Right of ownership
The sale and purchase of immovables and enterprises, leasing and loans secured by immovable hypothec are all important but very different transactions with which real estate brokers have to deal, but they have one thing in common: they all revolve around the concept of the right of ownership.
Definition
Article 947 of the Civil Code of Québec defines the rights of ownership as follows:
“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 modalities and dismemberments.”
The right of ownership is a real right.
For more information on the right of ownership warranty: The legal warranty of ownership and quality
Right of private ownership and right of public ownership
If the property relationship is between a person (natural or legal) and an asset (movable or immovable), it is referred to as a right of private ownership.
If the property relationship is between the government, or one of its agencies, and an asset (movable or immovable), it is referred to as a right of public ownership.
The real estate broker’s activities relate with the right of private ownership.
Characteristics of the right of ownership
The right of ownership has three characteristics:
Usus: the right to use and enjoy the property;
Fructus: the right to receive the fruits and revenues of the property (e.g., to receive rent, to harvest the apples from one’s apple trees, to receive interest on investments, etc.);
Abusus: the right to dispose of the property, to mortgage, sell, lease or give it away.
Extent of the right of ownership
The owner of an immovable is the owner of the ground, the underground and the overground (space above the ground), with the restrictions imposed by the legislator through the different laws or regulations.
Article 951 of the Civil Code of Québec states:
“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 public rights in mines, petroleum, sheets of water and underground streams.”
Right of accession
Another concept that is relevant to the broker’s work is accession. Article 948 of the Civil Code of Québec provides a specific right of accession:
“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.”
Thus, the simple fact of clearly and adequately identifying the lot that is the object of the transaction in your contracts (brokerage contract, promise to purchase or counter-proposal) automatically includes any construction, work and planting located there, without having to draw up an exhaustive list. This is why the cadastral identification of the immovable is so important.
Finally, although an owner can do a multitude of things on his property, there are still certain limits to the right of ownership.
