The Servitudes

Although the servitude of right of way (which is the subject of a separate information capsule) is the best known among all, there are other types of servitude, which are generally contractual or testamentary.

Indeed, several types of contracts are likely to establish different servitude, such as commercial leases or deeds of sale.

Servitude can cover, for example, access to different water surface, correct views that would be illegal, provides access to parking lots or to water draw offs and others.

Regardless of its nature, article 1177 of the Civil Code of Quebec defines the meaning of servitude:

“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.”

The legislator then specifies in the first paragraph of article 1181 of the Civil Code of Quebec that:

“A servitude is established by contract, by will, by destination of the owner or by operation of law.”

On the other hand, servitude is of restrictive interpretation and are limited to what is necessary for their exercise.

The clauses provided for this purpose must be defined as best as possible in the constituting act.

For example, where it is not expressly mentioned, an easement providing access to a lake or other body of water does not include a right to a beach or to moor boats.

In order to determine the interpretation of the easement and the intention of the parties, it will be necessary to look at the wording as well as the usage.

In addition, the constituting act may provide a term for the servitude.

If no term is provided for, article 1191 of the Civil Code of Québec sets out the conditions for extinction:

“1191. A servitude is extinguished
(1) by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;
(2) by the express renunciation of the owner of the dominant land;
(3) by the expiry of the term for which it was established;
(4) by redemption;
(5) by non-use for 10 years.”

It is therefore possible to redeem the easement, when its usefulness for the dominant fund is out of proportion with the disadvantage or depreciation it entails for the serving fund.

For more information, please do not hesitate to consult us.

Vanessa Low-Ken
Legal technician
Charland Avocat Inc.
Centropolis Laval
500-3055, boul. Saint-Martin Ouest
Laval (Québec) H7T 0J3
Phone: (450) 934-8700
Fax: (450) 934-8748