Civil Law Property

Summary

Kirk Shannon

CIVIL LAW PROPERTY - SUMMARY 2004

Semester 1 Cantin-Cumyn
PART1:INTRODUCTIONTOTHECIVILLAWOFPROPERTY..................................................................................3
CHAPTERIHISTORICALBACKGROUNDTOCIVILLAWPROPERTY........................................................................................3
A.M.Patault,Introductionhistoriqueaudroitdesbiens....................................................................................................................3

CHAPTERIITHEORYOFPATRIMONY.....................................................................................................................................3
S.1OriginofthePatrimony..................................................................................................................................................3
S.2DefinitionofPatrimony..................................................................................................................................................3
S.3:RoleoftheoryofPatrimonyintheCivilLawTradition...............................................................................................4
C.Aubry&G.Rau,CoursdedroitcivilfranaisdaprslamthodedeZacharie.............................................................................4
J.Ghestin,Traitdedroitcivil:Introductiongnrale.......................................................................................................................4
J.L.Baudouin&P.G.JobinLesobligations...................................................................................................................................5
M.CantinCumyn,Lafiducie,unnouveausujetdedroit?................................................................................................................5

S.4Classificationofsubjectiverightsbasedontheconceptofpatrimony...........................................................................6

A.SubjectiveRights........................................................................................................................................................................ 6
B.Respectofthebodyasanextrapatrimonialright......................................................................................................................7
C.Respecttoimage,reputationandprivacy...................................................................................................................................7
Case: Torrito v. Fondation........................................................................................................................................................... 7
Case: Laoun v. Malo................................................................................................................................................................... 8
D.Professionalsecrecyrightsarepersonalandextrapatrimonialrights........................................................................................9
Case: Laprairie Shopping Centre................................................................................................................................................9
E.ExtraPatrimonialityoftheFamilyRelationship........................................................................................................................9

PART2:CLASSIFICATIONOFPROPERTY(ORPATRIMONIALRIGHTS)ANDOFTHINGS.............................9
CHAPTERI:DISTINCTIONB/NREALRIGHTS,PERSONALRIGHTS,INTELLECTUALRIGHTS......................................................9
S.1RealRights.....................................................................................................................................................................9
S.2PersonalRights............................................................................................................................................................11
Case: Ouimet v. Guilbault......................................................................................................................................................... 11

S.3Comparisonb/nRealRightsandPersonalRights......................................................................................................12
S.4IntellectualProperty....................................................................................................................................................15
Case: Diffusion YFB v. Les Disques Gamma...........................................................................................................................16
Goodwill........................................................................................................................................................................................... 16
Case: SOQUIA v. Robert Libman.............................................................................................................................................17

S.5ObservationsontheuseofTerminology.....................................................................................................................17
CHAPTERII:DISTINCTIONB/NMOVABLESANDIMMOVABLES...............................................................................................17
S.1Originofthedistinctionandclassification...............................................................................................................17
S.2ClassificationintheCcQComparisonb/wCodes................................................................................................18
Case:Belair...................................................................................................................................................................................... 18
Case:Cablevision............................................................................................................................................................................. 18

S.3RelevanceofClassificationToday............................................................................................................................20

Case:HornElevator.......................................................................................................................................................................... 20
Case:Nadeauv.Rousseau................................................................................................................................................................ 21
Case:Construktek............................................................................................................................................................................. 21
Case:AxorConstruction................................................................................................................................................................... 22
Whatisatstakewhenclassifyinganobjectasimmovableunder901or903...................................................................................22

CHAPTERIII:OTHERCLASSIFICATIONS..................................................................................................................................23
S.1CapitalandFruit/income..........................................................................................................................................23
S.2Fungible/Consumable.............................................................................................................................................24
S.3ThingsinCommerce,resnullius,rescommunes......................................................................................................24
S.4LegalCharacterisationofWater..............................................................................................................................25
CantinCumyn,L'eau,chosecommune:unstatutjuridiqueconfirmer...........................................................................................26
Case: Morin v. Morin................................................................................................................................................................ 27

PART3:PROPERTYINRELATIONWITHPERSONS(SUBJECTSOFRIGHTSINLAND)..................................28

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Civil Law Property

Summary

Kirk Shannon

CHAPTERII:PRIVATEOWNERSHIPOFLANDANDITSORIGIN................................................................................................28
S.1TheSeigneurialSystemanditsabolition..................................................................................................................28
S.2PermanentConsequencesofabolitionoftenuresystem.............................................................................................29
S.3PrivateOwnershipofLand(orprivatedomain);multiplesources;contentoftitle...................................................30
Case: Houde.............................................................................................................................................................................. 30
WatercoursesAct.............................................................................................................................................................................. 31
Case: Auger.............................................................................................................................................................................. 31

S.4StateOwnershipofLand(orPublicDomain)..........................................................................................................32
Case: Batiments Kaladart........................................................................................................................................................33

CHAPTERII:RIGHTSINLANDOFNATIVEPEOPLES................................................................................................................34
PART4:THERIGHTOFOWNERSHIP.............................................................................................................................36
CHAPTERI:CONCEPTOFOWNERSHIPINQUEBECANDINTHECIVILLAW............................................................................36
S.1TheParamountLegalRight......................................................................................................................................36
S.2AttributesofOwnership............................................................................................................................................38
S.3CharacteristicsofOwnership...................................................................................................................................39
Individualright................................................................................................................................................................................. 40
Exclusiveright.................................................................................................................................................................................. 40
Perpetualright.................................................................................................................................................................................. 41

CHAPTERII:RESTRICTIONSINTHEEXERCISEOFTHERIGHTOFOWNERSHIP........................................................................42
S.1Relationsb/nNeighbours:AbnormalInconveniencesdistinguishedfromabuseofrightandencroachment.........42
Case: Lessard v. Bernard...........................................................................................................................................................43
Case: Gourdeau v. Letellier.......................................................................................................................................................43
Case: Barrette v. Ciment St-Laurent..........................................................................................................................................44

S.2OtherCodalRestrictions..........................................................................................................................................45

ArticlesinrelationtoArt976...........................................................................................................................................................45
Preventionofconflictb/nneighbours(ownedbydifferentpeoplerealrights)...............................................................................45
Procedurestoavoidencroachmentswithregardstobuildings..........................................................................................................47
Case: Themens v. Royer............................................................................................................................................................ 47

S.3ExpropriationandotherinstancesofnonconsensualAcquisitions........................................................................47
Case: Sula v. Cit de Duvernay.................................................................................................................................................48

S. 4 Other sources of limitation: Special Legislation found outside of the Code:........................................................48

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Civil Law Property

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Kirk Shannon

Civil Law Property

Summary
K. Shannon
Part 1: Introduction to the Civil Law of Property
Chapter I Historical Background to Civil Law Property
A.M. Patault, Introduction historique au droit des biens

The affirmation of jus disponendi (associated with the right of ownership)

The power to dispose of material, to alienate and modify, not only to enjoy its possibilities. This power is held only by he
who fully possesses the immovable, not by he who only enjoys its utility.

Lopposition proprit / droits sur la chose dautrui

Servitude Art 1177: A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the
dominant land, belonging to a different owner.
A right exercised on the thing of another, un asservissement du fonds amput.
Usufruct Art. 1120: Usufruct is the right of use and enjoyment, for a certain time, of property owned by another as ones own,
subject to the obligation of preserving its substance.

Notes : Customary Law : The immovable is the source of wealth and therefore property law is based on the notion of
ownership

Chapter II Theory of Patrimony

S.1 Origin of the Patrimony: NOT Roman law, but is much more recent: first stated by Zachariae (German jurist) around
1810, then introduced into France by Aubry and Rau around 1850. However, looking at the SUBSTANCE of patrimony, it
ties together many inter-related ideas that were well-established in Roman law and then evolved over time.
S.2 Definition of Patrimony
Patrimony is an aggregate of rights and liabilities, in which the rights guarantee the liabilities. (Ghestin)
A legal universality that groups rights or charges (present or future) where the rights guarantee the performance of
obligations (Baudouin)

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S.3: Role of theory of Patrimony in the Civil Law Tradition

C. Aubry & G. Rau, Cours de droit civil franais daprs la mthode de Zacharie
Theory of the Patrimony : The ensemble de biens of a person (united and indivisible). It has a pecuniary value and includes
debts as well as property. It is an outcome of the personality and an expression of juridical power. In pure theory, the
patrimony comprises all property indiscriminately, notably innate or unborn property and property yet to be acquired.

3 Principles
1) Physical or moral persons have one patrimony (art 2)
2) Every person has a patrimony even if they own nothing
3) The same person can only have one patrimony in the true sense of the word

Art 2

Art 302

Art 2644

Every person has a patrimony.

The patrimony may be divided or appropriated to a purpose, but only to the extent provided by law.
Every legal person has a patrimony which may, to the extent provided by law, be divided or appropriated to a
purpose. It also has the extra-patrimonial rights and obligations flowing from its nature.
o Unity and indivisibility codified [art. 2644]
The property of a debtor is charged with the performance of his obligations and is the common pledge of his
creditors
o Pat. cannot be divided, all property of the person could eventually be used to live up to obligations

Necessary link b/n person (physical and/or legal) and a Patrimony:

o Only a person can have one according to Aubry and Rau
o Pat of persons is either 1) Pat of Human being and 2) Pat of Legal being both have rights and
obligations
J. Ghestin, Trait de droit civil : Introduction gnrale
Extra-Patrimonial rights: Those that cannot can be evaluated from a monetary standpoint (do not have pecuniary value).
Patrimonial Rights: Group of laws governing present and future property and debt. A universality in law made up of rights
and obligations in which the rights (Active) respond to the obligations (passive).
Universality de driot the patrimony unites rights and debts at the same time; it consists of assets and liabilities that are
inseparable from each other.
o For example, the right of the creditor is the power to demand from another the execution of a prestation. At
the same time, there is a corresponding charge weighing on the debtor: the obligation. If the debtor does not
perform his prestation voluntarily, the creditor can simply impose an indirect sanction: the alienable rights
of which the debtor is titulary are sold by authority of justice and the price is attributed to the creditor. In
other words: THE RIGHTS GUARANTEE THE EXECUTION OF OBLIGATIONS.
o This is the factor of cohesion that allows the acquiring of new rights and obligations and is sustained even
when certain elements disappear.
o Patrimony is the ONLY judicial universality in Civil Law
Essential link between rights and liabilities: Art 2644 The property of a debtor is charged with the performance of
his obligations and is the common pledge of his creditors. Art 2645 says this includes property immovable and
movable, present and future, except property forming part of a legally sanctioned division of patrimony.
Dynamic: Content changes over time because owner can always enter into new agreements. Not just content,
therefore, but also container.
o Art 2. says that patrimony may be divided or appropriated to a purpose, to the extent provided by law.

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The Patrimony has 2 Characteristics (NB the pat NOT pat rights):
1. Indivisibility :
a. One sole patrimony per person.
i. Moral persons (eg. Corporations) can also have a patrimony.
2. Not transferrable between living persons
Exceptions to the Patrimony
1. Trust: Patrimony of appropriation is an exception to the rule (art 1260). Que allows establishment of trusts and
foundations, effectively a new patrimony.
2. Family patrimony: is another exception to the rule(art 414) i.e., identifying net family property is not really a new
patrimony, rather a conceptual distinction.
J.-L. Baudouin & P.-G. Jobin Les obligations
Droits extrapatrimoniaux : lensemble des droits possds par une personne qui ne sont pas en eux-mmes apprciables en
argent. Mme les personnes morales peuvent jouir de droits extrapatrimoniaux lis leur nature (libert dexpression).
Droits patrimoniaux : lensemble des droits de caractre conomique et apprciables en argent, dtenus par une personne
physique ou morale.
Il y a trois sortes de droits patrimoniaux : droits rels, droits personnels et droits intellectuels.
Patrimoine : lensemble des droits (actif) et des obligations (passif) dune personne physique ou morale, possdant une
valeur pcuniaire ; cest essentiellement une notion conomique. Au dcs du titulaire, il se transmet ceux qui constituent sa
personnalit.
-

A legal universality that groups rights or charges (present or future) where the rights guarantee the performance of
obligations

Assets Rights

Obligations Liabilities

M. Cantin-Cumyn, La fiducie, un nouveau sujet de droit ?

- Patrimoine daffectation Patrimony of appropriation
- La fiducie as something separate, an autonomous entity (distinct from both the idea of trust in common law and
fiducia in Roman law.)
- Fiducie is not personalised that is, it is not considered a moral person but rather a patrimony of appropriation
- Avoids irreducible incompatibility b/n the trust and the corporation in the common law tradition
- Actually, a human being, the subject of law and the person are three different things
- Fiducie becomes debtor, creditor and owner of its own biens it becomes the subject of law.
2 Consequences of this as it cannot be said that la fiducie is a moral person
o 1. Has no rights to extra-pat rights (ie. driot de la personne)
o 2. Unable to hold an office (Exercer une charge), administer the property of another, act
as fiduciary or as proxy Can declare bankruptcy

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S.4 Classification of subjective rights based on the concept of patrimony

A.

Subjective Rights (both Patrimonial and Extra-patrimonial): The prerogative that a titulary exercises in his own interest.

1. Patrimonial rights = PROPRETY

a) Tramissible /can be alienated inter vivos, by gift, or mortus causa.
Are governed by K inter-vivos
b) Seizable by creditors and can be liquidated to pay debts.
c) Extinguishable by non-use (except ownership) or by prescription (art. 2921). (Although it is not stated
explicitly in 2921, the provision only applies to patrimonial rights.)
Art 2644 only property (i.e. patrimonial rights) can be reached by creditors
Art. 614; 625 only property can be involved w/in successions
Art. 903 wills can only involve property
d) Monetary or Pecuniary Value
Exceptions to these:
(eg, the inalienability of prop see art 1212) as well as certain objects (see CB. p.74 CCP Art 553)
Pat. rights may also be extinguished at death (usufruct)
2. Extra-patrimonial rights have an opposite regime.
a) Inalienable They are not freely the object of contract/devise
Art. 8 No person may renounce the exercise of his civil rights, except to the extent
consistent with public order.
Art. 9 In the exercise of civil rights, derogations may be made from these rules of this
Code which supplement intention, but not from those of public order.
Art 10 re: inalienability
Art 24 Consent to infringement of the integrity it can be withdrawn (even verbally)
Art 1412 The object of a K is the juridical operation envisages by the parties at the time
of its formation, as it emerges from all the rights and obligations created by the K.
Art. 1413 A contract whose object is prohibited by law or contrary to public order is
null.
Art. 1610 the right to damages in personal actions cannot be TFd but in very certain
circumstances.
b) Not seizable;
c) Non-prescriptible (will not become extinct).
d) Extinguished at death (heirs have right to take action for pre death breach (art 625)
However, recent authors have challenged this distinction (Cantin thinks rightly so). Now we see extra-patrimonial rights as
rights giving value to fundamental and inalienable rights in our society. (i.e. civil status/capacity, citizenship, indiv. rts.)
- View Buffered by Art 3 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 the respect of his name, reputation and privacy.
(2)These rights are inalienable. and Quebec and Canadian Charters
Patrimonial Rights :
- Transferable inter vivos (with exceptions 1212 and
CCP art 553)
- Transferable at death (exception : usufruct)
- Seizable (exceptions : 552-553)
- Prescriptive extinction (exception : Right of
ownership except for Acquisitive Prescription)
- Pecuniary value

Extra-Patrimonial Rights (Art. 3, 10, 24, 25, (10-31))

- Innate rights
- Cannot be dissociated from the person
- Not transferable
- Unseizable
- Non-prescriptables
- Not affected by non-use (cannot be extinguished)
- social and human values
- Those that involve the integrity of the person
- Protection of privacy and rep
- Extra-patrimoniality of familial relationships

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CAN BE OBJECT OF CONTRACT

Kirk Shannon
CANNOT BE OBJECT OF CONTRACT

B.

Respect of the body as an extra-patrimonial right

Every person is inviolable and is entitled to the integrity of his person.
Art 10
(2) Except in cases provided for by law, no one may interfere with his person without his free and enlightened
consent.
Consent to care not required by a persons state of health, to the alienation of a part of a persons body, or to
Art 24
an experiment shall be given in writing.
(2) It may be withdrawn at any time, even verbally.
The alienation by a person of a part or product of his body shall be gratuitous; it may not be repeated if it
Art 25
involves a risk to his health.
(2) An experiment may not give rise to any financial reward other than the payment of an indemnity as
compensation for the loss and inconvenience suffered.
Respect to the human body not as property
See art 10-31, 42-49
Dead or alive is not property
There are no ownership rights
Human cannot be the object of a K:

human cannot be the object of a K (that would be akin to slavery thus our employment Ks now are
strikingly distinct from slavery type (a.2085,2094)
adoption cannot proceed on the basis of K, must follow legal procedure (a. 543)
procreation/gestation Ks are null (a. 541)
no transaction or arbitration can be made with respect to status/capacity of persons (a.2632, a. 2639)

Le droit des personnes physiques

E. Deleury and Goubau : La personne en son corps ; lclatement du sujet Art. 11-25
Il est important de noter que dans le nouveau code civil, le lgislateur fait de la gratuit une condition imprative pour le
don dune partie du corps humain. Ce faisant, il garantie la libert du consentement. Art 25.
Le corps humain est tout la fois sujet et objet, sujet dans lexpression de sa libert, mais objet aussi quand les impratifs
de la sant publique sont en cause et quil sinfiltre dans les mcanismes du march sous la forme de choses.
Hidden Trade in Albanian babiesorgans (newspaper article)
Albanian prosecutors suspect that the organs of missing children are being sold for transplant and that other infants are being
stolen for adoption abroad.
Another article deals with: Kidney trade in SA and Brazil
Regarding Employment:
Slavery before, but now we have the principle of equality--- stringent rules that deal with contracts of employment.
You can break contracts if you desire:
Art 2085 defines contract of employment
Art 2094 states that you can break an employment if you desire (with a serious reason)
-Prostitution is against public order.
C. Respect to image, reputation and privacy
Refer to Articles 3, 35, 36 (and others to up 41)

Case: Torrito v. Fondation

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Torrito v.Fonation Lise T. pour le respect du droit a la vie

et a la dignit des personnes lourdement handicapes
Facts:
Pl. seeks an interlocutory injunction.
PLs daughter severely handicapped and dies
D was care-giver during life of childe and forms
foundation using the name and photos of the child to
assist persons in similar situations. D did not obtain
consent for use of name, image, story.
Issue:
Use of childs name, image and story without
consent
Claims by parents on dead childs behalf for privacy
Claim by parents as to their own right of privacy
Decision:
Interlocutory Injunction granted

[1995] C.S.

Ratio:
Affirms that the right to name, image and story are not a
property right, therefore are inalienable - can only be used
with consent and, after having given consent, one does not
give up right to image.
Does not matter if pics taken in good faith

The event did not take place too long ago (occurred
quite soon after photos used)
PL did not renounce privacy it was assumed that
there was a renunciation of privacy, but, renunciation
must be proven NEVER assumed in Civil Law
Public Interest does not apply as only applies in
certain cases public person, people in politics
NOT FOR PRIVATE PERSON

Notes:
Injunction: parents claimed and were granted an interlocutory injunction in order to have the pics stop being used
immediately
In Torrito, parents wearing 2 hats:
Claiming damage for invasion of their own privacy.
Tried to claim as heirs of their daughter (Art. 625(3)) (took pics of girl while she was alive without permission,
contra art.35 & 36) Although personality rights are extinguished at death, the right to take action for the personality
right is transmitted to the heirs. Had privacy been invaded post mortem the heirs would have had no right to claim.

Case: Laoun v. Malo

Laoun v Malo

[2003] C.A. Que

Facts:
Ratio:
PL (Malo) agrees to use her image in advertisement Consent of the PL to Silhouette to use the image of the PL
does not bring with it the consent for the D to use the image
for Silhouette signed K with D and was paid
One contract of consent does not extend to
D later reused photo of PL without getting the
continued use of the same image unless the
consent of PL
contract otherwise specified
Claims breach of personality rights Art 35, 36
One does not presume that one renounces the right
Issue:
to ones privacy Renunciation can not be
To what extent original authorization would permit
assumed
further use of the image
Person may have copyright of photo (which may
Decision:
very well be the case) does not give the right to use
Decision Image and right to privacy is nonthe image for purposes other than that authorized
transferable
for by the PL
Damages for both patrimonial and extra-patrimonial

Not transfer of privacy temp. renunciation

rights
Notes:
B/c one allows the use of the image, one does not give up the right to that image Use of that image only
extents as far as contract allows it to extend
Must balance freedom of information with right of privacy
Cantin on Laoun v. Malo
How are we to characterise that contract? (Imagine that payment is made)
Not a transfer of right of that image or right to privacy (art 3(2)) Not a contract of transfer Close to a contract
for services
Person signing such a contract is renouncing the right to privacy and therefore must be interpreted very narrowly
Could reneg on contract as is not a transfer of right (would have to give back money) but is renunciation

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D.

Kirk Shannon

Person allowed to use the image cannot allow another to use image as there is nothing to transfer

Professional secrecy rights are personal and extra-patrimonial rights .

Case: Laprairie Shopping Centre

Laprairie Shopping Centre Ltd. (syndic bankruptcy) v. Me Reevin Pearl
[1998] C.A. Que
Appl. acting as trustee in bankruptcy. Resp. is a lawyer previously representing bankrupt, objected to one of app.s questions
during interrogation re: bankrupt. App. advised resp. that it was renouncing the privilege of confidentiality. Resp. says that
app. cannot renounce this privilege.
Issue: Do the powers of the trustee extend to the rights attached to the person of the bankrupt?
Held:
First, the trustee is a hybrid, being at the same time the assignee of the debtors rights and the representative of the
creditors.
However, no authority has dared suggest that the trustee in bankruptcy continues the personality of the bankrupt in
questions other than those linked to his property or pecuniary rights, whether they be corporeal or incorporeal.
The trustee in Bankruptcy cannot renounce the personality rights of the bankrupt extra-pat right
Cantin on Laprairie
Professional secrecy rights are personal and extra-patrimonial rights. Taking account of the non-transmissibility which
flows from this, and the fact that the trustee does not continue integrally the person of the bankrupt, we must conclude
that the right to confidentiality does not devolve to the trustee and that he cannot therefore consent to renounce it.
NB if one is a big fan of market forces then one will not like this application
Regarding the sale of a business, usually the contracts of sale include the files and clients. Cantin-Cumyn: people
probably do not think about what they are doing, but it is problematic to transfer these confidential files (especially
with respect to law medicine) without the consent of the patients and/or clients (art. 37-41 CCQ).
E.

Extra-Patrimoniality of the Family Relationship

Reciprocal rights and obs of support that exists b/n close family relations (art 32-34, 585-596)
There is ob to support and maintain b/n spouses and with children (as well as in divorce)
Generally, this ob is looked after w/in the familyButSometime not:
o Will take form of alimony payments Creditor and debtor situation
o Periodical sum of money (art 587) which will depend on means of debtor and means of creditor
Any violation, as far as civil recourse in terms of extra-pat rights, are sanction by damages (not prison) and
injunction (we do look at the money as the sum of the right)
Alimony looks like extra-pat
o Cannot be transferred
o Cessation with death (although continues for six months after death (art 684)
o Unseizable (well, only can be seized to pay alimony to another (a child))
o Not extinguished with time

Part 2: Classification of Property (or Patrimonial Rights) and of

Things

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Chapter I: Distinction b/n Real Rights, Personal Rights, Intellectual Rights

S. 1 Real Rights
A. Definition
Cantin DEF.: The real right has a thing (res) as its object and establishes a direct and immediate link between the
titulary of the right and the thing.
Jus in re
at the top of the organisation of this area of law
B. Characteristics What is its essence?
1) OBJECT:
A material thing immovable or movable (depending on object (art 904))
A debated question is whether a real right has to bear upon a corporeal / material object.
Carbonnier seems to say that materiality is needed.
Baudouin says it is possible for non-material thing to be object of real rightbut, for our purposes, must
be material
2) RELATIONSHIP BETWEEN 2 COMPONENTS:
o 2 components (titulary of right why no person titulary of right b/c MUST include the trust) and the
thing
o No intermediary Autonomous and Direct relationship
o Link is fully there in terms of right of ownership (and less so with dismemberment of ownership (where
received benefits of the object but do not have right of ownership))
o Chart below
o Titulary may not be prevented from exercise legal right (unless legal incapacity [minor, major person who is
unable to act declared by a court])
o Baudouin opposable to all
REAL RIGHTS GRANT THE FRUIT IN THE OBJECT:
When dealing with principle real rights (those giving fruits in the sense of profits), the titulary will have the
property in hand (physical control). [See art. 1124 CCQ: the usufructuary has the use and enjoyment of the
property. This leads to the possibility of leasing (art. 1135): it is not the OWNER who leases here, but the
usufructuary.]
Ex. if you own a house and a usufructuary has an interest in it then he can be the holder of a real right in the
property and can lease it out.
Difference b/n accessory real right (constitutes security that is nec. attached to a claim for which it guarantees
performance) and principle real right

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The Right of Ownership

(947)
Jus in Re
(Principle
Real Rights)
Dismemberments

Right of Enjoyment/ Personal

Servitudes

Real Servitudes (1177)

Servitude of view
Right of Way etc.

Usufruct (1120)
Usage (1172)
Emphytusis (1195)
Right of superficie (1110)

S. 2 Personal Rights
A. Definition
Defn: Personal rights are also known as droits personnels, droits de crance, or jus in personam.
It describes a legal relationship between two persons (subjects of law or titularies) whereby one, the creditor, is
able to obtain from the other, the debtor, the performance of a service or the execution of a prestation.
B. Characteristics
Exchange of services is involved
3 components
o creditor
o debtor
o the prestation or obligation that must be performed by the debtor (to do or not to do something)
Will appear as asset in creditors patrimony and an obligation in the patrimony of the debtor
Only opposable to one (1) innopposable
C. Essence
Personal rights can come in any shape or size. Any obligation not against public order could be a valid one
(Art. 1373).
Art 1373
The object of an obligation is the prestation that the debtor is bound to render to the creditor and which
consists in doing or not doing something.
(2) The debtor is bound to render a prestation that is possible and determinate or determinable and that is
neither forbidden by law nor contrary to public order.
Art 1374
The prestation may relate to any property, even future property, provided that the property is determinate as
to kind and determinable as to quantity.

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Case: Ouimet v. Guilbault

Ouimet v. Guilbault

[1972] Que C.S.

Facts:
Ratio:
Promise of sale signed in 1964 (had transfer
Agreement of 1964 is not considered as transferring
happened immediately it would have been a
property
contract of sale (and not a promise of sale) with
Promise is not a sale as, in a sale, [Contract of Sale
date of sale to be in the future (1969)
(art 1708)] the vendor gives something to the buyer
1967, expropriation of land by municipality
for an amount of money which the buyer obliges
himself to pay
claim that defendant did not fulfill obligations as
With promise of sale, the buyer becomes creditor of
plaintiff had rights to the property
Issue:
an obligation to sell personal right situation
Regardless of obligations of defendant at time of
Becomes an action in passation of title (see notes
expropriation, are they extinct b/c of
below)
expropriation (b/c of art 1202 of CCLC) which
Defendant was under obligation before obligation
was attempted to be termed as force majeur
became impossible and that the right of the plaintiff
Decision:
is not extinguished
For plaintiff. Damages for the loss of right to buy
property for $10,700
Notes:
Obligation of dare to transfer of ownership
Cases can either involve in real action (Person who has real right [ownership has been transferred] to property and
wishes to claim that right) which gives way to real right (petitory action)
Or a personal action (personal rights relationship) (action in passation of title obligation to transfer, transfer
has not happened)

S. 3 Comparison b/n Real Rights and Personal Rights

1) Both Are Patrimonial Rights
2) The Object of the Right
Object of a real right is necessarily an object that is determined/specific must be a thing that exists
Eg. Contract of sale of a house yet to be built cannot be considered a contract of sale. Does not exist
yet. Is only a promise to be sold when built. at time of contract buyer is merely a creditor and therefore
there are risks if the contractor becomes insolvent
Object of personal right the obligation/prestation can be undetermined at the time of the contract and still be binding on
part of the debtor provided that it is determinable by the terms of the contract (see art 1373, 1374)
Eg. Agreement for services to administer the rental of an immovable price is labelled as being % of
rental income of the immovable. Amount of price is not determinable by the terms of the contract but will
be determined when rental takes place
3) Limited/Unlimited in Number
Personal Rights: Are unlimited in number. Left to the imagination of the parties and only confined by public order.
Real rights: There are a limited number of real rights but not as limited as one might think
Art 1119 lists a number (not exhaustive) of them.
Can also have Real Rights created by statute:
o Forest Act, Mining Act and Act Respecting Lands in the Public Domain
o Art. 87 in the Forest Act (p. 59) provides that if the state grants rights here, they are
(immovable) real rights. Same for the Mining Act.

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The Forest Act contemplates the granting of rights in forest lands by means of
forest management permits:
art. 2: no one may carry on a forest management activity unless holding a forest
management permit.
art. 87: the rights vested in an agreement holder by a forest management permit are
immovable real rights.
The Mining Act also creates immovable real rights:
art. 8: mining rights conferred by claims, mining exploration licences, mining
leases, mining concessions, etc are immovable real rights.
art. 9: every real and immovable mining right constitutes a separate property.

Art. 34, 2nd paragraph, of the Act Respecting the Lands in the Public Domain (p. 54)
seems to suggest that the rights granted are not ownership.
Art. 49 of the same act (p. 56) seems to create a real right: although the word lessee is
used, there is a direct relationship, and nobody has to give the lessee his/her right.
The Act Respecting the Lands in the Public Domain governs the concession of
public lands to individuals:
art. 26: the Minister shall prepare and keep a public land register (the Terrier),
registering every alienation, acquisition, servitude, location or occupation right
as well as every transfer, renewal, and revocation or rights or leases.
art. 34: the Minister may sell lands under his authority which form part of the public
domain, and may grant rights in such lands in the same manner.
art. 37: the Minister may transfer gratuitously land under his authority by the issue
of Letters Patent, for purposes of public utility.
art. 38: at the end of 30 years from the date of the Letters Patent, the conditions and
restrictions attached to a gratuitous transfer cease to apply, and the transfer
becomes irrevocable.
art. 39: the holder of the Letters Patent must inform the Minister if he wishes to use
the transferred land for a purpose other than that specified in the Letters Patent.
art. 47: the Minister may lease any land under his authority.
art. 49: the lessee of the land may institute any action or suit against a person
occupying the land illegally or trespassing, and may also recover all damages
suffered.

4) Opposability of Real Rights and innopposability of Personal rights

Easily misconstrued
Personal right Not opposable to all creditor may only claim debt from debtor and nobody else
Really relates to definition of legal situation
Double face of the personal right Debtor and Creditor
Real right relationship with material object and not another person so that it is opposable to everyone Not too
meaningful to say that everyone must respect that right
5) Moveable or Immovable Character:
- A real right may be movable or immovable: they deal with corporeal things which are either fixed or not.
In order for it be fully effective (if immovable) must be registered or publicized (art 1455, 2934-2938))
- The Personal Right is said by law to be MOVABLE (this is a construction of the law).
6) Preference and Suite : Terre et Simler: Driot Civil: Les biens
Real right includes le driot de suite: (should the debtor alienate the property) allows holder of right to assert his
rights over he who subsequently becomes proprietor of the property or aquire another real right on that new property
Eg. Hypothec not paid off and immovable sold, Bank can seize immovable from new owner.

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Personal rights do not include le driot de suite

Real right includes le droit de preference: guartantees to the holder of the real right the priority to be paid before
other creditors in the case of insolvency of the debtor in the distribution of the price of the object
Personal right does not include driot de preference.

7) Accessory real rights are not property, but legal causes for preference:
HYPOTHECS DEFINED: (cantin thinks it should be accessory to the real right)

Art. 2660 A hypothec is a real right on a movable or immovable property made liable for the
performance of an obligation. It confers in the creditor the right to follow the property into
whosoever hands it may be, to take possession of it or to take it in payment, or to sell it, or cause it
to be sold and, in that case, to have a preference upon the proceeds of the sale ranking as
determined in this Code.
In principle, any property non labelled unseizable by law can be the object of a hypothec,
although it is traditionally found only with immovables.
Art. 2661 A hypothec is merely an accessory right, and subsists only as long as the obligation
whose performance it secures continues to exist.
These two together make it an ACCESSORY REAL RIGHT not a full real right but a legal cause
for preference.
Art 2733 - A hypothec does not divest the grantor or the person in possession, who continue to
enjoy their rights over the charged property and may dispose of it, subject to the rights of the
hypothecary creditor.
Legal Cause for Preference Art. 2647 - Prior claims and hypothecs are legal causes of preference called a real
right just to bring it into the proper regime for ranking! A registered hypothec will have an effect similar to a hybrid
real/personal right, and the person with a hypothec will be able to sell the property in the state that it was in at the time of
registration.
8) Option of Abandonment
Facult dabondon Feature of principal real rights
Means that titulary of real right is able to abandon real right without consent of anyone (art 935) A movable
without an owner belongs to the person who appropriates it for himself by occupation. An abandoned movable, if
no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State.
If it is a dismemberment that is abandoned, automatically reconstituted into bare ownership
o Usufruct (art 1169)
o Servitude (1185)
o Emphyteusis (1208)
For personal rights Not possible unilaterally
Creditor, should he wish to renounce credit, must get consent of debtor (release of an obligation (art. 1687-))
Eg. Piece of land where owner has real right on that land but also has debtor/creditor situation w/ regards to that immovable
A buys from X (immovable published) in 1980
B (neighbour on one side) has servitude of view (real right) on this lot from X in 1975 (published)
C acquires usufruct on land from A in 1985
D (neighbour on other side) has servitude of passage from A in 1990
A cannot ask for revocation of Bs servitude of view
While usufruct lasts, D cannot use servitude of passage as it was not As right to give said servitude. (not opposable to C)
Should D get servitude of passage from C it will last the length of the usufruct]
Now, add ordinary creditors of A (personal relationships)
E is creditor of A 1975
F creditor of A in 1980
G creditor in 1996

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H creditor in 2002
A becomes insolvent in 2003
None of creditors could prevent A from accumulating new obligations
E, F, G, H will get funds from insolvency proceeds of sale of property will be shared among them as they are all equal
creditors (ordinary creditors)
Now, change situation
E is creditor in 1975
F (financed purchase of land by A from X) obtained a hypothec (or guartanee which is a driect relationship b/n
the loaner and the land itself) of 1980
Hypotec must be registered (lets say there were
In example for $75,000
G is creditor in 1996
H in 2002
Art 2647 Hypothecs are considered preference Prior claims and hypothecs are the legal causes of preference.
So, say property is sold for $200,000. F will get all $75,000 and the rest will be split b/n E, G, H

Review:
A. both types of rights are patrimonial;
B. there is a double face to the personal right (debtor-creditor);
C. the nature of the object of the real right is important: it must be specified and material;
D. the number and variety of real rights are limited; and
E. the distinction between movable and immovable rights is applied to real and personal rights, with
the law declaring personal rights to be movable.
F. Opposability if Real Rights and the Inopposability of Personal Rights
G. Accessory real rights are not property, but legal causes for preference:
S. 4 Intellectual Property
(909, 458, 1612)
A Definition
Cantin Defn: Intellectual rights describes the relationship b/n a person or a subject and a creation or a product of the
intellectual activity of that subject
o Permits subject to draw economic benefit from that creation
Ghestin rights over immaterial works
Baudouin text: From the human spirit
B Object of an Intellectual Right
Abstract, immaterial (eg. Idea, process, design, image, expertise, good will)
Must not confuse object with the support of that object (may buy a book (physical thing) but do not own intellectual
content)
o Ghestin - Distinction made in text: Artist has authorship of photo but not right to the image of the person in
the photo (right to privacy and right to image of the person depicted)
C Characteristics
It is a Patrimonial right as it does not fit criteria in Art 3 of CCQ
Why are these patrimonial rights at all?

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Ghestin noted that the alongside the intellectual rights that the law protects such as copyright, patent, etc.)
are MORAL RIGHTS (so-called Droit dauteur) which are extra-patrimonial
Therefore two aspects:
o One is the copyright, right to make money from work
o One that doesnt transfer with sale of book MORAL RIGHTS
1. Right of divulgation: to decide timing when work will be shown to
public
2. Right of withdrawal or repentance: can withdraw from circulation
3. Right of paternity or attribution: name used to identify as author
4. Right of integrity: work remains in a state in which the author decided
to make it known to the public
Even if a copyright is sold, moral rights remain (these are linked to the creator, like personality rights.)
These moral rights, according to the Copyright Act, are NON-TRANSFERABLE (seems extra-patrimonial
in nature).

2 aspects therefore seem contradictory: 1) exclusivity (patrimonial in nature); and 2) the moral aspect (outside the patrimony,
and remaining with the creator).
This comes from a historical Common vs. Civil difference:
Common more purely commercial Lockean
Civil Hegelian view (the artistic work is somehow infused with the creators
personality) gave rise to the Droits DAuteurs. This has been affirmed as not being
dependent upon the legislature as well.
D - Jurisdiction
Federal law covers copyright
But Federal statutes were based on American Copyright legislation and therefore did not provide for Moral Rights
UNTIL recently when they were incorporated.
Art 13(3) of Copyright legislation provides that if the author is an employee, the copyright belongs to the
employer This does NOT come from civilian tradition as in Civil:
First titulary is owner of creation
Necessarily a physical person
CCQ and provincial law will be applicable if/when the Federal Legislation does not cover certain issues
E Real or Personal Right or a Category on its own??
Real rights have effect on material objects IR not material object (even though there is direct relationship b/n
object and subject of right like IR)
Personal rights are b/n two persons IR opposable to all.
Therefore Third type of right
Ghestin says that the object of this type of right is sufficiently different that they are worthy of their own
classification AND he notes that nothing is gained by labelling them as real rights. But under pressure it seems
they are closer to real rights.
Case: Diffusion YFB v. Les Disques Gamma

Diffusion YFB inc. v. Les Disques Gamma Lte et Socan

Facts:
o Artist signed contract in 1996 with Gamma
where Gamma gets royalties on all
artists songs to a certain amount.
o Artist goes bankrupt
o After the bankruptcy, he sells the exclusive
right of the exploitation of his musical

[1999] C.S.

Decision:
o In favour of Gamma The contract between the artist and
DG is valid, and is unaffected by the artists bankruptcy. DG
may recover its portion of royalties from songs crated by
the artist after his bankruptcy. personal rights not Real
rights
Ratio:

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Issue:
o

o
o

Kirk Shannon

creations to a different company, Diffusion

YFB.
DG brings YFB to court in order to claim
its share of royalties on songs produced by
the artist after his bankruptcy and after the
birth of his new K relationship with YFB.

Is income provided by the exploitation of a

song not yet created included in the
bankruptcy? (ie, are these rights in the
patrimony?)
Can the author grant to a 3rd party the right
to exploit future creations? Can Gamma
have rights to work not yet created
Can, by way of contract, a person sell
rights to exploit future creations?

Without any Canadian Law and only one case found in

English law, Judge refers to art 1374 which says that a
prestation can be made on all assets including those to
come.
1374: The prestation may relate to any property, even
future property, provided that the property is determinate as
to kind and determinable as to quantity.
Considers intellectual Property through the rule of future
obligations personal right Here Judge sees it as an
obligation and not Real rights BUT.
Contract is valid though the object does not yet exist
gives effect to the contract immediately upon creation of the
work not possible with real rights and art 1453.

Cantin
o As is not the case in Personal Rights, there is no obligation
to create (were it personal right there is an obligation of the
debtor here Lapointe under no ob to write music)

Notes:
Had he used 1453, would have lead to negative answer but there is no object
Trustee nor anyone else will be able to create works to be sold author not under any obligation to produce
Different solution from Real rights and from Personal Rights
Other Types of Intellectual Rights: Goodwill
Assets created by the professional activity of a person
o When business is sold some part of price has to do with GOODWILL
o Good will considered to be an asset
Goodwill: - Is it always freely transferable when business or enterprise is sold
- What is the nature of that asset (it is intangible)
- Must be careful as privacy issues if deal with selling of Doctors practice Giving files
may violate confidential info, privacy and other legislation. Patient must agree to give
files to new Doctor

Case: SOQUIA v. Robert Libman

Socit Qubecoise diniatives agro-alimentaires (SOQUIA) v. Robert Libman

[1998] C.A.

Facts:
Decision:
MLA of Quebec (opposition member) asks SOQUIA for
SOQUIA has the right to refuse to hand
financial records of a private company (Socomer). Both
over financial records
SOQUIA and a Ministry of the govt refused said was
Ratio:
confidential info of a legal person.

Per art 300-302, confidentiality of

Issue:
financial records is an extra-patrimonial

Is the right to privacy of financial statements of a legal person

right to privacy
considered an extra-pat right?
Cantin on SOQUIA
Case deals with issue of privacy of a legal person but is it privacy issue?
Is confidentiality issue but is not extra-pat in nature this case goes too far as should be in Intellectual rights
Not right to characterise financial statement as privacy they are confidential but are they really privacy?? Not
according to Cantin Cumyn

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S. 5 Observations on the use of Terminology

Right: covers any subjective right, any right that a person may claim or exercise includes personal and
property (extra-pat and pat)
Property: (fr. Bien not proprit) Includes real rights, personal rights, intellectual rights (patrimonial rights)
Thing: Material object, object of a real right or a principle real right.
o In old code was chose now it is bien
Ownership: (fr. Proprit one species of property principle real right) Right on a material object (not include
intellectual property)
Personal right: (droit de creance) debtor-creditor relation permits a creditor to obtain a prestation (performance
of an obligation) from his debtor
o (DO NOT confuse with personality rights which are extra-pat)
o Not a personal servitude (dismemberment of real right)

Chapter II: Distinction b/n Movables and Immovables

Art 899
Property, whether corporeal or incorporeal, is divided into immovables and movables
(899-904, 956, 2672, 2695, CCP 571, 677)
S. 1 Origin of the distinction and classification
History
- The most important distinction historically is movable v immovable
Upper Middle Ages feudal in north of Europe
Wealth and most legal relationships are organised around the land (as is political power)
Very few legal rules pertaining to movables (things of no value)
Services rendered through feudal sys. Rare to see personal right. All organised around the immovable
Marriage, debt, and minority of heir where there is the greatest risk of immovables transfer from one family to
another
Evolution into:
o Movable objects acquire some value (jewellery and books) Brought about declaration of the law.
Movables of value become immovable by the law
o Obligation to pay a sum of money (Personal rights) Roman Catholic law prohibited loan with
interest to circumvent, contracts declared to be immovable by the law in order to fall under
protection organised for immovables
S. 2 Classification in the CcQ -- Comparison b/w Codes

1.
2.
3.
4.

CCQ - GOVERNED BY A FOUR-TIER DISTINCTION:

900903 IMMOVAVBLE THINGS (land, constructions, materials, works)
904 IMMOVABLE REAL RIGHTS
905906 MOVABLE THINGS
907 - MOVABLE RIGHTS

Immovable
Art 900

Land, and any constructions and works of a permanent nature located thereon and anything forming an
integral part thereof, are immovables.
Plants and minerals, as long as they are not separated or extracted from the land, are also immovables.
Fruits and other products of the soil may be considered to be movables, however, when they are the object
of an act of alienation.

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o
o

Land
Plants

Minerals

Construction and works

Kirk Shannon

In the CCLC was land and buildings intention not to change law, but rather to codify interpretations in jurisprudence
(See Belair and Cablevision as examples of construction and works) Buildings included, structures, works of a variety
of types thus the inclusion in the new code
Hidden criterion: actual immobility of that construction, must be an attachment or incorporation with the soil such
that it is considered immobile
CCLC 376

Lands and buildings are immovable by their nature.

Case: Belair

Belair v. La Ville de Ste-Rose

[1922] SCC

Facts:
The ville wishes to recover taxes to be paid by bridge
owner Belair
Belair is heir to bridge and has rights to collect on use
of bridge
Taxes imposed on all immovables
Issue:
challenge that bridge is not an immovable

Decision:
Bridge is an immovable and is taxable
Reasoning:
Servitude over the bed of the river, still owns the
structure of the bridge
Immovable as is structure which is resting on
piers and is permanently affixed to the soil or
bed of the river
Ratio:
Bridge is an immovable as is a structure that is
affixed permanently to the soil or bed of the
river

Case: Cablevision

Cablevision Montreal Inc. v. Deputy Minister of Revenue of Que.

[1978] SCC

Facts:
Reasoning:
Cable television network
Antennas (mounted on a tower and is a structure distinct from the
bought and assessed for taxes
building) are immovable by nature as attached to building which is
based on point that antennas
attached to soil
and network of wires were
Structures must participate in the immobility of the land which is the
movables (wires on bell or
ultimate measure of whether a thing is immovable by nature
hydro poles)
Wires and other parts of cable network were considered structure on
Issue:
top of other structure (bell or hydro poles) and therefore are immovable
Is the cable network an
Ratio:
immovable?
Immovable when a structure that may be described as a building
Decision:
adheres to something that is immovable by nature, whether land or a
Appeal allowed for
building and thereby acquires a fixed foundation
Cablevision both the antenna
Immaterial whether structure adhering to land and structure adhering to
and the network of cables are
structure are owned by same person
immovable
Notes:
Not legal situation of the immovable but rather the attachment
Discussion of attachment to soil Horizontal and vertically
This is vertical (poles go horizontally into groud)
Leaves open possibility that through aquaduct or power lines going horizontally from building to the ground

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eventually might classify as immovable probably wouldnt work

For Immovable
- Those objects that were classified as immovable by nature in old code is now simply an immovable thing
- Construction and work is in the CcQ and was Building in the CCLC
- Construction and work must be fixed have an attachment with the soil
- Mere weight is not sufficient
- Is it necessary that the link with the soil is permanent? Usually, but not immovable by nature.
- If immovable is moved, remains an immovable so long as the immovable is going to be incorporated into the soil.
Right of superficie
where building is on land owned by another not imporatant
Issue of permanency
- In art 900 (work or location that is permanent?)
- Duration of incorporation into the soil was not important
Plants
- Fruit considered immovable as long as attached to plant and plant being rooted in the soil
Minerals
Not in old CCLC as were considered part of land now expressed on its own

Movable
Art 905

Things which can be moved either by themselves or by an extrinsic force are movables.

Other Movable things

Art 906
Waves or energy harnessed and put to use by man, whether their source is movable or immovable, are
deemed corporeal movables. new article deems energy as being a thing subject to real rights
Art 907
All other property, if not qualified by law, is movable. Includes: Some Real rights, Personal rights,
Intellectual rights
Look to 901 and 903 in CcQ
Art 901
Movables incorporated with an immovable that lose their individuality and ensure the utility of the
immovable form an integral part of the immovable.
Art 903
Movables which are permanently physically attached or joined to an immovable without losing their
individuality and without being incorporated with the immovable are immovables for as long as they remain
there
Different from CCLC 380 which was much more detailed.
Those things are considered as being attached for a permanency which are placed by the proprietor and
fastened with iron and nails, imbedded in plaster, lime or cement, or which cannot be removed without
CCLC 380
breakage, or without destroying or deteriorating that part of the property to which they are attached.
(2) Mirrors, pictures and other ornaments are considered to have been placed permanently when without
them the part of the room they cover would remain incomplete or imperfect.
- Each of these deal with objects that are movable and by way of these articles the object becomes an immoable.
Movables or Immovables as part of a construction or work
Look at 901 and 956
Art 956

The owner of an immovable becomes the owner by accession of the constructions, works or plantations he
has made with materials which do not belong to him, but he is bound to pay the value, at the time they were
incorporated, of the materials used.
(2) The previous owner of the materials has no right to remove them nor any obligation to take them back.

Elimination of Immovable by Destination

- Notice the change in CCQ, elimination of category of Immovable by destination
- Elimination of possibility of movable becoming immovable by destination b/c of association with exploitation of
immovable by nature (eg. Farm implement used to exploit crops)

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CCLC 375

Kirk Shannon

Property is immovable either by its nature, or by its destination, or by reason of the object to which it is
attached, or lastly by determination of law.

S. 3 Relevance of Classification Today

Three requirements in 901
- (New article in Code but) Reminiscent of Jurisprudence during time of CCLC in Nadeau c. Rousseau
1. Incorporation with the immovable
2. Loss the individuality of the movable
3. Ensures the utility of the immovable
Per Axor (below) there are five requirements in 903
1) The presence of an immovable
2) An material attchament or jointure which links the object to the immovable
3) The conservation of the individuality of the object and the absence of incorporation
4) Un lien demeure a demeure means that the will of the owner of the object was to attach it physically to the
immovable for an indefinite person of time with the intention to use the object as a permanent accessory of the
immovable.
5) A function that assures the utility of the immovable.
Physical attachment or jointure which need not be an incorporation and need not imply a loss of identity but is permanent
From Article 48 from an Act Respecting the Implementation of the Reform of the Civil Code
Art 48
Under article 903 of the new Code, only those movables referred to which ensure the utility of the
immovable are to be considered as immovables, and movables which, in the immovable, are used for the
operation of an enterprise or the pursuit of activities are to remain movables.
o Article must ensure the utility of the immovable
o Distinction is important if the object is sold under a K that does not transfer ownership.
Case: Horn Elevator

Horn Elevator Limited v. Domaine dIberville Lte

[1971] C.A. Que

Facts:
Elevator purchase for building by another party
Agreement that elevator system was to remain the
property of Horn Co. until full payment was made.
Bankruptcy ensued and Horn wanted elevator
system back
Issue:
Is the elevator system and all its parts a movable or
an immovable
Decision:
For the Domaine dIberville Elevator and all its
parts are part of the immovable.

Reasoning:
Much like a staircase (in the modern sense) or a
moving escalator
Rails and other parts are affixed to the building
Immovable is not just the walls, foundation and the
roof
As well, in a building of seven floors, removal of
the elevator would make the building incomplete
Ratio:
Elevator and its parts are affixed and (up removal)
would render the immovable incomplete and are
therefore part of the immovable

Case: Nadeau v. Rousseau

Nadeau v. Rousseau
Facts:
Rousseau pays for furnace in house owned
by Nadeau
Nadeau sells house without paying off
furnace

[1928] C.A. Que

Reasoning:
Immovabilization by destination can only happen where
both movable and immovable are owned by the same owner
But, a movable is considered part of an immovable sil y
est attach de telle sorte quil soit indispensable

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Issue:

lexistence ce mme de limmeuble, et que limmeuble ne

soit pas complet sans lui
Is Furnace considered a movable or
In our climate, a house without a furnace is not complete
immovable
Decision:
Ratio:
For the Plaintiff furnace is part of the
Sellor of furnace losses rights to the furnace as it has
become an immovable b/c of incompletion of immovable
immovable or, another way, is an
without furnace
immovable itself.
3 classifications
1) Purpose of object but we dont like to revolve around this - prefer to look at attachment or;
2) Is immovable complete without object?
3) Is it removable without destruction to both object and building (part of the construction and therefore not
movable) incorporation
Difficult to distinguish objects that become immovable by 901 or 903
- Both cases ensure the utility of the immovable
- In 901, loss of individuality Not in 903 BUT, not clear criterion as very subjective
- LINK IS THE KEY 901, is incorporation but in 903 there is a junction, a jointure
Look at cases of Construktek and Axor
Look at how judges use old Code, doctrine and jurisprudence as a way to discover how
Case: Construktek
Construktek G.B. inc. v. France Laforge
Facts:
France leaves house owned by
both G.B. and France and takes
with her items such as dishwasher,
refrigerator, blinds and curtains.
Issue:
Are these items movable or
immovable by destination by old
or new code?
Decision:
Kitchen appliances are not
immovable as do not ensure the
utility of the immovable
Chandaliers serve the utility of the
construction without lighting,
immovable is incomplete

[1998] C.S. Que

Reasoning:
By old Code (CcLC) were not immovable as were easy to disconnect
and remove (unplug)
Kitchen appliances serve not in the utility of the construction but the
utility of the occupant can be removed and the construction will
remain complete for fridge and dishwasher
Applies art 901 with respect kitchen appliances Does not fit as
was not incorporated
Can easily be removed and immovable is still complete
Light fixtures and the like are immovable as they serve in the utility
of the building house without lighting is incomplete
Ratio:
Physical link required for a movable to become immovable
Or, should the object be removed the immovable is incomplete
then the object is immovable
Chandelier is considered immovable by 903 and it was property of
the plaintiff

Notes:
Odd as there is not application of 901.
Used utility which is in both 901 and 903 (by way of 48 of act respecting implementation of reform of CCQ).
Base decision of chandeliers on 903 utility and not incorporation by art 901
Case: Axor Construction
Axor Construction Canada Lte v. Lofficier de la Publicit
[2002] C.A. Que
Des droits de la circonscription foncire de Montral
Facts:
Reasoning:
The boards of a skating rink in an arena
Majority: Under 903 permanency of physical
Issue:
attachment is needed which means that the object must
be attached with the intention of keeping it there for an
Issue is whether boards are part of construction
indeterminate amount of time. Satisfied that proprietor
Decision:

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Summary
Skating rink boards are part of the immovable.
Ratio:
An arena without boards would be an
incomplete immovable unusable for the ends
for which it was constructed.
Boards are immovable as rink is incomplete
without boards under art 903

Kirk Shannon

intended to keep boards there for indeterminate length

of time.
Utility is contrasted with necessity. Utility defined as
the advantageous character of the thing that which
renders it servable or facilitate usage.
Must be a physical link (not intellectual link)
Part of the arean under art 903 arena without boards
is incomplete

Notes:
There is a description but it does not help to clarify nature of the attachment
No discussion of nature of attachment as it might relate to either 901 or 903
There is discussion of distinction in art 48 of reform act that 903 cannot apply to the operation of an enterprise or
the pursuit of activities.
Dissent: Sees boards as similar in nature to furniture and must remain movable and are not part of the construction
no real discussion of either 901 or 903
Should have evald under 901 and might have seen that not incorporated but are still attached under 903
Per Axor, the article 903 has 5 conditions :
1. The presence of an immovable
2. An material attchament or jointure which links the object to the immovable
3. The conservation of the individuality of the object and the absence of incorporation
4. Un lien demeure a demeure means that the will of the owner of the object was to attach it physically to the
immovable for an indefinite person of time with the intention to use the object as a permanent accessory of the
immovable.
5. A function that assures the utility of the immovable.
With info from Axor, return to Nadeau c. Rousseau
Would furnace be considered as part of the construction?
The furnace serves the utility of the immovable does not distinguish b/n 901 and 903
Would fit at least into 903 attached to the piping
Could it fit under 901?
With this info, return to Horn
Would the elevator fit into 901 or 903
The elevator serves the utility of the immovable this does not distinguish b/n 901 and 903
It would probably considered under 901 through incorporation
What is at stake when classifying an object as immovable under 901 or 903
o If it is an immovable of the 901 variety, this will consider the object the material of the construction and is
definitive and cannot be removed until destruction of the building
o Hypothec can not exist solely on this object but only with the building as a whole
o If it were considered under 903 attachment is merely a presumption. This presumption can be rebutted.
Eg. Contract saying no transfer of ownership until paid WILL BE UP HELD
o Hypothec can exist on the object itself separate from the building
art 956
The owner of an immovable becomes the owner by accession of the constructions, works or plantations he
has made with materials which do not belong to him, but he is bound to pay the value, at the time they were
incorporated, of the materials used.
The previous owner of the materials has no right to remove them nor any obligation to take them back

art 571 of CC
of procedure

Movables which are immovables by virtue of article 903 of the CCQ can only be seized with the immovable
to which they are attached or joined; they may, however, be seized separately by a prior or hypothecary
creditor, or by another creditor if they do not belong to the owner of the immovable

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Art 2672 deals with objects considered immovable by 903

Art 2672
Movables charged with a hypothec which are permanently physically attached or joined to an immovable
without losing their individuality and without being incorporated with the immovable are deemed, for the
enforcement of the hypothec, to retain their movable character for as long as the hypothec subsists.
OLD CODE
Immovable by:
- Nature
- Destination
- Object to which it attaches
- Declaration by the Law

NEW CODE
Immovable by:
- Objects (901-903)
- Real Rights (904)
- Declaration by the law [Art 907 All other
property, if not qualified by law, is movable.]

Chapter III: Other Classifications

S. 1 Capital and Fruit/income
(908-910, 1129-1134, 1139-1141, 1345-1350)
Art 908
Art 909

Art 910

Property, according to its relation to other property, is divided into capital, and fruits and revenues
Property that produces fruits and revenues, property appropriated for the service or operation of an
enterprise, shares of the capital stock or common shares of a legal person or partnership, the reinvestment
of the fruits and revenues, the price for any disposal of capital or its reinvestment, and expropriation or
insurance indemnities in replacement of capital, are capital.
(2) Capital also includes rights of intellectual or industrial property except sums derived therefrom without
alienation of the rights, bonds and other loan certificates payable in cash and rights the exercise of which
tends to increase the capital, such as the right to subscribe to securities of a legal person, limited partnership
or trust.
Fruits and revenues are that which is produced by property without any alteration to its substance or that
which is derived from the use of capital. They also include rights the exercise of which tends to increase the
fruits and revenues of the property.
(2) Fruits comprise things spontaneously produced by property or produced by the cultivation or working of
land, and the produce or increase of animals.
(3)Revenues comprise sums of money yielded by property, such as rents, interest and dividends, except
those representing the distribution of capital of a legal person; they also comprise sums received by reason
of the resiliation or renewal of a lease or of prepayment, or sums allotted or collected in similar
circumstances.

Capital: The substance of the right

Fruit and Revenue: What is produced by the substance without any (ok, maybe a little) alteration of the substance of the
right (ie the capital)
Fruit natural fruit by the land
Revenues Former civil fruit money produced, rents, income, interest, dividends, etc.
Crucial when in a situation where a use only is granted (right to the fruit/revenue) with only a use of the
substance (capital) usufruct or emphytusis
Distinction comes into play
- usufruct, trust in most cases and leases in some cases
- usufructuary may use land for fruit agricultural operations (art 1140)
- usufructuary cannot deal with the capital (ie cannot get minerals from ground as is not fruit but rather capital
- what beneficiaries entitled to under a trust
- Note that fruit/ income that is not used becomes capital (909)
- E.g. of agricultural animals: if milking cows, capital; if beef cattle reared for sale, fruit.

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Apportionment of profit & expenditure: 1345 - 1349 should be read in conjunction with 908 - 910 (situations
involving administration of anothers property)

Intellectual rights can give income but:

o but you retain your moral right (copy right act)
o moral right passes on to the heir (says so in copyright act)
Intellectual rights can be capital or income
o capital selling your intellectual property for a lump sum (alienation of intellectual rights)
o income receipt of percentage of sales of book (no alienation)
S. 2 Fungible / Consumable
(1453(2), 1127, 1128, 1305(2), 2314)
deals with material objects
Fungible: Not determinate May not be the object of a real right as is not determinate object (cannot be a Volvo unless
identified through specific serial no.) (see Art 1453(2) which says The transfer of a real right in a property
determined only as to kind vests the acquirer with that right as soon as he is notified that the property is certain
and determinate.
Non-Fungible: Determined object eg. wheat is bought when is separated and determinate
e.g. of Fungible by destination will which gives usufruct of portfolio. Can manipulate the shares, sell (but then must
replace), losses, gains etc. The Portfolio is considered indeterminate object and manipulation within said portfolio is allowed.
Consumable:
- Disappears on first use
- Impossible for their to be a usufruct as usufruct must maintain object. Not possible. Usufructuary will be viewed as
owner with obligation to hand over value of object at the end of usufruct quasi-usufruct
- Art 1127 re consumability and usufruct
Non-Consumable:
- Does not disappear after one use
- Could deteriorate over time with lots of use gradually loses its value
- Usufructuary and the latter 1128 (eg furniture and car normal use and then either hand back in condition or, if
disappear, not hand back at all. No obligations)
S. 3 Things in Commerce, res nullius, res communes
(913-914, 916, 934-946, 1212-1217, 2876)
A. Things in Commerce
Art 2876
That which is not an object of commerce, not transferable or not susceptible of appropriation by reason of its
nature or appropriation may not be prescribed
Property in commerce: property that is alienable. (patrimonial rights are alienable and transferrable while extra-partrimonial
rights are inalienable)
General rule in civil law is alienability of property. Clauses stipulating inalienability are of an exceptional nature,
can only exist within a gratuitous K (inot in a K of sale). Gift or will.

Art 1212
(1) No restriction on the exercise of the right to dispose of property may be stipulated, except by gift or will.
Property can be made inalienable by statute. example, cultural property act. (it is not absolute
inalienablity, permission must be obtained from minister to inalienate property)
B. Res nullius: Things which can be appropriated, but which belong to no one. Divided into 3 categories:

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1. Things which have never been appropriated e.g. fish in the sea Art 934
2. Things which have been abandoned by their owner e.g. a treasure (art 938)
3. Things which have been lost or forgotten.
Art 915
Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.
Art 935
A movable without an owner belongs to the person who appropriates it for himself by occupation.
(2) An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it in
its territory, or to the State.
Art 936
An immovable without an owner belongs to the State. Any person may nevertheless acquire it by natural
accession or prescription unless the State has possession of it or is declared the owner of it by a notice of the
Public Curator entered in the land register.
C. Res communes: Things which cannot be appropriated (neither by the individual nor by the State), since their use is
common to all. 913 C.C.Q. affirms this.
Water, air are traditional examples. (also intellectual works after the expiration of the droits dauteur)
Implies that no one can prevent others from using these objects.
As a matter of public policy, State has a power of administration (not a right of ownership) over the res
communes. This derives from its duty to promote the common good.
-

585 CCLC, the res communes was defined as things with no owner and common to all. Less precise, things many
NOT be appropriated.
951(2) Ownership of the soil carries with it ownership of what is above and what is below the surface. How does
this sit with the notion of air as res communis?

S. 4 Legal Characterisation of Water

(913, 919, 920, 951, 980-982)
Keep the water separate from the water course (art 920) and riverbed
- Interest in the water here.
- Art 919 bed and banks belong to state if navigable and floatable
Certain things may not be appropriated; their use, common to all, is governed by general laws and, in
certain respects, by this Code.
(2) However, water and air not intended for public utility may be appropriated if collected and placed
in receptacles.
Commentaire The first line of this article is inspired by article 585 from the Civil Code of Lower Canada. The second line
du minister
creates an exception to the principle of the first line, looking to cover the cases such as those of mineral
on Art. 913
water or of compressed air.
CCLC 585
There are things which have no owner and the use of which is common to all. The enjoyment of these is
regulated by laws of public policy
- Rights to water is limited to use (cannot appropriate or sell)
- Look at way fresh water may be found in nature
Art 913: When is it not intended for public utility? Problematic
- Eg. Look to mineral water companies permits to draw from underground source art 913 provides for this
- In principle, state does not have capacity to give permit for commercial exploitation of running water, unless water
could be characterized as being on state land.
- Note if a state wanted to use water for public consumption located on someones land. It would have to appropriate
the land.
1) Water course (lakes rivers)
In code: art 981-982:
Seen as res communis
See Morin v. Morin
Art 981
A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other
Art 913

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watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially
changed in quality or quantity, into its regular course.
(2) No riparian owner may by his use of the water prevent other riparian owners from exercising the same
right.
2) Spring or completely enclosed within land
Art 980
An owner who has a spring on his land may use it and dispose of it.
(2) He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to
preserve their quality.
980: Owner with a spring on his land may use it and dispose of it
(Cumyn thinks this does not mean sell, but this is only an argument).
Is it res communis or appropriated?
Some say ownership of water
2nd para He may, for his needs, use water from the lakes and ponds that are entirely on his
land, taking care to preserve their quality.
May use it and preserve quality and quantity sounds like art 981
This water is not being characterized as part of res communis. However, Art 982 is then
confusing: says that owner may require the destruction/ modification of works to prevent water
from being polluted or used up.
May be that 982 would allow one well owner to object to actions of neighbouring owner who is
unduly depleting supply.
Art 982
Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water,
underground stream or any running water may, to prevent the water from being polluted or used up, require
the destruction or modification of any works by which the water is being polluted or dried up.
3) Underground water

Not anything in code

Water is interconnected to fresh water wherever it is found
Sheer notion of common pond extending underground across several properties suggests that ones
use should not interfere with anothers.
Note though Art 951 State has right in mines, sheets of water and underground streams. A
puzzling addition from whence does the right derive?
Cantin: Must be limits to these riparian rights; suggests limiting it to use of water for service of property. Commercial use
would then be deemed excessive.

Cantin Cumyn, L'eau, chose commune: un statut juridique confirmer

i. Le statut juridique de l'eau souterraine, en particulier, represente aujourd'hui un enjeu economique et social majeurs,
alors son captage des fins de commercialization est envoie de devenir une activit conomique de plus en plus
convoite et quen mme temps les citoyens prenne graduellement conscience de son caractre vital pour la collectivit
qui en depend.
ii. Il est de tradition, en droit civil, de considerer que leau et lair sont des choses communes
iii. CC est en dsaccord avec les deux propositions suivantes: on pretend souvent que leau de source, qui nest pas la
tte dun cours deau, et leau faisant partie dun lac ou dun tang situs sur un seul fonds chappent la qualification
de chose commune et appartiennent en proprit exclusive au propritaire du fonds. (article 980 CcQand 502 CcBC)
Certains vont plus loin encore et assimilent leau souterraine la source: puisque la source appartient, selon eux, au
propritaire du fonds, il en irait de mme de leau souterraine qui lalimente.
iv. Eau comme res communis
1. tre res communis, ca veut signifier tre la fois inapproprie et inappropriable
v. Les droits individuels dutilisition de leau soit pour besoins dits ordinaries, besoins alimentaires ou autres fins
domestiques et lexploitation agricole dun fonds ne sont pas intrinsquement lies la proprit dun fonds. (article
980 CcQ, 503 CcBC)
vi. Ltat joue un role de protecteur de lintrt gnral.

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1.

Leau a une nature fondamentalement diffrente de celle des resources naturelles minerals avec lesquelles
on a malencontreusement frquemment tendance lassimiler. Les mines font lobjet dun droit de
proprit de ltat ou des particuliers.
2. La regle qui privelegie le propritaire du fonds en excluant aux tiers l'utilisation d'une source d'eau, il est
implicite que cette eau a un faible debit et que le droit d'utiliser la source par un tiers auturiserait une
atteinte trop importante au droit de propriete de fonds.
vii. Il ny a pas de base scientifique qui justifie une distinction juridique entre eaux de surface et les eaux souterraines
Copmte tenue de ces donnes et de labsence dune determination lgale expresse du status des eaux souterraines, il
serait inadmissible que lanalyse juridique ne se fonde pas sur la nature des choses. Cette nature dicte au droit de
donner la mme qualification de chose commune pour les eaux souterraines et les eaux de surface.
viii. Larticle 913 du Code recommait que leau doit tre reconnuecomme chose commune, nimporte sa forme.
Case: Morin v. Morin
Morin v. Morin
[1998] C.A. Que
Facts:
Decision:
JC Morin buys land and floods part of it from 2
Rights to use water cannot be owned. JC retains
rivers and an underground source creates lac
fishing rights, though.
Morin
Reasoning:
Marc Morin buys property on side of lake and starts
Water as common property (art 913 and 920)
to use lake
Allows for access and usage of water for
Lake is considered ni nanvigable, ni flottable
recreation (eg canoe)
Ratio:
JC ownes bed of lake
This decision clarifies water in any type of
Marc puts in floating dock, swims, boats.
water course is res communis even if state does not
JC claims, as owner of the bed, sole right to use lake
own bed or if not navigable or floatable
Issue:
Clarifies allowance for usage of common water for
Does owning bed of lake stop others from using
recreation and sport. Water is common
lake riparian owners access issues
Notes:
Only thing that limits use is fishing which depends on the owner of the bed
JC Morins thesis would indirectly imply the recognition of temporary property of water as a result of private water
beds. The accumulation of water over the land of an individual would give that individual more rights than those
of the riparian owners, rights so extended that they would exclude those of others. This would make water a
private, rather than common, thing.
Musings: is it possible for someone to make a commercial exploitation of water? A categorization of water as a res
communis assumes that it cannot be appropriated (s. 913). First you have to ask what s. 913(2) means. Is it restricted to a
certain kind of water- like mineral water? And does appropriation in this context still limit that to personal consumption?
Look at the degree of appropriation relative to each body of water. One argument is that it may be possible if it does not
interfere with the rights of other owners, thereby not violating 981. Egs. Underground water is appropriated as part of land,
the water body may be found wholly on your land. Counterarguments: is not likely with respect to lakes and ponds as
commercial use is not a NEED as per s 980(2) - here it appears that rights are limited to to use and service of land, otherwise
go beyond the rights of others. Need to be equal rights. 980(2) introduces an element that not there before. Commercial
exploitation is probably not possible for running water (981) without legislative change, but appears more viable wrt
underground water (951). What about springs found entirely on your land, which you can own, use and dispose of ? (981)

Part 3: Property in Relation with Persons (subjects of rights in

Land)

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Chapter II: Private Ownership of Land and its origin

Art 918:

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

S. 1 The Seigneurial System and its abolition

History
- Cartier discovers Canada 1534 two manners of controlling land conquest in war and discover
- Seigneurial system was from the Custom of Paris
- First grant was in 1607 to Louis Hbert
Main Features of the Seigneurial System
A - Types of Grants of Land
Grants en seigneurie of three types
Eminent domain (Kings title) fief suzerain/domaine minent
Direct domain (title of seigneur but not owner) fief dominant/domaine suprieur
Useful domain (title of the censitaire/habitants but not owner) fief servant/domaine utile.
Grants en censive: grantee paying annual dues and holding directly of the Crown
Only has eminent title (of the king) and the useful domain (of the habitant)
Rents might be paid directly to the crown
Grants en franc aleu: without other obligation on the grantee than to render fealty and homage.
Outside the seigneurial system
Reserved nothing for the crown
B - Obligations in Seigneurial System
The seigneurs were not owners; they were empowered to make under-grants or concessions to those who applied. These lands
were held by concessionaires/ censitaires.
The censitaires were bound to pay:
certain annual dues
certain casual dues (droit de banalit) (dr de retrait)
homage
Must use the mill of the Seigneur with tax taken off
The Seigneurs were bound to:
pay dues (sometimes) to crown
pay homage to King
grant land to censitaire
other obligations (mills, etc.)
At the time of the Cession, 1760, lands in Qubec were comprised of:
(i.)
the unconceded lands of the Crown;
(ii.)
the Seigneuries;
(iii.)
the lands of the censitaires;
(iv.)
lands held directly of the Crown en censive; and
(v.)
lands held en franc aleu.
In 1760, with the pass to Great Britain, the system did not change and free and common socage was seen as the equivalent
to en franc aleu
Abolition of the Seigneurial System

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Soon after cession, Brits decided to begin to eliminate Seigneurial System. (per Marler) Acts were then passed enabling a
censitaire to make an agreement with his seignior to commute his feudal dues and services for a lump sum, converting the
tenure of his land to that of franc aleu roturier.
These acts were ineffective and in 1854, the Consolidated Seigniorial Act was passed, allowing censitaires to hold their
land in franc aleu roturier, free and clear of all feudal and seigniorial duties and charges except the redeemable constituted
rent (substituted for all seigniorial duties and charges). Process was called Commutation processus de la commutation

Each title was dealt with separately:

a) the seigneur became the OWNER of all lands not previously granted to the censitaire.
All obligations to the Crown disappeared;
b) the censitaire became the full owner of land granted to him. Of the 5 obligations to the
seignior, 4 were abolished (with the Crown compensating the Seignior for the value
thereof) and the rent was transformed a capital sum had to be paid. (In a block or in
instalments or just in the form of interest until full payment.) (NB. Not the value of the
land but the value of the obligation of the cens et rente due to the seigneur Constituted
rents were guaranteed by hypothec on land)
c) The Crown no longer had a claim over lands held by others.
d) By the effect of the Act, all other lands fell under franc aleu/free & common socage.

1854: An Act Respecting the General Abolition of Feudal Rights and Duties
Whereas it is expedient to abolish all Feudal Rights and Duties in Lower Canada, whether bearing
upon the Censitaire or upon the Seignior, and to secure fair compensation to the latter for every
lucrative right which is now legally his; And whereasit is expedient to aid the Censitaire in the
redemption of the said charges:
art. 30: every Censitaire shall hold his land in franc aleu roturier, free and clear of all feudal and
Seigniorial duties and charges except the Rente constitue substituted therefor.
art. 30(2): every Seignior shall hold his domain and the unconceded lands in his Seigniory in franc aleu
roturier, free and clear of all feudal dues or duties to the Crown or any Seignior Dominant.
art. 59: no lands held in Free and Common Socage or en franc aleu roturier shall be charged with any
perpetual irredeemable rent. Whenever rent is so stipulated, it may be redeemed on payment of the
capital calculated at the legal rate of interest.
art. 60: none of the foregoing provisions apply to the wild and unconceded lands in Seigniories held by
the Crown in trust for the Natives.
the rentes constitues provided for in article 30 were themselves the object of statute in 1935. The
Seigniorial Rent Abolition Act organised a process for their gradual abolition.
Note Exceptions from the Act in Art 60: lands conceded to natives.
S. 2 Permanent Consequences of abolition of tenure system
1) Prohibition to recreate directly or indirectly a system of tenure
o Indirectly, including clauses in deeds of transfer of land, charging the acquirer of land to perform
obligations (eg. services)
o Impact on how we define Real Servitude as not an obligation to do but a relationship b/n two pieces of
land
o (It is mostly indirectly that this would happen. See arts. Art 1177 & 1178 regarding servitudes.)
2) Prohibition to have perpetual rents & Prohibition of perpetual Lease
o Rents: Max duration of 100 years (art 2376) (defn K of rent or annuity art 2367)
o Lease: for a certain time which ultimate limit might be 100 years (art 1880)
3) Ownership is ultimate title and is perpetual. Nobody above the owner
o It is incommutable
o Defn of ownership at CcQ 947 and CcLC art 406
o Should crown want land, must expropriate and paid for (art 952)

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o Special law (art 917) allows for confiscation but must be gained through specific statute
4) Type of Ownership
o Only one type of ownership and is irrevocable
o Other rights to land are going to be lesser rights than ownership
Sources of private ownership: All are same types of ownership now
o 1) forms of seigneurial title that were commuted
o 2) grants made in free and common socage
o 3) grants en franc aleu
o 4) more recent grants made under statute

S. 3 Private Ownership of Land (or private domain); multiple sources; content of title
A Sources: How can an individual get grants today?
-Through these acts.
An Act Respecting Agricultural Lands in the domain of the State
Art. 9: the Minister may alienate or lease out any ungranted lands for such purposes as he
may consider to be in the interests of agriculture, fisheries, or food supply.
Art. 11: the Minister may grant a servitude or right on ungranted land.
An Act for Agricultural land south of the 50th Parallel (CB 115)
Forest Act (CB 106)
Mining Act (CB 107)

B Relevance of old titles

1. Rights to the beds and banks of Watercourses: Might have to go back to original grant to see extent of right of
ownership
Case: Houde
Procureur Gnral du Qubec. v. Houde
Facts:
In 1852, Price acquires the land from the Crown and runs a
sawmill. According to a plan prepared for the AG, a fosse
saumons is found approximately 200 metres from the
sawmill dock.
At low tide, the river is almost dry. At the time there were
several islands downstream, creating an obstacle to
navigation.
Qubecs AG claims that this part of the river would be
able to be navigated at high tide.
Issue:
Does right of ownership include right to exploit the
watercourse (right to beds of water (includes fishing)
hydro power, sand from bed, etc.)
Decision:
Riparian owner has the right of ownership of the beds of
non-navigable waters. As the contested part of the PetitSaguenay River is non-navigable, public fishing rights
cannot be invoked.
Notes:

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[1998] R.J.Q. 1358.

Reasoning:
Art. 400 CCLC or Art 919 CcQ: The bed of
non-navigable waters continue to form part
of the concessions of riparian lands unless
expressly excluded in the title.
To be navigable, a waterway must be a
veritable lane of transport and
communication. Here, natural obstacles hint
that the river was improper for commercial
navigation in 1852. Moreover, neither the
title nor surveyors report mention exclusion
of the riverbed.
Ratio:
The Seigniorial Court charged with
liquidating the acquired rights at the
abolition of seigniorial rights in 1854 held
that for NON-navigable waters, their beds
implicitly belonged to the seignior unless
excluded in the title.

Civil Law Property

Summary

Art 919:

Kirk Shannon

In 1918, art. 400 of CCLC (now art 919) was amended, giving the State title to non-navigable watercourses
bordering lands alienated after 9 February 1918 as well as their banks. However, since 1 June 1884, the Crown
already reserved, by virtue of legislation, ownership of a band of land of 60 metres and the related rights to fish
with concessions or grantings of lands along non-navigable waterways. Before this date, independently of the mode
of concession of riparian lands, the nature of the right conceded flowed directly from the distinction between
navigable and non-navigable waterways
A watercourse that can carry a log boom but no other kind of commercial traffic (ie boats or rafts) is considered
non navigable
The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water
line.
The beds of non-navigable and non-floatable lakes and watercourses bordering lands alienated by the State
after 9 February 1918 also are property of the State up to the high-water line; before that date, ownership of
the riparian land carried with it, upon alienation, ownership of the beds of non-navigable and non-floatable
watercourses.
In all cases, the law or the act of concession may provide otherwise.

Watercourses Act
- Permits the lease or alienation of the banks or beds of navigable rivers, lakes, sea etc
Needed to know how has right to exploit of beds:
- Date of Grant
- Character of watercourse (navigability and flottability) Definition in Auger below
- If navigable: land extends to the highwater mark the bed is owned by the state
o Exception: if the title of the land says otherwise (the state grants rights to the bed no date of application,
could happen today)
- If non-navigable: Depends on the date of the original title see art 919
o If after 9 Feb 1918, extent of land is high water mark
o If before 10th of Feb 1918 right of riparian owner includes the bed of the river all the way to the middle
of the water course
o There are exceptions per art 919(3)
o Example of the case Auger
Case: Auger
Procureur Gnral du Qubec v. Auger
[1995] R.J.Q. 1980 (C.A.)
Facts:
Reasoning:
In 1982, respondents ask for declaratory judgment
Bed had been granted with the land in original title
regarding ownership of riparian lands on lle de Jsus
and extended past the high water mark
to the low water line.
Ratio:
The City of Laval had made a notice of expropriation
As the parties agree that La Rivire des Prairies is
of the lands and had calculated the indemnity on the
navigable, its bed belongs by Qubec law to the
basis of the lands terminating at the high water line.
State, unless expressly conceded. The part of the
Issue:
land between the highest and lowest water levels is
part of the waterbed.
Does the right of ownership extend to the low water

On 29 October 1687, an Act was signed by the

line?
Decision:
governor of Nouvelle-France. The Act stipulated
the concession of the banks situated in front of
Riparian owner has rights to the bank of the navigable
ALL the lands belonging to the Seminary in fief.
river as per the title granted by the state
Notes:
Require both navigable and floatable
Floatable is the river able to transport the timber en masse
Navigation Commercial transport is threshold to pass

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Summary

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2. Rights to Minerals below the Surface Art 951

Ownership of the soil carries with it ownership of what is above and what is below the surface.
The owner may make such constructions, works or plantations above or below the surface as he sees fit; he
is bound to respect, among other things, the rights of the State in mines, sheets of water and underground
streams.
Mining Act
art. 3: rights in or over mineral substances form part of the public domain.
art. 4: rights in/over mineral substances do NOT form part of the public domain if the substances are found in mining
concessions for which Letters Patent were issued before 1 July 1911; in lands granted in a Township before 24 July 1880;
or in lands granted under seigniorial tenure where mining rights were not vested in the Crown. In lands granted before 24
July 1880, rights in/over GOLD & SILVER deposits form part of the public domain.
art. 6: the owner of the soil AND THE LESSEE may use and displace, for their domestic needs, any mineral substances
listed in art. 5.
-

Private ownership gives rights to owner of whats under the soil unless provided for by the Mining Act
Limited to S.5 of the Mining Act (list of substances that can be used by the owner) (p. 213 CB)

History
pre 1880, right of Ownership extended below the surface except in case of Gold or Silver
Post 1880 and Mining Act, extended past gold and silver
1982, legislature proposed to eliminate all distinction b/n minerals below the surface
- Leaves very little to the owner (S.5 of the Act)
Can grant right to somebody to extract minerals from the land of another
- Gives the owner of the mining rights, the right to expropriate the owner of the surface
- Gives right to owner of the land, in the event of exploitation, of 3-5% of revenue of exploitation not
expropriation
o Cantin Problem Law that revoked earlier rights of the owner to the minerals under the soil is
questionable
o with abolition of seigneurial tenure does not allow for revocation by crown of a right of ownership.
Must be expropriation or by confiscation by legislation. This Act goes around it by revoking right.
o State must have a basis for the revocation only basis would be eminent domain which the state gave
up.
o What is revoked is substantial part of right of ownership

S. 4 State Ownership of Land (or Public Domain)

(915-920, 951, 2877)
Public Domain: Prop of the state, public legal persons (used to be crown corps) and prop of the municipalities
Public Legal persons and municipalities: art 299-300
Not seizable, not susceptible of hypothec, not susceptible of prescription

Civil concept of public domain means that there is NO CONCEPT OF VACANT LAND because Art. 918
allows for 3 possibilities of ownership:
(i.) by natural or legal persons;
(ii.) transferred to trust; or
(iii.) Crown.

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Cantin Problem: thinks that 918 shows a strange treatment of the trust when compared with 915

Art 916

Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided
by law.
No one may appropriate property of the State for himself by occupation, prescription or accession except
property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled
with its other property. Nor may anyone acquire for himself property of legal persons established in the
public interest that is appropriated to public utility.
- Nec. Established by special statue which creates them e.g. Hydro and Caisse
- Mixture of Private and Public Law (mixture of English and French)

Hydro-Qubec Act
Art 3.1: Joint stock company (Separate legal person according to Art 2188(2) of CCQ)
Art. 3.3: The shares of the company are part of the domain of the State and are allotted to the Minister of Finance
Art 13: The company is a mandatary of the state (Cantin Why make it a legal person and then make it mandatory of the
State?)
Art 14: The company shall have power to possess property, and such power shall be unlimited. The property of the
company is the property of the state
Art 31.3: The property in the possession of the company is imprescriptible in the same way as the property of the domain of
the State. This provision does not apply to debts owing to the company or for which it is liable, which are subject to the
ordinary provisions of law.
- Cantin Problem obligations against prop of Hydro as a separate legal person but Hydro is prop of the state
Back and forth weird in Civil!
- Imprescriptible like prop of the state but then provision does not apply in case of debts (give it then take it away)
An Act Respecting the Caisse de Dpot et Placement du Qubec
Art. 4 : The property belonging to the Fund shall be the property of the state but the performance of the obligations of the
Fund may be levied against such property
Case: Batiments Kaladart
Les Btiments Kaladart inc. v. Construction D.R.M. inc.
[2000] C.A. Que
Facts:
Decision:
D.M.R contracted to construct Warehouse for sel et
Appeal dismissed despite hypothec, immovable
sable for the ville de Rimouski
is unseizable as immovable is essential for public
utility
Kaladart supplies the material and gets legal
Ratio:
hypothec on warehouse for payment of materials
Art 916 (2) (above)
Suppliers of materials are usually protected by
Wide interpretation of 916
giving a legal hypothec to guarantee payment (art
2726)
Even if it is true that the warehouse is not essential
Hypothecation depends on seiability of the
to the functioning of the municipality, it is linked
immovable
to the furnishing of a service that is essential to the
Issue:
municipality
Despite the hypothec, is the immovable unseizable
Second Judge: Calls for legislature to clearly
as the immovable is for public utility (per art
outline the law in question so as to ensure creditors
916(2)?
who supply municipal buildings of their guarantees
Notes:
Art 916 of CcQ continues from CcLC which divided into public municipal domain (prop appropriated to public
utility public law applies and is therefore not siezable) and Private Minicipal Domain (not appropriated for public
utility Private law applies and is seizable )

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Chapter II: Rights in Land of Native Peoples

Historical Review
First Nations represent 3% of Cdn population of which 60% live on reserves. According to Prof. LeClair, they are
poorest of the poor. There are 2400 reserves (most in BC), 60-80 Aboriginal Nations and 50 different language
groups.
Euro-Cdns have used a double language partially recognising the sovereignty of indigenous peoples while consistently
denying the legal rights of that portion of the population.
Royal Proclamation
- Nations under the protection of the sovereign
- Establish procedure where Aboriginal lands can be acquired by the crown which was the only entity that could buy
Aboriginal land.
- Legal constitutional norm recog here that the Aborig are in nations
After war of 1812
- Aboriginal peoples lose status as military allies and the Fur-trade was in decline.
- Become known as The Indian Problem
First law respecting the Aboriginal populations was enacted in 1850 by the Province of Canada was assimilationist in
nature.
Cases of 1880s from PC characterized Aboriginal title as a usufruct which is only in civil law. Further into the future,
Civilian notion of possession is not used with Natives use common law tradition
White Paper 1969
- In this document there was a call to make all peoples in Canada equal. Wish to abrogate the Indian Act and make
Aboriginal peoples the same as other Canadians no special status.
- The effect of the proposal, this document isolated Aboriginal people and allowed Aboriginal people to preserve their
culture
SCC case in 1973
- Aboriginal title not based on the will of the sovereign but, rather, the title is there b/c Aboriginal peoples were here
first.
Indian Act Today
The act provides for collective right to the land and individual right w/in the band (sui generis rights distinct right from
common law use and benefit). Land (reserves) set aside by Her Majesty for the use and benefit of the band.
- Collective right denied to non-members of the band
Protected from seizure
Inalienable except to the crown
Crowns has a fiduciary duty to the Aboriginal people the crown is the trustee of their development. Legal title to the
reserve is the crowns (sometimes federal, sometimes provincial)
Problems: Underlying title could be provincial or federal. If it is federal, there are no problem as Feds have fiduciary duty to
Aboriginals and, thus, if land is sold on behalf of the Band, the funds will be returned to the Band. However, if the title is
provincial, there is not obligation to transmit the money back to the band upon sale of reserve land.
Any land transfer to a non-member of the band is void.

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Summary

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Consequence of protection
1) Very hard to get non-Aboriginal businesses on the reserve
2) Protection of seizure (s.89 of the Act)
a. Non-Indian can not have a hypothec on an immovable of an Aboriginal person situated on the reserve
b. Applies to tangible and intangible property cannot seize income, car, etc.
c. Cannot be seized if its paramount location is on the reserve even if outside the reserve
d. Can be seized is situated off the reserve

NO credit is the result. Nothing can be seized. Inhibits development. Thus, there is an assumption you can be an
aboriginal and be part of the Capitalist society

3) Rights of individual possession effected by collective protection

a. No Indian lawfully in possession of land unless allotted (s.20)
b. Could sell your certificate of possession to the band or another member of the band (must be approved)
c. NO INCENTIVE to improve an immovable on the reserve b/c they can only sell to another member of the
band who is probably as poor as they are
Van der Peet test for Aboriginal Title Id the crucial elements of the pre-exiisting distinctive societies. Must ID the
crucial aspects of the society that existed prior to contact with Europeans. Where customs arose solely in response to the new
contact, those aspects will not be protected. Culturally significant aspects shall be protected.
o fossilized understanding. Oral tradition. How can you prove what was culturally signif
o How can you ID what is culturally significant (switch in Francophone situation prior to conquest makes
no sense)
Delgamuukw Case: Rescinded portions of the Van der Peet test.
- Aboriginal title is Right to land that is not confined to practices that were integral to culture prior to contact
- In order to get title, must demonstrate that they had exclusive control over the territory before the Brits got here.
- Use must be in harmony with nature of the rapport the Aboriginal group has with the land (cant make it into a
parking lot)
- Aboriginal title still inalienable to other than the crown
Crown is still the owner of the radical title
Collective right (community)
Distinct from normal civil law prop concept. (b/c of cultural dimension among others)
The Indian Act
Intended to keep lands reserved for Native Indians. Key features:

s. 18 Minister may authorize use of land on a reserve for schools, burial grounds, administration of
Indian affairs etc.
s. 20 Minister may issue a Certificate of Possession to members of band who are in lawful possession of a
piece of reserve land.
s. 24 No transfer of right to possession possible without approval of Minister.
s. 25 Member of band loses right to possession upon leaving the reserve.
s. 28 Cannot transfer right of possession to a person outside the band.
s. 89 Real/ personal property of an Indian not subject to any charge, pledge, mortgage, attachmens, levy,
seizure, except in favour of another band member.
Note how s. 89 shows that statute is not drafted with civil law in mind - uses CL terminology.
Act speaks of certificate of possession, but in civil law possession refers to a factual right; clearly not using the same
concept.
Right of possession as defined by Act is quite limited: cant be transferred at will, can be revoked. In civil law, key
derogations from the right.

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Indian Act does not apply to the Inuits

Act Respecting Lands in the Public Domain,
s. 51 (provincial statute) says govt may reserve and allot, for the benefit of the Indians, the usufruct of lands.
Notion of equitable title alien to civil law. Still, concept of usufruct in this context, with federal govt having a
capacity as trustee (s. 52), is odd.
Cantin: Only solution is to consider it a statutory usufruct. Conten varies, is indefinite, is inalienable (quite
unlike normal usufruct); however, effectively conveys notion that a right in land remains with the state, and that
Indian title relates to a real right.
May argue that by ss. 51 - 52, bare ownerhip remains with prov. administrative power over property as trustee
goes to federal govt, and statutory usufruct goes to Indians.
The James Bay Convention
o

An attempt to reconcile conflicting Western/ Native perceptions of land. Related to northern pert of territory, where
Hydro-Quebec sought use of lands for major project. Indian Act required liquidation of Indian title with
compensation.

Natives received (i) monetary comp. (ii) administrative power over their lands. Furthermore, territory divided into
categories as follows:

Category 1 - Land transferred in ownership in favour of a land-owning corp. whose members are members of these native
groups (corp must be non-profit). Land cannot be sold - inalienable
Category 2 - Not right of ownership exclusive rights for hunting, fishing, trapping in favour of the moral person (ie. the
corporation). It is the community that is going to decide how those rights are going to be exercised provincial legislation re
animals does not apply. Effectively a dismemberment: province retains land, may still engage in mining, authorize hydroelectric projects etc.
Category 3 Native claims is extinguished renunciation of any claims to the territory. Native and non-native people have
hunting rights, etc. Specific rights for Natives over certain species. Also, Native people have option to open camps for
fishing and hunting (which Cantin-Cumyn says they will like because thats what they are good at.)
Cantin-Cumyn thinks the convention was a success because Native rights in land transferred into workable civil law
concepts, yet from First Nations point of view ownership remained a collective right.
James Bay Convention
Path being used as a model in different parts of Canada. This convention arose following the projects to devel hydro
elect in the north. Prior to the development of such projects, an injunction was granted against the government to
force discussion of Native rights.
Involves the Cree, Inuit, Naskapines (sp?)

Part 4: The Right of Ownership

Chapter I: Concept of Ownership in Quebec and in the Civil Law
(947-950, 953)
S. 1 The Paramount Legal Right
Be careful: Term Ownership must be reserved to the real right of ownership

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Summary
Art. 544 CN and
Art. 406 CcLC
Art 947

Kirk Shannon

Ownership is the right of enjoying and of disposing of things in the most absolute manner, provided
that no use be made of them which is prohibited by law or by regulations.

Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and
conditions for doing so determined by law.
Ownership may be in various modes and dismemberments.

Portalis: Presentation to the Legislative body

- Call for laws so as to enjoy and to dispose of things in the most absolute manner possible.
- Laws are necessary to guide conduct pertaining to the use of property just as they are necessary to guide personal
conduct itself
- Most absolute manner possible providing that he not make use of it in a manner prohibited by law or regulation
- Some writers claim that earthly goods were originally COMMONThis cannot be true; Providence DOES indeed
offer its gifts to the universality, but for the utility and needs of the individual, as there are only individuals in nature.
To speak precisely, goods considered common before their occupation are simply VACANT goods, and after their
occupation, become the property of the person possessing them. Necessity constitutes a true right, and the right of
ownership is a necessity.
- Rights of the state extend only as far as to regulate, by civil laws, the use of property of citizens, the power to avail
itself of this property for the purposes of public utility and the prerogative to levy taxes on that same property.
- Not right of ownership, mere power of administration
- Right of state to avail itself of property for public utility goes along with right of individual to compensation for loss
of land to the state
A Absolute or Fully and Freely?
Ownership is traditionally defined as a real right that is absolute, exclusive and perpetual. Was dominium in Roman
Law.
These labels cannot always be taken in a literal sense. Art. 544 of the French Civil Code states that ownership
is the right to enjoy and dispose of things in the most absolute manner, provided that no use be made of them
which is prohibited by law or regulation. In the CCLC, art. 406 used this exact same wording. (see above)
Ministers Comments to the CCQ it is stated that, in 1866, ownership was considered the most absolute
right.
It has since suffered several attacks, notably with the development of rights of multiple owners and
those which protect general interest; e.g. the numerous restrictions established by zoning
regulations.
Ownership is subject to diverse modalities which have become more normal with time. The
Code, in its Chapter on Ownership, takes account of these changes and attempts to better govern the
exercise of the right of ownership.
Minister continues that the CCQ brings few changes to the old law.
He states that art. Art 947 repeats the substance of art. 406 CCLC but adds nuance to the definition
given to the right of ownership, taking account of the restrictions that have appeared since
codification in 1866.
On the other hand, the article mentions explicitly that ownership may be in various modes and
dismemberments
Office de rvision du Code civil drafted an article which was NOT USED! -- stated:
Art 34 of
Draft C. Code
1983

Ownership is the right to use, enjoy and dispose of things to the fullest, within the limits and under the
conditions established by law.

B -- NEW Code CcQ Has it changed the concept of ownership

Differences b/n the codes
1. Description of the manner in which the right of ownership is to be used
o French and CcLC right of enjoying and of disposing of things in the most absolute manner

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o Now fully and freely

2. The object of the right
o Used to be chose
o Now is bein
3. Usage
o Dispose and enjoy
o Use, enjoy and dispose
New code modifies right as saying that any property can be the object of a right of ownership
Change in the CCQ object of the right of Ownership Proprit v. Property
The right of ownership is the starting point for discussion of corporeal things. (It applies in the same fashion for
immovables and movables.)
Historically, with immovables, ownership has replaced the tenures, but we are now full circle from Roman law
(back to ownership of property).There was an important change at the end of the seigniorial system with the
removal of competing notions with ownership (see Portalis, ABOVE).
Technically, proprit was reserved for REAL RIGHTS of ownership (with a direct connection between the
person and the object), but this is not the common usage.
In the CCQ, proprit is used to discuss things OTHER THAN direct physical relationships
(Cantin-Cumyn finds this disturbing!).
For example, art. 909s French text says proprit intellectuelle et industrielle, even
though we have said that this is not a real right. Also, 1131 (dealing with the usufruct)
speaks of ownership of the property, but goes on to talk about securities (stocks et al),
which are personal rights.
The distinction flowing from this categorisation means that ownership is the principal real right
Change in the CCQ re ownership through definition change of HYPOTHEC
Evolution of Art 947 (use and enjoy and dispose) (from 544 CN and 406 CCLC), one can see that: thing
has become property; changing the object of ownership. (In 406 CCLC (enjoy and dispose) it says
thing, meaning material object.)
Cantin thinks this change is not such a big deal could not have been intended to be so as was not mentioned
in the commentaries du minister stems from misconception of what a principle real right is (linked to
hypothec definition below)
Was not the work of the legal scholars but rather people in D.O.J. was probably not thought through
Can we infer a major change in the law here?The opinion since 1994 has been that the effect of
the change in words IS a change in law.
Ownership can now be on material OR immaterial objects. To Cantin THIS IS
WRONG. IP can not be ownership. That is only the right to exploit

The main arguments rest on the link between the definitions of ownership and the hypothec. Both now use the
word property which causes some confusion.
Art 2660
A hypothec is a real right on a movable or immovable property made liable for the performance of an
obligation. It confers on the creditor the right to follow the property into whosever hands it may be, to take
possession of it or to take it in payment, or to sell it or cause it to be sold and, in that case, to have a
preference upon the proceeds of the sale ranking as determined in this Code.
Cantin Problem:
- Does not like that hypothec is called accessory real right (or that the word property is used in art 2660) as leads to
confusion thinking that this change has meant a change in right of all real rights
- Creditor with benefit of hypothec has preference for monies for his claim BUT there is NO direct relationship b/n
titulary and the object of the right
- If ownership has been transformed such that it is a right on any object then the CcQ says we disregard distinction b/n
real and personal rights, so this reasoning is flawed
- In art 2644, use of the word property is just meant to include all rights of the patrimony, not same as the definition of
ownership.

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S. 2 Attributes of Ownership
Attributes of Ownership - Content : means of looking at the rights of ownership leads to understanding of dismemberment
of real right lesser real rights
From Art 947:
1) Right to use on a material object (USUS)
Positive: Use used to be included in enjoyment
- Includes all the different usages that a thing is susceptible of
- Idea that the thing is materially in the hand of the owner
Negative: Owner has no obligation to make use of the thing facult or an option to use
- In case of dismemberment, owner might be deprived of this right

2) Right to enjoy on a material object (FRUCTUS)

-

Owner takes the fruit of the thing and is free to use land for agricultural purposes.
May obtain revenue by leasing the thing
If leases his thing then he will be seen as using through the leasee
Implies a right to personally administer the thing
For the withdraw of the right to administer, there must be one of following three:
Legal incapacity (art 153,154)
Dismemberment of the real right (eg Usufructuary)
Insolvency (cause the administration by a third party trustee in bankruptcy)
Under no obligation to exploit the fruit of the thing or to account to anybody
If dismemberment, owner might be deprived of this right
See art 948-9

3) Right to dispose on a material object (ABUSUS)

-

Not specific to ownership: Right to transfer the title by sale, gift or will - Right to charge property with
hypothec as well . But these aspects are not specific to the right of ownership Same in all patrimonial
rights
Specific to ownership: Owner may act in such a way to diminish the value of the object even to the point of
destruction Material act of disposition
Includes but is not restricted to:
o Right to extract minerals
o Possibility of cutting down the forest
o Changing the destination made of the thing (that is, changing the present use of the thing) usually
the immovable
Does not apply to dismemberments of real rights
Owner not bound to preserve the substance whereas dismemberments of real rights is bound to perserve (e.g.
usufructuary).

Barring a dismemberment of the right of ownership, ownership includes all 3 of these attributes IN FULL.
Historical Distinction
Different from Seigneurial Sys title on land for both censitaire and seigneur was dependant on obligations. With
ownership does not come obligation (59 of seigneurial act CB p.197) unless by special legislation.
No lands held in Free and Common Soccage or en frac aleu shall be charged with any perpetual
irredeemable rentand any stipulation in any deed of conveyance of any such land tending to charge the
same with any mutation fine or any payment in labour, or tending to entail upon the holder of any such land,
the duty of carrying his grain to any particular mill, or any other feudal duty, servitude or burden
whatsoever, shall be null and void.

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S. 3 Characteristics of Ownership
Intro
Formerly subsumed under the expression the most absolute manner. The meaning of this phrase began to be taken out
of context in a negative way. As if the owner could do anything he wanted. Not so. No right is completely absolute. Was to
be changed to be placed in the context of 20th C. ideologies. Itellectual context. Socialists made a monster of the absolute
manner. Changed to fully and freely. (see CB 236) Absolute Manner leads to improper interpretation so the change
was good. DO NOT USE THE WORD ABSOLUTE Cantin gets angry!!!!!
Historical What then, did the CN and CCLC drafters have in mind when they said in the most absolute manner?
Their context was in comparison with the former seigniorial system.
The Owner was therefore being compared to a King (this is implicit in Portalis work, see
above) Absolute meant free and individual ownership, as cfd to the King.
They did not want those who had lost land or who had had land confiscated during the
French revolution to come back and claim their land. (However, in todays light, it is a
little offensive, so it is probably wise to change this)

There are classically 3 characteristics of ownership.

(1.) individual right;
(2.) exclusive right; and
(3.) perpetual right.
Individual right
- Benefit of the subject only: Idea that the owner is not required to exercise his right in the interest or for the
benefit of another person (including the family of the owner) Not bound to take into account any interests
other than his own
- Recognition of private property as an application
- Applies more obviously to the right of ownership of the immovable
Limtations:
o Now have rule of owner of the family residence to obtain consent from spouse for sale of family residence (art 401-)
o Doctrine: Social function of the right of ownership owner obliged to take into account interests of society when
exercising his right In particular, dealt with in regards to the abuse of the right.
Josserand This century, there has been a doctrine arguing the idea that ownership/private
property must be seen as incorporating a social function. MUST be exercised, taking into
account the society or collectivity. This social function could be understood as a type of
collective ownership which is a very socialistic idea (which Cantin does not like) No real
application
Could the social function be thought of as one of the ingredients of the concept of public
order? Cantin argues that it is better to see ownership as a subjective right and make any
limitations upon it express external (i.e. by statute.)
o Code doesnt go as far as collective ownership BUT Limits still in place limits and conditions for doing so
determined by law from art 947.

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Commentaires [rough Kirk translation]: Taking into account the current context with regards to the absolute character of
du Ministre de the right of ownership, the code declares that this right must be exercised subject to conditions and limits
la justice on
fixed by law.
Art 947-953
o The Office de rvision du Code civil drafted art. 34 limiting ownership within the limits and under the conditions
established by law as opposed to subject to the limits and conditions for doing so determined by law as was
eventually adopted in Art 947. This WOULD HAVE allowed the content of ownership is what the law says.
This recreates an eminent domain in favour of the State, and led Pierre-Marc Johnson to say that this
introduced Marxist ideas into Qubec civil law.
Subject to seems to imply more that the limits come from OUTSIDE the lawi.e. you can do
anything that you want unless the law says otherwise.
Other Relevance:

with respect to the trust, according to the CcQ the trustee is not seen as an owner. Trustee is not in a
position to do with the property as he pleases

Exclusive right
- New Article in the CcQ art 953
Art 953
The owner of property has a right to revendicate it against the possessor or the person detaining it without right,
and may object to any encroachment or to any use not authorized by him or by law.
-

Rights against encroachment have impact mostly with respect to immovables Owner is not obliged to
give access to his land to a 3rd party
Recourses: Possessory action is one possible recourse (art 929), Right to revendicate is another possible
recourse (art 953) action in court to re-establish ownership, General recourse of injunction (CB
p.263), Civil liability is another recourse
- Where Encroachment is tolerated: If owner does not take action on an encroachment this does not lead
to a right to the property for the encroacher (art 924A, art 1181) possession is insufficient for title of
servitude or other real right toleration does not create a right (see Themens v. Royer below)
- Law will permit encroachment in certain situations. (art 987-) permits the access to others in certain case
right of way to give passage in case of no direct access.
Individual and exclusive characters have been obstacles of co-ownership in the Civil Law no more as rules have been
created
Perpetual right
- Perpetuity: In this case (case of ownership) means not extinguished by usual method of extinction of
patrimonial rights. Right of ownership will only disappear when object of ownership disappears. Usual
techniques do not apply such as:
Cannot extinguish right for lack of use
Cannot for improper use
Cannot be extinguished by prescription (art 2921 does not apply to right of ownership)
Art 2921

Extinctive prescription is a means of extinguishing a right which has not been used or of pleading the nonadmissibility of an action. DOES NOT APPLY TO OWNERSHIP
Acquisitive Prescription is OK as it is a manner of transfer of right of ownership and not
extinction of that right
In case of abandonment (forfeiture) of an immovable, the right of ownership is transferred to
the state (Transferred, not extinguished)
Abandonment of movable, becomes res nullius
In case of certain servitudes, perpetuaity means an indefinite duration

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-

Kirk Shannon

Ownership is the only patrimonial right which is PERPETUAL. One must view, as a point of departure,
ownership as the right of maximum extension over material objects.

EG. What happens with temporary sale? Who benefits when right is finished? Previous owner, state? This is why there is
the perpetual character of ownership - so as not to have any residual right. Therefore re-characterized as a dismemberment.
Cantin Cumyn Essai sur la dure des droits patrimoniaux
- Real rights: Code does not deal with all questions relating to the extinction of real rights. only deals with the
duration of usufruct and emphyteosis
Perpetuity of the Right of Ownership:
- Not subject to extinction non-usage does not lead to extinction of the right of owernship
- Improper usage does not contribute to the decay of the right unlike emphyteosis
- The incommutable character of the right of ownership and its perpetuity make it the ultimate right
Effects of the perpetuity of the right of ownership
Abandonment
- In case of movables, creates bien sans maitre thing without a master (res nullius)
- In case of immovables, the state profits by acquiring ownership immediately
Substitution
- Substitution is not a temporary right of ownership.
- It imposes on the institute (grev) the obligation to conserve the substituted object and deprive it of la facult dont
dispose normalement le propritaire de ngliger sa chose, de la dtriorer.
- It renders acts of alienation constented by the institute opposable to the substitute during a substitution.
Condition rsolutoire
- The owner under the condition rsolutoire finds himself without a right of ownership b/c this right was not
effectively transferred
Notion of Ownership
- Only the total destruction of the object of the right of ownership affects the permanent character and destroys the
right of ownership.
Perpetuity is the ONLY character that is NEVER removed even with dismemberments (unless confiscated, expropriated)
Conclusion
-

Right of maximum extension of a right over a material thing

Not always so in practice many cases in which right is not full
Dismemberments
Legislation that limits exercise this right
Dismemberments usufruct, emphyteosis are never perpetual only ownership
Real servitude is perpetual (not in the same way) art 1191 means that it is of an indefinite duration
Limitations expropriation, confiscate, legislation, dismemberments
Only character that is NEVER removed (even with dismemberments) is perpetuity (unless confiscated,
expropriated) essence of the notion of prop

Chapter II: Restrictions in the Exercise of the Right of Ownership

(952, 976, 979, 983-991, 993-1001)
When ownership is protected by law, it is subject to numerous restrictions and limitations in the interest not only of the
public at large but also of individuals. The proviso or saving clause of article 947 constitutes the promise of this reality.
The real content of the right may be emptied, in a significant manner, by the real content of the clause subject to the limits
and conditions.determined by law. Intro to this chapter on p. 262 of the Casebook

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Le voisinage est un quasi-contrat qui forme des obligations rciproques entre voisins, cest dire propritaires. Le mur
mitoyen en droit coutumier contraint les deux propritaires sentendre. Un propritaire peut contraindre le voisin
construire, frais communs, un mur de sparation. Chaque voisin est propritaire de la moiti du mur. A.M. Patault
S. 1 Relations b/n Neighbours: Abnormal Inconveniences distinguished from abuse of right and
encroachment
A Codal Articles
CCLC 1053

Every person capable of discerning right from wrong is responsible for the damage caused by his fault to
another, whether by positive act, imprudence, neglect, or want of skill

CCLC 1055

He who is using the animal is equally responsible while it is in his service

CCLC 1057

Obligations result in certain cases from the sole and direct operation of law, without the intervention of any
act, and independently of the will of the person obliged or of him in whose favour the obligation is imposed.
(2) Certain obligations of owners of adjoining properties .and others of like nature.

CCQ
Art 953

The owner of property has a right to revendicate it against the possessor or the person detaining it
without right, and may object to any encroachment or to any use not authorized by him or by law.
New Codal article 976 based on jurisprudence with no need for fault
Art 976
Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance
they owe each other, according to the nature or location of their land or local custom.
Certain level of tolerance must exist. if neighbour building a house, some normal inconvenience must be tolerated
B Rememdies, Defences, etc.
An Owner, while disposing of his right, assumes possible risks.
- Inconvenience of use and enjoyment from right of ownership on neighbours. Only gets to a certain level (art 976)
- Who decides on the norm and breach court
Remedies: Usually go together
- Injunction: to modify the activity so as to bring it to the level of the norm.or stop the activity
- Damages
Defences:
- Only possible defence Inconvenience is NOT Excessive or abnormal
- 976 does not require proof of fault just that there be an excessive inconvenience
- As not fault based, it is an exception in civil liability.
- As such, the following defences DO NOT justify abnormal or excessive inconvenience
o Activity is allowed by law
o Public good less costly/ creates employment /.
o Nobody else (other than PL) complains
o No Fault under 1457
o I have been doing this for yearslonger than PL has been here.
C Cases
Case: Lessard v. Bernard
Lessard v. Bernard
Facts:
In 1993, D installs a
heating system. Since

(1996) Cour Suprieure

Decision:
Damages and injunction for the PL
Ratio:

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that time, neighbours
(PLs) are
inconvenienced by
smoke and odours which
emanate from this
system.
Issue:

Are the PLs being

subjected to
inconvenience which is
greater than the limits of
tolerance between
neighbours?

Kirk Shannon

Art. 976 establishes the applicable criteria for disputes between neighbours:
the applicable measure is whether the inconveniences are of abnormal or
exorbitant nature. An owner is responsible, even in the absence of fault,
when the usage of his/her right causes prejudice to another which passes the
normal inconveniences of neighbourhood having regard to the circumstances.
Here, the pls should not have to suffer this. Def is not running the heating
system as the vendor has said that it should be run. It does not really matter
that the system conforms to municipal regulations, because the def must take
all appropriate measures to ensure that the PLs are no longer inconvenienced
by the emanations of smoke. It is well established in doctrine and
jurisprudence that the victim of an abuse of right by his/her neighbour can
demand damages and an injunction at the same time.

Notes:

Here not based on fault based on Risk Art 950 (accepts risk of loss in eg. suit for damages)
Cantin sees this as an exemplary case
One looks to what has been suffered in order to evaluate damages (this is straightforward). Cantin-Cumyn says
that the Judges remarks on p. 142, casebook, are not needed. The Judge speaks about an abuse of rights, but art.
976 is NOT BASED upon fault. The remark is not needed.
Case: Gourdeau v. Letellier
Gourdeau c. Letellier
Facts:
2 walls: stopping the neighbour from carrying
out maintenance and is blocking the windows
from sunlight built only in front of the
windows which (although in accordance with
953) look directly on the land.
Issue:

Are the PLs being subjected to inconvenience

which is greater than the limits of tolerance
between neighbours?

[2002] C.A.
Decision:
For PL demolish walls
PL must pay for the demolition
Ratio:
Favours the thesis that privileges the inconvenience
suffered by the PLs over the demonstration of fault
not fault based.
Walls blocking access to property for purpose of
maintenance and blocking light is an abnormal
inconvenience.
Reasons as abuse of right which, according to
Cantin, is a fault. This should not be fault based.

Notes:

Rule in Civil law about illegal views Art 993 building within 1.5m cannot have direct view on neighbouring
land
Cantin has problem with the decision. Giving right
PL had no servitude of view and so created recesses in the walls to be in line with 993
She does not think this is a matter of excessive inconvenience D could build property right at property line
thereby blocking all sunlight and PL could not complain. So why not allow walls???
Cantin on Gordeau
- Case of the majority is not too convincing PROBLEMATIC
- Where is the abnormal and excessive inconvenience? Cantin cannot find it. One does not have a right to the light
coming in ones windows.
- Result is creating a servitude for the apartment building (the PL). If walls of demolished the D is prevented from
protecting privacy. This is like a servitude. Courts cannot allow for servitude only granted through K.
- Goes beyond ownership of ones land to a point where one is able dictate what is done on somebody elses land
Case: Barrette v. Ciment St-Laurent

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Barrette c. Ciment St-Laurent

(CS) [2003]
Facts : Defendant giving off dust, noise and odors which are an inconvenience for the neighbours.
Ratio : Responsibility is not based on fault. Must be proven that there was an abnormal and excessive
inconvenience.
No injunction as the factory was closed at time of the suit. Damages given.
Does not matter if the activity is permitted by legislation or even if they have a permit to carry on this type of
activity.
St-Laurent may have boosted the local econo, does not matter.
Also, claim cannot be rebutted by the D claiming to have acted prudently or diligently.
Prior right, or prior establishment is not a reason for excessive inconvenience.
Situation right now is quite favourable to the PL. Quite simplified from a situation based on fault.
WHO is the Neighbour?
- Other real right holders: Besides the neighbour, other titularies of real rights whos rights are substantial enough to
be inconvenienced.
- Leasee: Yes, leasee may sue under art. 976. Cantin doesnt like this. She sees 976 as a real action, based on a real
right.
o They want to be helpful to the leasee butis that helpful?
o Cantin thinks should force the leasor to take the action as leasor is supposed to allow for leasee to enjoy the
property. (from art. 1854). Leasee has right to withhold rent if not able to enjoy the property to the extent
that was agreed.
o Also under K issues (1858-61)
Future Damages
- No possibility of awarding future damages.
- If it did exist, would amount to buying a right to annoy.
976 is civil liability without fault.
- There were criticisms about not putting article in the chapter on civil liability.
- It is an exception as it is not fault-based
-

To be distinguished from recourse based on bad faith (art 6 & 7) Both are fault-based which Art 976 is not.
See p 263 CB comments of minister on art 6. He says this article is new law Cantin says NO!!!! One can
look to jurisprudence that it has been used just has been codified.

S. 2 Other Codal Restrictions

History -- Patault
- In Roman law prvided for no-mans land between properties. Then was eliminated and certain limits were
imposed on neighbours they were initially called servitudes No more (were even there in CCLC)
- Used to be called servitudes now are just refered to limitations on the right of ownership.
Articles in relation to Art 976
- Look at 991 Where the owner of land erects a construction or works or makes a plantation on his land, he may not disturb
the neighbouring land or undermine the constructions, works or plantations situated on it.
- New article. Codifies famous Katz v. Retz decision. Construction on St. Denis formerly had common wall.
Owner of one demolishes common wall and starts to construct a large building with deep foundation. Research
was done so as not to cause damage to the neighbour. Land was different than research said. Land fell in and
house next door need to be torn down. No fault. 991 is a case of neighbourhood inconvenience. It is the
extreme case of 976 according to Cantin.

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- Look at 990 The owner of land shall do any repair or demolition work needed to prevent the collapse of a construction or
works situated on his land that is in danger of falling onto the neighbouring land, including a public road.
- New article as well but not w/out precedent. Does it relate to 976. Not a neighbourhood inconvenience.
But.there is a risk. Cantin says not a 976 example. It is a measure that takes into account risk of lack of
maintenance (there is no obligation to maintain abusus) Risk of ownership.
- Look at 1467 The owner of an immovable, without prejudice to his liability as custodian, is liable to reparation for injury
caused by its ruin, even partial, where this has resulted from lack of repair or from a defect of construction.
- She thinks it is related to 950, 990 and outside fault. But scholars have opposing views.
- Look at 953, 977, 992 DO NOT confuse inconvenience with trespassing (use of land without authorization) or
encroachment (use of land without authorization but in this case deals more with construction)!! Not the same thing. Here do
not have to establish it is inconvenience.
- 977 Establishing where the border b/n two pieces of land
Prevention of conflict b/n neighbours (owned by different people real rights)
Art 953 -- The owner of property has a right to revendicate it against the possessor or the person detaining it without right,
and may object to any encroachment or to any use not authorized by him or by law.
Authorized by law
1) 984 Fruit that falls from a tree onto neighbouring land belongs to the owner of the tree.
2) 987 Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it
if that is necessary to make or maintain a construction, works or plantation on the neighbouring land. (and 988)
3) 989 Where a thing is carried or strays onto the land of another by the effect of a natural or superior force, the
owner of that land shall allow the thing to be searched for and removed, unless he immediately searches for it
himself and returns it.
(2) The thing, whether object or animal, does not cease to belong to its owner unless he abandons the search, in
which case it is acquired by the owner of the land unless he compels the owner of the thing to remove it and to
restore his land to its former condition. (in CCLC used to deal with Rabbits, bees.not so much anymore)
4) Situation of the enclosed land access which is not adequate for enjoyment of the land (997 1001)
Lasts only so long as it is needed (road is built)
In French Enclav
The owner of land enclosed by that of others in such a way that there is no access or only an inadequate,
difficult or impassable access to it from the public road may, if all his neighbours refuse to grant him a
servitude or another mode of access, require one of them to provide him with the necessary right of way
Art 997
to use and exploit his land.
Where an owner claims his right under this article, he pays compensation proportionate to any damage he
might cause.
5) 985 Trees and roots (and sugar bushes !?!)
If branches or roots extend over or upon an owners land from the neighbouring land and seriously
obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do
Art 985
so.
If a tree on the neighbouring land is in danger of falling on the owners land, he may compel his
neighbour to fell the tree, or to right it.
6) 986 Right to sunshine for land which is used for agricultural purposes
Art 986
The owner of land used for agricultural purposes may compel his neighbour to fell the trees along and not
over five metres from the dividing line, if they are seriously damaging to his operations, except trees in an

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orchard or sugar bush and trees preserved to embellish the property.

7) Waters 979, 980, 981 (latter two for watercourse)
Art 979
Lower land is subject to receiving water flowing onto it naturally from higher land.
The owner of lower land has no right to erect works to prevent the natural flow. The owner of
higher land has no right to aggravate the condition of lower land, and is not presumed to do so if
he carries out work to facilitate the natural run-off or, where his land is devoted to agriculture, he
carries out drainage work.
Still Water and Snow
Art 983
Roofs are required to be built in such a manner that water, snow and ice fall on the owners land.
8) Avoiding injury through lack of repair
Art 990
The owner of land shall do any repair or demolition work needed to prevent the collapse of a construction
or works situated on his land that is in danger of falling onto the neighbouring land, including a public
road.
9) Prohibition of views 993 and following
10) Partition May be modified by municipal regs. Art 1002 Sharing the cost of fence b/n two properties
Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of
fence.
Art 1002
He may also require his neighbour to make one-half of or share the cost of making a fence which is
suited to the situation and use made of the premises, on the dividing line to divide his land from his
neighbours land.
In Sum: These rules are often subject of servitudes (e.g. servitude of views).

Procedures to avoid encroachments with regards to buildings

Procedures outline in the Civil Code of Procedure in the CB p. 284.
Concept of Bornage Formal establishment of division line between their land
Every owner may compel his neighbour to have the boundaries between their contiguous lands
determined in order to fix the boundary markers, set displaced or missing boundary markers back in
place, verify ancient boundary markers or rectify the dividing line between their properties.
Art 978
(2) Failing agreement between them, the owner shall first make a demand to his neighbour to consent to
having the boundaries determined and to agree upon the choice of a land surveyor to carry out the
necessary operations according to the rules in the Code of Civil Procedure.
(3)The minutes of the determination of the boundaries shall be entered in the land register.
Boundary may not be set out by agreement must be by formal surveyor. Surveyor outlines findings which are placed in
the land registry. Upon disagreement, court must decide.
Case: Themens v. Royer
Themens v. Royer
Facts:
Construction which is encroachment
on the PLs property
Issue:

C.A. [1937]
Decision:
For the PL must demolish the part of the building on the PLs land
Ratio:

Owner who had built the encroaching building could have avoided

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Must the D demolish the part of the

construction on the Pls property or
can the court order the PL to sell
that section of the property.

Kirk Shannon

the situation by having line defined through a bornage. Did not.

Cannot order PL to sell section of land as this would constitute a
private expropriation.
Defence that the building has been there for 15 years cannot be valid
Good faith is not enough

S. 3 Expropriation and other instances of non-consensual Acquisitions

(952, 992, 997-1001, 1004)
Art 952

No owner may be compelled to transfer his ownership except by expropriation

according to law for public utility and in consideration of a just and prior indemnity.

Title is forcibly transfer of the right of ownership (most often could also be transfer of dismemberment of the real right
eg., superficies, servitudes.)
INTRODUCTION:
To make a general conclusion on the right of ownership: it gives complete title to a material object and is
basic to the organisation of rights (it is the structural point of departure).
This is the only patrimonial right which is PERPETUAL (not able to be extinguished by non-user,
etc.)this fact can be linked again to the disappearance of an eminent domain in the State.
By being an owner, a priori you have EVERYTHING. Then, anyone wanting to take away
certain benefits must prove it. Courts tend to give a restrictive interpretation to legislation restricting
the right of ownership.
Protection against power to expropriate Art 6 Every person is bound to exercise his civil rights in good
faith.
EXPROPRIATION:
The State, as representing the public, can proceed to the expropriation of real rights for purposes of public utility
strict rules.
It can also do so for itself or for the public works of the State, or delegate its authority to public
corporations or quasi-public corporations (railways, universities, etc.)
A requirement for all expropriations is that the owner cannot be compelled to give up
property except in consideration of a just indemnity previously paid (see art. 952 CCQ.)
See Protalis on the power to expropriate
Who has power to expropriate
- State, (Feds, prov, municipal), School boards, private legal persons in some cases, Universities
Public Utility purposes LEGAL BASIS MUST BE FOUND. express legislation
4 Requirements of art 952
1. To have the power to expropriate by law
2. Exprop must be required for public utility (subject to debate)
3. A just indemnity be paid market value of the land expropriated
4. Indemnity must be paid prior to the transfer of the expropriated right. (what will happen when there is a dispute 70%
of the municipal evaluation be paid so that the transfer is effected with the remainder being paid after the tribunal.
Case: Sula v. Cit de Duvernay
Sula v. Cit de Duvernay,
Facts:
City introduces a regulation which modifies the
zoning for the 3 lots in question to park. The

[1970] C.A. 234

Decision:
Zonage should be annulled this is disguised
expropriation.

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result is that the public is permitted to use the lots as

parkland. Pl is the owner of the lots, and claims that
the regulation is illegal and ultra vires, changing the
lots to parkland without proceeding by
expropriation and indemnity.
Issue:

Notes:

Ratio:

Should the zonage be annulled?

Tremblay (C.J.): City Council has the power to

prescribethe usage of all immovables in the
zones that it creates. BUThere, it has NOT
prescribed the usage that the Pl can make of his
property. It has prohibited usage, and Pl no longer
has any more right on his land than any other
person. The regulation therefore is illegal.

Rinfret: What matters here is that the lots formerly classified as private have, as a result of the regulation,
become public, depriving the owner of his right of ownership.

OTHER INSTANCES IN THE CODE WHICH AMOUNT TO EXPROPRIATION:

In the context of common walls, art. 1004 gives the right to the non-owner to pay in order to make a wall common if it lies
on the dividing line and currently belongs to only one owner kind of a private expropriation. See also 1008.
S. 4 Other sources of limitation: Special Legislation found outside of the Code:
-

List of legislation in handout that is not in the Table of Contents in the CB

o Municipal regs
o Culture Property Act
Section 30 goes far to protect cultural Prop must be kept in good condition
o Agricultural Lands
To save agricultural land from sprawling cities
Constrained situation of owners in the zone, you can only exploit land for agriculture or trees
no subdivision
Limitation as to construction.
Subject to permit
In quebec, from 49th parallel to the US border with certain areas being excluded

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