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Special rules on the ownership of immovables (articles 976 à 1011)

Special rules on the ownership of immovables (articles 976 à 1011)

Written by Me Sébastien Fiset , LL.B., B.A.A.
Friday, 11 June 2010 07:06

CHAPTER III

SPECIAL RULES ON THE OWNERSHIP OF IMMOVABLES

(Last update June 4, 2010)

DIVISION 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.

DIVISION 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.

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.

DIVISION 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.

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.

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.

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.

983. Roofs are required to be built in such a manner that water, snow and ice fall on the owner’s land.

DIVISION IV

TREES

984. Fruit that falls from a tree onto neighbouring land belongs to the owner of the tree.

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.

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.

DIVISION 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.

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.

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.

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.

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.

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.

DIVISION VI

VIEWS

993. No person may have upon the neighbouring land direct views less than 150 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.

994. The distance of 150 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.

995. A person may make fixed translucid lights in a wall that is not a common wall, even if it is less than 150 centimetres from the dividing line.

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.

DIVISION 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.

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.

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.

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.

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.

DIVISION 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 1/2 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.

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.

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 1/2 of the cost of the section rendered common and, where applicable, 1/2 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.

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.

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.

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 1/6 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.

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 1/2 of the cost of the heightening or rebuilding and, where applicable, 1/2 of the value of the ground provided for excess thickness. He shall also repay any compensation he has received.

TITLE THREE

SPECIAL MODES OF OWNERSHIP

CHAPTER I

GENERAL PROVISIONS

1009. Ownership has two principal special modes, co-ownership and superficies.

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.

1011. Superficies is ownership of the constructions, works or plantations situated on an immovable belonging to another person, the owner of the subsoil.

Last Updated on Friday, 11 June 2010 07:12

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ABOUT FISET LÉGAL

FISET LÉGAL inc. is a law firm located in Montreal and specialized in real estate and in commercial litigation. We are especially active in Condominium Law and in Construction Law.

We represent many syndicates of co-ownership and many co-owners located in Montreal and its surroundings. We provide legal advising to our clients and their property managers in the fields of Real Estate Law, Condominium Law and Commercial Litigation.

Our Law firm is able to intervene in complex files as well as in simpler files. We adapt the solutions offered and our services depending on the nature and complexity of the case.

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