One question that I am often asked in the context of my legal practice is whether one can acquire a right of way (servitude) on a neighbour’s property after 10 or 30 years of use. Let’s say you own a parcel of land that is one lot away from a lakeshore and that your family has been using a path through the waterfront lot to access the lake for as long as you can remember. Then one day, this parcel of land is sold and the new owner blocks your access. Could you invoke against that new owner the fact that, for example, this path has been used for more than 30 years so that it has effectively been acquired? The answer to this question might disappoint many. TheCivil Code of Quebec is unequivocal on this : A servitude may not be established without title. Use of the path, even for generations, is insufficient for this purpose. You would have just lost your right of way, unless you agree with your new neighbour on the creation of a servitude.
A servitude is a charge that is imposed on a piece of property in favour of another parcel of land. The obvious one is the right of way as described above, but other examples include the right to fish and hunt, the right to prevent blocking an opening (a view), the right to prevent cutting trees, the right to use a waterfront for recreational purposes.
In some cases, such as the right of way, the obligation imposed on a lot is in favour of another lot. For example, the right to pass through someone’s property will be transmitted to a subsequent owner as long as it has been properly drafted and it has been published at the Quebec registry office. In such cases, we are talking about the existence of a real servitude.
In the case of a personal servitude, the obligation imposed on a lot is in favour of a person and will only last as long as this person is alive. An example would be the right to hunt on a piece of property that a person would keep for her or himself when selling part of the land. This right, which would be enforceable against any new owner of the hunting domain, would cease to exist when the designated hunter dies. It could very well happen that a right of way is so ambiguous and poorly drafted that it would be interpreted as a personal servitude instead of a real one and would not be transmitted to future owners. That is why seeking the help of a real estate law professional is so important.
There are cases where a servitude must be created when the construction of a building does not comply with the law. For example, the Civil Code of Quebec specifies that no one can have direct views on her neighbour’s property unless the opening (or window) is more than 1.5 metres away from the dividing line. Such « illegal views » must be corrected through a servitude when the property is sold. A notary can help create a servitude of view in favour of the building with the problematic views against the neighbour’s land. Neighbours are usually inclined to collaborate, but problems sometimes arise.
Another example of the use of a servitude is to create a right of way for a property that is enclosed with inadequate or impassable access to the public road. When none of the owners of the surrounding lands are willing to offer a right of way, article 997 of the Civil Code of Quebec gives the owner of the enclosed property the right to claim such a right provided she pays compensation proportionate to any damage she might cause. The right of way must be claimed from the owner whose land affords the most natural way out.
If you are the beneficiary of a servitude, you should know that servitudes are treated by law as a « mal nécessaire » in the sense that the encroachment on the property must be minimal and cause as little trouble as possible to the owner of the servient land (the land on which the servitude is established). This means that the owner of that land can move the site of the servitude to a new site as long as it is not less convenient for the beneficiary of the servitude. Moreover, it is generally up to the beneficiary of the servitude to take the measures necessary for the exercise of his right, as long as any changes made would not aggravate the situation of the servient land. Remember that an unused servitude is lost after 10 years.
If you would like to discuss the creation or modification of a servitude, do not hesitate to contact me and I will be more than happy to help you find suitable solutions.
© Geneviève Parent, 2010