1. Duty to verify
Land Register
1.1 Identity and legal capacity
1.2 Information on the immovable
1.2.1 Land Register
b) Restrictions to the right of ownership
i) Transferability of the servitude
ii) Prescription of the right of use
e) Pre-emptive right in case of a classified heritage property sale
f) Immovable close to a body of water
1.2.2 Municipality
1.2.3 Certificate of location
1.2.1 Land Register
The Québec online land register (in French only) contains several sections, including the index of immovables that allows licensees to ensure that no act restricting the right of ownership has been registered after the publication of the owner’s title of acquisition. The consultation of the index of immovables enables licensees to know for certain whether the seller has one or more mortgages, servitudes affecting the property or whether prior notices of exercise by the hypothecary creditor or contamination notices have been published. The licensee must carefully read each document pertaining to the property in the Land Register, which will provide information essential to the smooth running of the transaction such as:
- Previous deeds of sale
- Civil status of owners
- Declaration of transmission
- Identity of true owners
- Legal capacity
- Obligations of the seller and the buyer
- Special clauses
- Clause of first refusal
- Servitudes
- Mortgages
- Cadastral plan
- Registered legal mortgages
- Prior notice of exercise of the taking in payment and sale by judicial authority
- Notice of contamination
- Notice of decontamination
- Notice of land use restrictions
- Registered lease
- Declaration of family residence
- Declaration of co-ownership
- Etc.
a) Cadastral description
The cadastral description of an immovable consists of a seven-digit number appearing in the cadastre of Québec. This is called a renovated lot. When the licensee verifies this information on the deed of sale and on the seller's certificate of location, this designation may sometimes take the form of a lot number (original lot) followed by a subdivision number, the name of the cadastre and the parish or township, depending on the region. This is the old description, before the cadastral renovation. This is referred to as a non-renovated lot.
For example, such a lot may be described as: Lot 25-1 Parish of St. Joseph, Registration Division of Lac-Saint-Jean Ouest. Even if the deed of sale and the certificate of location provided by the seller include an unrenovated lot number – which may be the case when the person has owned the property for a very long time – it is very likely that the lot has been renovated and that the new description appears in the cadastre of Québec. By checking the Land Register, the licensee will find the new cadastre number. The municipal assessment roll should also enable him to verify whether or not the cadastral description is up to date.
If the licensee notes that the lot has indeed been renovated, the seller must provide a new certificate of location. The licensee should advise the seller to have it prepared without further delay.
The licensee must pay attention to the form of the cadastral description, as it guides him in the way he must conduct his searches and verifications.
Find several web resources for reference purposes by clicking here.
b) Restrictions to the right of ownership
The licensee must know and verify the characteristics of the immovable’s right of ownership, along with any restrictions of private or public law.
To verify right of ownership restrictions, the licensee must consult the Québec Online Land Register. The Index of immovables must be verified to ensure that no act restricting the right of ownership has been registered after the publication of the owner’s title of acquisition. There are many search tools, but the Index of immovables of the Land Register is the information source that licensees must use to guarantee the accuracy of the information concerning the rights and restrictions affecting an immovable.
Licensees must verify the ownership documents provided by the seller or published in the Bureau de la publicité des droits in order to identify any restriction. This will enable them to make sure that the selling owner made all the relevant declarations concerning his immovable.
c) Servitudes
A servitude can be:
- Personal, i.e. pertaining to a person who may be specifically designated in the deed of sale or
- Real, attached to the lot that enjoys the right (the dominant land)
To verify the existence of a servitude, the licensee must, in addition to reading the deed of sale, check the current certificate of location and get information from the Land Register. Even when the servitude is indicated in the deed of sale, the actual wording must be examined closely. Also, licensees must not decide on the existence of a servitude and its type, as this is the responsibility of legal counsel. If in doubt, licensees should seek legal advice.
The presence of a servitude does not automatically imply that the new buyers will also enjoy it.
In addition, licensees must draw the buyer’s attention to the fact that a servitude may carry obligations or limitations, such as snow removal or foot traffic only.
i) Transferability of the servitude
When the immovable is sold, the personal servitude, i.e. one that is attached to a designated person, will be extinguished and the new owners cannot benefit from the right of way unless a new servitude is created in the deed of sale, thus requiring the consent of the owner of the land granting the servitude (the servient land). A real servitude, i.e. one that is attached to the lot, is transferred to the new owners when the immovable is sold. It should normally appear in the new deed of sale.
ii) Prescription of the right of use
A right-of-way is subject to prescription after 10 years of non-use. In other words, if an owner does not use his access right for more than 10 years, the right could be challenged by the owner who granted it. Unless there is an agreement, this challenge is usually brought before a court, where the non-use of the servitude in the last 10 years will be at the heart of the debate. If the owner who granted the right of way is able to prove that the servitude was not used, the judge could declare the servitude extinguished. If the servitude is not used as a right of way for more than 10 years, it will be extinguished (art. 1191 and 1192 CCQ). Licensees must therefore verify whether or not the owner has used his right in the last 10 years.
d) Contaminated lands
The Environment Quality Act establishes rules regarding land protection and rehabilitation in case of contamination. It is supplemented by the Land Protection and Rehabilitation Regulation.
This Act imposes land protection mechanisms not only on polluters, but also on land custodians – that is those who have effective control of the land – if they had custody after March 1, 2003. These parties include owners, lessors, lessees and hypothecary creditors who have exercised the right to take in payment.
The Act also calls for the registration of certain notices in the Land Register in order to inform third persons about the state of contamination of the land.
The various notices registered in the Land Register
Whether the rehabilitation is done on a voluntary or forced basis, various notices must, or in some cases can, be registered in the Land Register by the person responsible for the characterization or rehabilitation of the land, all in order to make some situations effective against third parties. These notices are as follows:
- Contamination notice: must be registered as soon as a characterization study conducted pursuant to the Act reveals a concentration of contaminants exceeding the regulatory limit values;
- Decontamination notice: can be registered if the measures provided for in the rehabilitation plan result in the decontamination of the land and a subsequent characterization study reveals the absence or presence of contaminant, but under the regulatory limit values;
- Notice of land use restrictions: must be registered as soon as the Minister approves a rehabilitation plan that includes land use restrictions as a result of maintaining a concentration of contaminants exceeding the regulatory values limit on the land. This notice outlines the work to be performed and any restrictions on land use.
The Ministry provides on its website an Inventory of contaminated lands in Québec (in French only),
general and technical information about lands contaminated by commercial or industrial activities or by accidental spills. The list is not exhaustive since it contains only cases brought to the attention of the Ministry. Unlike the Land Register, it is possible to make a search by address.
Note that municipalities are obliged to maintain a list of lands subject to these notices and that the information contained in these lists is public.
Examples of city or municipality websites:
- List of contaminated lands – City of Montreal (in French only)
- Map of old quarries – City of Montreal (in French only)
e) Pre-emptive right in case of a classified heritage property sale
Québec’s Minister of Culture and Communications has a right of pre-emption, also known as a “right of preference”, on any immovable classified as heritage property or situated on a classified heritage site. This means that the Minister may acquire such a property by preference over any other buyer at the price the buyer is willing to pay. In accordance with the Cultural Heritage Act, the Minister must be given notice prior to the sale of such a property so that he may decide whether to exercise this right.
If the property is subject to the Cultural Heritage Act, the information can be found:
- On the latest certificate of location
- In the Cultural Heritage Directory of Québec
- In the letter from the Ministère sent to the owner
- In the Land Register
- At the office of the registrar or secretary-treasurer of the municipality concerned
When taking up a brokerage contract for an immovable that is classified as heritage property or located on a classified heritage site, licensees must make sure to check the "Yes" box under clause D2.9 of the Declarations by the seller of the immovable form (immovable is subject to a heritage protection law or regulation) and provide details under clause D15 indicating that the immovable is subject to the Cultural Heritage Act. The information concerning the Minister’s right of pre-emption must also appear on the detailed description sheet, so that any prospective buyers and their brokers are duly informed.
Since the Minister has a right of pre-emption, the promise to purchase or the counter-proposal must be conditional1 upon the Minister not exercising that right. The licensee must therefore proceed with all other conditions, such as financing and inspection, after receiving the Minister's reply in order to avoid unnecessary expenses should the pre-emptive right be exercised.
In order to enable the Minister to exercise his right, the Cultural Heritage Act stipulates that no person may sell a classified heritage immovable or an immovable situated on a classified heritage site without giving the Minister at least 60 days prior written notice.
Therefore, once the transaction proposal is accepted, the seller must send the 60-day notice to the Minister. In the event that the Minister does not exercise his right of pre-emption within the allotted period, the seller can consider the condition fulfilled and send a notice to this effect to the buyer.
The prior written notice must contain the cadastral description of the property, as well as the names and home addresses of the owner of the immovable and the person interested in acquiring it. The notice must also contain the price that this person is willing to pay and which the owner is willing to accept.
To exercise his right of pre-emption, the Minister must, within the period of 60 days following receipt of the notice as provided above, signify in writing his intention to acquire the immovable. At the expiry of this period, the classified heritage immovable or the immovable situated on a heritage site may be sold to the person interested in acquiring it, but it must be at the price submitted to the Minister if the Minister has not notified his intention of acquiring the property.
For more information on the Cultural Heritage Act, see this section of the Professional practices guide – The real estate broker’s practice and the law.
f) Property located close to a body of water
When a client wants to sell a property close to a body of water, the licensee must not rely on municipal assessment notices or old certificates of location to establish the area of the lot for sale because these documents do not take into account the changes occurred after their creation.
When drafting the detailed description sheet of a property bordered by a body of water, the licensee must consult the Index of immovables of the Québec online Land Register. If a statement such as “agreement regarding boundaries of the water property” is indicated, it is possible that the lot area of the immovable for sale has been changed. The government publishes notices regarding the boundaries of the waters in the domain of the State. These notices can affect the cadastre of shoreline properties.
Licensees must seek help from a professional (such as a notary or land surveyor) to find out if the lot area is affected. If the professional confirms that the lot area is affected, the licensee must indicate this on the description sheet and inform the parties concerned. A new certificate of location must be obtained as soon as possible.
g) New constructions
If the licensee represents a building contractor or real estate developer to handle the marketing of new homes, he must ensure that no notice of legal hypothec or notice of exercise of a hypothecary right has been registered in the Québec Land Register by any worker, contractor, sub-contractor, materials supplier, engineer or architect who has not been paid for his involvement in the building of the immovable. If such is the case, the licensee must discuss and follow up on this with his selling client, including by continually monitoring the Land Register or Centris alerts, and seeking legal advice if necessary. The licensee must ensure that this information is included in the description sheet and that all parties involved fully understand the situation and the potential risks.
