immovable 2. Attachment or joining of the movable to the immovable 3. Conservation of the individuality of the movable (to differentiate from immovable by integration) 4. Perpetual attachment (attachment cannot be by its nature time-limited; duration of attachment needs to be indefinite; does not need to be perpetual attachment) 5. Movable ensures utility of the immovable Not just utility of business or occupant (Axor; Rock Sanna Café; An Act Respecting the Implementation of the Civil Code, s 48) Most important criterion (Horne) Attachment can be to a moveable owned by someone else (Cablevision) Remain immovables even if detached, as long as destined to return to the immovable into which they were integrated (art 902 CCQ) Retain their movable quality if claimed by a hypothecary creditor (art 2672)(art 571 CCP) Immovables by Determination of Law Real rights in immovables and actions to claim or obtain possession of immovables are immovables (art 904 CCQ) o Ex. Servitude, usufruct Hypothec on rents produced by an immovable is an immovable (art 2695 CCQ) Rights from a forest management permit are immovables (Forest Act) Mining rights are immovables (Mining Act) Accession “Ownership of property gives a right to what it produces and to what is united to it, naturally or artificially, from the time of its union. This right is called a right of accession.” (art 948 CCQ) Owner of the immovable becomes owner by accession of all movables used in its construction. He is bound to pay for them. Previous owner has no right to get them back, nor any obligation to take them back. (art 956 CCQ) Immobilization by integration automatically triggers accession (Nadeau) Immovables by attachment retain their movable status when claimed by a hypothecary creditor (art 2672 CCQ)(art 571 CCP) 14 Legal Hypothec Suppliers of construction materials for an immovable automatically have a legal hypothec on the entire immovable (art 2724; also Axor; Kalad’art, below in “Public Domain” at 18) Don’t need to publish it, but if you don’t it’s only valid for a limited amount of time, whereas if you publish it, valid forever. Bélair c Ste-Rose (ville de) [1922] 63 SCR 526 (QB) CB 236 Facts B owns a toll bridge over the river, anchored to the bed by the piers VSR wants taxes on the bridge, as they do on all immovables Issue Is the bridge an immovable, subjecting B to the tax? Holding Yes. Reasons Art 376 CCLC provides that “All land and buildings are immovables by their nature” o Art 377 provides “windmills and water-mills, built on piles and forming part of a building, are also immovable by their nature” o Court interprets “buildings” to mean all “structures” which are attached to the ground. o NB the French and English are given equal weight, so Court also considered whether “båtiment” had a different meaning than “building” – it doesn’t Servitude granted to build on the riverbed is an immovable (art 381 CCLC) Ratio Bridge is an immovable by nature. Nadeau c Rousseau [1928] 44 BR 545 (QB) CB 238 Facts R installs a furnace for Proulx Contract states furnace remains R’s property until P pays him off P goes bankrupt, and presumably sells his house to N or something R claims the furnace as his property Issue Was the furnace immobilized when installed? Does R have a claim to it? Holding Yes. No. Reasons Furnace is immobilized when it is sufficiently incorporated into an immovable by nature (house) o Becomes an immovable by nature o Sufficient integration is a subjective test Must be integral to the structure – structure is incomplete without it Furnaces are integral because of Canadian winters Removal would cause serious damage to the immovable o Not immovable by destination Movable that becomes immovable by destination must have the same owner as the immovable Furnace cannot remain part of R’s patrimony once it is immobilized o Immobilization is the same as accession here o Contractual stipulation cannot prevent this, immobilization is determined by the code and is an imperative law, not a suppletive one. Ratio 15 Codal regime cannot be altered by contract. Immobilization automatically triggers accession. NB cases like this brought about provisions in the CCQ to protect builders (ex art 2724 CCQ) Horne Elevator Ltd c Domaine d’Iberville Ltee [1972] RJQ 403 (CA) CB 240 Facts H installs the elevators in a tall building for D Contract states elevators will remain property of H until paid for, and if not contract gives H the right to remove them from the building D went bankrupt H tried to seize the elevators, the buttons, etc Issue Can H claim the elevators? (Are they immoveables by nature?) Holding No (Yes). Reasons (Rivard JA) Cannot be immovables by destination, because those must be installed by the owner. Elevators are immovables by nature o Analogy to staircases o Necessary for a tall building, integral part o Removal would bring destruction Not a sufficient condition, because doors are also immovables by nature Ratio Necessity of the moveable to the immoveable is the most important factor for determining immobilization. Cablevision (Montreal) v Deputy Minister of Revenue (QC) [1978] 2 SCR 64 CB 245 Facts C buys a network of antennas and wires The wires are attached to the antennas and to Bell Telephone poles The antennas are attached to the ground Province charges a tax on sale of movables Issue Are the wires and antennas immovables and therefore not subject to the tax? Holding Yes. Reasons (Beetz J) Wires are not immoveables by destination, because the immoveable they are attached to is owned by someone other than the owner of the wires. Wires an antennas are immovable by nature o Must be attached physically to the ground – through poles (ruled immovable earlier by the court) and the building (in the case of the antenna on the building) Disjoint ownership is a legal, not physical distinction, so does not negate connection to the ground. o Attachment can be vertical (antenna on top) or horizontal (cable radiating from) o Attachment does not need to be permanent o Does not need to guarantee the utility of the immovable (unlike per Nadeau) Question is not whether a movable is being integrated, but whether an entire network is a construction that adheres to the ground or another immovable Ratio Moveables attached to the ground through an immoveable are immovable by nature. Attachment can be vertical or horizontal. 16 Attachment can be through a moveable owned by someone other than the immobilized moveable. Construtek GB c Laforge [1998] RDI 137 (CQ) CB 253 Facts L was married to Ghilain Bédard, owner of C. They broke up. L was still living in the house. GB won the house in court (had to pay L for half), C got the house through him, ordered L out L took the chandelier, major appliances, etc, with her Issue Were the appliances immobilized, thereby giving C a right them when he got the house? Were the lights? Holding No. Yes. Reasons CCLC – Except for the lights, no because the movables: o Do not lose their interchangeability o Cause no damage to be removed o Did not affect the functioning of the movable CCQ – application of articles 901 and 903. Nothing is immoveable except the lights. o Art 901 – immoveable by integration Physically integrated Can’t be separated without breaking Moveable lost quality of individuality Assures utility of the moveable, completes it in an indispensable way o Art 903 – immoveable by attachment Physical link Ensures immoveable’s utility, not just for the occupant’s comfort or business No loss of individuality necessary Immobilized while attached Ratio Appliances are not immobilized. Lights are by attachment. Tests for attachment and integration. Axor Construction c 3009-220 Quebec Inc [2002] RDI 26 (CA) CB 257 Facts 3009 supplied the rink boards when A built an arena 3009 published a legal hypothec on the arena as a whole, claiming the right to do so under art 2724 CCQ (allows hypothecs to be published by persons having taken part in the construction of an immoveable) Axor moved to have the hypothec dismissed, claiming that the boards can be detached, are movables, and therefore cannot be the subject of a hypothec. Issue Are the boards immovable? Is the hypothec valid? Holding Yes. Yes. Reasons art 903 CCQ governs immoveables by attachment. Lafond finds five conditions for immobilization by attachment 1. Presence of an immovable 2. Attachment or joining of the movable to the immovable 3. Conservation of the individuality of the movable (to differentiate from immovable by integration) 4. Perpetual attachment (attachment cannot be by its nature time-limited; duration of attachment 17 needs to be indefinite; does not need to be perpetual attachment) Movable ensures utility of the immovable Here, it does, because a hockey arena doesn’t serve as a hockey arena without boards Must ensure the utility of the immovable, not just the owner’s business or the occupant’s comfort Dissent (Vallerand JA) Refuses to apply a subjective test Only applies An Act Respecting the Implementation of the Civil Code, s 48, re: utility to the owner vs utility to the movable. Finds boards to be movables. Ratio To be immobilized under art 903 (immovable by attachment), key criterion is whether it ensures the utility of the immovable. 5. Ville de Montreal c 2313-1326 Quebec Inc (Rock Sanna Café Bistro) (17 January 2003)(CM) CB 260 Facts RSCB went bankrupt and owed back taxes VdeM seized its restaurant equipment RSCB left the seized stuff in the restaurant, and told the owner of the building it could have the stuff and left it to the next tenants (why didn’t the city take it right away?) Transaction was confirmed by the Superior Court RSCB and the new tenants oppose the seizure, claiming the equipment was immobilized Issue Was the equipment immobilized, therefore not subject to seizure? Holding No. Reasons Some of the items are clearly moveable (ex chair, fire extinguisher) For the rest, Court applies of the 5 part test from Axor (above) o None satisfy step 4 of the test (permanent attachment), or step 5 (utility to the immovable) Ratio Application of the Axor test. Movables “Property, whether corporeal or incorporeal, is divided into immovables and movables” (art 899) “Things which can be moved either by themselves or by an extrinsic force are movables” (art 905) Movable by determination of law: “Waves or energy harnessed and put to use by man” are corporeal movables (ex electricity)(art 906) Movable by anticipation: “Fruits and other products of the soil may be considered to be movables, however, when they are the object of an act of alienation” (art 900(2)) “All other property, if not qualified by law, is movable” (residual category)(art 907) Rights on movables, or personal rights, are immovables per the residual category (art 907) Other Distinctions Consumability (Terré & Simler, CB 265) Consumable things are used up by the lone fact that we use them according to their destination (ex food) Even though something is subjected to prolonged use diminishing its value, it can remain nonconsumable (ex a house) Only non-consumable things can be the object of rights implying, for their titulary to put them back afterwards in their identical individuality (ex usufruct) 18 Consumables have different regimes (ex quasi-usufruct – must return the same quantity, not the same exact thing, art 1127 CCQ; also loans on consumables are weird, art 2314) Fungibility (Terré & Simler, CB 265) Fungible things can be employed interchangeably with one-another, being determined only by their weight or measure (ex money, wheat) Non-fungible things are “imagined in their individuality” Right of ownership attaches to a fungible thing at the moment it is identified and becomes nonfungible (art 1453)(ex when you pick out the car, it becomes yours at that point because it is no longer a Yaris, it is that Yaris) Vacant Property Things without an owner belong to no one (wild animals, etc)(res nullius)(art 934) Things abandoned by their owners fall under the same regime (art 934) An irrebuttable presumption of abandonment applies to some things like garbage bags (art 934(2)) A moveable without an owner can be appropriated (art 935) o Lost and forgotten moveables retain their ownership and cannot be appropriated (art 939) o Can only be acquired by prescription, which happens after a certain amount of time (arts 916, 2910, 2917, 2919) o Must try to find the owner or declare the thing found (arts 940) An immovable without an owner belongs to the state (arts 918, 936) Water “Certain things may not be appropriated; their use, common to all, is governed by general laws, and, in certain respects, by this Code. However, water and air not intended for public utility may be appropriated if collected and placed in receptacles” (art 913 CCQ) Every person has the right to access water safe for drinking, cooking, and personal hygiene (An Act to Affirm the Collective Nature of Water Resources and Provide for Increased Water Resource Protection, s 2) Ownership of the bed of a watercourse confers right to fish, mess with it, subject to regulation (ex environmental) (Cantin-Cumyn, CB 280; Morin) Owners of the shoreline have non-restrictive access to water (art 920; Morin; broadly defined by arts 980-82) o All persons have a right to travel on water (art 920) State owns the bed of all navigable and floatable watercourses, up to the high water line (art 919) o Also owns beds of all non-navigable watercourses ceded after 1918 (art 919; see also Houde and Larouche, below in “Private Property and its Origins” at 17) o Always look at the original grant, if riverbed is in the grant, it stands o After 1918, presumption is that the riverbed is owned by the state o Before the three chain reserve, presumption of private ownership o After the three chain reserve, but before 1918, the nature of the three chain reserve ensured the government owned the riverbed Morin c Morin [1998] RJQ 23 (CA) Facts M1 owns land with a river, which he dammed to make a lake M1 sold off the land around the lake in plots, with plots going all the way to the water’s edge M2 bought some of the land, and wants to go boating and fishing on the lake M1 says because he owns the lakebed, he has control over the water, and says M2 can’t go swimming Issue Can M2 use the lake? 19 Holding Yes, but not for fishing. Reasons Art 913 says water is a common good, and can be used for common purposes (arts 920, 981) o Applies to floatable/navigable water as well as non-floatable/non-navigable waters Art 920 gives the right of non-restrictive use to anyone who owns the shoreline. o Because M1 didn’t maintain a strip of land around the lake, but rather sold plots to the water’s edge, he does not have the right to control access to the lake He still controls access to the fish, being an accessory to his real right of ownership of the lakebed. Ratio Water is a common good, and everyone owning shoreline has access to it. Larouche v Quebec (PG) 2007 QCCS 6152 CB 302 Facts L owned property with a non-navigable/non-floatable river cutting across it L was using a backhoe to mess with the river in his project to restore an old windmill. MNR fined him, claiming he was messing with a public waterway. The land was granted in 1900 Issue Is the riverbed public domain? Holding Yes. Reasons (Gagon JCS) Issue revolves around the “three chain reserve” and the subsequent issues it brought up o In the late 19th C the government required that land grants on waterways (incl non-navigabele) stop three chains from the waterline, to ensure the state maintained ownership of the bank so it could control fishing rights o 1918 CCLC is amended to place beds of non-navigable waterways in the public domain o 1991 the three chain is abolished, and lands given to the owners from whose land the reserve was taken substituted a servitude of 10m for fishermen o art 919 CCQ reproduced art 400 CCLC, stating that navigable and non-navigable waterbeds are public domain Held: the 1991 devolution of the three chain reserve did not include the river bed The river L was messing with was public domain. Ratio All riverbeds and lakebeds are public domain, except where the original grant or law specify otherwise. Quebec (PG) v Auger [1995] RJQ 1980 (CA) CB 322 Facts Ville de Laval (represented by PGQ) is expropriating land from A Land was originally granted in the 17th C, original grant includes the “grève” (beach) Amount of compensation depends on whether the original grant extends to the high-water mark or the low-water mark, which depends on the meaning of “grève” Issue Does the land grant extend to the low-water mark? Holding Yes. Reasons The word “grève” (beach, riverbank) in the original grant is interpreted to have included the riverbank, which goes below the high-water mark. 20 PROPERTY IN RELATION WITH PERSONS Private and Public Domain 1854 – beginning of abolition of feudal tenure (Marler, CB 287) After, land held by a form of freehold tenure (franc aleu, Marler) Public domain o Property owned by legal persons in the public interest, or directly by the state Not everything owned by the Crown corporations is in the public domain, only that serving the public good (Houde) o Cannot be seized (art ) o Cannot be prescribed (916(2)) o Immune from taxation (Constitution Act 1867 s 125) o Minerals belong to the state (Mining Act) o River and lakebeds belong to the state in most cases (see above in “Water” at 16) Expropriation is a prerogative of the state (art 952; Auger above in “Water” at 17) Quebec (PG) c Houde [1998] RJQ 158 CB 297 Facts H’s ancestor Price purchased a plot of land to build a sawmill in 1852 The original survey shows islands down the river, rendering it non-navigable At low tide, the river is almost dry There is a salmon spawning ground in the river on H’s designated land PGQ contends that at high tide the river is navigable, thus making the salmon part of the public domain Issue Are the salmon public property by virtue of living in a public watercourse? Holding No, the original grant indicated the river was not navigable. Reasons Fishing rights go to the owner of the riverbed Quebec law only gives the state domain over the riverbeds of navigable waterways (art 919, also applies to non-navigable/non-floatable water alienated by the state after 1918) Original survey indicates the river was not navigable at the time of concession, so there was no public fishing right Grant does not specifically exclude fishing rights Ratio Terms of land grants must be decided in reference to the land at the time of concession. Construction DRM c Båtiments Kalad’Art [2000] RJQ 72 (CA) CB 327 Facts City of Rimouski contracted DRM to build a salt storage depot (for roads) BKA was a supplier of materials to DRM, and registered a legal hypothec on them per art 2724 CCQ. DRM defaulted on its payments to BKA DRM claims BKA’s hypothec is invalid because the goods had been appropriated to the public good per art 916 CCQ. Issue Is the depot a public utility per art 916? Holding Yes. 21 Reasons Art 916 provides that property of the state cannot be appropriated or seized. Two types of state property o Intended for the public good, essential to the functioning of the state (cannot be seized) o Other stuff (can be seized) Though the building itself is not essential to the functioning of the state, it is essential to an essential service (roads) therefore it cannot be seized. Ratio Property that is intended for public good and essential for the functioning of the state cannot be seized or appropriated. Public utility in this sense is interpreted broadly. OWNERSHIP 947 948 952 Right to use, enjoy and dispose, fully and freely, limits determined by law, modes and dismemberments Right to what it produces and is united to it (accession) Expropriation for public utility, just and prior indemnity Portalis, Presentation on the Proposed Title on Ownership (1804) (trans Kasirer) Man has a natural right to those things necessary for his subsistence Need and industry are the founding principles of ownership Communal ownership is just a way to deny rights to all Agriculture ownership of land ownership of all manner of property wealth Men who own things look to the future because they know they have some sort of property to lose – check on cruelty and violence Ownership does not bring inequality, nature does Principle of ownership: “the right to enjoy and to dispose of things in the most absolute manner possible” – exception: men cannot contravene society’s laws Sovereign owns territory for different reasons – as administrator for the common good “no one may be compelled to give up his right of ownership except by reason of public utility, and for just and prior compensation” – state considered as an individual in negotiations ownership extends to movables and immovables, and all they produce Cantin-Cumyn “Essai sur la duré des droits patrimoniaux” Principal real rights are the direct and immediate connections between a person and a thing Patrimonial character of real rights help determine duration o Survive original titular o Disappear with the thing to which they are attached Code says nothing on duration of real rights other than usufruct and emphryteusis Ownership is a perpetual right o Only extinctive prescription kills it, not disuse o Indissociable with allodial tenure/franc-alleu roturier Acquisitive prescription is only a transfer or ownership, not the end of one right and the creation of another Pierre “Classification of Property and Conceptions of ownership in Civil and Common Law” Matamajaw – wrongly decided o JCPC thought personal servitude was not a real right o Thought all real rights were dismemberments of ownership o Confusion comes from differences between CML and CVL CVL Ownership = totality of power exercised over, and benefits derived from property CML ownership has no technical definition and is used indiscriminately CML has one set of rules for objects, and another for land (unlike CVL) 22 CML developed through pragmatic approach, incrementally changing the feudal system, whereas CVL was a clean break that drew on Roman concepts CML no rights, just “interests in land” CML moved away from feudal tenure earlier than CVL By the end of 17thC, estate was property held by tenant, and could use and dispose of it Ownership came to mean holding the land in tenure for an estate Equitable ownership allowed for multiple owners – beneficiary of trust, mortgagor, holder of fee tail or life estate protects these people from suffering loss from acts of trustee, mortgagee and holder of fee simple absolute, which is allowed at common law but justice and good conscience oppose (equity) Because multiple people were entitled to land, title disputes not solved by finding the owner, but by seeing who had the best claim to the land among the claimants – ownership is relative, not absolute CVL – Roman concept of ownership is corporeal (res) – combines usus, fructis, abusus Ownership – CML property + obligation, CVL property only Property – CVL right is in the land, direct link between person and thing; CML right is against others, defined by whether it is enforceable against the whole world or not Object of property – CVL owner of things, corporeal; CML owner is person entitled to estate and other hereditaments, so always a right and therefore incorporeal Extent of the rights – CVL absolute; CML tenure is limited if uncertain, not absolute Abstraction – CVL ownership is abstract; CML no abstraction, ownership is necessarily relative Exclusivity – CVL exclusive, CML can have multiple owners Patault “Introduction historique du DDB” Basic historic introduction to DDB Limitations on the Exercise of Ownership Nuisance Anything beyond normal annoyances, limit of tolerance (976) Judged relative to the neighbourhood (976, Drysdale) Right of action is not extinguished as long as the nuisance remains (Goudreau) No fault, only must prove damage (Ciment St-Laurent) o Abuse of right or fault can also admit fault-based liability (1457, Ciment St-Laurent) Cannot use private law to invalidate decisions in the public interest (Calvé) Expropriation State can expropriate for public utility (952) Only for just and prior compensation (952) Regulations that restrict or prohibit use are expropriation (Sula) 6 7 952 976 978 979-83 987 990-91 992 993 1002-1008 All rights must be exercised with good faith Rights must be exercised reasonably, in good faith, not excessive Expropriation for public utility, just and prior indemnity Must suffer “normal neighbourhood annoyances” not beyond “limit of tolerance” according to the nature or location of land and local custom Can compel neighbours to survey Water: must let it flow onto land, can divert on land, but not from its natural course downstream, can require destruction to keep water pure, roofs can’t drop snow on neighbour’s land Allow neighbours access for repairs Cannot let things collapse onto neighbouring land, or undermine it in construction Accidentally building on neighbour’s land – must buy the land Cannot have windows less than 1.5m from line, unless translucent Fences Charter of Human Rights and Freedoms, RSQ c 12, s 6, 46.1 23 6 Every person has a right to the peaceful enjoyment and free disposition of his property, except to the extent provided by law 46.1 Every person has a right to live in a healthful environment in which biodiversity is preserved, to the extent and according to the standards provided by law Environment Quality Act, RES c Q-2 19.1 “Every person has a right to a healthy environment and to its protection, and to the protection of the living species inhabiting it” 19.2 Superior Court can issue injunctions to prohibit interference with 19.1 20 “No one may emit, deposit, issue or discharge or allow the emission, deposit, issuance or discharge into the environment of a contaminant in a greater quantity or concentration than that provided for by regulation of the Government” An Act Respecting the Preservation of Agricultural Land and Agricultural Activities RSQ c P-41.1 79.17 In an agricultural zone, no person shall incur liability toward a third person by reason of dust, noise or odours resulting from agricultural activities 79.19 In an agricultural zone, the inconvenience caused by dust, noise or odours resulting from agricultural activities does not exceed the limit of tolerance neighbours owe each other, insofar as the activities are exercised, subject to section 100 Drysdale v Dugas CB 52 Facts Drysdale built a stable next to Dugas’s house Shit leaked into the basement of the house, and the smell was horrible Drysdale took all the most modern precautions to prevent it Issue Is the odour a nuisance? Do D’s precautions exempt him from liability? Holding Yes. No. Reasons The odour lessened the plaintiff’s enjoyment of his property It was more than the usual annoyances in the neighbourhood Ratio Injury caused by nuisance greater than the normal for the neighbourhood is compensable, regardless of mitigation techniques. Katz c Reitz CB 55 Facts K built a store beside R’s property The careless building practices followed by the contractors caused R’s house to partially collapse Issue Was K responsible for the contractors? If so how? Holding Yes. No fault liability. Reasons It is clear the contractor was at fault R is not an architect, so he cannot be faulted for improper supervision The construction was so dangerous that it created a strict liability on whoever instigated it R’s right to enjoyment stops where it interferes with K’s Ratio Nuisance is strict liability. 24 Lessard c Bernard CB 60 Facts B built a wood furnace that conformed to legal standards, and included smoke-mitigation techniques It produced massive amounts of smoke The smoke was so thick L couldn’t use his back yard and had to keep the windows of his house closed Issue Is the furnace a nuisance? Holding Yes. Injunction and damages to L. Reasons 976 doesn’t consider fault, so the only issue is the fact of the smoke The only thing to consider is the excessive nature of the damages, not how they came about The smoke deprived enjoyment in a manner that was clearly excessive, so 976 applies Ratio Right to enjoyment ends where neighbour’s begins. 976 is no fault. Gestion Serge Lafrenière c Calvé CB 63 Facts GSL runs a fish farm, which was authorized by the MoE in 1993 and 1996 C lives on the same lake, sues under EQA s 19.1 for elevated levels of phosphorous resulting from the fish farm, attacking the validity of the MoE’s license GSL’s license was revoked independently of the action and is before an admin tribunal Issue Should the Court grant an injunction contrary to the MoE regulations? Holding Not really (Court limits emissions to similar amount of 1996 license pending admin tribunal decision) Reasons Discretion given to the Minister by the EQA is broad Courts will intervene when discretion is exercised: o To improper ends, not foreseen by the law o In bad faith o On erroneous principles or non-pertinent considerations o In a fashion that is discriminatory and unjust, arbitrary, or unreasonable Courts will overrule decisions where procedure is not followed, but not where the result is inopportune or erroneous CCQ is suppletive law EQA represents public order – Minister balances between public and private interests EQA (public law) takes precedent over private law GSL is allowed to produce 80 tons of fish and emit no more than 130 kg of phosphorous (slightly less than allowed by the 1996 license) Ratio Public law limits on the enjoyment of property take precedence over private law actions. Goudreau c Lettelier de St Just CB 77 Facts L’s ancestor builds a house in 1923 G’s ancestor builds a 3 story apartment building beside it in 1940 L’s ancestor builds a 3 story wall beside the apartment building for privacy in 1941 With G’s ancestor’s agreement, the wall used G’s building for support 25 G wants to demolish the wall Issue Is the wall a nuisance? Did G lose his right to sue over the 50 years since it was built? Holding Yes. No. Reasons Doctrine recognizes three kinds of nuisance o Intentional injury of another with property rights o Negligent or excessive use of property rights o “Antisocial” exercise of rights, in which rights are exercised reasonably but there is still damage 976 is a no fault regime because of its place in the code The wall is a nuisance because it completely blocks views, air, and light, and makes maintenance on the building difficult It is not a reasonable response to privacy concerns because it is so high Tolerance alone does not constitute prescription of rights (analogy to servitudes) Delay only means that G cannot force L to pay for the demolition Ratio 976 is no fault. Gives rules for prescription of rights under 976. Ciment du St-Laurent c Barrette CB 83 Facts CSL opens a plant that annoys nearby residents with dust, noise, and odour B brought a class action Issue Is CSL liable for nuisance? Is it fault based? Is it a real right? Holding Yes. No. No. Reasons Fault-based TDV, under 1457 (Rejected) o Obligation to act reasonably and within any legislative norms applying to immovable property o Duty of means o Only applies is there is fault o CSL didn’t commit any fault, so can’t apply here Right to claim under nuisance is a real right (propter rem – advanced by CA)(Rejected) o Right attaches to property o This would mean that tenants would not have right to claim o Never mentioned in the Minister’s comments o Not appropriate theory because 976 is activated by victim’s inconvenience – it is therefore a personal right o Tenants have a right to claim under 976 No-fault based regime (Accepted) o 976’s location in Book Four with other no-fault regimes o Judicial notice must only be given to results, not conduct o Only question is whether the victim’s annoyance exceeds what is reasonable to expect in the circumstance Statutory exemption? (Rejected) o CSL claims that its establishment statute exempts it from civil liability o SCC rejects this: the statute wasn’t specific on the point so no exemption CSL cannot claim prescription “Neighbour” should be broadly defined Ratio Two liability regimes for TDV Fault-based (abuse of rights or violating norms of conduct – 1457) 26 No-fault (unreasonable annoyance – 976) Sula c Cité Duvernay CB 122 Facts D rezoned 3 undeveloped residential lots owned by S into parks S claims that effectively expropriated them because he could no longer develop them nor could he control access to them D claimed no expropriation because S remained owner. Issue Were the lots expropriated? Holding Yes. Reasons Rezoning S’s property reduced his rights over it to the level of any other citizen. His property was effectively expropriated without compensation This is beyond the power of the municipality, so rezoning is illegal Ratio Regulations that restrict or prohibit use are expropriation. Sutton (Ville de) c 9034-822 Quebec CB 124 Facts Issue Holding Reasons Ratio Acquisition of Ownership Occupation Possession Detention o Cannot acquire ownership by detention o Can become possession by inversion of title (2914) Prescription Accession 913-14 916 Cannot appropriate res communis, can appropriate things without an owner Property acquired by: contract, succession, occupation, prescription, accession. Cannot appropriate State property Carbonnier “La notion de possession” Possession is a factual situation that may or may not coincide with a legal situation (ownership) (pouvoir de fait, pouvoir de droit) Majority of possessors are at the same time owners, and inverse The thief might be the possessor, but is not the owner 27 Mazeaud et al “Droit de propriété et ses démembrements” Owner’s juridical power (pouvoir juridique) exists independent of its exercise Possession is a situation of fact (pouvoir de fait), ownership and real rights are powers in law – possession is assessed without reference to legal situation Detention (détention, qu’on nomme porfois possession précaire) is different than possession Detention always comes from a legal situation, it supposes at its origin, a juridical title: conventional (farmer, renter), juridical (sequester), or legal (père usufruitier légal, spouse) – détenteur holds in the name and with the understanding of the owner Detention is a pouvoir de droit Détenteur cannot be the owner The owner can still have ownership despite the presence of a détenteur Apparent owner – by common error considered owner (comes from third parties’ notions) Apparent ownership exists to secure third parties’ reliance in a situation that may not be legally correct Legal effects of possession o Possessor can defend against all troubles attendant to possession (possessory actions) o Possessor is presumed owner, and is the defendant in an action of revendication o Possession can lead to ownership Ownership of immovables is difficult to prove, possession is easy to prove o Law presumes ownership to protect the owner By presuming possessor is owner, the possessor is given incentive to take care of property Presumption secures and facilitates transaction (136) Possessor can only become owner in good faith Possession applies to all real rights = basically is the same as acting like you legit hold the right Things outside commerce cannot be possessed – public domain, juridical universalities (patrimony, inheritance) Elements of possession o Corpus Material element of possession Exercising the attributes of the rights of ownership (usus, fructus, abusus) Not necessary for possessor to exercise corpus himself Material apprehension of the thing – acquisition of corpus o Animus Intentional element of possession Two theories Savigny Subjective theory Posessor need animus domini – intention to act like the pwoner Savigny does not see détenteurs as possessors Ihering Objective theory No distinction between possessors and détenteurs based on animus Law accords in principle all occupants the effects of possession Following Pothier, Code civil sees possession as the will to conduct oneself as owner Two rules for animus Presumption – animus is presumed, all occupants are presumed to be possessors and not détenteurs Abstract – animus is determined based on outward appearances, from the perspective of the “occupant-type placé dans la meme situation” (reasonable man?) Inversion of title – when the possessor becomes owner- Possession & Prescription 28 Possession o Corpus – material element o Animus – intention to be owner Possession can be opposable after 1 year of good faith possession (929) Test for acquisitive prescription (Bolduc) o Property subject to prescription (not State property, res communis, etc) o Exercise of useful possession (possession utile)(922) Peaceful – not obtained by violence Continuous – regular, material acts like an owner would do; not necessary to have permanent contact, just regular and not abnormal Public – public exercise of possession, third parties think possessor is owner Unequivocal – certain and exclusive o Over the period of 10 years (2917) Mere tolerance or facultative acts don’t found prescription (924) Possession 921 922 923 924 925 927 929 930 932 Possession is detention and intention. Intention is presumed. Must be peaceful, continuous, public, unequivocal Detention is presumed to continue without proof of inversion of title Tolerance does not found possession Presumption of continuous possession Thief cannot benefit from possession, but successors can if unaware of defect 1 year possession creates right of revendication Prescription gives possessor the real right he possesses Possessor must believe he has the right to possess in good faith (cannot be aware of defect) Prescription 2875 Acquisitive prescription = getting ownership, extinctive prescription = end of ownership 2883 Prescription can be renounced 2910-12 Acquisitive prescription brings ownership through possession, not detention. Can be based on possession gained by succession 2913 Detention is not a basis for prescription 2914 Inversion of title: by title from another, or demonstration of animus 2917 General period for acquisitive prescription is 10 years (also extinctive, 2922) 2919 Period for movables is 3 years Bolduc c Fortier CB 142 Facts B claims that she has title to a parcel of land F purchased in 2004 B claims her husband purchased the land in 1970, even though there was no registered transfer of title B’s husband had paid taxes on the property since 1970 In the alternative B claims she gained ownership by acquisitive prescription Issue Does B have a claim to the land? Holding No. Reasons 916 says prescription is a mode of acquisition of property 2910, 2911 say acquisitive prescription is a mode of property acquisition as an effect of possession 921-933 say the term for acquisitive prescription is 10 years 932 – no need to establish good faith possession Two conditions for acquisitive prescription (2918) 29 o Exercise of useful possession (possession utile)(922) Peaceful – not obtained by violence Continuous – regular, material acts like an owner would do; not necessary to have permanent contact, just regular and not abnormal Public – public exercise of possession, third parties think possessor is owner Unequivocal – certain and exclusive o Over the period of 10 years Two elements of possession (from Lafond) o Corpus – material possession o Animus – intention du possesseur de so comporter comme le véritable propriétaire If the owner tolerates use, it does not count as possession (924) o Neighbourly tolerance – parking a car, camping, etc Paying taxes is not determinant of possession Ratio Defines possession for acquisitive prescription Boivin c Quebec CB 158 Facts B found gold bars on the bottom of a lake B claims ownership of the bars and all other bars discovered on the bed of the lake because it forms a whole treasure o Any other people looking there would only have been motivated by B’s discovery anyway PGQ argues it is the half-owner of the bars because the lakebed belongs to the state Several third parties found gold bars as well, claiming they were never part of the original treasure, nor were they treasure, but rather abandoned moveables Issue Are the bars treasure or abandoned movables? Does B have a claim on the other bars? Holding Abandoned movables. No. Reasons Court highlights the importance of no-one being able to justify their rights over treasure, which would requires knowing the intention of the people who put the bars in the lake (did he want to get rid of them or hide them for later recovery?) Court believes bars were permanently abandoned o Treasure is implausible because it would be hard to recover them and the SQ would probably get involved because it’s Crown land The fact no owner came forward due to the intense media coverage means they were probably abandoned. Ratio Malette c Sureté de Quebec CB 162 Facts M discovered $20,000 on the side of the road and deposited it at an SQ office After 1 year, M tried to recover it Issue Is the money a lost or forgotten movable? Does M have rights to it? Holding Yes. Reasons Clearly has an owner 30 Likely not an abandoned movable – has not gained the inference in 934(2) and failed to prove abandonment by other means Therefore, lost or forgotten movable (938) Malette cannot be considered a good faith possessor unless he faces a 10 year prescription period He has fulfilled requirements to take possession of the money from SQ Ratio Occupation & Accession 934 935 938 939-46 954 956 965-70 971-75 Wild animals belong to no one Appropriation of movables without an owner through occupation Treasure Lost or forgotten movables can be acquired by prescription, not occupation, finder must attempt to find owner, declare it to police, can sell it after 60 days (unless perishable) Voluntary accession = artificial, involuntary = natural Owner of immovable owns things he builds on it, but must pay for the materials Natural accession: sediment in rivers Movable accession: Intermingled movables impossible to separate belong to whoever contributed the most value Tremblay c Boivin CB 165 Facts T shot a moose on B’s land that B had shot earlier in the afternoon B claims the moose because mortally wounded it (so T didn’t really kill it), and because it was shot on his land Issue Can be claim the moose because it was shot on his land? Holding No Reasons Wild animals are “biens sans maître” that can be claimed by occupation Ownership of land does not grant ownership of animals on it, so it doesn’t matter where it was shot Wild animals are occupied by the first person to exercise physical control over them It doesn’t matter that B shot it first because killing doesn’t mean control T was the first to control it, because he and his friends were butchering it when B found them Ratio Occupation is determined only by physical control. Location Fortier c Pacheco CB 168 Facts LF rented a truck to P P installed a platform that he borrowed from 2741-2824 Québec P stopped payments on the truck LF claims the truck, and claims the platform belongs to it due to moveable accession Issue Whose property is the truck? Holding LF owns the platform by movable accession, but must compensate 2741-2824 Québec. Reasons 31 The platform is sufficiently integrated that removing it would render the truck unsuitable for normal use Art 971 applies Because the truck costs more than the platform, the whole thing belongs to LF Complexity of the case calls for application of 975 judicial discretion 2741-2824 Québec should be compensated because it rented the platform to P in good faith and it adds to the value of the truck. Ratio Movable accession is defined by 975, but compensation must be given on an equitable basis Publication of Rights Superficies must be registered (Morin, though judge gets around it there) 2934 2938 2941 Publication of rights when they are registered Immovable real rights require publication Publication of rights allows them to be set-up, but produce their effects before publication Tremblay c Martel CB1 Facts T had a servitude with the previous owner of the land, it wasn’t registered M bought the land, says servitude isn’t good Issue Is the unregistered servitude opposable? Holding No Reasons Real rights must be registered for them to be opposable Ratio 9164-2298 Quebec c Église episcopale St James de Hull CB1 Facts Issue Holding Reasons Registered rights can be the object of prescription Ratio MODALITIES OF OWNERSHIP Co-Ownership Undivided 487 Spousal property is presumed to be held in undivided co-ownership, half and half 32 973 1002-1006 1010 1012 1015 1016 1020 1022 1026 1030-31 1520 Movable accession: undivided co-ownership where impossible to tell who gave the most Common walls and fences Undivided co-ownership where no physical division in property Indivision by contract, succession, judgement Presumption of equal shares, rights & obs of exclusive owner for share Use cannot affect destination or right of other co-owners, exclusive use requires compensation for other owners Reimbursement for upkeep costs Other owners have right of redemption on sale of shares, up to 1 year after sale Majority rule on admin; alienation, change of destination, substantial alterations = unanimous Partition at any time unless postponed by agreement, residential exception (75% of owners with 90% of building can force partition) Indivisible obligations – everyone is responsible for the whole thing Cantin-Cumyn “L’Indivision” (CB 178) Indivision = multiple titularies of the same right on the same object Indivision can apply to any property or patrimonial right Co-ownership is a species of indivision, where the right of ownership is held in indivision Modality of ownership, movable or immovable depending on the object of the indivision Thinking of the owner of an undivided part as the owner of a part distracts from the fact that indivision means the same people exercise the same right of ownership over the whole thing (like the relationship between shareholders of a corporation and the corporation’s property, if every shareholder held 100%) Simple presumption of equality of shares in indivision (for when one owner wants to sell, etc) Partners in indivision have a right of preemption for any sale of another’s part If one person in fact has exclusive use of the property held in indivision, he must compensate the other owners Not a very viable situation in practice Decisions about alienation or changing value of property must be unanimous RCR de la STCUM c. Bandera Investment Company CB 187 Facts STCUM gave money to Trust General to invest in hypothecs TG made a $14million loan to a company o $10million TG o $4million STCUM o Loan is guaranteed by a $14million hypothec TG was bought out by BNC BNC sold TG’s share in the hypothec to B STCUM claims the hypothec is held in indivision, and as one of the co-holders of the indivision, it can pre-empt the sale if it matches the price being paid to the third party (B) Issue Holding Reasons STCUM’s share in the hypothec is an accessory real right o S exercises a real right (904) STCUM’s share in the loan is a personal right o It can be subject to indivision (not undivided co-ownership) o Regime on co-ownership is broader than it appears o Possible for the loan (as well as the hypothec, and independently of it) to be held in indivision Debt was not held in indivision 33 o CCQ presumes sums of money can be divided o Indivision therefore must be expressly stipulated, which it was not Ratio Indivision and co-ownership are separate concepts. Indivision can apply to personal and real rights. Harel c. 2760-1699 Quebec CB 194 Facts H’s and her husband are undivided co-owners of their family home H never published her address at the registry, so she did not learn of the sale until after it took place Husband had debts to 2760, who sold his share in the undivided property at auction H is claiming rights under 1022 on the share 2760 was selling Issue Can 1022 be invoked after sale? Does 1023 prevent her from using 1022? Holding Yes. No, they are separate regimes. Reasons 1022 and 1023 target different fact situations, but are not mutually exclusive o 1022 applies if the person becomes aware of the sale after it takes effect o 1023 applies if the person is aware before the sale is made. Sale is acquisition of the share by onerous title, so 1022 applies. Ratio 1022 and 1023 are complementary regimes Robin c. Nicole CB 196 Facts R and N bought a farm, each paid half (R loaned N some of the money for his half), and held it in indivision They also did some improvements on the property They broke up, and R moved out R is claiming for compensation for N’s exclusive use, and her half of the shit Issue Is R entitled to indemnity for N’s exclusive use? Holding Reasons Indemnity is provided for by 1016 Person enjoying the use must pay all the taxes, etc As far as improvements, court found R contributed ¼ and N ¾ R gets what she put in (half of the purchase, ¼ of the improvements) Ratio Forced Indivision (Permanent Co-Ownership) Immovable serves as an accessory to two or more immovables = wall, fence, courtyard, well Property cannot be subject to partition because it has a durable purpose (1030) Co-ownership can be involuntary (neighbor builds wall, other one automatically has rights and costs) 1002-1008 = provisions on walls, no general provisions 3 types of forced indivision o Shared property (things) 34 o o Land and certain parts of buildings divided into apartments where each part has a different owner Certain property where an agreement or state of facts makes them destined to perpetual service of two or more immovables either b/c there are indispensable accessories to the immovables they serve Zambito-Orazio c. Meneghini CB 205 Facts M renounced his right in a common wall he shares with his neighbor ZO ZO had the wall repaired and sent M a bill for half the expenses M refused to pay, pointing to his renunciation ZO had M’s goods seized for payment Issue Can M renounce rights of undivided co-ownership? Holding Yes. Reasons M renounced his right in the wall before the repairs were, so it was not M’s property ZO repaired M had never claimed any rights in the wall, and only renounced his rights after a previous judgment said he had them Ratio Renunciation of right of ownership absolves liability for the common property from the moment of renunciation. Groleau c. Société Immobilière du Patrimoine Architectural de Montréal CB 209 Facts G and SI share a wall They were having discussions to repair it for a while It collapsed G advised SI of the need for repair and asked to share costs SI refused and published a notice to abandon its right to the wall per 1006 City required G to fix the wall, which it did G is claiming SI did not exercise its right to renunciation in good faith, so should still be liable Issue Is SI liable for the repairs? Holding Yes, but only for 25% Reasons Both parties acknowledged the need for repairs Given the urgency, it was reasonable G acted without SI’s consent SI’s renunciation was in bad faith It was liable for its share Ratio Right of renunciation must be exercised in good faith. Urgent repairs do not need consent, paid for by both parties in proportion to their shares. Divided (Condominium) Test to determine destination (Wilson) o Objective elements: situation, quality of materials, distribution of condos, comfort, luxury 35 o o Subjective elements: the expectations the co-owner had when buying his part Collective elements: manner in which destination represents a safeguard of the general interests of the co-owners 1010 1038 1039 1042-46 1052-53 1056 1058 1059 1063 1064 1096-98 1108 Divided co-ownership where ownership is divided in physically distinct fractions Established by publication Co-owners are a legal person (syndicate), and goods for common utility are owned by it Common portions Declaration sets bylaws, destination Restrictions must be justified by destination, characteristics, or location No time shares unless allowed by declaration of co-ownership Declaration must be notarized Co-owners have free use of their part and common ones; cannot impair others or destination Proportional contribution to renovations Syndicate decisions are by majority, except some require ¾ majority Ending co-ownership requires 75% of owners holding 90% of shares Talbot c. Guay CB 213 Facts T put an awning over his balcony restricting G’s view of the river G got an injunction under the condo’s bylaws forcing T to remove it T claims the bylaw is unfair, since it is not related to the destination, characteristics or location of the immovable Issue Is T’s awning an unjustified restriction of G’s property rights? Holding Yes. Reasons G’s view was not common to all co-owners Not sufficient reason for T to interfere with G’s rights The restriction placed on T is minor compared to the harm he inflicts on G Ratio Unique benefits are protected by the divided co-property regime. Disputes between co-owners will involve balancing rights of enjoyment. Amselem c. Syndicat Northcrest CB 216 From a DDB standpoint, this case is pretty boring, since the Supreme Court is concerned only with the constitutional aspects of the case. The trial and appeal judges (but not the SCC) use CCQ a1039 (and find that the restriction on succahs had a rational link to the syndicate’s objective), a1056 (and find that the restrictions were applied uniformly and in good faith to preserve the destination of the immovable) and a1063 (this one is used to justify the harsh restrictions on aesthetics, since it is argued that condo-owners were buying not just property but a "lifestyle" and this necessitated conformance to the bylaws). Trial Judge: "The legislature has restated the classic triptych of the right of ownership: the right to use, enjoy and dispose of property freely (art. 947 C.C.Q.)." Binnie (SCC, dissenting): Il existe selon moi une énorme différence entre le fait d’utiliser la liberté de religion comme un bouclier contre les atteintes portées par l’État…et le fait de l’utiliser comme une épée contre des cocontractants dans un immeuble privé. Il appartenait aux appelants et non aux autres copropriétaires de déterminer, avant d’acheter leur appartement, quelles exigences étaient liées à leurs croyances religieuses. Il y avait plusieurs immeubles où ils pouvaient acheter. Ils se sont engagés par contrat envers les propriétaires de cet immeuble à respecter les règles de cet immeuble, même si (comme c’est apparemment le cas) ils ont accepté les règles sans les avoir lues. Ils ont ensuite rejeté la 36 mesure d’accommodement proposée par les copropriétaires, en l’occurrence l’utilisation d’une souccah commune dans les jardins de l’immeuble, parce que cette proposition ne satisfaisait pas entièrement leurs opinions religieuses Bergeron c. Martin CB 245 Facts M opened a daycare in her condo B bought a condo a few months later and was told there would only be a few children present The daycare is noisy and disruptive for most the day M also built structures used for the daycare in the common space, depriving B of their full use and enjoyment during the day Issue Is m infringing on B’s rights under the divided co-ownership? Holding Yes. Reasons Applies Wilson test to determine destination of the building o Objective factors suggest it is purely residential (location, structural design) o Subjectively, B bought the property in order to enjoy tranquility and was told there would only be a few children present o Declaration of co-propriety: all condos but be inhabited “bourgeoisement” and cannot be used for commerce Occupants are required to avoid disturbing the tranquility of the building M’s business is therefore an infringement on the destination of the building Ratio Destination is determined by objective, subjective, collective factors. None of the factors is determinative alone. Destination as set out in declaration of copropriety is not determinative either. Kilzi c. Syndicat des copropriétaires CB 250 Facts K bought several units in the condo and rented them out for profit The S passed bylaws restricting K’s ability to rent units K challenges bylaw Issue Do the bylaws change the destination of the immovable? If yes, were they passed with the appropriate majority? Holding Most of the bylaws are invalid, except those restricting short-term lease. Yes. Reasons Destination is a residential building There is nothing inherent in the residential purpose that would prevent K from renting units for long time periods or for owning more than three o Bylaws restricting this are invalid Short term leases suggest a commercial, not residential, purpose o Lawful for bylaws to restrict this o Court is not competent to determine what constitutes “short term” so the majority of the coowners will decide. Ratio Confirms Wilson test. Declaration of co-ownership is not the definitive source of a condo’s destination. 37 Wilson c. Syndicat des copropriétaires de condominum Le Champlain CB 257 Facts W lives in LC A majority of LC owners banned pets, which had been allowed for 13 years W opposes th ebylaw Issue Is the regulation justified by the immovable’s destination? Which voting regime is required to ban pets? Holding No. Art 1098. Reasons Test to determine destination o Objective elements: situation, quality of materials, distribution of condos, comfort, luxury o Subjective elements: the expectations the co-owner had when buying his part o Collective elements: manner in which destination represents a safeguard of the general interests of the co-owners Destination is residential Rights in co-ownership are absolute, just like regular property rights o Except to the extent hat restrictions are justified by the co-property regime No clear reasons to justify banning pets (13 years without incident) Keeping pets is part of the residential nature of the bilding Banning pets is not only unjustified by the destination of the building, it effectively changes the destination. If pets were banned from the start, it would not be possible to say keeping pets is part of the building’s destination o An incident with pets might have changed the outcome as well Ratio Test for destination of immovable Superficies One person owns the building (superficiary), another owns the subsoil (1011) Superficiary has all servitudes necessary to exercise his right (1111) 955 1009 1011 1110 1111 1113 1114 1115 1116-18 Presumption constructions belong to bare owner – can be rebutted by superficies Superficies is a special mode of ownership Ownership of constructions, works, plantations, when someone else owns subsoil Division of right of ownership, transfer or renunciation of right of accession Comes with any servitudes necessary to exercise superficies Can be perpetual or have a term attached Termination by: union (or confusion) of owners, fulfillment of condition, expiry of term Loss of construction terminates superficies, expropriation does not Termination: subsoil owner gets the stuff back, has to pay Morin c. Grégoire CB 280 Facts M allowed G to build a house on his land Relationship soured, M demands transfer of title of the house by accession G claims he has a right to the house due to prescription, or at least compensation Issue Who owns the house? 38 Holding G. Reasons Difference between tolerance and permission o Tolerance cannot found prescription o This was a deliberate granting of permission There was a verbal contract granting G a superficiary right o Either perpetual or lasted at least as long as the buildings stood. Ratio Renouncing the right of accession to create a superficie is permissible. Superficiary rights can be perpetual. NB: superficies must be registered, judge gets around it here (exceptional) Stone-Consolidated c. Pierre Desjardins Gestion CB 283 Facts SC had a logging contract with the government that gave them permission to build a garage on Crown land. The contractor for the garage sub-contracted to PDG PDG gets a construction hypothec on the garage General contractor went bankrupt before playing PDG SC claims PDG cannot exercise the hypothec because it claims it is state property by accession, and so cannot be subject to a hypothec Issue Is the garage state property by accession? Holding No. Reasons The permission given to build the garage legally resembles a superficie o Never expressly stated o Building had to be removed at the end of SC’s contract Effectively this is a superficie limited in duration SC is the superficiary owner, the government is not the owner, so PDG can claim its hypothec Ratio Superficies can be read into contracts. Right created in a contract depends on the nature of the legal rights created, not the precise words used by the parties. Québec (P.G.) c. Développements de Demain CB 285 Facts By mutual agreement CN and Quebec built a walkway, some sidewalks, and lampposts which partially encroached on CN’s land No formal transfer of property nor was there expropriation. CN is privatized and sells land to DD DD realized that there were encroachments and demands an indemnity from the government Issue Did CN grant Quebec a superficie? Is the right opposable without being published? Holding Yes. Yes. Reasons Creation of superficie o CN and QC did not consider ownership because it was a joint project o No document specifying transfer of rights 39 Clearly tacit permission by CN for QC to build on its land renunciation of accession and hence creates superficie Opposability of unpublished superficies o Distinction between superficiary ownership (created by express agreement) and superficiary rights (created by implied renunciation of accession) o Rights are acquired by prescription, so no need for them to be published Ratio Superficiary rights established when the right of accession is implicitly renounced. Superficies need not be published to be opposable to third parties. o Lafontaine c. Gravel CB 288 Facts G sold land to L but reserved the right to cut timber for himself and his heirs G sold his timer rights to FG FG sold them to his brother YG After buying the land, L revendicates the timber rights and wants both sales of the right to cut timber declared invalid. YG and FG claim the timber rights are superficiary. Issue Who owns the land? Who holds rights to the timber? What kind of rights are the timber rights? Holding L. YG (passed down from G and FG, unclear if FG acquired them by contract or prescription). Superficiary. Reasons FG clearly cannot own the land since it was already sold to L Timber rights can take many forms o Personal right (contrat de louage), real servitude, personal servitude, or superficiary right First two can be eliminated immediately in this case (no contract, no mention of dominant land) Court must analyse intention of parties Past contracts suggest this is a superficiary right. Prescriptive period was filled, so either way the timber rights were legitimately held by FG and transferred to YG Ratio DISMEMBERMENTS OF OWNERSHIP Usufruct & Use Usufruct Principal obligations o Inventory (1142) o Insurance (1144) o Conservation (1120) Accessory obligations (propter rem) o 1142+ o Assurance (1148) 40 o o Maintenance (1151-52) Charges (1154) Quasi-Usufruct If return of property is impossible, cash is allowed (1127) Cash value of consumed or deteriorated property is due at end of usufruct (1128) Usufruct 1119 1120-23 1125 1126 1135 1136 1139-41 1142-61 1162 1168 1169-70 1171 Dismembers are real rights: usufruct, use, servitude, emphyteusis Usufruct: right to use and enjoy, must preserve substance; established by contract, will, or law; cannot last longer than 100 years; no term=life, legal persons=30 years Bare owner’s alienation does not affect usufructuary Usufructuary gets fruits and revenues Can be transferred, property included in usufruct can be leased Usufruct can be seized and sold by creditors; seizure of bare ownership does not affect usufruct Usufructuary cannot fell trees or mine, but can farm and tree farm Usufructuary is responsible for: inventory, maintenance, charges, insurance Extinguished: end of term, death, union of rights, forfeiture or renunciation, non-use for 10 yr Forfeiture of usufruct if depreciation or endangerment of bare owner’s rights Renunciation Difficulty performing obligations? Usufruct becomes annuity Use 1172 1176 Right to use and enjoy, and take fruits and revenues to the extent of user’s needs Provisions for usufruct apply to use Mignault, Usufruct (CB 359) Usufruct is a real right Usufructuary has the same right to enjoyment as an owner Obligation on owner is negative: must respect the right to enjoyment he has ceded to the usufructuary Usufructuary has an immediate relationship with the thing, no personal right as in a lease Usufructuary must not degrade the property If there is damage, usufructuary cannot force the owner to fix it, the inverse is true Usufruct is movable or immovable based on whether the property on which it is exercised is movable or immovable Usufructuary has a real action to revendicate his usufruct against anyone who takes it Cantin-Cumyn, Usufruct (CB 360) Usufructuary has a real right opposable to everyone including the owner (unlike the tenant) Usufructuary ensure the property’s management, and collects profits Usufructuary is in a better place than the beneficiary of the trust because he can manage and exploit the property Usufruct is opposable against third parties Cantin-Cumyn, Quasi-Usufruct (CB 365) Quasi-usufructuary assumes the risk of losing the thing, and does not have the obligation to conserve it Quasi-usufruct applies to things like food, combustables, anything consumable Consumability by nature or by destination (ex real estate portfolio) Larocque c. Beauchamps CB 363 Facts 41 R dies and leaves his house to his relatives Also granted B a usufruct in the house house for as long as she lived and paid certain upkeep costs on the house Relatives secure a loan from L with a hypothec on the house They default on the loan L has the house transferred to her ownership by judicial declaration and wants B to leave L also claims B stopped paying for upkeep B claims her usufruct allows her to stay Issue Is B’s hypothec opposable to L? Was B’s right extinguished when she stopped paying costs? Holding Yes. No. Reasons B’s usufruct predates L’s acquisition of the house Judgment doesn’t extinguish the usufruct L can only seize the rights held by her debtors, which means the house less the usufructuary rights B not paying costs is not sufficient to extinguish the usufruct o Failure to uphold usufructuary obligations creates a personal right for missed payments o Does not extinguish real rights in usufruct Ratio Banque Nationale du Canada c. Gravel CB 367 Facts B owed BN money BN had B’s house seized and sold B’s mother, G, objected She produced a document by which she had sold the house to B for $1 in exchange for a right to live in the house for the rest of her life B also promised to pay all the upkeep of the house G wants the bank to recognize her real rights in the building Issue Does G have a real right to live in the house? Does B’s promise to pay the upkeep and taxes constitute part of G’s real right? Holding Yes. Yes. Reasons Use is a real right recognized by the CCLC and thus BNC’s seizure of the house must accept the charge upon it (G’s right to use) Payment by B for upkeep is not necessarily part of G’s right, because CCLC’s definition of use makes no mention of it In the context of this contract, which was motivated by generosity on B’s part, the promise to let G live in the house “for free” must be interpreted as such. The owner of B’s house must pay all the upkeep and taxes BNC cannot seize or remove elements of the house that are essential to G’s use of it (light fixtures, etc) since that would violate B’s promise to let G live in the house in a normal and modern manner Ratio The core element of use – right to enjoyment – should be interpreted generously. Rights are not severable. Servitudes & Real Obligations 42 Real servitude (Davidson) o Two pieces of land o Different owners o Neighbours o Advantage for one piece of land o Other owner must suffer something or not do something o Perpetual Personal servitude o Not actually in the code, only found in jurisprudence and doctrine Basically one of the other dismemberments, but set up like a real servitude o Test (Davidson) Real right on a property In favour of a person, independent of his immovables Limited period Legal servitudes o Not created by parties, but by law o Ex. Arts 976-87 on trees, 993-96 on views Cannot be established by prescription (1181) o Location and nature of right of way can be established by 10 years’ use (Whitworth) o If something looks like either a servitude or co-ownership, do a title search because servitude can’t be prescribed Must include three things in title (Marler) o Description of the dominant land o Description of the servient land (more important) o Description of the service to be rendered 997-1001 1177 1178 1179 1181 1182 1184 1188 1189 1191 Must give a servitude to access enclosed land by most natural way, repairs by beneficiary Charge imposed on a movable, owner must tolerate acts or abstain from exercising rights; extends to everything necessary for its exercise Obligations can be attached for service or exploitation of servitude Continuous: view, abstain from building; discontinuous: right of way, requires intervention of holder Established by contract, will, destination, law; cannot be established by possession Not affected by transfer of ownership Dominant land can do work for exploitation, must return it to original state when serv is done Division of servient land does not affect servitude Can be redeemed (bought) if benefit doesn’t outweigh detriment to servient land Extinguished: union of owners, renunciation (dominant), expiry, redemption, non-use (10yr) Mignault, Servitudes (1896)(CB 302) Real servitudes are to distinguish from personal servitudes, which are imposed on an immovable in favour of a person, like use, usufruct, emphryteusis, etc Real servitude is a charge imposed on an immovable for the utility of another immovable belonging to a different owner Servitude has the same aspects as a usual obligation (benefit, debtor, creditor): service, servient land, dominant land Real servitudes are opposable to everyone, not just the debtor Servitude is a dismemberment of the right of ownership Never involves a positive obligation, just to suffer something Real servitude is for the advantage of a property, personal servitude is for the advantage of a person Marler “Acquisition of Servitude by Title” (CB 315) 43 Servitudes must be established by title, possession is not enough Title must not be written, can be an oral contract Must include three things in title o Description of the dominant land o Description of the servient land (more important) o Description of the service to be rendered Description, esp of the servient land, must be very detailed Code presumes when a servitude is granted, all that is necessary for its exercise is also granted Otherwise, servitude is interpreted strictly Ambiguities are resolved in favour of liberating the servient land Destination by the proprietor (destination du père de famille) o “Person establishes between two properties which belong to him a state of fact which would constitute a servitude, if it concerned two properties belong to different owners” o As soon as one of the pieces of land is sold to someone else, the servitude comes into being Terré & Simler, Dismemberments of ownership and propter rem obligations (CB 336) Obligations falling on the owner of property are real obligations (ex those of the usufructuary, owner of servient land, concessionaire of a mine) For the dominant land, a real servitude is a real right, for the servient land it is a dismemberment of ownership Servitude is a state of property (état du bien), suffered by the owner of the servient land, but it is not an obligation Servitude imposes real obligations on the servient land to ensure the servitude can be exercised (upkeep, etc) Scapel, “La notion d’obligation réelle” (CB 337) Real obligations are personal obligations Accessories to real rights Only exists as long as the real right to which it is an accessory (unless renounced or stipulated otherwise) Can be freely formed by convention Servitudes, because they are real rights, are have a unilateral structure Real obligations, due to their personal nature, are bilateral Real obligation attached to a servitude functions to assure the efficacy of the exploitation of the servient land Real obligations are not a principal mode of exploiting property, rather they necessarily complement the chosen mode of exploitation They create a “lien de droit” between the debtor (owner of the servient land) and the creditor (holder of the real right of servitude) Can be renounced Whitworth c. Martin CB 305 Facts W’s land has no road access, and to get home he takes a private road that crosses M’s land (some neighbours must do the same) M stops access to his land, making W park his car and walk home down a trail Issue Does W have a servitude? Holding Yes. Reasons People need to have car access to their property 44 Because the road touches a public road, and is used by the public, it is a public road for the purposes of 997 CCQ Forcing other neighbours to build another access road is unreasonable A right of passage can’t be acquired by prescription art 2917 says location of a servitude can be acquired after 10 years of use Passage here had been used since 1946 Servitude is to be enforce, M pays damages for blocking W’s access to his land Ratio NB: Cantin-Cumyn doesn’t like that it’s a real servitude because that makes it perpetual. CCQ says that once a public access is available the servitude no longer exists. Thinks it would be better to call it a “real obligation” rather than a real servitude, because it is a lesser right that exists so long as it is needed. Cadieux c. Hinse, Morin CB 308 Facts C and L were neighbours with adjacent property They signed an agreement where they agreed to offer their property to eachother for sale before they offered it to anyone else Agreement was described as a “servitude de preference d’achat” in the contract L signed a 99 year lease to his property to M C claims this violates the servitude Issue Is it a real servitude? Is the lease a disguised sale? Holding No. N/A Reasons Court decides whether it is a servitude, parties cannot define it in a contract Contract specifies that sale offers must be made to the parties personally – beneficiaries of the servitude are people, not immovabes Any benefit to an immovable is indirect, and only comes through the benefit of the owner Agreement cannot be a real servitude because there is no benefit to an immovable, and no relationship between immovables, only immovable – person Sales agreement imposes a positive obligation (to offer the land to the other party) o Real servitudes cannot impose positive obligations because they are unenforceable (slavery) The preference is only a personal right, not a real one, so is not opposable against anyone but the other party to the contract, not M Ratio Existence of servitude is determined by juridical content, not the parties. Ambiguity is to be interpreted against the existence of a servitude. Zigayer v. Ruby Foo’s (Montreal) Ltd CB 317 Facts R sold plots of land in a neighbourhood to various parties and imposed servitudes on them not to build or operate a restaurant. Servitude was very detailed Z bought one of the lots and disputes the servitude’s legality Issue Are non-competition servitudes against public order? Holding Only exceptionally. This is not an exceptional case. Reasons Definition of public order “public order includes everything in which the interest of society is more 45 directly involved than the interest of particular individuals [this includes criminal, constitutional, and administrative law] … but public order is not limited to public law. In private law, everything which interests primarily society at large falls into this notion.” Judge formulates question: “is society deprived or affected by these servitudes?” No, they affect only a small portion of land and other restaurants exist in the neighbourhood Ratio Servitudes can be nullified for public order. Non-competition servitudes are not against public order unless their restrictions are exceptional. Standard Life Assurance Co. c. Centre commercial Victoriaville ltée CB 325 Facts M leased a spot in CCV, which included a clause restricting the mall to having only one grocery store SL claims it is not a real servitude Issue Is the non-competition clause a real servitude? Holding No Reasons 1177, 1191, 1440 CCQ Real servitude must benefit the immovable This servitude only benefits the owner of the immovable, so it must be personal Real servitudes cannot contain positive obligations Personal servitudes are not opposable (relativity of contracts, 1440) Ratio Real servitudes must benefit the immovable. Non-competition clauses are personal, not real servitudes Hamilton v. Wall CB 339 Facts H sold a plot of land next to his house to P Deed of sale stipulated that if P built a house he would build it in like with H’s dwelling P sold the land to W, and the contract stated W would comply with all the stipulations in the original deed to P W built a hose closer to the road than H’s house H sues to have the building demolished, claiming the location violates the original servitude Issue Was the original agreement a real right? Holding Yes. Reasons Personal right – personal advantage of the creditor without reference to his property, will not follow property Real right – effects only beneficial to immovable Two properties are adequately described in the agreement, so it is a real right servitude Ratio Even without the servitude, contract of sale could have created a real obligation. NB: The claim that Pelletier c. Bui CB 341 Facts 46 P owns property next to B, and a woodlot behind B’s property The only way to access the woodlot is through a road across B’s property B bought the property, and the title stipulated that there was a servitude for the road across 2 of the lots it crosses, but not across a third P has been using the road for 60 years B claims the road is not a real servitude, but rather a personal one, which did not transfer to P when he bought his land a long time ago (before B) Issue Is the road a real servitude? Does the servitude apply to the third lot? Is the woodlot an enclave? Holding Yes. Yes. Yes. Reasons Real servitude is charged on servient land for the benefit of dominant land, personal servitude is only for the benefit of a person Conditions for a real servitude (Lafond) o Two pieces of land o Different owners o Land is neighbouring o Servitude is for the advantage of one piece of land o Obliges owner of other land to suffer or not do something o Perpetual Characteristics: immovable right, accessory to land, perpetual, indivisible, confers non-exclusive usus, charge is passive Real servitude cannot be established without title or by prescription Woodlot is an enclave, and the road is the most natural way there, building another would bring unreasonable costs “assiette de la servitude et son mode d’exercise le peuvent par prescription” Ratio Davidson c. Rosaire Nadeau & Fils CB 355 Facts LT owned two pieces of land, house on one, spring on the other When he sold the piece of land to RN, he created a servitude to access the spring D bought LT’s house, and wants to enforce the servitude to the spring as a real one Issue Is it a real servitude? Holding No. Reasons Epicier Metro reviewed doctrine and established the criteria for real and personal servitudes: Real servitude o Two pieces of land o Different owners o Neighbours o Advantage for one piece of land o Other owner must suffer something or not do something o Perpetual Personal servitude o Real right on a property o In favour of a person, independent of his immovables o Limited period The agreement that established the servitude for LT makes it clear that it was for LT personally, not for 47 his land, so it’s a personal servitude. Ratio Emphyteusis Emphyteutic lease, but unlike a lease, is a real right Long lease, where the lessor promises to make improvements to the property Usus, fructus, some abusus Can change destination of immovable (unlike usufruct) Can sell rights, or take out an emphyteusis on emphyteusis 1195 Use and enjoyment in exchange for constructions that increase immovable’s value 1197 Term must be between 10 and 100 years 1199 Can be seized and sold 1200 All the rights and obligations of an owner, but can be limited in agreement 1203 Bound to make repairs 1204 Can be forfeited by massive deterioration or endangering rights of owner 1208 Termination: expiry, loss or expropriation of immov, resiliation, union in same person, nonuse for 10 year, abandonment Sun Life Assurance Co. Of Canada c. 137578 Canada CB 297 Facts Metro had an emphryteotic lease with 137578 on a building Obligation to build a building worth $1.6M SL seized the building from M SL claims it seized only the rights under the lease and not the obligations 137578 claims by seizing M’s emph lease, SL is under an obligation to build a $1.6M building Issue Are the obligations and rights of an emphreyteotic lease divisible? Holding No. Reasons Emph leases are a real right Metro had a real right over the immovable only due to its emph lease SL chose to seize the right and must accept all aspects of the lease because CCQ doesn’t allow selective seizure, or prejudice to the emph lessor’s rights (1199) Ratio Anyone acquiring an emph lease acquires all aspects of the lease, including rent and improvement obligations. NUMERUS CLAUSUS The question asked in this section is whether there is a definitive list of real rights (a numerous clauses). The answer is allegedly unsettled, but based on the case law, I think that there is definitely no numerus clausus in Québec. i) Code Articles and Legislation a1119 “Ususfruct, use, servitude and emphyteusis are dismemberments of the right of ownership and are real rights.” [Note the phrasing of the article. It does not clearly designate the list as a closed/exhaustive definition of real rights. Yet neither does it use clear language, like “includes,” to show that the list is open. The use of “are” in this context seems permissive, but is still somewhat ambiguous. The French version of the article is equally unclear.] 48 Mining Act [CB1.171]: “The mining rights conferred by the following titles are immovable real rights” ii) Doctrine Private Law Dictionary and Bilingual Lexicon: Obligations (2003) [C1.125]: The issue is [allegedly – Mike] not settled in QC, and the Code leaves open the possibility of new real rights via a.947 and a.1119. Legislation sometimes creates new real rights. Planiol and Ripert, Traité Pratique de droit civil français: Les biens [C2.248]: No text prohibits the creation of new real rights or modifications of existing ones, as long as they do not contradict public order (trying to reimpose feudal-style property rights, for example). The only limit to the types of rights which can be created is that since they are dismemberments of property, they cannot exceed the content of property rights. Lastly, in order to be opposable to third parties, real rights must generally be published. This is problematic if the rules for publication do not recognize innominate real rights. [I skimmed Book 9 of the CCQ and it seems general enough to allow publication of innominate rights – Mike] Duchaine c. Matamajaw Salmon Club Limited, Court of Appeal Facts B sold G the fishing rights in a river, but not (explicitly) property in the river-bed itself G sold these rights, eventually being sold to M D ought B’s property on which the river was located D claims the original fishing rights were personal not real, so they couldn’t have been transferred from G to M Issue Is there a numerous clausus of real rights? Did the agreement create a real right? Holding Unclear. Yes. Reasons Seigneurial court recognized fishing rights as a kind of real rights Transfer of fishing rights carries with it the transfer of the river bed as long as it is used for fishing Fishing rights are more than a right of use, nothing in law to prevent it and it’s the will of the parties Fishing rights must be either property right, usufruct, or personal servitude In any case it is transferrable to third parties while G is alive Ratio Contradictory, though they agree in outcome Duchaine c. Matamajaw Salmon Club Limited, Supreme Court of Canada CB 380 Facts Same as above Issue Is there a numerus clausus? Is the fishing right a real right? How long does it last? Holding Yes. Yes. Until G dies. Reasons There was clearly no transfer of rights in the river bed It was a usufruct or servitude of some kind These are limited by the life of their holder, so extinguished when G dies Ratio There is a numerus clausus of real rights in Quebec. Transfer of usufructuary rights does not transfer rights in property beyond the usufruct. All non-ownership rights must last for a fixed period of time. 49 Duchaine c. Matamajaw Salmon Club Limited, Privy Council CB 390 Facts Same as above Issue Is there a numerus clausus? Is the fishing right a real right? How long does it last? Holding No. Yes (innominate real right). Perpetual. Reasons Fishing rights are distinct real rights which can be sold 479 CCLC should not be interpreted as imposing a limit on the duration of rights,since the clear grammatical construction o fthe article shows that “if for life” applies only to usufructs which are designated as life-long usufructs it is possible to create a perpetual real right to fish this is a separable subject or incident of property innominate real right Ratio There is no numerus clausus in Quebec Quebec (P.G.) c. Club Appalache CB 395 Facts G sold land to DL in 1951, and in 1955 transferred hunting and fishing rights to CA government expropriated part of DL’s land in 1953, and bought what was left in 1955 1964, G dies Later, CA blocked access of the public to the land, claiming they could do so as part of their (real) hunting rights and the accessory rights acquired from G Government seeks injunction, while challenging CA’s right to the land Issue Does CA have a real right to hunt and fish? Can it restrict access to the land subject to the right? Holding Yes. No. Reasons Hunting rights are a dismemberment of ownership 1951 agreement created perpetual hunting and fishing rights real rights were transferrable and survived G expropriation did not extinguish the rights, because CA didn’t receive an expropriation notice Non-hunting rights are either accessory of superficiary, neither of which justify limiting access. Ratio Real rights can be created (no numerus clausus) NB: right to passage is included as an accessory to the hunting rights. ABORIGINAL TITLE
© Copyright 2024 Paperzz