Civil Law Property

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: Movable objects acquire some value (jewellery and books)  Brought about declaration of the law. Movables of value become immovable by the law 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

• 
  CCQ - GOVERNED BY A FOUR-TIER DISTINCTION:
  

1. 
   900903 – IMMOVAVBLE THINGS (land, constructions, materials, works)
   
2. 
   904 – IMMOVABLE REAL RIGHTS
   
3. 
   905906 – MOVABLE THINGS
   
4. 
   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.

• 
  Land
  
• 
  Plants
  
• 
  Minerals
  
• 
  Construction and works
  

 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: Cable television network bought and assessed for taxes based on point that antennas and network of wires were movables (wires on bell or hydro poles) Issue: Is the cable network an immovable? Decision: Appeal allowed – for Cablevision – both the antenna and the network of cables are immovable	Reasoning: Antennas (mounted on a tower and is a structure distinct from the building) are immovable by nature as attached to building which is attached to soil Structures must participate in the immobility of the land which is the ultimate measure of whether a thing is immovable by nature Wires and other parts of cable network were considered structure on top of other structure (bell or hydro poles) and therefore are immovable Ratio: Immovable when a structure that may be described as a building adheres to something that is immovable by nature, whether land or a building and thereby acquires a fixed foundation Immaterial whether structure adhering to land and structure adhering to structure are owned by same person
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 eventually might classify as immovable  probably wouldn’t 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
  
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  Construction and work must be fixed  have an attachment with the soil
  
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  Mere weight is not sufficient
  
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  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.

CCLC 380

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 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)
  

CCLC 375

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 à 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.

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  Article must ensure the utility of the immovable
  
• 
  Distinction is important if the object is sold under a K that does not transfer ownership.
  

Case: Horn Elevator

Horn Elevator Limited v. Domaine d’Iberville Ltée [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 d’Iberville – 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 [1928] C.A. Que

Facts: Rousseau pays for furnace in house owned by Nadeau Nadeau sells house without paying off furnace Issue: Is Furnace considered a movable or immovable Decision: For the Plaintiff  furnace is part of the immovable or, another way, is an immovable itself.

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 “s’il y est attaché de telle sorte qu’il soit indispensable à l’existence ce même de l’immeuble, et que l’immeuble ne soit pas complet sans lui In our climate, a house without a furnace is not complete Ratio: Sellor of furnace losses rights to the furnace as it has become an immovable b/c of incompletion of immovable without furnace

3 classifications

1) Purpose of object  but we don’t 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
  
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  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 [1998] C.S. Que
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	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 Ltée v. L’officier de la Publicité [2002] C.A. Que Des droits de la circonscription foncière de Montréal
Facts: The boards of a skating rink in an arena Issue: Issue is whether boards are part of construction Decision: 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	Reasoning: Majority: Under 903 – permanency of physical attachment is needed which means that the object must be attached with the intention of keeping it there for an indeterminate amount of time. Satisfied that proprietor 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 eval’d 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 à 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

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  Would the elevator fit into 901 or 903
  
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  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

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  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
  
• 
  Hypothec can not exist solely on this object but only with the building as a whole
  
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  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
  
• 
  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

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.”]