Civil Law Property

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
« Le voisinage est un quasi-contrat qui forme des obligations réciproques entre voisins, c’est à dire propriétaires. Le mur mitoyen en droit coutumier contraint les deux propriétaires à s’entendre. Un propriétaire peut contraindre le voisin à construire, à frais communs, un mur de séparation. Chaque voisin est propriétaire de la moitié 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
  

• 
  Activity is allowed by law
  
• 
  Public good – less costly/ creates employment /….
  
• 
  Nobody else (other than PL) complains
  
• 
  No Fault under 1457
  

• 
  I have been doing this for years…longer than PL has been here.
  

C – Cases

Case: Lessard v. Bernard

Lessard v. Bernard (1996) Cour Supérieure
Facts: In 1993, D installs a heating system. Since that time, neighbours (PL’s) 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?	Decision: Damages and injunction for the PL Ratio: 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 Judge’s 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 [2002] C.A.
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?	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 one’s 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 one’s land to a point where one is able dictate what is done on somebody else’s land
  

Case: Barrette v. Ciment St-Laurent

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 who’s rights are substantial enough to be inconvenienced.
  
• 
  Leasee: Yes, leasee may sue under art. 976. Cantin doesn’t like this. She sees 976 as a real action, based on a real right.
  
  • 
    They want to be helpful to the leasee – but…is that helpful?
    
  • 
    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.
    
  • 
    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.