Restrictions to the right of ownership
Clauses D2.6 a) of the form Declarations by the seller of the immovable and 10.3 of the Promise to purchase make reference to the restrictions of private law and restrictions of public law that are exceptions to ordinary law. What is the meaning of “restrictions of public law that are exceptions to ordinary law?”
First, certain terms need to be defined.
Public law
Public law consists of all laws and regulations issued by the government (e.g., federal, provincial or municipal government). Legislation that restricts the right of ownership, and in particular the following laws and regulations, have an impact on the work of real estate brokers:
- Act respecting the Administrative Housing Tribunal (for housing complexes);1
- Act respecting the preservation of agricultural land and agricultural activities;2
- Cultural Heritage Act;3
- Municipal zoning by-law.4
These laws do not affect all property owners; only certain immovables in Québec are governed by them.
Examples of restrictions of public law:
- By-law on pools
- Encroachment of a fence or inground pool on a servitude
1 CQLR, c. R-8.1.
2 CQLR, c. P-41.1.
3 CQLR, c. P-9.002.
4 Each municipality has its own zoning by-laws.
Ordinary law
Ordinary law (or jus commune, not to be confused with the Common Law applicable in other Canadian provinces) is set out in the Civil Code of Québec.
Restrictions of public law that are exceptions to ordinary law
The real estate broker must find out the restrictions of public law to which his client’s immovable is subject, with the exception of restrictions to the right of ownership covered by ordinary law. These restrictions apply to any owner of an immovable located in the province of Québec.
The restrictions are listed in articles 976 to 1008 of the Civil Code of Québec, under the heading “Special rules on the ownership of immovables.” These rules illustrate the principle that our rights stop where those of our neighbours begin. Article 976 of the Civil Code of Québec also sets out the general rule that fundamentally regulates relations between neighbours:
“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 usage.”
In other words, one must accept the inconveniences inherent to living in society. However, the legislator recognizes that this tolerance must have limits.5 This is why the Civil Code of Québec has established rules of behaviour to ensure good relations between neighbours.6
These rules are reflected in the restrictions placed on the right of ownership, which are set out in the Civil Code of Québec.
5 Art. 976 C.C.Q.
6 Such as the rules pertaining to access to the land of another, right of way, views, etc. For details, see Chapter III of Civil Code of Québec.
Land boundaries
The limits of a lot are determined by boundary lines. In accordance with the Civil Code of Québec, an owner may compel his neighbour to have the boundaries between their contiguous lands determined in order to fix the boundary markers, put displaced or missing boundary markers back in place, verify ancient boundary markers, or rectify the dividing line between their properties.7
The determination of boundaries can be done by mutual agreement or by judicial determination.8 Either way, once the boundary has been determined, it must be entered in the Land Register.9
When the boundary between two properties is in doubt, the boundary determination establishes it irrevocably and permanently.
7 Art. 978(1) C.C.Q.
8 Art. 978(2) C.C.Q.
9 Art. 978(3) C.C.Q.
Staking
A distinction must be made between “boundary determination” and “staking.” Staking is the set of operations performed by a land surveyor to indicate the boundaries of a property by means of stakes. Staking is the opinion of a land surveyor as to the boundaries of a property, an opinion that he has formed following a survey and a study of the property titles and the cadastre.
This opinion is the basis for the certificate of location that the seller will give to the buyer at the time of sale of a residential, commercial or industrial property.
Consequently, staking does not have the same legal value as boundary determination. It does not appear in the Land Register. In fact, staking is carried out for the sole benefit of the client and the land surveyor, and is absolutely not enforceable against third parties (such as the owners of adjoining properties).
DIFFERENCE BETWEEN STAKING AND BOUNDARY DETERMINATION
| Staking | Boundary determination |
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Boundary determination establishes irrevocably, without appeal and permanently, the boundary between two properties, when this boundary is in doubt. As part of a boundary determination process, the owners of the adjoining properties must be involved; it is not a unilateral operation. The boundary determination process results in the placement of markers and publication of a report in the Land Register. Boundary determination is enforceable against anyone. There are TWO TYPES of boundary determination: By mutual agreement
By judicial determination
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► DUTIES AND OBLIGATIONS OF THE BROKER
Although few owners have recourse to boundary determination by mutual agreement or judicial decision (the majority opt instead for staking of their land), the process is possible.
It is important to know that a boundary determination, within the meaning of Civil Code of Québec, is entered in the land surveyor’s report in the Land Register and will bind all subsequent owners.
A broker representing a client for the sale of an immovable for which a boundary determination has been made must therefore mention this on the detailed description sheet and in the Promise to purchase.
Waters
Article 979 paragraph 1 of the Civil Code of Québec states that lower land is subject to receiving water flowing onto it naturally from higher land.
Therefore the owner of lower land has no right to erect works to prevent the natural flow, and owner of higher land has no right to aggravate the condition of lower land.10
An owner who has a spring on his land may use it and dispose of it.11
As for lakes and ponds, the owner may, for his needs, use water from the lakes and ponds that are entirely on his land, taking care to preserve their quality,12 as must riparian owners.13 As the water leaves his land, he shall direct it, not substantially changed in quality or quantity, into its regular course. He may not, by his use of the water, prevent other riparian owners from exercising the same right.14
In addition, roofs are required to be built in such a manner that water, snow and ice fall on the owner’s land15 and not on his neighbour’s.
Note: There are lots subject to a zero side setback (in the case of semi-detached or row houses) allowing rainwater, snow or ice to run off or fall onto the neighbouring lot. A roof sewer easement will need to be obtained to allow this runoff onto a portion of the neighbour’s lot.
10 Art. 979(2) C.C.Q.
11 Art. 980(1) C.C.Q.
12 Art. 980(2) C.C.Q.
13 Art. 981(1) C.C.Q.
14 Art. 981 C.C.Q.
15 Art. 983 C.C.Q.
Trees
A broker representing a client for the purchase or sale of an immovable must pay attention to the trees, for various reasons.
Firstly, an owner (the seller or the prospective buyer) cannot cut branches or roots of a neighbour’s tree extending onto his land and interfering with the use thereof. He must ask his neighbour to cut them. The same applies if a neighbour’s tree is threatening to fall on the seller’s land. In the event of refusal, the neighbour will have to be served notice and a judgment obtained forcing the neighbour to fell the tree.
Roots can cause significant damage to foundations, water intakes and swimming pools.
In addition, the owner of land used for agricultural purposes may compel his neighbour to fell the trees along and not more than 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.16
16 Art. 986 C.C.Q.
► DUTIES AND OBLIGATIONS OF THE BROKER
Certain trees such as poplars, weeping willows, silver maples and ash trees, are often a source of problems.
When a broker visits a property surrounded by mature trees with his clients, he should:
- Check the foundation, as the tree roots may have damaged it, especially if the land contains clay.
- Recommend that the client have the drains checked, if appropriate, to ensure that they are not blocked by roots.
If ash trees are present, the health of the trees should be checked to ensure that they are free of the emerald ash borer.
For more information: The emerald ash borer, a small beetle that wreaks havoc
Encroachments
Encroachment is the act of appropriating a portion of another’s property. Article 992 of the Civil Code of Québec states:
“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 an indemnity for the temporary loss of use of the parcel.
If the encroachment is a considerable one, causes serious injury 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.”
| Minor encroachment | Major encroachment | |
| Definition |
Encroachment that is made in good faith and is not substantial |
Considerable encroachment that causes serious injury or is made in bad faith |
| Recourse |
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► DUTIES AND OBLIGATIONS OF THE BROKER
Encroachments, whether minor or major, will appear on the certificate of location, which is why it is important for the seller to provide an up-to-date certificate.
In cases where the certificate of location shows encroachments, an affirmative answer must be given in section D13.9 of the Declarations by the seller of the immovable form (where mandatory) and details provided in section D14.
The real estate broker must ensure that these encroachments are reiterated on the Promise to purchase and that the purchaser’s broker has completed section 13.1 with the number of the Declarations by the seller of the immovable form.
If the buyer’s broker has failed to mention it on the Promise to purchase, a counter-proposal must be made to enter, under section P2.5, the number of the Declarations by the seller of the immovable form, and this form must be attached to the counter-proposal.
Views
Article 993 paragraph 1 of the Civil Code of Québec states that no person may have direct views upon neighbouring land less than 1.5 meters from the dividing line (also called lot line). This means any window or opening must be at that minimum distance from the lot line.
However, the code provides for a few exceptions:17
- views on a public park;
- views on a public thoroughfare;
- if there is a panelled door or a door with translucent glass (i.e. that lets light through but is not see-through, such as frosted glass).
Under the Civil Code of Québec, indirect views do not constitute illegal views.
17 Art. 993(2) C.C.Q.
Right of way
The right of way is covered in articles 997 to 1001 of the Civil Code of Québec. Article 997 provides a definition of enclosed land:
“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 an indemnity proportionate to any injury he might cause.”
Since the owner has no access, a neighbour must therefore allow him to enter and exit his land.
“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.”18
Under article 1000, the Civil Code of Québec states that the beneficiary of a right of way must 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.
In addition, the Civil Code of Québec stipulates that the right of way is extinguished when it ceases to be necessary for the use and exploitation of the land. The indemnity is not reimbursed, but if it was payable as an annual rent or by instalments, future payments of these are no longer due.19
The right of way is not a real right that follows the property; it is a personal right. Therefore if a neighbour grants a right of way on his land and then sells the property, the new owner may refuse to grant a right of way on his land.
It would be appropriate to have a covenanted right of way, which is a real right and designates the location of the right of way, the amount to be paid and the method of payment. A real right follows the property, regardless of who owns it.
18 Art. 998 C.C.Q.
19 Art. 1001 C.C.Q.
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► DUTIES AND OBLIGATIONS OF THE BROKER
A real estate broker who puts an enclosed immovable on the market must verify the certificate of location to ensure that the property has a right of way or easement linking it to a public road.
Common fences and works
Any owner of land may fence it, at his own expense, with walls, ditches, hedges or any other kind of fence.20
He may also require his neighbour to make, in equal portions or at common expense, on the dividing line between their lands, a fence suited to the situation and use made of the place.21 The cost of maintenance of the fence is shared equally between the owners of contiguous lots.
EXAMPLE: An owner wants to install a wrought iron fence, whereas his neighbour would prefer a “Frost” type fence. In the absence of an agreement between the parties, the courts will analyze whether the costs are reasonable. In addition, in the case of such an application to the court, a boundary determination will have to be made. If a fence is located on the dividing line, it is presumed to be common.
20 Art. 1002(1) C.C.Q.
21 Art. 1002(2) C.C.Q.
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► DUTIES AND OBLIGATIONS OF THE BROKER
The real estate broker must:
- ask the seller to provide an up-to-date certificate of location representing the current state of the property being sold (cadastral designation – before and after the cadastral renovation, report stating the legal and physical aspects of the property, or technical description in the case of a vacant lot), at the time of signing of the brokerage contract;
- verify the certificate of location to provide accurate information;
- inform any prospective buyer of any “encroachment” that appears on the certificate of location.
