NEIGHBOURLY DISPUTES

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 obligations. This may require, amongst other things, the cessation of harmful behavior, the granting of compensation for failing to comply with your requests, etc.

Consequently, if your neighbor fails to comply with your requests and persists in his/her default, you may bring the matter to the attention of the court and seek the protection of your rights which may be obtained by way of an injunction, forcing your neighbor to stop the action which 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.

The following are the most frequent causes of neighborly disputes:

Moreover, the initial source of these types of disputes often relates to issues of acquisitive prescription or extinctive prescription.

1) LIMITS AND BOUNDARIES OF LAND

The limits of land are determined by titles, cadastral plans, the boundaries of the land, and by any other useful indication or document, if need be.

A common issue amongst neighbors is the determination of the delimiting line between two adjacent properties. These issues manifest themselves in the form of encroachment, such as a common fence or any other physical delimitation which exceeds the original boundary line.

In order to remedy these types of disputes, section 978 of the Civil Code of Quebec provides:

“Every owner may compel his neighbor 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 an amicable solution, an owner shall first send a letter of demand to his neighbor requiring his/her consent in having the boundaries of the land determined and to agree on the choice of a land surveyor to carry out the necessary operations in accordance with the rules of the Quebec Code of Civil Procedure.

If the parties cannot agree in choosing a land surveyor, the court may appoint one upon request by one of the parties.

Only a certified surveyor can determine the dividing line between two neighboring properties belonging to different owners.

In the case of neighbors within a condominium building, it is possible to modify the boundaries of their units without the consent of the general assembly, provided that they obtain the consent of the hypothecary creditor and the Syndicate, and as long as such a change does not affect the relative value of all affected units and/or the voting rights attached thereto.

The Surveyor’s Report

Pursuant to the Quebec Code of Civil Procedure, a land surveyor must produce a report showing the boundaries between each land and all the operations which were necessary in its determination. If each owner accepts said report, it will be determinant of the dividing line. They will then have to ask the surveyor to write up the minutes of the procedures and subsequently 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 them, along with the judgment, in the land register.

In addition, if the demarcation affects a property that is not adjacent to the property in question, the court may order the intervention of that owner as a third party in the proceedings.

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

2) SERVITUDE

The notion of a servitude is well defined under Article 1177 of the Civil Code of Quebec:

“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 therefore an agreement by an owner to transfer a benefit offered by his/her land or immovable, the servient land, to a neighboring land, the dominant land. The most common form of servitudes is a right of passage through one’s land.

It is important to note that a servitude seeks to benefit the land or an immovable, not a specific individual. Consequently, servitudes are of a perpetual nature, subject to an agreement to the contrary, since it will be charged on the dominant land which benefits from it. Consequently, the rights of servitude will be sold or charged with a hypothec along with the dominant land, thereby bringing considerable added value.

Nevertheless, certain servitudes such as personal servitudes seek to benefit individuals and not the property. Personal servitudes seek to benefit pre-determined individuals with respect to land or other property for a temporary period.

The creation of a servitude

There are two types of servitudes:

1) Servitudes preventing someone from doing something; and

2) Servitudes granting a right of use with respect to the land or an immovable, or to do a specific act on the neighboring land or immovable.

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, Article 1181 of the Civil Code of Quebec states the following as to how a servitude is established:

“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.”

It is only through these four methods that a servitude may be created. A servitude cannot therefore be acquired by prescription, that is to say by the simple passing of time.

Consequently, whether a servitude is granted by contract, deed of sale, testamentary will or by the destination of the owner (where the same person owns two neighboring land and grants and transfers a servitude from one to the other), it is essential that the title of the land provides a description of the servitude (unless it results from the law).

A servitude created by the destination of the owner can only be performed by the sole owner of two distinct land, or land which has yet to be divided, along with a writing describing the extent, situation and nature of the servitude it intends to create on one part of the land in favor of the other. The owner may then sell the servient land or dominant land, but the servitude will remain.

As for servitudes resulting by operation of law, legislation often gives the government or other public authorities the ability to establish servitudes to meet specific ends, such as the construction of roads or for the operation of hydroelectricity.

The title of the land 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 situation. 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, the property that benefits from the servitude, must therefore exercise its rights in accordance with the description of the servitude in its title. Take note that it may be possible to have rights ancillary to those described within the land title.

For example, a servitude permitting the use of a well inherently carries with it a right-of-way so it is possible to access the well.

According to Article 1184 of the Civil Code of Quebec:

“The owner of the dominant land may, at his own expense, take the measures or make all the works necessary for the exercise and preservation of the servitude unless otherwise stipulated in the act establishing the servitude.

At the end of the servitude he shall, at the request of the owner of the servient land, restore the place to its former condition.”

The owner of the dominant land must nevertheless inform the owner of the servient land that certain necessary work ought to be undertaken.

In every circumstances, the owner of the dominant land must avoid any kind of abusive behavior or act in a way which would aggravate the situation of the servient land, in which case the owner of the servient land could intervene and seek damages, and/or an injunction if irreparable harm has been caused.

The owner of the servient land may, in certain circumstances, move the place of the servitude. therefore, 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 Civil Code of Quebec.

Section 1191 of the Civil Code of Quebec states the following:

“A servitude is extinguished

  • by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;
  • by the express renunciation of the owner of the dominant land;
  • by the expiry of the term for which it was established;
  • by redemption;
  • by non-use for 10 years.”

Absent any of these conditions, it is possible to request from the court to declare that a servitude has yet to be extinguished.

As per the non-use condition, it is important to mention that the futility of a servitude is not a cause for extinction. It is only through ten (10) consecutive years of non-use which will warrant the extinction of the servitude. In certain circumstances, the non-use of a servitude for a period of ten (10) years may lead to a reduction in the scope of the servitude instead of extinguishing it.

Finally, the 10-year non-use period for continuous servitudes, that is to say, those which do not require any actions from the title holders, begins when a contrary act is made against the conditions of the servitude. Take note that the person seeking the extinction of a servitude must bear the burden of proving said extinction.

3) Acquisitive prescription

Acquisitive prescription is a means of acquiring a right of ownership, or one of its dismemberments, through possession and the passing of time.

In order to establish acquisitive prescription, one must be in possession of a property or a right thereof, in a peaceful, continuous, public, and unequivocal manner for a pre-determined amount of time.

The notion of possession, being a question of fact, requires the combination of two criteria:

1) Physical possession of the property or right in question, while performing acts as its owner; and

2) The intent of the possessor to act as the true owner.

Once physical possession is established, the second criteria becomes presumed, and it will be for the party contesting possession to establish that both criteria have not been fulfilled.

The Civil Code of Quebec provides for two time periods for acquisitive prescriptions:

1) Ten (10) years; and

2) Three (3) years.

As a general rule, the period for acquisitive prescription is ten (10) years, except as otherwise determined by law.

A person seeking to establish the prescriptive acquisition of an immovable, including land, must have possessed the immovable and acted as the owner for a period of ten (10) years. Subsequent to the 10-year period, the possessor becomes owner, and said owner could apply for a judgment confirming the rights of ownership acquired through prescriptive acquisition.

In fact, according to the 2017 Supreme Court of Canada decision of Ostiguy v. Allie, 2017 SCC 22, rights acquired by prescriptive acquisition through possession and passing of time trumps the Quebec land register. However, it is recommended to obtain a declaratory judgement to that effect to avoid any ambiguities as to who owns what.

The starting point of prescription, with respect to immovables, begins from the continuous possession of the immovable.

With respect to movable property, a possessor in good faith will acquire ownership of said movable property after three (3) years starting from the dispossession of the original owner. Until the expiry of that period, the owner may revendicate the movable property, unless it has been acquired under judicial authority.

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

4) Extinctive prescription

As previously stated, certain rights can be extinguished by the mere passing of time. Indeed, the non-use of a servitude for a period 10 year will extinguish it.

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 ten (10) years during which he/she “possesses” the land on which it encroaches, acquire ownership of this parcel through acquisitive prescription.

It is therefore important to remedy the situation and not to neglect the effects of extinctive prescription. It is possible to disrupt a prescription period through a letter, negotiation or legal actions.

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.