5 Things to know about servitudes, enclosed land, and right of way

Five (5) things to know when a land requires a servitude or a right of way.

  1. Real servitude (1177ff C.C.Q.):
  • A real servitude can be defined as a right by one land (dominant land) over another (servient land).
  • The servitude binds the two lands and not the owners themselves.
  • If the servitude is published on the land register, whether ownership of the dominant land changes or not, the servitude is opposable to the owner of the servient land.
  1. How to establish a real servitude and what is included?
  • Based on article 1181 of Civil Code of Quebec,A servitude is established by contract, by will, by destination of the owner or by operation of law’’.
  • Generally, the servitude will be established by a written agreement between the owner of the dominant land and the owner of the servient land. The agreement will indicate the scope of the servitude by delimiting its specific area.
  • Also included in the constitutive act of the servitude will be the use and maintenance conditions of the servitude’s scope. Of particular note: ‘A servitude extends to all that is necessary for its exercise’’[1].
  • A servitude cannot result from a tolerated usage, whether is it for a long period of time or not.

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  1. Right of way for an enclosed land:
  • An enclosed land can be defined as a ‘’land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or impassable access to it from the public road’’[2].
  • If the servient land refuses to grant a servitude in favor of the dominant land, the latter could request a right of way through the courts.
  • This solution should only be considered when a servitude agreement cannot be reached between the two owners.
  1. The ‘’end’’ of the servitude:

Servitudes may be extinct in the following scenarios[3]:

  • 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.
  1. Personal servitude vs real servitude:
  • As opposed to a real servitude that binds two (2) lands pursuant to an agreement, a personal servitude is an agreement binding a natural person to a land.
  • For example, in the case of a personal right of way, this grants a personal right to the natural person on the servient land.
  • As opposed to the real servitude, the personal servitude is limited in time and specific to the natural person. Moreover, it is not transferable and will normally extinguish at the death of the individual.

Each case is different based on the facts and circumstances.

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[1] Article 1177 Al. 3, Code civil du Québec RLRQ c CCQ-1991

[2] Article 997 Al. 1, Code civil du Québec RLRQ c CCQ-1991

[3] Article 1191, Code civil du Québec RLRQ c CCQ-1991

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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.

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