What is compelling possession through acquisitive prescription?

Generally speaking, “property, whether corporeal or incorporeal, is divided into immovables and movables” (C.c.Q., art. 899). An essential principle which derives from property law is the prescription of immovables and movables. This concept branches out in 2 subcategories: acquisitive and extinctive prescription.

‘’Extinctive prescription is a means of extinguishing a right owing to its non-use or of pleading a peremptory exception to an action,’’ it mainly targets personal rights and right of action (C.c.Q., art. 2921). As an example, it would mean that a person would lose his or her right to should they exceed the delay allowed by the law to take legal action.

As foracquisitive prescription, it refers to ‘’a means of acquiring a right of ownership, or one of its dismemberments(usufruct, use, servitude, and emphyteusis), through the effect of possession’’ (C.c.Q., art. 2910). In order to claim possession and produce effects in law, the nature of the ownership must be peaceful (unfounded violence), continuous (without interruption), public (acknowledged), and unequivocal (absence of ambiguity) (C.c.Q., art. 922).

Herein, the notion of possession requires the cumulative conditions of (1) material possession of said property or right, and (2) the intention of fulfilling the role and duties of an owner.

Commonly, when an individual asserts material possession, its intention of fore becoming an owner is presumed. Thus, whoever contests said ownership will bear the burden of proof and will need to establish the absence or the inadequacy of the two conditions.

Under the wing of acquisitive prescription, the Civil Code of Quebec recognizes two different delays, a ten (10) year interval for immovable property, and a three (3) year interval for movable property. Ordinarily, without specific stipulations of the law, the prescription time is ten (10) years. Therefore, for a person to acquire acquisitive prescription say, an apartment building in Montreal, they would have to have been, or acted as its owner for 10 years and would have had to be in physical possession of that same building for that same period of time. After the decade of prescription regulated by Quebec law, they could then request a legal judgment from a court stipulating or confirming their rights as owner through the peaceful, continuous, public, and unequivocal possession of the building as stipulated by article 2918 C.c.Q.

“A person who has for 10 years possessed an immovable as its owner may acquire the ownership of it only upon judicial application’’.

In Frigon v. Rompré, the plaintiff, who owns lot 372, also occupies part of the neighbouring lot without any legal title. She asks the court to recognize her exclusive right of ownership over this parcel of land. She has been occupying the disputed land since 1943. She cultivated a garden, installed a garage and, finally, installed a swimming pool. She has always occupied the land unequivocally, peacefully and publicly as the owner. The defendant only used the premises to maintain its own building. The exercise of their right of way did not prevent the plaintiff from having useful possession of it. The latter therefore acquired this parcel of land by acquisitive prescription.

Recently, a Supreme Court judgment Ostiguy v. Allie came out and created new precedent upon acquisitive prescription by stipulating that the physical possession of an immovable in conformity with C.c.Q., art. 922 trumps over any registered ownership at the Registre Foncier du Québec.

Ostiguy v. Allie, [2017] 1 R.C.S. 402

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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.