Civil Code of Québec, C.c.Q.
| Citation: | Civil Code of Québec, C.c.Q. | |
| Information about this text: | Consolidation: updated to September 1, 2003 | |
| Enabled Regulations: | 13 Regulations | |
| URL: | http://www.canlii.org/qc/laws/sta/ccq/20030911/part4.html | |
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Warning: This document predates the last update of the collection. It might have been modified or omitted since this last update.
CIVIL CODE OF QUÉBEC
S.Q., 1991, c. 64.
updated to September 1, 2003
last amendment: February 12, 2003
BOOK FOUR
PROPERTY
TITLE ONE
KINDS OF PROPERTY AND ITS APPROPRIATION
CHAPTER I
KINDS OF PROPERTY
899.
Property, whether corporeal or incorporeal, is divided into immovables and movables.1991, c. 64, s. 899.
900.
Land, and any constructions and works of a permanent nature located thereon and anything forming an integral part thereof, are immovables.Plants and minerals, as long as they are not separated or extracted from the land, are also immovables. Fruits and other products of the soil may be considered to be movables, however, when they are the object of an act of alienation.
1991, c. 64, s. 900; 2002, c. 19, s. 15.
901.
Movables incorporated with an immovable that lose their individuality and ensure the utility of the immovable form an integral part of the immovable.1991, c. 64, s. 901.
902.
Integral parts of an immovable that are temporarily detached therefrom retain their immovable character if they are destined to be put back.1991, c. 64, s. 902.
903.
Movables which are permanently physically attached or joined to an immovable without losing their individuality and without being incorporated with the immovable are immovables for as long as they remain there.1991, c. 64, s. 903.
904.
Real rights in immovables, as well as actions to assert such rights or to obtain possession of immovables, are immovables.1991, c. 64, s. 904.
905.
Things which can be moved either by themselves or by an extrinsic force are movables.1991, c. 64, s. 905.
906.
Waves or energy harnessed and put to use by man, whether their source is movable or immovable, are deemed corporeal movables.1991, c. 64, s. 906.
907.
All other property, if not qualified by law, is movable.1991, c. 64, s. .
CHAPTER II
PROPERTY IN RELATION TO ITS PROCEEDS
908.
Property, according to its relation to other property, is divided into capital, and fruits and revenues.1991, c. 64, s. 908.
909.
Property that produces fruits and revenues, property appropriated for the service or operation of an enterprise, shares of the capital stock or common shares of a legal person or partnership, the reinvestment of the fruits and revenues, the price for any disposal of capital or its reinvestment, and expropriation or insurance indemnities in replacement of capital, are capital.Capital also includes rights of intellectual or industrial property except sums derived therefrom without alienation of the rights, bonds and other loan certificates payable in cash and rights the exercise of which tends to increase the capital, such as the right to subscribe to securities of a legal person, limited partnership or trust.
1991, c. 64, s. 909.
910.
Fruits and revenues are that which is produced by property without any alteration to its substance or that which is derived from the use of capital. They also include rights the exercise of which tends to increase the fruits and revenues of the property.Fruits comprise things spontaneously produced by property or produced by the cultivation or working of land, and the produce or increase of animals.
Revenues comprise sums of money yielded by property, such as rents, interest and dividends, except those representing the distribution of capital of a legal person; they also comprise sums received by reason of the resiliation or renewal of a lease or of prepayment, or sums allotted or collected in similar circumstances.
1991, c. 64, s. 910.
CHAPTER III
PROPERTY IN RELATION TO PERSONS HAVING RIGHTS IN IT OR POSSESSION OF IT
911.
A person, alone or with others, may hold a right of ownership or other real right in a property, or have possession of the property.A person also may hold or administer the property of others or be trustee of property appropriated to a particular purpose.
1991, c. 64, s. 911.
912.
The holder of a right of ownership or other real right may take legal action to have his right acknowledged.1991, c. 64, s. 912.
913.
Certain things may not be appropriated; their use, common to all, is governed by general laws and, in certain respects, by this Code.However, water and air not intended for public utility may be appropriated if collected and placed in receptacles.
1991, c. 64, s. 913.
914.
Certain other things, being without an owner, are not the object of any right, but may nevertheless be appropriated by occupation if the person taking them does so with the intention of becoming their owner.1991, c. 64, s. 914.
915.
Property belongs to persons or to the State or, in certain cases, is appropriated to a purpose.1991, c. 64, s. 915.
916.
Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law.No one may appropriate property of the State for himself by occupation, prescription or accession except property the State has acquired by succession, vacancy or confiscation, so long as it has not been mingled with its other property. Nor may anyone acquire for himself property of legal persons established in the public interest that is appropriated to public utility.
1991, c. 64, s. 916.
917.
Property confiscated under the law is, upon being confiscated, property of the State or, in certain cases, of the legal person established in the public interest authorized by law to confiscate it.1991, c. 64, s. 917.
918.
Parts of the territory not owned by natural persons or legal persons nor transferred to a trust patrimony belong to the State and form part of its domain. The State is presumed to have the original titles to such property.1991, c. 64, s. 918.
919.
The beds of navigable and floatable lakes and watercourses are property of the State up to the high-water line.The beds of non-navigable and non-floatable lakes and watercourses bordering lands alienated by the State after 9 February 1918 also are property of the State up to the high-water line; before that date, ownership of the riparian land carried with it, upon alienation, ownership of the beds of non-navigable and non-floatable watercourses.
In all cases, the law or the act of concession may provide otherwise.
1991, c. 64, s. 919.
920.
Any person may travel on watercourses and lakes provided he gains legal access to them, does not encroach on the rights of the riparian owners, does not set foot on the banks and observes the conditions of use of the water.1991, c. 64, s. 920.
CHAPTER IV
CERTAIN DE FACTO RELATIONSHIPS CONCERNING PROPERTY
SECTION I
POSSESSION
§1. — The nature of possession
921.
Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right.The intention is presumed. Where it is lacking, there is merely detention.
1991, c. 64, s. 921.
922.
Only peaceful, continuous, public and unequivocal possession produces effects in law.1991, c. 64, s. 922.
923.
A person having begun to detain property on behalf of another or with acknowledgement of a superior domain is presumed to continue to detain it in that quality unless inversion of title is proved on the basis of unequivocal facts.1991, c. 64, s. 923.
924.
Merely facultative acts or acts of sufferance do not found possession.1991, c. 64, s. 924.
925.
The present possessor is presumed to have been in continuous possession from the time he came into possession; he may join his possession to that of his predecessors.Possession is continuous even if its exercise is temporarily prevented or interrupted.
1991, c. 64, s. 925.
926.
Defective possession begins to produce effects only from the time the defect ceases.Successors by whatever title do not suffer from defects in the possession of their predecessor.
1991, c. 64, s. 926.
927.
No thief, receiver of stolen goods or defrauder may invoke the effects of possession, but his successors by whatever title may do so if they were unaware of the defect.1991, c. 64, s. 927.
§2. — Effects of possession
928.
A possessor is presumed to hold the real right he is exercising. A person contesting that presumption has the burden of proving his own right and, as the case may be, that the possessor has no title, a defective title, or defective possession.1991, c. 64, s. 928.
929.
A possessor in continuous possession for more than a year has a right of action against any person who disturbs his possession or dispossesses him in order to put an end to the disturbance or be put back into possession.1991, c. 64, s. 929.
930.
Possession vests the possessor with the real right he is exercising if he complies with the rules on prescription.1991, c. 64, s. 930.
931.
A possessor in good faith need not render account of the fruits and revenues of the property, and he bears the costs he incurred to produce them.A possessor in bad faith shall, after compensating for the costs, return the fruits and revenues from the time he began to be in bad faith.
1991, c. 64, s. 931.
932.
A possessor is in good faith if, when his possession begins, he is justified in believing he holds the real right he is exercising. His good faith ceases from the time his lack of title or the defects of his possession or title are notified to him by a civil proceeding.1991, c. 64, s. 932.
933.
A possessor may be reimbursed or indemnified according to the rules in the chapter on accession for the constructions, plantations and works he has made.1991, c. 64, s. 933.
SECTION II
ACQUISITION OF VACANT PROPERTY
§1. — Things without an owner
934.
Things without an owner are things belonging to no one, such as animals in the wild, or formerly in captivity but returned to the wild, and aquatic fauna, and things abandoned by their owner.Movables of slight value or in a very deteriorated condition that are left in a public place, including a public road or a vehicle used for public transportation, are deemed abandoned things.
1991, c. 64, s. 934; 2002, c. 19, s. 15.
935.
A movable without an owner belongs to the person who appropriates it for himself by occupation.An abandoned movable, if no one appropriates it for himself, belongs to the municipality that collects it in its territory, or to the State.
1991, c. 64, s. 935.
936.
An immovable without an owner belongs to the State. Any person may nevertheless acquire it by natural accession or prescription unless the State has possession of it or is declared the owner of it by a notice of the Public Curator entered in the land register.1991, c. 64, s. 936.
937.
Things without an owner which the State appropriates for itself are administered by the Public Curator, who disposes of them according to law.1991, c. 64, s. 937.
938.
Treasure belongs to the finder if he finds it on his own land; if it is found on the land of another, one-half belongs to the owner of the land and one-half to the finder, unless the finder was acting for the owner.1991, c. 64, s. 938.
§2. — Lost or forgotten movables
939.
A movable that is lost or that is forgotten in the hands of a third person or in a public place continues to belong to its owner.The movable may not be acquired by occupation, but may be prescribed by the person who detains it, as may the price subrogated thereto.
1991, c. 64, s. 939.
940.
The finder of a thing shall attempt to find its owner; if he finds him, he shall return it to him.1991, c. 64, s. 940.
941.
The finder of a lost thing, in order to acquire, by prescription, ownership of it or of the price subrogated to it, shall declare the fact that he has found it to a peace officer, to the municipality in whose territory it was found or to the person in charge of the place where it was found.He may then, at his option, keep the thing, dispose of it in the manner of a person having detention or hand it over for detention to the person to whom he made the declaration.
1991, c. 64, s. 941.
942.
The holder of a found thing, including the State or a municipality, may sell it if it is not claimed within sixty days.The sale of the thing is held by auction and on the expiry of not less than ten days after publication of a notice of sale in a newspaper circulated in the locality where the thing was found, stating the nature of the thing and indicating the place, day and hour of the sale.
The holder may dispose of the thing immediately, however, if it is perishable. Also, if there is no bidder at the auction, he may sell the thing by agreement, give it to a charitable institution or, if it is impossible to dispose of it in this way, destroy it.
1991, c. 64, s. 942.
943.
The State or a municipality may, in the manner of the holder of a found thing, sell movable property in its hands by auction, without further delay than that required for publication, in the following cases:(1) the owner of the property claims it but neglects or refuses to reimburse the holder for the cost of administration of the property within sixty days of claiming it;
(2) several persons claim the property as owner, but none of them establishes a clear title or takes legal action to establish it within the sixty days or more allotted to him;
(3) a movable deposited in the office of a court is not claimed by its owner within sixty days from notice given him to fetch it or, if it has not been possible to give him any notice, within six months from the final judgment or from the discontinuance of the proceedings.
1991, c. 64, s. 943.
944.
Where a thing that has been entrusted for safekeeping, work or processing is not claimed within ninety days from completion of the work or the agreed time, it is considered to be forgotten and the holder, after having given notice of the same length of time to the person who entrusted him with the thing, may dispose of it.1991, c. 64, s. 944.
945.
The holder of a thing entrusted but forgotten disposes of it by auction sale as in the case of a found thing, or by agreement. He may also give a thing that cannot be sold to a charitable institution or, if that is not possible, dispose of it as he sees fit.1991, c. 64, s. 945.
946.
The owner of a lost or forgotten thing may revendicate it, so long as his right of ownership has not been prescribed, by offering to pay the cost of its administration and, where applicable, the value of the work done. The holder of the thing may retain it until payment.If the thing has been alienated, the owner’s right is exercised, notwithstanding article 1714, only against what is left of the price of sale, after deducting the cost of its administration and alienation and the value of the work done.
1991, c. 64, s. 946.
TITLE TWO
OWNERSHIP
CHAPTER I
NATURE AND EXTENT OF THE RIGHT OF OWNERSHIP
947.
Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law.Ownership may be in various modes and dismemberments.
1991, c. 64, s. 947.
948.
Ownership of property gives a right to what it produces and to what is united to it, naturally or artificially, from the time of union. This right is called a right of accession.1991, c. 64, s. 948; 1992, c. 57, s. 716.
949.
The fruits and revenues of property belong to the owner, who bears the costs he incurred to produce them.1991, c. 64, s. 949.
950.
The owner of the property assumes the risks of loss.1991, c. 64, s. 950.
951.
Ownership of the soil carries with it ownership of what is above and what is below the surface.The owner may make such constructions, works or plantations above or below the surface as he sees fit; he is bound to respect, among other things, the rights of the State in mines, sheets of water and underground streams.
1991, c. 64, s. 951.
952.
No owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in consideration of a just and prior indemnity.1991, c. 64, s. 952.
953.
The owner of property has a right to revendicate it against the possessor or the person detaining it without right, and may object to any encroachment or to any use not authorized by him or by law.1991, c. 64, s. 953.
CHAPTER II
ACCESSION
SECTION I
IMMOVABLE ACCESSION
954.
Accession of movable or immovable property to an immovable may be voluntary or involuntary. Accession is artificial in the first case, natural in the second.1991, c. 64, s. 954.
§1. — Artificial accession
955.
1991, c. 64, s. 955.
956.
The owner of an immovable becomes the owner by accession of the constructions, works or plantations he has made with materials which do not belong to him, but he is bound to pay the value, at the time they were incorporated, of the materials used.The previous owner of the materials has no right to remove them nor any obligation to take them back.
1991, c. 64, s. 956.
957.
The owner of an immovable acquires by accession ownership of the constructions, works or plantations made on his immovable by a possessor, whether the disbursements were necessary, useful or for amenities.1991, c. 64, s. 957.
958.
The owner shall reimburse the possessor for the necessary disbursements, even if the constructions, works or plantations no longer exist.If the possessor is in bad faith, however, compensation may be claimed for the fruits and revenues collected, after deducting the costs incurred to produce them.
1991, c. 64, s. 958.
959.
The owner shall reimburse the useful disbursements made by a possessor in good faith, if the constructions, works or plantations still exist; he may also, if he chooses, pay him compensation equal to the increase in value.The owner may, on the same conditions, reimburse the useful disbursements made by the possessor in bad faith; he may in that case effect compensation for the fruits and revenues owed to him by the possessor.
The owner may also compel the possessor in bad faith to remove the constructions, works or plantations and to restore the place to its former condition; if such restoration is impossible, the owner may keep them without compensation or compel the possessor to remove them.
1991, c. 64, s. 959.
960.
The owner may compel the possessor to acquire the immovable and to pay him its value if the useful disbursements made are costly and represent a considerable proportion of that value.1991, c. 64, s. 960.
961.
A possessor in good faith who has made disbursements for amenities for himself may, as the owner chooses, either remove the constructions, works or plantations he has made, if that can be done advantageously without causing damage to the place, or abandon them.If he abandons them, the owner is bound to reimburse him for either their cost or the increase in value of the immovable, whichever is less.
1991, c. 64, s. 961.
962.
The owner may compel the possessor in bad faith to remove the constructions, works or plantations he has made as amenities for himself and to restore the place to its former condition; if such restoration is impossible, he may keep them without compensation or compel the possessor to remove them.1991, c. 64, s. 962.
963.
A possessor in good faith has a right to retain the immovable until he has been reimbursed for necessary or useful disbursements.A possessor in bad faith has no right under this article except in respect of necessary disbursements he has made.
1991, c. 64, s. 963.
964.
Disbursements made by a person detaining property are dealt with according to the rules prescribed for disbursements made by a possessor in bad faith.The person detaining the property is under no obligation to acquire it, however.
1991, c. 64, s. 964.
§2. — Natural accession
965.
Alluvion becomes the property of the riparian owner.Alluvion is the deposits of earth and augmentations which are gradually and imperceptibly formed on riparian lands of a watercourse.
1991, c. 64, s. 965.
966.
Accretions left by the imperceptible recession of running water from one bank while it encroaches upon the opposite bank are acquired by the riparian owner on the bank gradually added to, and the riparian owner on the opposite bank has no claim for the lost land.No right exists under this article in respect of accretions from the sea, which form part of the domain of the State.
1991, c. 64, s. 966.
967.
If, by sudden force, a watercourse carries away a large and recognizable part of a riparian land to a lower land or to the opposite bank, the owner of the part carried away may reclaim it.The owner is bound, on pain of forfeiture, to reclaim the part carried away within one year after the owner of the land it has attached to takes possession of it.
1991, c. 64, s. 967.
968.
An island formed in the bed of a watercourse belongs to the owner of the bed.1991, c. 64, s. 968.
969.
If, in forming a new branch, a watercourse cuts a riparian land and thereby forms an island, the owner of the riparian land retains the ownership of the island so formed.1991, c. 64, s. 969.
970.
If a watercourse abandons its bed and forms a new bed, the former bed belongs to the owners of the newly occupied land, each in proportion to the land he has lost.1991, c. 64, s. 970.
SECTION II
MOVABLE ACCESSION
971.
Where movables belonging to several owners have been intermingled or united in such a way as to be no longer separable without deterioration or without excessive labour and cost, the new thing belongs to the owner having contributed most to its creation by the value of the original thing or by his work.1991, c. 64, s. 971.
972.
A person having worked on or processed material which did not belong to him acquires ownership of the new thing if the work or processing is worth more than the material used.1991, c. 64, s. 972.
973.
The owner of the new thing shall pay the value of the material or labour to the person having supplied it.If it is impossible to determine who contributed most to the creation of the new thing, the interested persons are its undivided co-owners.
1991, c. 64, s. 973.
974.
The person bound to return the new thing may retain it until its owner pays him the compensation he owes him.1991, c. 64, s. 974.
975.
In unforeseen circumstances, the right of accession in respect of movable property is entirely subordinate to the principles of equity.1991, c. 64, s. 975.
CHAPTER III
SPECIAL RULES ON THE OWNERSHIP OF IMMOVABLES
SECTION I
GENERAL PROVISION
976.
Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.1991, c. 64, s. 976.
SECTION II
LIMITS AND BOUNDARIES OF LAND
977.
The limits of land are determined by the titles, the cadastral plan and the boundary lines of the land, and by any other useful indication or document, if need be.1991, c. 64, s. 977.
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 to consent to having the boundaries determined and to agree upon the choice of a land surveyor to carry out the necessary operations according to the rules in the Code of Civil Procedure.
The minutes of the determination of the boundaries shall be entered in the land register.
1991, c. 64, s. 978.
SECTION III
WATERS
979.
Lower land is subject to receiving water flowing onto it naturally from higher land.The owner of lower land has no right to erect works to prevent the natural flow. The owner of higher land has no right to aggravate the condition of lower land, and is not presumed to do so if he carries out work to facilitate the natural run-off or, where his land is devoted to agriculture, he carries out drainage work.
1991, c. 64, s. 979.
980.
An owner who has a spring on his land may use it and dispose of it.He may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve their quality.
1991, c. 64, s. 980.
981.
A riparian owner may, for his needs, make use of a lake, the headwaters of a watercourse or any other watercourse bordering or crossing his land. As the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course.No riparian owner may by his use of the water prevent other riparian owners from exercising the same right.
1991, c. 64, s. 981.
982.
Unless it is contrary to the general interest, a person having a right to use a spring, lake, sheet of water, underground stream or any running water may, to prevent the water from being polluted or used up, require the destruction or modification of any works by which the water is being polluted or dried up.1991, c. 64, s. 982.
983.
Roofs are required to be built in such a manner that water, snow and ice fall on the owner’s land.1991, c. 64, s. 983.
SECTION IV
TREES
984.
Fruit that falls from a tree onto neighbouring land belongs to the owner of the tree.1991, c. 64, s. 984.
985.
If branches or roots extend over or upon an owner’s land from the neighbouring land and seriously obstruct its use, the owner may request his neighbour to cut them and, if he refuses, compel him to do so.If a tree on the neighbouring land is in danger of falling on the owner’s land, he may compel his neighbour to fell the tree, or to right it.
1991, c. 64, s. 985.
986.
The owner of land used for agricultural purposes may compel his neighbour to fell the trees along and not over five metres from the dividing line, if they are seriously damaging to his operations, except trees in an orchard or sugar bush and trees preserved to embellish the property.1991, c. 64, s. 986.
SECTION V
ACCESS TO AND PROTECTION OF THE LAND OF ANOTHER
987.
Every owner of land, after having been notified verbally or in writing, shall allow his neighbour access to it if that is necessary to make or maintain a construction, works or plantation on the neighbouring land.1991, c. 64, s. 987.
988.
An owner bound to give access to his land is entitled to compensation for any damage he sustains as a result of that sole fact and to the restoration of his land to its former condition.1991, c. 64, s. 988.
989.
Where a thing is carried or strays onto the land of another by the effect of a natural or superior force, the owner of that land shall allow the thing to be searched for and removed, unless he immediately searches for it himself and returns it.The thing, whether object or animal, does not cease to belong to its owner unless he abandons the search, in which case it is acquired by the owner of the land unless he compels the owner of the thing to remove it and to restore his land to its former condition.
1991, c. 64, s. 989.
990.
The owner of land shall do any repair or demolition work needed to prevent the collapse of a construction or works situated on his land that is in danger of falling onto the neighbouring land, including a public road.1991, c. 64, s. 990.
991.
Where the owner of land erects a construction or works or makes a plantation on his land, he may not disturb the neighbouring land or undermine the constructions, works or plantations situated on it.1991, c. 64, s. 991.
992.
Where an owner has, in good faith, built beyond the limits of his land on a parcel of land belonging to another, he shall, as the owner of the land he has encroached upon elects, acquire the parcel by paying him its value, or pay him compensation for the temporary loss of use of the parcel.If the encroachment is a considerable one, causes serious damage or is made in bad faith, the owner of the land encroached upon may compel the builder to acquire his immovable and to pay him its value, or to remove the constructions and to restore the place to its former condition.
1991, c. 64, s. 992.
SECTION VI
VIEWS
993.
No person may have upon the neighbouring land direct views less than one hundred and fifty centimetres from the dividing line.This rule does not apply in the case of views on the public thoroughfare or on a public park or in the case of panelled doors or doors with translucid glass.
1991, c. 64, s. 993; 1992, c. 57, s. 716.
994.
The distance of one hundred and fifty centimetres is measured from the exterior facing of the wall where the opening is made and perpendicularly therefrom to the dividing line. In the case of a projecting window, the distance is measured from the exterior line.1991, c. 64, s. 994.
995.
A person may make fixed translucid lights in a wall that is not a common wall, even if it is less than one hundred and fifty centimetres from the dividing line.1991, c. 64, s. 995.
996.
A co-owner of a common wall has no right to make any opening in it without the agreement of the other co-owner.1991, c. 64, s. 996.
SECTION VII
RIGHT OF WAY
997.
The owner of 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 may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with the necessary right of way to use and exploit his land.Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause.
1991, c. 64, s. 997.
998.
Right of way is claimed from the owner whose land affords the most natural way out, taking into consideration the condition of the place, the benefit to the enclosed land and the inconvenience caused by the right of way to the land on which it is exercised.1991, c. 64, s. 998.
999.
If land is enclosed as a result of the division of land pursuant to a partition, will or contract, right of way may be claimed only from a co-partitioner, heir or contracting party, not from the owner whose land affords the most natural way out, and in this case the way is provided without compensation.1991, c. 64, s. 999.
1000.
The beneficiary of a right of way shall build and maintain all the works necessary to ensure that his right is exercised under conditions that cause the least possible damage to the land on which it is exercised.1991, c. 64, s. 1000.
1001.
Right of way is extinguished when it ceases to be necessary for the use and exploitation of the land. The compensation is not reimbursed, but if it was payable as an annual rent or by instalments, future payments of these are no longer due.1991, c. 64, s. 1001.
SECTION VIII
COMMON FENCES AND WORKS
1002.
Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence.He may also require his neighbour to make one-half of or share the cost of making a fence which is suited to the situation and use made of the premises, on the dividing line to divide his land from his neighbour’s land.
1991, c. 64, s. 1002.
1003.
A fence on the dividing line is presumed to be common. Similarly, a wall supporting buildings on either side is presumed to be common up to the point of disjunction.1991, c. 64, s. 1003.
1004.
Any owner may cause a private wall directly adjacent to the dividing line to be rendered common by reimbursing the owner of the wall for one-half of the cost of the section rendered common and, where applicable, one-half of the value of the ground used. The cost of the wall is estimated on the date on which it was rendered common, and account is taken of its state.1991, c. 64, s. 1004.
1005.
Each owner may build against a common wall and set beams and joists against it. He shall obtain the concurrence of the other owner on how to proceed.In case of disagreement, the owner may apply to the court to determine the means necessary to ensure that the new works infringe the rights of the other owner as little as possible.
1991, c. 64, s. 1005.
1006.
The maintenance, repair and rebuilding of a common wall are at the expense of each owner in proportion to his right.An owner who does not use the common wall may renounce his right and thereby be relieved of his obligation to share the expenses by producing a notice to that effect at the registry office and transmitting a copy of the notice to the other owners without delay. The notice entails renunciation of the right to make use of the wall.
1991, c. 64, s. 1006.
1007.
A co-owner of a common wall has a right to heighten it at his own expense after ascertaining by means of an expert appraisal that it can withstand it, and shall pay one-sixth of the cost of the heightening to the other as compensation.If the wall cannot withstand heightening, the owner shall rebuild the entire wall at his own expense, any excess thickness going on his own side.
1991, c. 64, s. 1007.
1008.
The heightened part of the wall belongs to the person who made it, and the cost of its maintenance, repair and rebuilding is his responsibility.The neighbour who did not contribute to the heightening may nevertheless acquire common ownership of it by paying one-half of the cost of the heightening or rebuilding and, where applicable, one-half of the value of the ground provided for excess thickness. He shall also repay any compensation he has received.
1991, c. 64, s. 1008.
TITLE THREE
SPECIAL MODES OF OWNERSHIP
CHAPTER I
GENERAL PROVISIONS
1009.
Ownership has two principal special modes, co-ownership and superficies.1991, c. 64, s. 1009.
1010.
Co-ownership is ownership of the same property, jointly and at the same time, by several persons each of whom is privately vested with a share of the right of ownership.Co-ownership is called undivided where the right of ownership is not accompanied with a physical division of the property.
It is called divided where the right of ownership is apportioned among the co-owners in fractions, each comprising a physically divided private portion and a share of the common portions.
1991, c. 64, s. 1010.
1011.
Superficies is ownership of the constructions, works or plantations situated on an immovable belonging to another person, the owner of the subsoil.1991, c. 64, s. 1011.
CHAPTER II
UNDIVIDED CO-OWNERSHIP
SECTION I
ESTABLISHMENT OF INDIVISION
1012.
Indivision arises from a contract, succession or judgment or by operation of law.1991, c. 64, s. 1012.
1013.
The undivided co-owners may agree, in writing, to postpone partition of a property on expiry of the provided period of indivision.Such an agreement may not exceed thirty years, but is renewable. An agreement exceeding thirty years is reduced to that term.
1991, c. 64, s. 1013.
1014.
Indivision by agreement in respect of an immovable shall be published if it is to be set up against third persons. In particular, publication mentions the expected length of indivision, the identification of the shares of the co-owners and, where applicable, the pre-emptive rights granted or the awarding of a right of exclusive use or enjoyment of a portion of the undivided property.1991, c. 64, s. 1014.
SECTION II
RIGHTS AND OBLIGATIONS OF UNDIVIDED CO-OWNERS
1015.
The shares of undivided co-owners are presumed equal.Each undivided co-owner has the rights and obligations of an exclusive owner as regards his share. Thus, each may alienate or hypothecate his share and his creditors may seize it.
1991, c. 64, s. 1015.
1016.
Each undivided co-owner may make use of the undivided property provided he does not affect its destination or the rights of the other co-owners.If one of the co-owners has exclusive use and enjoyment of the property, he is liable for compensation.
1991, c. 64, s. 1016.
1017.
The right of accession operates to the benefit of all the undivided co-owners proportionately to their shares in the indivision. Nevertheless, where a co-owner holds a right of exclusive use or enjoyment of a portion of the undivided property, he also has exclusive use or enjoyment of property joined or incorporated with that portion.1991, c. 64, s. 1017.
1018.
The fruits and revenues of the undivided property accrue to the indivision, where there is no provisional partition and where no other agreement exists with respect to their periodic distribution. They also accrue to the indivision if they are not claimed within three years from their due date.1991, c. 64, s. 1018.
1019.
The undivided co-owners are liable proportionately to their shares for the costs of administration and the other common charges related to the undivided property.1991, c. 64, s. 1019.
1020.
Each undivided co-owner is entitled to be reimbursed for necessary disbursements he has made to preserve the undivided property. For other authorized disbursements, he is entitled, at partition, to compensation equal to the increase in value given to the property.Conversely, each undivided co-owner is accountable for any loss which by his doing decreases the value of the undivided property.
1991, c. 64, s. 1020.
1021.
Partition which takes place before the time fixed by the indivision agreement may not be set up against a creditor holding a hypothec on an undivided portion of the property unless he has consented to the partition or unless his debtor preserves a right of ownership over some part of the property.1991, c. 64, s. 1021.
1022.
Any undivided co-owner, within sixty days of learning that a third person has, by onerous title, acquired the share of an undivided co-owner, may exclude him from the indivision by reimbursing him for the transfer price and the expenses he has paid. This right may be exercised only within one year from the acquisition of the share.The right of redemption may not be exercised where the co-owners have stipulated pre-emptive rights in the indivision agreement and where such rights, if they are rights in an immovable, have been published.
1991, c. 64, s. 1022.
1023.
An undivided co-owner having caused his address to be registered at the registry office may, within sixty days of being notified of the intention of a creditor to sell the share of an undivided co-owner or to take it in payment of an obligation, be subrogated to the rights of the creditor by paying him the debt of the undivided co-owner, with costs.An undivided co-owner not having caused his address to be registered has no right of redemption against a creditor or the successors of the creditor.
1991, c. 64, s. 1023.
1024.
If several undivided co-owners exercise their rights of redemption or subrogation against the share of an undivided co-owner, it is partitioned among them proportionately to their rights in the undivided property.1991, c. 64, s. 1024.
SECTION III
ADMINISTRATION OF UNDIVIDED PROPERTY
1025.
Undivided co-owners of property administer it jointly.1991, c. 64, s. 1025.
1026.
Administrative decisions are taken by a majority in number and shares of the undivided co-owners.Decisions in view of alienating or partitioning the undivided property, charging it with a real right, changing its destination or making substantial alterations to it require unanimous approval.
1991, c. 64, s. 1026.
1027.
The undivided co-owners may appoint one of their number or another person as manager and entrust him with the administration of the undivided property.The court may designate the manager on the motion of one of the undivided co-owners and determine his responsibilities where a majority in number and shares of the undivided co-owners cannot agree on whom to appoint, or where it is impossible to appoint or replace the manager.
1991, c. 64, s. 1027.
1028.
Where one of the undivided co-owners administers the undivided property with the knowledge of the others and without objection on their part, he is presumed to have been appointed manager.1991, c. 64, s. 1028.
1029.
The manager acts alone with respect to the undivided property as administrator of the property of others charged with simple administration.1991, c. 64, s. 1029.
SECTION IV
END OF INDIVISION AND PARTITION
1030.
No one is bound to remain in indivision; partition may be demanded at any time unless it has been postponed by agreement, a testamentary disposition, a judgment, or operation of law, or unless it has become impossible because the property has been appropriated to a durable purpose.1991, c. 64, s. 1030.
1031.
Notwithstanding any agreement to the contrary, three-quarters of the undivided co-owners representing ninety per cent of the shares may terminate the undivided co-ownership of a mainly residential immovable in order to establish divided co-ownership of it.The undivided co-owners may satisfy those who object to the establishment of divided co-ownership and who refuse to sign the declaration of co-ownership by apportioning their share to them in money; the share of each undivided co-owner is then increased in proportion to his payment.
1991, c. 64, s. 1031.
1032.
On a motion by an undivided co-owner, the court, to avoid a loss, may postpone the partition of the whole or part of the property and continue the indivision for not over two years.A decision under the first paragraph may be revised if the causes shown for continuing the indivision have ceased to exist or if the indivision has become intolerable or too high a risk for the undivided co-owners.
1991, c. 64, s. 1032.
1033.
If one of the undivided co-owners objects to continuing in indivision, the others may satisfy him at any time by apportioning his share to him in kind, provided it is easily detachable from the rest of the undivided property, or in money, as he chooses.If the share is apportioned in kind, the undivided co-owners may make the allotment least prejudicial to the exercise of their rights.
If the share is apportioned in money, the share of each undivided co-owner is increased in proportion to his payment.
1991, c. 64, s. 1033.
1034.
If the undivided co-owners fail to agree on the share in kind or in money to be apportioned to one of them, an expert appraisal or a valuation is made by a person designated by all the undivided co-owners or, if they cannot agree among themselves, by the court.1991, c. 64, s. 1034.
1035.
Creditors whose claims arise from the administration are paid out of the assets before partition.No creditor, not even a hypothecary creditor, of an undivided co-owner may demand partition, except by an indirect action where the undivided co-owner could demand it himself.
1991, c. 64, s. 1035.
1036.
Indivision may be terminated by the decision of a majority in number and shares of the undivided co-owners where a substantial part of the undivided property is lost or expropriated.1991, c. 64, s. 1036.
1037.
Indivision ends by the partition or alienation of the property.In the case of partition, the provisions relating to the partition of successions apply, adapted as required.
However, the act of partition which terminates indivision, other than indivision by succession, is an act of attribution of the right of ownership.
1991, c. 64, s. 1037.
CHAPTER III
DIVIDED CO-OWNERSHIP OF IMMOVABLES
SECTION I
ESTABLISHMENT OF DIVIDED CO-OWNERSHIP
1038.
Divided co-ownership of an immovable is established by publication of a declaration under which ownership of the immovable is divided into fractions belonging to one or several persons.1991, c. 64, s. 1038.
1039.
Upon the publication of the declaration of co-ownership, the co-owners as a body constitute a legal person, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights appurtenant to the immovable or the co-ownership and to take all measures of common interest.The legal person is called a syndicate.
1991, c. 64, s. 1039.
1040.
Divided co-ownership of an immovable that is built by an emphyteutic lessee or that is subject to superficies may be established if the unexpired term of the lease or right, at the time of publication of the declaration, is over fifty years.In cases arising under the first paragraph, each co-owner, dividedly and proportionately to the relative value of his fraction, is liable for the divisible obligations of the emphyteutic lessee or superficiary, as the case may be, towards the owner of the immovable subject to emphyteusis or superficies. The syndicate assumes the indivisible obligations.
1991, c. 64, s. 1040.
SECTION II
FRACTIONS OF CO-OWNERSHIP
1041.
The relative value of each of the fractions of a divided co-ownership with reference to the value of all the fractions together is determined in consideration of the nature, destination, dimensions and location of the private portion of each fraction, but not of its use.The relative value is specified in the declaration.
1991, c. 64, s. 1041.
1042.
Those portions of the buildings and land that are the property of a specific co-owner and that are for his use alone are called the private portions.1991, c. 64, s. 1042.
1043.
Those portions of the buildings and land that are owned by all the co-owners and serve for their common use are called the common portions.Some of these portions may nevertheless serve for the use of only one or several of the co-owners. The rules regarding the common portions apply to these common portions for restricted use.
1991, c. 64, s. 1043.
1044.
The following are presumed to be common portions: the ground, yards, verandas or balconies, parks and gardens, access ways, stairways and elevators, passageways and halls, common service areas, parking and storage areas, basements, foundations and main walls of buildings, and common equipment and apparatus, such as the central heating and air-conditioning systems and the piping and wiring, including what crosses private portions.1991, c. 64, s. 1044.
1045.
Partitions or walls that are not part of the foundations and main walls of a building but which separate a private portion from a common portion or from another private portion are presumed common.1991, c. 64, s. 1045.
1046.
Each co-owner has an undivided right of ownership in the common portions. His share of the common portions is proportionate to the relative value of his fraction.1991, c. 64, s. 1046.
1047.
Each fraction constitutes a distinct entity and may be alienated in whole or in part; the alienation includes, in each case, the share of the common portions appurtenant to the fraction, as well as the right to use the common portions for restricted use, where applicable.1991, c. 64, s. 1047.
1048.
The share of the common portions appurtenant to a fraction may not, separately from the private portion of the fraction, be the object of alienation or an action in partition.1991, c. 64, s. 1048; 2002, c. 19, s. 15.
1049.
Alienation of a divided part of a private portion is without effect unless the declaration of co-ownership and the cadastral plan have been altered prior to the alienation so as to create a new fraction, describe it, give it a separate cadastral number and determine its relative value, or to record the alterations made to the boundaries between contiguous private portions.1991, c. 64, s. 1049; 2000, c. 42, s. 3; 2002, c. 19, s. 15.
1050.
Each fraction forms a distinct entity for the purposes of real property assessment and taxation.The syndicate shall be impleaded in the case of any judicial contestation of the assessment of a fraction by a co-owner.
1991, c. 64, s. 1050.
1051.
Notwithstanding articles 2650 and 2662, a hypothec, any additional security accessory thereto or any preferences existing at the time of registration of the declaration of co-ownership on the whole of an immovable held in co-ownership are divided among the fractions according to the relative value of each or according to any other established proportion.1991, c. 64, s. 1051.
SECTION III
DECLARATION OF CO-OWNERSHIP
§1. — Content of the declaration
1052.
A declaration of co-ownership comprises the act constituting the co-ownership, the by-laws of the immovable and a description of the fractions.1991, c. 64, s. 1052.
1053.
A constituting act of co-ownership defines the destination of the immovable, of the exclusive parts and of the common parts.The act also specifies the relative value of each fraction, indicating how that value was determined, the share of the expenses and the number of votes attached to each fraction and provides any other agreement regarding the immovable or its private or common portions. In addition, it specifies the powers and duties of the board of directors of the syndicate and of the general meeting of the co-owners.
1991, c. 64, s. 1053.
1054.
The by-laws of an immovable contain the rules on the enjoyment, use and upkeep of the private and common portions, and those on the operation and administration of the co-ownership.The by-laws also deal with the procedure of assessment and collection of contributions to the common expenses.
1991, c. 64, s. 1054.
1055.
A description of the fractions contains the cadastral description of the private portions and common portions of the immovable.Such a description also contains a description of the real rights affecting or existing in favour of the immovable other than hypothecs, and additional security accessory thereto.
1991, c. 64, s. 1055.
1056.
No declaration of co-ownership may impose any restriction on the rights of the co-owners except restrictions justified by the destination, characteristics or location of the immovable.1991, c. 64, s. 1056.
1057.
The by-laws of the immovable may be set up against the lessee or occupant of a private portion upon his being given a copy of the by-laws or the amendments to them by the co-owner or, if not by him, by the syndicate.1991, c. 64, s. 1057.
1058.
Unless express provision is made therefor in the act constituting the co-ownership, no fraction may be held by several persons each having a right of enjoyment periodically and successively in the fraction, nor may a fraction be alienated for that purpose.Where the act makes provision for a periodical and successive right of enjoyment by holders, it indicates the number of fractions that may be held in this way, the occupancy periods, the maximum number of persons who may hold these fractions, and the rights and obligations of these occupants.
1991, c. 64, s. 1058.
§2. — Registration of the declaration
1059.
A declaration of co-ownership, and any amendments made to the constituting act of co-ownership or the description of the fractions, shall be in the form of a notarial act en minute.The declaration shall be signed by all the owners of the immovable, by the emphyteutic lessee or the superficiary, if any, and by all the creditors holding hypothecs on the immovable; amendments are signed by the syndicate.
1991, c. 64, s. 1059.
1060.
The declaration and any amendments made to the constituting act of co-ownership or the description of the fractions are deposited in the registry office. The declaration is entered in the land register under the registration numbers of the common portions and the private portions. The amendments are entered under the registration number of the common portions only, unless they directly affect a private portion. However, it is sufficient for amendments made to the by-laws of the immovable to be filed with the syndicate.Where applicable, the emphyteutic lessee or superficiary shall give notice of the registration to the owner of an immovable under emphyteusis or on which superficies has been established.
1991, c. 64, s. 1060.
1061.
The registration of an act against a private portion is valid against the share of the common portions attached to it, without any requirement to make an entry under the registration number of the common portions.1991, c. 64, s. 1061.
1062.
The declaration of co-ownership binds the co-owners, their successors and the persons who signed it, and produces its effects towards them from the time of its registration.1991, c. 64, s. 1062.
SECTION IV
RIGHTS AND OBLIGATIONS OF CO-OWNERS
1063.
Each co-owner has the disposal of his fraction; he has free use and enjoyment of his private portion and of the common portions, provided he observes the by-laws of the immovable and does not impair the rights of the other co-owners or the destination of the immovable.1991, c. 64, s. 1063.
1064.
Each co-owner contributes in proportion to the relative value of his fraction to the expenses arising from the co-ownership and from the operation of the immovable and the contingency fund established under article 1071, although only the co-owners who use common portions for restricted use contribute to the costs resulting from those portions.1991, c. 64, s. 1064.
1065.
A co-owner who gives a lease on his private portion shall notify the syndicate and give the name of the lessee.1991, c. 64, s. 1065.
1066.
No co-owner may interfere with the carrying out, even inside his private portion, of work required for the conservation of the immovable decided upon by the syndicate or of urgent work.Where a private portion is leased, the syndicate gives the lessee, where applicable, the notices prescribed in articles 1922 and 1931 regarding improvements and work.
1991, c. 64, s. 1066.
1067.
A co-owner who suffers prejudice by the carrying out of work, through a permanent diminution in the value of his fraction, a grave disturbance of enjoyment, even if temporary, or through deterioration, is entitled to obtain compensation from the syndicate if the syndicate ordered the work or, if it did not, from the co-owners who did the work.1991, c. 64, s. 1067.
1068.
Every co-owner may, within five years from the day of registration of the declaration of co-ownership, apply to the court for a revision, for the future, of the relative value of the fractions and of the apportionment of the common expenses.The right to apply for a revision may be exercised only if there exists, between the relative value attributed to a fraction or the share of common expenses attached thereto and the value or share that should have been determined, according to the criteria provided in the declaration of co-ownership, a difference in excess of one-tenth either in favour of another co-owner or to the prejudice of the applicant co-owner.
1991, c. 64, s. 1068.
1069.
A person who acquires a fraction of divided co-ownership, by whatever means, including the exercise of a hypothecary right, is bound to pay all common expenses due in respect of that fraction at the time of the acquisition.A person contemplating the acquisition of such a fraction may request from the syndicate of co-owners a statement of the common expenses due in respect of the fraction and the syndicate is thereupon authorized to provide the statement to him, provided the syndicate gives prior notice to the owner of the fraction or his successors; in such a case, the prospective acquirer is only bound to pay the common expenses if the statement is provided to him by the syndicate within 15 days of the request.
The statement given to the buyer is adjusted to the last annual budget of the co-owners.
1991, c. 64, s. 1069; 2002, c. 19, s. 6.
SECTION V
RIGHTS AND OBLIGATIONS OF THE SYNDICATE
1070.
The syndicate keeps a register at the disposal of the co-owners containing the name and address of each co-owner and each lessee, the minutes of the meetings of the co-owners and of the board of directors and the financial statements.It also keeps at their disposal the declaration of co-ownership, the copies of the contracts to which it is a party, a copy of the cadastral plan, the plans and specifications of the immovable built and all other documents relating to the immovable and the syndicate.
1991, c. 64, s. 1070.
1071.
The syndicate establishes, according to the estimated cost of major repairs and the cost of replacement of common portions, a contingency fund to provide cash funds on a short-term basis allocated exclusively to such repairs and replacement. The syndicate is the owner of the fund.1991, c. 64, s. 1071.
1072.
Each year, the board of directors, after consultation with the general meeting of the co-owners, fixes their contribution for common expenses, after determining the sums required to meet the expenses arising from the co-ownership and the operation of the immovable, and the amounts to be paid into the contingency fund.The contribution of the co-owners to the contingency fund is at least 5 per cent of their contribution for common expenses. In fixing the contribution, the rights of any co-owner in the common portions for restricted use may be taken into account.
The syndicate, without delay, notifies each co-owner of the amount of his contribution and the date when it is payable.
1991, c. 64, s. 1072.
1073.
The syndicate has an insurable interest in the whole immovable, including the private portions. It shall take out insurance against ordinary risks, such as fire and theft, on the whole of the immovable, except improvements made by a co-owner to his part. The amount insured is equal to the replacement cost of the immovable.The syndicate shall also take out third person liability insurance.
1991, c. 64, s. 1073.
1074.
Non-observance of a condition of the insurance contract by a co-owner may not be set up against the syndicate.1991, c. 64, s. 1074.
1075.
The indemnity owing to the syndicate following a substantial loss is, notwithstanding article 2494, paid to the trustee appointed in the constituting act of co-ownership or, where none has been appointed, designated by the syndicate.The indemnity shall be used to repair or rebuild the immovable, unless the syndicate decides to terminate the co-ownership, in which case the trustee, after determining the share of the indemnity of each of the co-owners according to the relative value of his fraction, pays the preferred and hypothecary creditors out of that share according to the rules in article 2497. For each of the co-owners, he remits the balance of the indemnity to the liquidator of the syndicate with his report.
1991, c. 64, s. 1075.
1076.
The syndicate may, if authorized to do so, acquire or alienate fractions, common portions or other real rights.A private portion does not cease to be private by the fact that the fraction is acquired by the syndicate, but the syndicate has no vote for that portion at the general meeting and the total number of votes that may be given is reduced accordingly.
1991, c. 64, s. 1076.
1077.
The syndicate is liable for damage caused to the co-owners or third persons by faulty design, construction defects or lack of maintenance of the common portions, without prejudice to any counterclaim.1991, c. 64, s. 1077; 2002, c. 19, s. 15.
1078.
A judgment condemning the syndicate to pay a sum of money is executory against the syndicate and against each of the persons who were co-owners at the time the cause of action arose, proportionately to the relative value of his fraction.The judgment may not be executed against the contingency fund, except for a debt arising from the repair of the immovable or the replacement of common portions.
1991, c. 64, s. 1078.
1079.
The syndicate may demand the resiliation of the lease of a private portion, after notifying the lessor and the lessee, where the non-performance of an obligation by the lessee causes serious prejudice to a co-owner or to another occupant of the immovable.1991, c. 64, s. 1079.
1080.
Where the refusal of a co-owner to comply with the declaration of co-ownership causes serious and irreparable prejudice to the syndicate or to one of the co-owners, either of them may apply to the court for an injunction ordering the co-owner to comply with the declaration.If the co-owner violates the injunction or refuses to obey it, the court may, in addition to the other penalties it may impose, order the sale of the co-owner’s fraction, in accordance with the provisions of the Code of Civil Procedure regarding the sale of the property of others.
1991, c. 64, s. 1080.
1081.
The syndicate may institute any action on the grounds of latent defects, faulty design or construction defects of the immovable or defects in the ground. In a case where the faults or defects affect the private portions, the syndicate may not proceed until it has obtained the authorization of the co-owners of those portions.Where the defendant sets up the failure to act with diligence against an action based on a latent defect, such diligence is appraised in respect of the syndicate or of a co-owner from the day of the election of a new board of directors, after the promoter loses control of the syndicate.
1991, c. 64, s. 1081; 2002, c. 19, s. 15.
1082.
The syndicate, within six months of being notified by the owner of an immovable under emphyteusis or superficies that he intends to transfer by onerous title his rights in the immovable, may acquire such rights in preference to any other potential acquirer during that period. If it is not notified of the planned transfer, it may, within six months from the time it learns that a third person has acquired the owner’s rights, acquire such rights from that person by reimbursing him for the price of transfer and the costs he has paid.1991, c. 64, s. 1082.
1083.
The syndicate may join an association of co-ownership syndicates formed for the creation, administration and upkeep of common services for several immovables held in co-ownership, or for the pursuit of common interests.1991, c. 64, s. 1083.
SECTION VI
BOARD OF DIRECTORS OF THE SYNDICATE
1084.
The composition of the board of directors of the syndicate, the mode of appointment, replacement and remuneration of the directors and their other terms of appointment are fixed by by-law of the immovable.The court, on the motion of a co-owner, may appoint or replace a director and fix his terms of appointment if there is no provision therefor in the by-laws or if it is impossible to proceed in the prescribed manner.
1991, c. 64, s. 1084.
1085.
The day-to-day administration of the syndicate may be entrusted to a manager chosen from among the co-owners or otherwise.The manager acts as the administrator of the property of others charged with simple administration.
1991, c. 64, s. 1085.
1086.
A director or the manager may be replaced by the syndicate if, being a co-owner, he neglects to pay his contribution to the common expenses or to the contingency fund.1991, c. 64, s. 1086.
SECTION VII
GENERAL MEETING OF THE CO-OWNERS
1087.
The notice calling the annual general meeting of the co-owners shall be accompanied with, in addition to the balance sheet, the income statement for the preceding financial period, the statement of debts and claims, the budget forecast, any draft amendment to the declaration of co-ownership and a note on the general terms and conditions of any proposed contract or planned work.1991, c. 64, s. 1087.
1088.
Within five days of receiving notice of a general meeting of the co-owners, any co-owner may cause a question to be placed on the agenda.The board of directors gives written notice of the questions newly placed on the agenda to the co-owners before the meeting.
1991, c. 64, s. 1088.
1089.
Co-owners holding a majority of the votes constitute a quorum at general meetings.If a quorum is not reached, the meeting is declared adjourned to a later date, notice of which is given to all the co-owners; three-quarters of the members present or represented at the second meeting constitute a quorum.
A meeting at which there is no longer a quorum shall be adjourned if a co-owner requests it.
1991, c. 64, s. 1089.
1090.
Each co-owner is entitled to a number of votes at a general meeting proportionate to the relative value of his fraction. The undivided co-owners of a fraction vote in proportion to their undivided shares.1991, c. 64, s. 1090.
1091.
Where, in a co-ownership comprising fewer than five fractions, a co-owner is entitled to more than one-half of all the votes available to the co-owners, the number of votes to which he is entitled at a meeting is reduced to the total number of votes to which the other co-owners present or represented at the meeting are entitled.1991, c. 64, s. 1091.
1092.
No promoter of a co-ownership comprising five or more fractions is entitled, in addition to the voting rights attached to the fraction serving as his residence, to over sixty per cent of all the votes of the co-owners at the end of the second and third years after the date of registration of the declaration of co-ownership.The limit is subsequently reduced to twenty-five per cent.
1991, c. 64, s. 1092.
1093.
Any person who, at the time of registration of a declaration of co-ownership, owns at least one-half of all the fractions, or his successors, other than a person who in good faith acquires a fraction for a price equal to its market value with the intention of inhabiting it, is considered to be a promoter.1991, c. 64, s. 1093.
1094.
Any co-owner who has not paid his share of the common expenses or his contribution to the contingency fund for more than three months is deprived of his voting rights.1991, c. 64, s. 1094.
1095.
No assignment of the voting rights of a co-owner which has not been declared to the syndicate may be set up against it.1991, c. 64, s. 1095.
1096.
Decisions of the syndicate, including a decision to correct a clerical error in the declaration of co-ownership, are taken by a majority of the co-owners present or represented at the meeting.1991, c. 64, s. 1096.
1097.
Decisions respecting the following matters require a majority vote of the co-owners representing three-quarters of the voting rights of all the co-owners:(1) acts of acquisition or alienation of immovables by the syndicate;
(2) work for the alteration, enlargement or improvement of the common portions, and the apportionment of its cost;
(3) the construction of buildings for the creation of new fractions;
(4) the amendment of the constituting act of co-ownership or of the description of the fractions.
1991, c. 64, s. 1097.
1098.
Decisions on the following matters require a majority vote of three-quarters of the co-owners representing ninety per cent of the voting rights of all the co-owners:(1) to change the destination of the immovable;
(2) to authorize the alienation of common portions the retention of which is necessary to the destination of the immovable;
(3) to amend the declaration of co-ownership in order to permit the holding of a fraction by several persons having a right of periodical and successive enjoyment.
1991, c. 64, s. 1098.
1099.
Where the number of votes available to a co-owner or a promoter is reduced by the effect of this section, the total number of votes that may be cast by all the co-owners to decide a question requiring a majority in number and votes is reduced by the same number.1991, c. 64, s. 1099.
1100.
The co-owners of contiguous private portions may alter the boundaries between their private portions without obtaining the approval of the general meeting provided they obtain the consent of their hypothecary creditors and of the syndicate. No alteration may increase or decrease the relative value of the group of private portions altered or the total of the voting rights attached to them.The syndicate amends the declaration of co-ownership and the cadastral plan at the expense of the co-owners contemplated in the first paragraph; the act of amendment shall be accompanied with the consent of the creditors, the co-owners and the syndicate.
1991, c. 64, s. 1100.
1101.
Any stipulation of the declaration of co-ownership which changes the number of votes required in this chapter for taking any decision is deemed unwritten.1991, c. 64, s. 1101; 1992, c. 57, s. 716.
1102.
Any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on a co-owner a change in the relative value of his fraction, a change of destination of his private portion or a change in the use he may make of it is without effect.1991, c. 64, s. 1102; 2002, c. 19, s. 15.
1103.
Any co-owner may apply to the court to annul a decision of the general meeting if the decision is biased, if it was taken with intent to injure the co-owners or in contempt of their rights, or if an error was made in counting the votes.The action is forfeited unless instituted within sixty days after the meeting.
If the action is futile or vexatious, the court may condemn the plaintiff to pay damages.
1991, c. 64, s. 1103.
SECTION VIII
LOSS OF CONTROL OF THE SYNDICATE BY THE PROMOTER
1104.
Within ninety days from the day on which the promoter of a co-ownership ceases to hold a majority of voting rights in the general meeting of the co-owners, the board of directors shall call a special meeting of the co-owners to elect a new board of directors.If the meeting is not called within ninety days, any co-owner may call it.
1991, c. 64, s. 1104.
1105.
The board of directors renders account of its administration at the special meeting.It produces the financial statements, which shall be accompanied with the comments of an accountant on the financial situation of the syndicate. The accountant shall, in his report to the co-owners, indicate any irregularity that has come to his attention.
The financial statements shall be audited on the application of co-owners representing forty per cent of the voting rights of all the co-owners. The application may be made at any time, even before the meeting.
1991, c. 64, s. 1105.
1106.
The accountant has a right of access at all times to the books, accounts and vouchers concerning the co-ownership.He may require the promoter or an administrator to give him any information or explanation necessary for the performance of his duties.
1991, c. 64, s. 1106.
1107.
The new board of directors may, within sixty days of the election, terminate, without penalty, a contract for the maintenance of the immovable or for other services entered into before the election by the syndicate, where the term of the contract exceeds one year.1991, c. 64, s. 1107.
SECTION IX
TERMINATION OF CO-OWNERSHIP
1108.
Co-ownership of an immovable may be terminated by a decision of a majority of three-quarters of the co-owners representing ninety per cent of the voting rights of all the co-owners.The decision to terminate the co-ownership shall be recorded in writing and signed by the syndicate and the persons holding hypothecs on the immovable or part thereof. This decision is entered in the land register under the registration numbers of the common portions and private portions.
1991, c. 64, s. 1108.
1109.
The syndicate is liquidated according to the rules of Book One on the liquidation of legal persons.For that purpose, the liquidator is seised of the immovable and of all the rights and obligations of the co-owners in the immovable, in addition to the property of the syndicate.
1991, c. 64, s. 1109.
CHAPTER IV
SUPERFICIES
SECTION I
ESTABLISHMENT OF SUPERFICIES
1110.
Superficies results from division of the object of the right of ownership of an immovable, transfer of the right of accession or renunciation of the benefit of accession.1991, c. 64, s. 1110.
1111.
The right of the superficiary to use the subsoil is governed by an agreement. Failing agreement, the subsoil is charged with the servitudes necessary for the exercise of the right. These servitudes are extinguished upon termination of the right.1991, c. 64, s. 1111.
1112.
The superficiary and the owner of the subsoil each bear the charges encumbering what constitutes the object of their respective rights of ownership.1991, c. 64, s. 1112.
1113.
Superficies may be perpetual, but a term may be fixed by the agreement establishing its conditions.1991, c. 64, s. 1113.
SECTION II
TERMINATION OF SUPERFICIES
1114.
Superficies is terminated(1) by the union of the qualities of subsoil owner and superficiary in the same person, subject to the rights of third persons;
(2) by the fulfilment of a resolutive condition;
(3) by the expiry of the term.
1991, c. 64, s. 1114.
1115.
The total loss of the constructions, works or plantations terminates superficies only if superficies is a result of the division of the object of the right of ownership.Expropriation of the constructions, works or plantations or expropriation of the subsoil does not terminate superficies.
1991, c. 64, s. 1115.
1116.
At the termination of superficies, the subsoil owner acquires by accession ownership of the constructions, works or plantations by paying their value to the superficiary.If, however, the constructions, works or plantations are equal in value to the subsoil or of greater value, the superficiary has a right to acquire ownership of the subsoil by paying its value to the subsoil owner, unless he prefers to remove, at his own expense, the constructions, works and plantations he has made and return the subsoil to its former condition.
1991, c. 64, s. 1116.
1117.
Where the superficiary fails to exercise his right to acquire ownership of the subsoil within ninety days from the end of the superficies, the owner of the subsoil retains ownership of the constructions, works and plantations.1991, c. 64, s. 1117.
1118.
A subsoil owner and a superficiary who do not agree on the price and other terms and conditions of acquisition of the subsoil or of the constructions, works or plantations may apply to the court to fix the price and the terms and conditions of acquisition. The judgment is equivalent to a valid title and has all the effects thereof.They may also, if they fail to agree on the terms and conditions of removal of the constructions, works or plantations, apply to the court to fix them.
1991, c. 64, s. 1118.
TITLE FOUR
DISMEMBERMENTS OF THE RIGHT OF OWNERSHIP
GENERAL PROVISION
1119.
1991, c. 64, s. 1119.
CHAPTER I
USUFRUCT
SECTION I
NATURE OF USUFRUCT
1120.
Usufruct is the right of use and enjoyment, for a certain time, of property owned by another as one’s own, subject to the obligation of preserving its substance.1991, c. 64, s. 1120.
1121.
Usufruct is established by contract, by will or by law; it may also be established by judgment in the cases prescribed by law.1991, c. 64, s. 1121.
1122.
Usufruct may be established for the benefit of one or several usufructuaries jointly or successively.Only a person who exists when the usufruct in his favour opens may be a usufructuary.
1991, c. 64, s. 1122.
1123.
No usufruct may last longer than one hundred years even if the act granting it provides a longer term or creates a successive usufruct.Usufruct granted without a term is granted for life or, if the usufructuary is a legal person, for thirty years.
1991, c. 64, s. 1123.
SECTION II
RIGHTS OF THE USUFRUCTUARY
§1. — Scope of the usufruct
1124.
The usufructuary has the use and enjoyment of the property subject to usufruct; he takes the property in the condition in which he finds it.Usufruct also bears on all accessories and on everything that is naturally united to or incorporated with the immovable by accession.
1991, c. 64, s. 1124.
1125.
The usufructuary may require the bare owner to cease any act which prevents him from fully exercising his right.The bare owner’s alienation of his right does not affect the right of the usufructuary.
1991, c. 64, s. 1125.
1126.
The usufructuary appropriates the fruits and revenues produced by the property.1991, c. 64, s. 1126.
1127.
The usufructuary may dispose, as though he were its owner, of all the property under his usufruct which cannot be used without being consumed, subject to the obligation of returning similar property in the same quantity and of the same quality at the end of the usufruct.Where the usufructuary is unable to return similar property he shall pay the value thereof in cash.
1991, c. 64, s. 1127.
1128.
The usufructuary may dispose, as a prudent and diligent administrator, of property which, though not consumable, rapidly deteriorates with use.In the case described in the first paragraph, the usufructuary shall, at the end of the usufruct, return the value of the property at the time he disposed of it.
1991, c. 64, s. 1128.
1129.
The usufructuary is entitled to the fruits attached to the property at the beginning of the usufruct. He has no right to the fruits still attached to it at the time his usufruct ceases.Compensation is due by the bare owner or by the usufructuary, as the case may be, to the person who has done or incurred the necessary work or expenses for the production of the fruits.
1991, c. 64, s. 1129.
1130.
Revenues are counted, between the usufructuary and the bare owner, day by day. They belong to the usufructuary from the day his right begins to the day it terminates, regardless of when they are exigible or paid, except dividends, which belong to the usufructuary only if they are declared during the usufruct.1991, c. 64, s. 1130.
1131.
Extraordinary income derived from ownership of the property subject to usufruct, such as premiums granted upon the redemption of securities, are paid to the usufructuary, who is accountable for them to the bare owner at the end of the usufruct.1991, c. 64, s. 1131.
1132.
If a debt subject to a usufruct becomes payable during the usufruct, the price is paid to the usufructuary, who gives an acquittance for it.The usufructuary is accountable for the debt to the bare owner at the end of the usufruct.
1991, c. 64, s. 1132.
1133.
The right to increase the capital subject to the usufruct, such as the right to subscribe for securities, belongs to the bare owner, but the right of the usufructuary extends to the increase.Where the bare owner elects to alienate his right, the proceeds of the alienation are remitted to the usufructuary, who is accountable for it at the end of the usufruct.
1991, c. 64, s. 1133.
1134.
Voting rights attached to shares or to other securities, to an undivided share, to a fraction of a property held in co-ownership or to any other property belong to the usufructuary.However, any vote having the effect of altering the substance of the principal property, such as the capital stock or property held in co-ownership, or of changing the destination of the property or terminating the legal person, enterprise or group concerned belongs to the bare owner.
The distribution of the exercise of the voting rights may not be set up against third persons; it is discussed only between the usufructuary and the bare owner.
1991, c. 64, s. 1134.
1135.
The usufructuary may transfer his right or lease a property included in the usufruct.1991, c. 64, s. 1135.
1136.
A creditor of the usufructuary may cause the rights of the usufructuary to be seized and sold, subject to the rights of the bare owner.A creditor of the bare owner may also cause the rights of the bare owner to be seized and sold, subject to the rights of the usufructuary.
1991, c. 64, s. 1136.
§2. — Disbursements
1137.
Necessary disbursements made by the usufructuary are treated, in relation to the bare owner, as those made by a possessor in good faith.1991, c. 64, s. 1137.
1138.
The useful disbursements made by the usufructuary are preserved by the bare owner without indemnity at the end of the usufruct, unless the usufructuary elects to remove them and restore the property to its original state. However, the bare owner may not compel the usufructuary to remove them.1991, c. 64, s. 1138.
§3. — Trees and minerals
1139.
In no case may the usufructuary fell trees growing on the land subject to the usufruct except for repairs, maintenance or exploitation of the land. He may, however, dispose of those which have fallen or died naturally.The usufructuary replaces the trees that have been destroyed, in conformity with the usage of the place or the custom of the owners. He also replaces orchard and sugar bush trees, unless most of them have been destroyed.
1991, c. 64, s. 1139.
1140.
The usufructuary may begin agricultural or sylvicultural operations if the land subject to the usufruct is suitable therefor.Where the usufructuary begins or continues operations, he shall do so in such a manner as not to exhaust the soil or prevent the regrowth of the forest. He shall also, in the case of sylvicultural operations, have his operating plan approved by the bare owner before his operations begin. If he fails to obtain such approval, he may have the plan approved by the court.
1991, c. 64, s. 1140.
1141.
No usufructuary may extract minerals from the land subject to the usufruct except for the repair and maintenance of the land.However, where the extraction of minerals constituted a source of income for the owner before the opening of the usufruct, the usufructuary may continue the extraction in the same way as it was begun.
1991, c. 64, s. 1141.
SECTION III
OBLIGATIONS OF THE USUFRUCTUARY
§1. — Inventory and security
1142.
The usufructuary, in the manner of an administrator of the property of others, makes an inventory of the property subject to his right unless the person constituting the usufruct has done so himself or has exempted him from doing so. No exemption may be granted if the usufruct is successive.The usufructuary makes the inventory at his own expense and furnishes a copy to the bare owner.
1991, c. 64, s. 1142.
1143.
In no case may the usufructuary compel the person constituting the usufruct or the bare owner to deliver the property to him until he has made an inventory.1991, c. 64, s. 1143.
1144.
Except in the case of a vendor or donor who has reserved the usufruct, the usufructuary shall, within sixty days from the opening of the usufruct, take out insurance or furnish other security to the bare owner to guarantee performance of his obligations. The usufructuary shall furnish additional security if his obligations increase while the usufruct lasts.The usufructuary is exempted from these obligations if he is unable to perform them or if the person constituting the usufruct so provides.
1991, c. 64, s. 1144.
1145.
If the usufructuary fails to furnish security within the allotted time, the bare owner may have the property sequestrated.The sequestrator, in the manner of an administrator of the property of others charged with simple administration, invests the amounts included in the usufruct and the proceeds of the sale of perishable property. He similarly invests the amounts deriving from payment of the claims subject to the usufruct.
1991, c. 64, s. 1145.
1146.
Any unjustified delay by the usufructuary in making an inventory of the property or furnishing security deprives him of his right to the fruits and revenues from the opening of the usufruct until the performance of his obligations.1991, c. 64, s. 1146.
1147.
The usufructuary may apply to the court for leave to retain sequestrated movables necessary for his use under no other condition than that he undertake to produce them at the end of the usufruct.§2. — Insurance and repairs
1991, c. 64, s. 1147.
1148.
The usufructuary is bound to insure the property against ordinary risks such as fire and theft and to pay the insurance premiums while the usufruct lasts. He is, however, exempt from that obligation where the insurance premium is too high in relation to the risks.1991, c. 64, s. 1148.
1149.
In the case of a loss, the indemnity is paid to the usufructuary, who gives an acquittance therefor to the insurer.The usufructuary is bound to use the indemnity for the repair of the property, except in the case of total loss, where he may have enjoyment of the indemnity.
1991, c. 64, s. 1149.
1150.
The usufructuary or the bare owner may take out insurance on his own account to secure his rights.The indemnity belongs to the usufructuary or the bare owner, as the case may be.
1991, c. 64, s. 1150.
1151.
Maintenance of the property is the responsibility of the usufructuary. He is not bound to make major repairs except where they are necessary as the result of his act or omission, in particular his failure to carry out maintenance repairs since the opening of the usufruct.1991, c. 64, s. 1151.
1152.
Major repairs are those which affect a substantial part of the property and require extraordinary outlays, such as repairs relating to beams and support walls, to the replacement of roofs, to prop-walls or to heating, electrical, plumbing or electronic systems, and, in respect of movables, to motive parts or the casing of the property.1991, c. 64, s. 1152.
1153.
The usufructuary shall notify the bare owner that major repairs are necessary.The bare owner is under no obligation to make the major repairs. If he makes them, the usufructuary suffers the resulting inconvenience. If he does not make them, the usufructuary may make them and be reimbursed for the cost at the end of the usufruct.
1991, c. 64, s. 1153.
§3. — Other charges
1154.
The usufructuary is liable, in proportion to the duration of the usufruct, for ordinary charges affecting the property subject to his right and for the other charges that are ordinarily paid with the revenues.The usufructuary is similarly liable for extraordinary charges that are payable in periodic instalments over several years.
1991, c. 64, s. 1154.
1155.
If a usufructuary by particular title is forced to pay a debt of the succession in order to preserve the property subject to his right, he may require immediate reimbursement from the debtor or reimbursement from the bare owner at the end of the usufruct.1991, c. 64, s. 1155.
1156.
The usufructuary by general title and the bare owner are liable for the payment of the debts of the succession in proportion to their shares in the succession.The bare owner is liable for the capital and the usufructuary for the interest.
1991, c. 64, s. 1156.
1157.
The usufructuary under a legacy by general title may pay the debts of the succession; the bare owner is accountable therefor to him at the end of the usufruct.Where the usufructuary elects not to pay the debts of the succession, the bare owner may cause property subject to the right of the usufructuary up to the amount of the debts to be sold or pay the debts himself; in this case, for the duration of the usufruct, the usufructuary pays interest to the bare owner on the amount paid.
1991, c. 64, s. 1157.
1158.
The usufructuary is liable for the costs of any legal proceedings related to his right of usufruct.Where proceedings relate to both the rights of the bare owner and those of the usufructuary, the rules governing payment of the debts of the succession between the usufructuary under a legacy by general title and the bare owner apply unless the usufruct is terminated by the judgment, in which case the costs are divided equally between the usufructuary and the bare owner.
1991, c. 64, s. 1158.
1159.
If, during the usufruct, a third person encroaches on the property of the bare owner or otherwise infringes his rights, the usufructuary shall notify the bare owner, failing which he is liable for all resulting damage, as if he himself had committed waste.1991, c. 64, s. 1159.
1160.
Neither the bare owner nor the usufructuary is under any obligation to replace anything that has fallen into decay.A usufructuary exempted from insuring the property is under no obligation to replace or pay the value of any property that perishes by superior force.
1991, c. 64, s. 1160.
1161.
If a usufruct is established upon a herd or a flock and the entire herd or flock perishes by superior force, the usufructuary exempted from insuring the property is bound to account to the owner for the skins or their value.If the herd or flock does not perish entirely, the usufructuary is bound to replace those animals which have perished, up to the number of the increase.
1991, c. 64, s. 1161.
SECTION IV
EXTINCTION OF USUFRUCT
1162.
Usufruct is extinguished(1) by the expiry of the term;
(2) by the death of the usufructuary or the dissolution of the legal person;
(3) by the union of the qualities of usufructuary and bare owner in the same person, subject to the rights of third persons;
(4) by the forfeiture or renunciation of the right or its conversion into an annuity;
(5) by non-user for ten years.
1991, c. 64, s. 1162.
1163.
Usufruct is also extinguished by the total loss of the property over which it is established, unless the property is insured by the usufructuary.In case of partial loss of the property, the usufruct subsists upon the remainder.
1991, c. 64, s. 1163.
1164.
Usufruct is not extinguished by expropriation of the property on which it is established. The indemnity is remitted to the usufructuary under the condition of his rendering account of it at the end of the usufruct.1991, c. 64, s. 1164.
1165.
If a usufruct is granted until a third person reaches a certain age, it continues until the date he would have reached that age, even if he has died.1991, c. 64, s. 1165.
1166.
A usufruct created for the benefit of several usufructuaries successively terminates with the death of the last usufructuary or the dissolution of the last legal person.The extinguishment of the right of one of the usufructuaries in a joint usufruct benefits the bare owner.
1991, c. 64, s. 1166.
1167.
At the end of the usufruct, the usufructuary returns the property subject to the usufruct to the bare owner in the condition in which it is at that time.The usufructuary is accountable for any loss caused by his fault or not resulting from normal use of the property.
1991, c. 64, s. 1167.
1168.
A usufructuary who makes misuse of enjoyment, who commits waste on the property, who allows it to depreciate or who in any manner endangers the rights of the bare owner may be declared to have forfeited his right.The court may, according to the gravity of the circumstances, pronounce the absolute extinction of the usufruct, with compensation payable immediately or by instalments to the bare owner, or without compensation. It may also declare the usufructuary’s right forfeited in favour of a joint or successive usufructuary, or it may impose conditions for the continuance of the usufruct.
The creditors of the usufructuary may intervene in the proceedings to ensure the preservation of their rights; they may offer to repair the waste and provide security for the future.
1991, c. 64, s. 1168.
1169.
A usufructuary may renounce his right, in whole or in part.Where part only of the right is renounced and failing an agreement, the court fixes the new obligations of the usufructuary, taking into account, in particular, the scope and duration of the right, and the fruits and revenues derived therefrom.
1991, c. 64, s. 1169.
1170.
Total renunciation may be set up against the bare owner from the day he is served notice of it; partial renunciation may be set up from the date of judicial proceedings or of an agreement between the parties.1991, c. 64, s. 1170.
1171.
A usufructuary having serious difficulty in performing his obligations is entitled to require the bare owner or joint or successive usufructuary to convert his right to an annuity.Failing agreement, the court, if it confirms the right of the usufructuary, fixes the annuity, taking into account, in particular, the scope and duration of the right and the fruits and revenues derived from it.
1991, c. 64, s. 1171.
CHAPTER II
USE
1172.
A right of use is the right to enjoy the property of another for a time and to take the fruits and revenues thereof, to the extent of the needs of the user and the persons living with him or his dependants.1991, c. 64, s. 1172.
1173.
The right of use may not be assigned or seized unless the agreement or the act establishing the right of use provides otherwise.If the agreement or act is silent as to whether the right may be assigned or seized, the court may, in the interest of the user and after ascertaining that the owner suffers no damage, authorize the assignment or seizure of the right.
1991, c. 64, s. 1173.
1174.
A user whose right bears on only part of a property may use any facility intended for common use.1991, c. 64, s. 1174.
1175.
A user who takes all the fruits and revenues of the property or who uses the entire property is fully liable for the costs incurred to produce them, for maintenance repairs and for payment of the charges in the same manner as a usufructuary.Where the user takes only part of the fruits and revenues or uses only part of the property, he contributes in proportion to his use.
1991, c. 64, s. 1175.
1176.
The provisions governing usufruct, adapted as required, are, in all other respects, applicable to the right of use.However, the rules relating to conversion of the usufruct into an annuity do not apply to the right of use unless that right may be assigned and seized.
1991, c. 64, s. 1176.
CHAPTER III
SERVITUDES
SECTION I
NATURE OF SERVITUDES
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.
1991, c. 64, s. 1177.
1178.
An obligation to perform an act may be attached to a servitude and imposed on the owner of the servient land. The obligation is an accessory to the servitude and can only be stipulated for the service or exploitation of the immovable.1991, c. 64, s. 1178.
1179.
Servitudes are either continuous or discontinuous.Continuous servitudes, such as servitudes of view or of no building, do not require the actual intervention of the holder.
Discontinuous servitudes, such as pedestrian or vehicular rights of way, require the actual intervention of the holder.
1991, c. 64, s. 1179.
1180.
Servitudes are either apparent or unapparent.A servitude is apparent if it is manifested by an external sign; otherwise it is unapparent.
1991, c. 64, s. 1180.
1181.
A servitude is established by contract, by will, by destination of proprietor or by the effect of law.It may not be established without title, and possession, even immemorial, is insufficient for this purpose.
1991, c. 64, s. 1181.
1182.
S