SERVITUDES AND NEIGHBOURLY DISPUTES

Neighbourly disputes can often lead to a long and arduous judicial process and everlasting deterioration of the relationship with your neighbour. Because of this, it is always wise to try to resolve any neighbourly dispute through amicable negotiations before undertaking legal remedies. However, if a mutually beneficial agreement with him/her cannot be agreed upon, the first course of action is to send a demand letter. The letter's objective is to compel him/her to comply with his/her legal obligations. If your neighbour continues to disregard his legal obligations, your attention should be directed to the court to seek the protection of your rights. Depending on the nature and urgency of the rights in question, the protection may be obtained by way of an injunction to stop your neighbour's actions or by filing a claim for damages to receive compensation for the damages caused. Neighbourly disputes are often caused by issues relating to acquisitive or extinctive prescription, as well as:

· Trees;

· Noise

· Boundary lines; and

· Servitudes.

1) LIMITS AND BOUNDARIES OF LAND

The point at which a property ends and another begins is determined by titles, cadastral plans and, in certain circumstances, other useful indications and documents.


Issues about the limits of land and boundaries often manifest themselves in the form of encroachment. Encroachment is the presence of any physical delimitation that exceeds the set boundary lines of a property, for example, the existence of a common fence.

In virtue of Section 978 of the Civil Code of Quebec, an owner of land may compel his/her neighbour to have boundaries between their contiguous land determined.


If the neighbour refuses, the owner must send a demand letter. The letter must require his/her consent to have the boundaries of the land determined. Additionally, the letter must compel the neighbour to discuss the appointment of a land surveyor. If the parties cannot agree on a common land surveyor, either party may appeal to the court and ask that it appoints one.


In the case of land boundaries in condominium buildings, modification to boundary limits can be done of the owners' own volition. Consent of the general assembly is not needed if two conditions are met. Firstly, the approvals of both the hypothecary creditor and the Syndicate are obtained. Secondly, the foreseen changes will not affect all the affected units' relative value and voting rights.

Upon the designation of a land surveyor, he/she must produce a report. The report will indicate the boundaries between the land and the operations that were necessary for its determination. If the landowners in question accept the report, they agree on the dividing line by default. The surveyor must then write up the procedures' minutes and register the new information on the land register. If one of the owners refuses the report, the refusing party must apply to the court to determine the dividing line.

It should be noted that if the dividing line affects a third party, the court may order the latter to act as an intervening party in the proceedings. The costs associated with the land surveyor’s fees will be shared equally amongst the owners. In contrast, the costs relating to the minutes and the reports will be proportioned based on each property's boundary line.

2) SERVITUDE

A servitude is an agreement by an owner to transfer the use of a portion of his land or immovable (the “Serviant land”) to another land or immovable (the “Dominant land”). The most common form of servitude is the right of passage through someone’s land. Article 1177 of the Civil Code of Quebec defines a servitude.

In general, servitudes are meant to benefit land or an immovable, as opposed to an individual. As a result, baring any agreement to the contrary, servitudes are perpetual because they will be an accessory to the dominant land. Nevertheless, servitudes that benefit individuals rather than property do exist. These servitudes are known as personal servitudes, and unlike servitudes benefiting land, they are for a temporary period and are specific to predetermined individuals.

Types of servitudes

Servitudes are divided in two categories:


1) Preventive Servitudes

2) Permissive Servitudes.

An example of the first category of servitude could be that your property is charged with a servitude that prevents the erection of a structure in a delimited portion of your land to maintain a landscape view for the dominant land. In this example, the dominant land is benefitting from the servitude on your property.

In contrast, the dominant land mentioned in the above example may be charged with a servitude that benefits your land. For example, it grants the right to walk through the property to access the road.

The creation of servitudes


A servitude is never presumed. The right of ownership is absolute; thus, it is crucial to have a clear and unequivocal stipulation justifying a servitude.


How a servitude is established is well defined under Article 1181 of the Civil Code of Quebec. According to this article, a servitude cannot be presumed. There must be a clear and unequivocal stipulation justifying its existence. Additionally, the definition noted above clearly affirms that a servitude can only be created via four methods. As a result, it is impossible to create or acquire a servitude on another's land by the simple passing of time.

It is important to note that in the case of servitudes established by contract, deed of sale, will or destination of the owner, it is essential for its validity that the land title describes the servitude. A servitude created by operation of law is exempted from this requirement.


A servitude created by the owner's destination entails ownership of two neighbouring lands or land, which has yet to be divided by the same individual. The servitude must be contained in writing that explicitly describes the extent, situation, and nature of the servitude. Once the servitude is created, even in the event of a sale of one of the lands, the servitude will remain.


A servitude by operation of law is created by the government or public authorities vested to establish servitudes. Legislation bestows this power to meet specific ends, such as the construction of roads or for the operation of hydroelectricity.

The exercise of a servitude

The dominant land owner's servitude may only be exercised within the rights stipulated; thus, the owner is only permitted to exercise his rights according to the description of the servitude in the land title. However, because servitudes benefit another piece of land, they can often produce supplementary rights for the benefiting owner. For example, a servitude allowing the use of a dock may inherently carry a right-of-way to access the dock. The servient landowner can nonetheless exercise certain rights of his own regarding the servitude, such as moving the place of the servitude. The dominant landowner can only oppose the servitude's displacement if the new placement disadvantages him compared to the old placement.


Moreover, Article 1184 of the Civil Code of Quebec stipulates that the owner of the dominant land may, at his own expense, do what is necessary to ensure he can exercise and preserve the servitude unless the act establishing the servitude disallows it. The article also confirms that the dominant landowner must restore the land to its former condition at the end of the servitude and upon request from the servient landowner. However, the dominant landowner must be wary not to abuse his rights or act in any way that could aggravate the servient land owner's situation. If he does so, the servient landowner could seek an injunction or damages.

The termination of a servitude

A servitude can only be extinguished due to reasons prescribed in Article 1191 of the Civil Code of Quebec such as :

(1) by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;

(2) by the express renunciation of the owner of the dominant land;

(3) by the expiry of the term for which it was established;

(4) by redemption;

(5) by non-use for 10 years.


Certain nuances must be made regarding the non-use condition of 10 years. Firstly, the usefulness of the servitude is not to be considered. As a result, even if the servitude is futile for the dominant landowner or it does not benefit him in any way anymore, the servitude will not be extinguished. Secondly, the non-use for ten years must be consecutive. Lastly, even though a servitude has not been used for ten consecutive years, the servitude's scope can be reduced instead of extinguishing it completely.

3) ACQUISITIVE PRESCRIPTION

Acquisitive prescription can be defined as a way to acquire a right of ownership, or one of its dismemberments, by the simple passing of time.


Certain conditions must be met to establish acquisitive prescription. One of the conditions is to be in possession of the property in a peaceful, continuous, public and unequivocal manner for the prescribed amount of time. To possess something, two criteria must be met:


1) Physical possession, while performing acts as its owner; and

2) The intention to act as the owner;

3) Once physical possession is established, the second criterion is presumed, and it will be for the

party contesting possession to establish that both criteria have not been fulfilled.

There are two periods of time prescribed by the Civil Code for acquisitive prescription to be claimed.

1) Ten (10) years; and

2) Three (3) years.


Generally, the period for acquisitive prescription is ten (10) years, except as otherwise determined by law.

In the case of immovables such as houses, a person must possess the immovable and act as the owner for ten years. Additionally, the counting of time only beginning once the individual has had continuous possession. Only then may he apply to the court for a judgement confirming he has acquired the right of ownership.


Concerning movable property such as cars, an individual can acquire the property ownership after three (3) years, starting from the original owner's dispossession. He must possess the movable in good faith. Until the prescribed period's expiry, the owner may revendicate the movable property unless acquired under judicial authority.

It must be highlighted that acquisitive prescription does not apply to public property.

4) EXTINCTIVE PRESCRIPTION

Extinctive prescription can be defined as the extinguishing of right by the simple passing of time. An example of this can be the non-use of a servitude for ten consecutive years.


Similarly, if a neighbour builds a fence on your land and ten consecutive years go by, he could acquire ownership of the parcel of land delimited by the fence by way of acquisitive prescription; Thus, you would have lost your right by extinctive prescription.

1405 Transcanadienne, Suite 400, Dorval, (Qc) H9P 2V9

info@meditax.ca |   514.653.6334

MEDITAX