Civil Law Property

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

Art. 544 CN and Art. 406 CcLC

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.

Art 947

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 COMMONThis 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)
  
• 
  Minister’s 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 révision 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

• 
  French and CcLC  right of enjoying and of disposing of things in the most absolute manner
  
• 
  Now  ‘fully and freely”
  

2. The object of the right

• 
  Used to be “chose”
  
• 
  Now is “bein”
  

3. Usage

• 
  Dispose and enjoy
  
• 
  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  “Propriété” 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, “propriété” 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, “propriété” is used to discuss things OTHER THAN direct physical relationships (Cantin-Cumyn finds this “disturbing!”).
  
• 
  For example, art. 909’s French text says “propriété 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.
  

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  faculté 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:
  
  • 
    Right to extract minerals
    
  • 
    Possibility of cutting down the forest
    
  • 
    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 rent……and 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.

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 20^th 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 cf’d 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 today’s 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:

• 
  Now have rule of owner of the family residence to obtain consent from spouse for sale of family residence (art 401-)
  
• 
  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.)
  

• 
  Code doesn’t go as far as collective ownership BUT… Limits still in place “limits and conditions for doing so determined by law” from art 947.
  

• 
  

  Commentaires du Ministre de la justice on Art 947-953

  [rough Kirk translation]: Taking into account the current context with regards to the “absolute” character of the right of ownership, the code declares that this right must be exercised subject to conditions and limits fixed by law.

  The Office de révision 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 Québec civil law.
  
• 
  “Subject to…” seems to imply more that the limits come from OUTSIDE the law…i.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 3^rd 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 non-admissibility 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
  
• 
  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 durée 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 (grevé) the obligation to conserve the substituted object and deprive it of la faculté dont dispose normalement le propriétaire de négliger sa chose, de la détériorer.  It renders acts of alienation constented by the institute opposable to the substitute during a substitution. Condition résolutoire The owner under the “condition résolutoire” 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