NEIGHBOURLY DISPUTES

According to section 976 of the Civil Code of Québec (hereinafter referred to as «C.c.Q.»), a neighbor must tolerate “normal neighbourhood annoyances” that do not surpass the “limit of reasonable tolerance”.

What constitutes “reasonable” and “normal neighbourhood annoyances” will vary depending on the “nature or location of their land or local usage”, which implies that the same or similar behavior may be appreciated differently depending on the circumstances. For example, it is more “normal” to hear a neighbor’s rooster sing early in the morning in a rural setting than in downtown Montreal.

It is always the best practice to try to settle any neighborly dispute amicably even if you do not get along with your neighbor. However, if you cannot reach a mutually beneficial agreement with him/her, the first step is to send a letter of demand in order to compel him/her to comply with his/her legal and/or contractual obligations. This may require, among other things, the cessation of harmful behavior, the granting of compensation for failing to comply with your requests, etc.

Consequently, if your neighbor does not comply with your requests and is in default, you can bring the matter to court via legal proceedings and seek the protection of your rights which may be obtained by way of an injunction, forcing your neighbor to stop the action that caused the dispute in the first place, or by forcing him/her to remedy the situation as urgently as possible.

In the event that there is no sense of urgency regarding the dispute, you can file a claim for damages in court to obtain compensation for the harm that you have suffered as a result of it.

The following are the most frequent causes of neighborly disputes: noise, trees, illegal views, servitudes, boundary lines between two contiguous properties, water flowing from one property to another and renovation work.

  1. LIMITS AND BOUNDARIES OF LAND

The limits of land are determined by titles, cadastral plans, the boundaries of the land and, if necessary, by any other useful documents.

A problem that occurs frequently amongst neighbors is the determination of the delimiting line between two contiguous properties. A common fence (or any other physical delimitation) could exceed the original boundary line and, in such a case, there would therefore be encroachment.

In order to remedy these disputes, section 978 C.c.Q. provides:

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.

Failing agreement between them, the owner shall first make a demand to his neighbour requiring to consent to having the boundaries determined and to agree upon the choice of a land surveyor to carry out the necessary operations, in accordance with the rules in the Code of Civil Procedure (chapter C-25.01).

The minutes of the boundary-marking operations must be registered in the land register; the boundary determination report may be attached to the minutes.

Only a land surveyor authorized by the province can determine the dividing line between two neighboring properties belonging to different owners. He/she has the authority to determine this dividing line which must be chosen jointly by the owners or, if the parties cannot agree, by the court.

Moreover, in the case of neighbors in a condominium building, it is potentially possible to modify the boundaries of their units without the consent of the assembly, provided that they obtain the consent of the hypothecary creditor and the union as long as such a change shall not affect the value of all of the amended units or the voting rights attached thereto.

The Surveyor’s Report

Pursuant to the Code of Civil Procedure, the land surveyor must produce a report showing the boundary between the properties and all the operations that were necessary in its determination. If the parties/the owners, accept said report, it will be declarative of the dividing line. They will then have to ask the surveyor to write up the minutes of the procedure and register them in the land register.

If one of the owners refuses the boundary report, the latter must, within one month, ask the court to determine the dividing line. The court will then order the land surveyor to write up the minutes and to register it and the judgment in the land register.

In addition, if the demarcation may affect a property that is not contiguous to the property of the claim, the court can order the intervention of the owner of the said property as a third party in the proceedings.

Finally, any owner may oblige his/her neighbor to have the boundaries for the properties drawn up for neighboring (contiguous) properties. The land surveyor’s fee will be shared equally among the owners, while the costs of the demarcation and the minutes will be shared in proportion to the boundary line of each building.

2. SERVITUDE

The notion of a servitude is well defined under section 1177 C.c.Q.:

1177. A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner.

Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.

A servitude extends to all that is necessary for its exercise.

A servitude is thus an owner agreeing to transfer a benefit offered by his/her property, to his neighbor, allowing him/her to benefit.

However, it is important not to forget that a servitude is for the benefit, not of a person, but of a property. A servitude therefore has a perpetual aspect, subject to an agreement to the contrary, since it will be encumbered with the immovable which benefits from it, and so the rights resulting from it will be sold or charged with a hypothec with the immovable in question, thereby bringing considerable added value.

Nevertheless, certain servitudes, personal servitudes, are for the benefit not of the property but of the parties. There will then be a property that will be for the benefit of one or more people.

The constitution of a servitude

There are two types of servitudes: those preventing your neighbor from doing something, and those giving you the right to use the property or to do a specific act on the neighboring property.

For example, your property could be subject to a servitude that would prevent the owner of the neighboring property from constructing a structure beyond a certain height so that a view of the landscape can be maintained.

In contrast, your property may have been granted a right-of-way on the neighboring property so that you can access a public road for example.

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

In fact, section 1181 C.c.Q. states the following as to how a servitude is established:

1181. A servitude is established by contract, by will, by destination of the owner or by operation of law.

It may not be established without title, and possession, even immemorial, is insufficient for this purpose.

Thus, only these four methods will allow the creation of a servitude. A servitude cannot therefore be acquired by prescription, that is to say simply by the passing of time.

Consequently, whether a servitude is granted due to a deed of sale, a will or by the designation of the owner (where the same person owns two neighboring properties and grants the right one of his properties), it is essential that a title provides a description of the said servitude (unless it results from the law).

A servitude created by the owner of a property’s designation can only be performed where the same person owns distinct and separate properties or a property that has not yet been divided, and a writing describing the extent and modalities of the servitude will still be needed.

As per servitude resulting by operation of law, legislation often gives the government or public authorities the ability to establish servitudes to meet specific ends, such as when it comes to road construction or operating hydroelectric power.

A title of incorporation will therefore contain the description of the servitude, the identification of the serving land and the dominant land, and a description of the type of servitude, its extent and location. The servitude will benefit from being identified precisely, since it is this same title which will be used to determine the use and the extent of the rights relating to the latter, thus preventing a possible dispute.

The exercise of a servitude

The owner of the dominant land, i.e. the property that benefits from the servitude, must therefore exercise its rights in accordance with the description of the servitude in its title. You may, however, have rights ancillary to those described in the title.

For example, a drainage servitude necessarily carries a right-of-way or passage so that you can go to the well in question.

According to the C.c.Q., an owner who benefits from a servitude has the right to construct works necessary for the use and conservation of said servitude (section 1184 C.c.Q.). He/she must nevertheless inform the owner of the servient land (property the provides the servitude) that work will be undertaken. In all cases, the owner of the dominant land must avoid any kind of abusive behavior, in which case the owner of the servient land could intervene and seek damages if irreparable harm has been caused.

The owner of the servient land may, in certain circumstances, move the place of servitude. Thus, in the case of a right of way, the owner giving access to the neighbor to his land could ask him to change the place where the passage is located, as long as the new road offers advantages equivalent to the one initially in place.

The termination of a servitude

The termination of a servitude must respect the terms and conditions established by the C.c.Q.

Section 1191 C.c.Q. states the following:

1191. A servitude is extinguished

(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.

Thus, if one of these conditions is not fulfilled, it is possible to request from the court to declare that the servitude is not yet extinguished.

As per the non-use condition, it is important to mention that the uselessness of any servitude is not a cause for extinction. In fact, you have to have not used said servitude for 10 consecutive years. However, the non-use of part of the servitude for 10 years may lead to a reduction of said servitude, without actually extinguishing it.

Finally, the 10 year prescription period for so-called continuous servitudes, that is to say those which do not require actions from the title holder, begins when a contrary act is made, i.e. the construction of a work is started at a non-construction servitude location. One must bare in mind that the burden of proof belongs to the person who alleges the prescription for grounds of extinction.

Acquisitive prescription

Acquisitive prescription is a means of acquiring the right of ownership of a property through possession and the passing of time (section 2910 C.c.Q.). To allege acquisitive prescription, you must have been in possession of a property or of a right in a property in a peaceful, continuous, public and unequivocal manner for a specified period of time.

The notion of possession, being a factual question, requires the combination of the two following criteria: 1) to be in physical possession of the property or right in question, while performing acts as its owner, and 2) behaving as the holder of the right.

Nevertheless, once the material aspect of possession exists, the second criteria is presumed and it will be for the party contesting the possession to demonstrate that the possession of the other party did not meet both criteria.

There are two acquisitive prescription periods recognized by the C.c.Q., namely one of: 1) 10 years , and 2) 3 years (hyperlink to paragraph bellow). As a general rule, the acquisitive prescription is 10 years, unless otherwise stipulated by law (section 2917 C.c.Q.).

In the case of a prescription of an immovable, the person must have possessed as the owner attention the immovable for 10 years and must apply to the court to acquire ownership of the immovable. The starting point of prescription begins, with regard to real estate, from the beginning of continuous possession.

The same thing happens should a person encroach on his neighbor’s land by building a fence or some other construction. He could, after a period of 10 years during which he “possess” the said land, acquire ownership of this parcel by acquisitive prescription.

The acquisitive prescription for movable property is 3 years under section 2919 C.c.Q.. Prescription will begin when the original owner is dispossessed of his property. The rightful owner may nevertheless claim his personal property as long as the prescribed period of three years has not expired.

It is also important to note that prescription does not apply to government property.

Extinctive prescription

As previously stated, certain rights can be extinguished by the mere effect of time. Indeed, the non-use of a servitude, for 10 years, subsequently prevents its beneficiary of it from using it. The legislator’s goal is to punish those who do not take care of the property they own and reward those who do.

The same thing happens if one of your neighbors encroaches on your land by building a fence or some other construction. He/she could, after a period of 10 years during which he/she “possesses” the land on which it encroaches, acquire ownership of this parcel by acquisitive prescription.

It is therefore important to remedy the situation and not to neglect the effects of extinctive prescription. Whether through a letter, negotiation or legal action, it is possible to interrupt the prescription period in a timely manner.

If you are looking for a law firm with reasonable rates, quick and efficient turnaround time for your files and who provides personalized and effective follow-ups, call Schneider Attorneys at (514) 439-1322 ext. 112 or email us at info@schneideravocat.com

The above noted text should not be construed as providing legal advice or a statement of your claim. The process highlighted above are merely parameters and barometers and do not constitute any warranties and guaranties with regards to your file at hand. We strongly recommend that you seek legal advice with a licensed attorney from the Barreau du Quebec or a notary at the Chambre des Notaires. Each case must be seen and analysed on its merits as the legal process may be complex and cumbersome.