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Right of ways and servitudes granted by contract : figuring it out

You just bought a luxurious rural property on the shore of an idyllic private lake in the countryside; for a cottage, there is nothing better!

In the center of your yard, an old overgrown and dilapidated dirt road, dotted with large trees and stones. It connects the main road to a ramp near the lake. The former owner enlightened you to the fact that the road had once been used for the farmers nearby to bring their animals to water during droughts. He had the agreement in writing, but it has since been misplaced. He stopped maintaining the road over 30 years ago when the last local farm ceased operations. No one has used it since.

 Unfortunately, things go awry fairly quickly. A couple purchases the property next door, and, without wanting to invest in a dock and a ramp, insists that you free up the road so that they can use the one on your property to put their exuberant pontoon in the water. Otherwise, they warned, their son’s friend, a lawyer, assured them that they just had to borrow your yard because the “right of way is not accessible”.

Can your charming new neighbors force you to refurbish this road? Do they benefit from any right that permits them to cross onto your private land to access the ramp?

The questions pertaining to right of ways and servitudes can sometimes seem like genuine legal labyrinths and are at the heart of many neighborhood troubles.  In this post, we will examine the different notions to better understand the mechanisms.

Servitudes and right of ways

By servitude, we mean a charge imposed on one property to the benefit of another property or person. Respectfully, we would qualify these servitudes as real servitudes or personal servitudes.

A servitude can be established by four means, either by contract, by testament, by destination of proprietor or by the effect of the law. Here, we will study servitudes established by contract.

A servitude cannot result from a tolerated usage, even over long periods of time.

Real servitudes

A real servitude links two buildings belonging to different people. The owner of the servient land, meaning the ground on which the servitude is found, must support certain charges, such as a right of way.

These uses are determined beforehand in the contract establishing the servitude. This is also the case for the duration of the servitude. The servitude must be published at the Registre foncier (Online Land Register). Specifically, for the dominant land or the building which benefits from the servitude, and the servient land; that way, the future owners will be aware of the existence of the charge the moment the property is purchased. That being said, if the servitude is not published, the subsequent buyer will not be bound to it since it is only effective between the parties who signed the contract.

Personal servitude

Contrary to a real servitude that links a building in favor of another building, the personal servitude links a good to a person.

For illustration purposes, in our example, the right of way existed between the former owner and the local farmers.

This servitude contract can be published at the Registre foncier (Online Land Register), but the right of the person benefiting from the servitude subsists, even against subsequent owners.

If the beneficiary is a person made of flesh and bones, the death of this person usually puts an end to the servitude.

It can sometimes be difficult to distinguish a real servitude from a personal servitude. In many cases, one must analyze the intention of the parties at the moment the servitude was established.

The “end” of the servitude

The main causes of extinction of servitudes are established by the law[1], for example: 

  • by the union of the qualities of owner of the servient land and owner of the dominant land in the same person;
  • by the express renunciation of the owner of the dominant land;
  • by the expiry of the term for which it was established;
  • by redemption;
  • by non-user for 10 years.

In our case, the servitude is long expired. The new neighbors are not linked by it and have no right to argue for it. If they want to have access to your ramp to put their pontoon in the water, they need to show you some more respect!

Servitudes and right of ways can often bring us to question oneself and are at the heart of many conflicts.

Have any questions? Don’t hesitate to call one of our professionals at Bernier Beaudry inc., we know how to enlighten you!

[1] [1] art. 1191 C.c.Q.

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