Civil Law Property

S. 2 – Other Codal Restrictions

History -- Patault In Roman law prvided for “no-man’s 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.
  

- 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  Enclavé

Art 997

The owner of land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or impassable access to it from the public road may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with the necessary right of way to use and exploit his land. Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause.

5) 985  Trees and roots (and sugar bushes !?!)

Art 985

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

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 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 owner’s 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

Art 1002

Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence. He may also require his neighbour to make one-half of or share the cost of making a fence which is suited to the situation and use made of the premises, on the dividing line to divide his land from his neighbour’s land.

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

Art 978

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. (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 C.A. [1937]
Facts: Construction which is encroachment on the PL’s property Issue: Must the D demolish the part of the construction on the Pl’s property or can the court order the PL to sell that section of the property.	Decision: For the PL – must demolish the part of the building on the PL’s land Ratio: Owner who had built the encroaching building could have avoided 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. Cité de Duvernay

Sula v. Cité de Duvernay, [1970] C.A. 234
Facts: City introduces a regulation which modifies the zoning for the 3 lots in question to “park”. The 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: Should the zonage be annulled?	Decision: Zonage should be annulled  this is disguised expropriation. Ratio: Tremblay (C.J.): City Council has the power to “prescribe…the usage of all immovables” in the zones that it creates. BUT…here, 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.
Notes: 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:

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  List of legislation in handout that is not in the Table of Contents in the CB
  
  • 
    Municipal regs
    
  • 
    Culture Property Act
    
    • 
      Section 30  goes far to protect cultural Prop  must be kept in good condition
      
  • 
    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 49^th parallel to the US border with certain areas being excluded
      

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