Précis de droit des biens -Pierre-Claude Lafond
FRENCH ORIGINAL
ISBN : 978-2-89400-238-4
Date de parution : 2007-01-01
Summary of property law Pierre-Claude Lafond Table of contents This book can be obtained from: Les Éditions Thémis Faculty of Law, University of Montreal PO Box 6128, Succ. Center-Ville Montreal (Quebec) H3C 3J7 CANADA
Contents
GENERAL INTRODUCTION
Definition and sources of property law Definition of property Definition of property law Sources of property law Historical foundations of property law … 10 A. Prehistory … 12 B. Antiquity … 13 C. Roman Empire … 14 D. Middle Ages … 15 E. Renaissance … 18 F. 18th century … 19 G. French Revolution … 20 H .Modern Era … 22 Conclusion … 27
TOPIC-1 THE QUALIFICATION OF GOODS
… 31 Introduction Distinction between tangible and intangible goods Definitions Tangible goods Intangible goods Interests of distinction Critique of distinction … 40
31.2 Distinction between immovable and movable property Origins and interests of the distinction Origins of the distinction … 44 A. Roman law … 44 B. Ancient law … 45 C. Modern law Practical interests of the distinction … 48 A. Civil procedure … 49 B. Evidence … 50 C. Security interests … 51 D. Liberalities … 52 E. Publicity of rights … 53 F. Limitation … 54 G. International law private … 54 H. Guardianship and curatorship … 56 I. Taxation … 56 J. Matrimonial regimes … 57 K. Renting … 58 L. Consumer protection Buildings Buildings by reason of their nature Definition Examples … 61 A. Land … 61 B. Plants … 62 a) Principle … 62 b) Exception: furniture in advance … 62 C. Minerals Due to immobilization L immobilization by adhesion to the ground of a construction or a permanent structure … 66 A.Notions of construction and work … 66 B. Criteria for immobilization … 68 C. Examples of property classified as immovable by adhesion to the ground … 70 D. Examples of property classified as movable … 74
4 Immobilization by integration of movable property into a building … 75 A. Criteria for immobilization by integration … 77 a) Incorporation … 78 b) Loss of individuality … 80 c) Useful function of the building … 81 B. Qualification exercises … 85 C. Distinction between building and business … 90 D. Practical considerations Immobilization by attachment or material reunion of a movable property with a building … 94 A. Conditions of immobilization … 96 a) The presence of a building … 97 b) A bond or a material meeting … 99 c) The preservation of the individuality of the movable property and the absence of incorporation d) A permanent bond e ) A function ensuring the usefulness of the building B. Exemplification C. Cessation of the asset D. Practical considerations Buildings by qualification of the law General provision A. Real property rights B.Legal actions aimed at asserting real property rights C. Legal actions aimed at obtaining possession of an immovable Specific provisions Furniture Furniture by reason of its nature Definition Examples Furniture by qualification of the law A. Real rights furniture … 135
5 B. Personal rights C. Legal actions Anticipatory movables Distinction between consumable and non-consumable goods Definitions Consumable goods Non-consumable goods Use of the distinction Distinction between fungible and non-fungible goods Definitions Fungible goods Non-fungible goods Usefulness of the distinction
TOPIC 2 LAW AND FACT RELATIONSHIP CONCERNING PROPERTY
Legal relations concerning property Concept of heritage Composition of heritage Legal conceptions of heritage Personalist theory A. Linked to personality B. Non-transferable C. Indivisible Theory of assigned heritage Classification of relationships of law concerning property Personal rights Definition Characteristics Critique Real rights Definition and attributes of real rights … 177
6Definition Attributes A. Resale right B. Preferential right C. Right of abandonment Categories of rights in rem Main rights in rem A. The right of ownership B. The dismemberments of the right of ownership C. Other rights in rem of enjoyment a) Rights of exploration and exploitation of public lands b) Right to cut timber c) Hunting and fishing rights d) Personal easements Ancillary real rights Classes of intermediate rights Intellectual rights Mixed rights Factual relations concerning property Possession Nature of the possession Definition Distinction from other institutions A. Property B. Referral Domain of possession Constituent elements A. The corpus B. The animus a) Nature b) Presumption of animus c) Acts of pure faculty or mere tolerance C.Acquisition and loss of possession Qualities of useful possession A. Peaceful B. Continuing … 221
7C. Public D. Unambiguous E. In good faith, in bad faith a) Concept of possession in good faith Belief Justification b) Time of good faith c) Proof of good faith d) Publicity and good faith Legal effects of the possession Grounds for legal protection of possession A. Indirect protection of the right to property B. Maintenance of the public peace Legal effects A. Presumption of ownership of the right B. Acquisitive prescription C. Acquisition of fruits and income D. Reimbursement of expenses E. Possessional actions a) Complaint action b) Reintegration action c) Action for denunciation of a new work Ownership Nature Definition Characters A. Absolute B. Continues Reversal of title A. Cause emanating from a third party B. Contradiction of copyright owner by holder C. Special cases Effects of detention …257
8 TOPIC 3 THE RIGHT OF OWNERSHIP
Nature and extent of the right of ownership Definitions of the right of ownership Characteristics of the right of ownership Absolute Complete Exclusive Perpetual Scope of the right of ownership Right to fruits and revenues A. Definition of fruits and revenues a) Fruits b ) Income B. Distinction with capital Extent of real estate ownership Land ownership Principle Determination of the limits of the fund A. Methods of proof B. Bounding a) Nature b) Holders of the right to demarcate c) Conventional demarcation d) Request for judicial demarcation e) Declarative effect Property of the subsoil Principle Exceptions A. Law on mines B. Law on cultural property Property above Principle Exceptions Restrictions on the right of ownership Restrictions of legislative origin … 309
9 Restrictions of the Civil Code Waters A. Natural flow B. Sources C. Waters of lakes and ponds D. Riparian water E. Roof sewer F. Rights of riparian owners G. Recourse Joint ownership A. Determination and acquisition of joint ownership a) Absence d division structure b) Existence of a division structure B. Proof of joint ownership a) By title b) By prescription c) By presumption C. Maintenance and modification of the adjoining structure a) Maintenance and conservation b) Ability to abandon c ) Modification and work Heightening Openings Demolition Trees A. Distance to be respected B. Right to uncovered C. Branches and roots D. Cutting prohibition Views A. Definitions a) Days b) Views Straight views Oblique views B. Rules of distance … 367
10a) Party wall b) Private wall c) Recessed wall d) Calculation of distances C. Easement of view D. Recourse Right of passage for landlocked land A. Enclave state B. Right of passage a) Mode of acquisition b) Holders c) Nature and exercise C. Indemnity D. Basis of passage a) General principle b) Special case of article 999 CCQ c) Limitation of the basis of passage d) Use and exploitation of the fund E. Cessation of the enclave Right of access Other people’s funds A. Tower of ladder B. Fortuitous movement of goods or animals C. Encroachment of a constructed building Exercise of property rights and neighborhood disturbances Conditions of responsibility A. Neighborhood context (notion of “neighbors” ) B. Exercise of the right of ownership or use C.Inconvenience or damage a) Proof of an inconvenience or damage b) Nature of the inconvenience Normal inconvenience: duty of tolerance Abnormal inconvenience … 421
11i) Caused with fault Theory of abuse of rights Intention to harm (malice) Excessive and unreasonable exercise ii) Caused without fault Case-law and doctrinal support Contestation and defense of no-fault liability in Quebec law D. Defense of serious interest and lawful Sanctions A. Injunction B. Possessory action in complaint C.Damages Conclusion Law on lands in the public domain (three-channel reserve) Law on the protection of land and agricultural activities Law on cultural property Law on land use planning and development Law on the Régie du logement Expropriation law Regulations municipal Restrictions of conventional origin The stipulation of inalienability The pre-emption clause General conclusion Legal protection of the right to property The petitory action Subject Distinction from the possessory action … 494
12 Exercise conditions Negative action Object Exercise conditions
TOPIC 4 TERMS OF PROPERTY RIGHT
Ownership Undivided co-ownership Nature of undivided co-ownership Definition Distinction with society Constituent elements Constitution of undivided co-ownership Voluntary joint ownership Rights and obligations undivided co-owners Rights A. As to the quota B. As to the property itself a) Use b) Fruits c) Accession d) Reimbursement of expenses e) Collective acts f) Legal action Obligations A. Costs and losses B . Receivables a) Personal debt of a co-owner b) Undivided debt Administration of the undivided property Acts of simple administration … 537
13Acts of alienation or substantial modification End of co-ownership by undivided co-ownership Partition A. Right to partition B. Suspension of partition a) By agreement b) By judgment c) By will d) By operation of law e) By allocation property for a lasting purpose f) By attribution by a dissident co-owner C. Procedure and terms of partition D. Effects of partition a) Effect of attribution of property b) Retroactive effect c) Protection of mortgage creditors Other causes of end of undivided co-ownership Divided co-ownership of a building Nature of divided co-ownership Definition Constituent elements A. Private portion B. Common areas C. Fraction Constitution of divided co-ownership Necessity of the publication of a declaration of co-ownership Publication as a constitutive act Content of declaration A.Constitutive act of co-ownership a) Destination of the building b) Relative value of each fraction B. Building regulations Enforceability of the declaration … 595
14A. Enforceability of the declaration against the successors B. Enforceability of the settlement against tenants Specific modalities of constitution of divided co-ownership A. Single-owner co-ownership B. Horizontal co-ownership (or co-ownership of unbuilt buildings) C. Co-ownership with a long lease ( or surface property) D. Co-ownership by phases Rights and obligations of divided co-owners Rights A. Restrictions justified by the declaration of co-ownership B. Restrictions justified by the rights of other co-owners Obligations A. Compliance with the declaration of co-ownership B. Contribution to common charges C.Divisible collective commitments a) Priorities and mortgages on the building b) Long-term lease or surface property charges c) Judgment against the syndicate Administration of the building in divided co-ownership The board of directors of the syndicate A. Functions B. Adequate duty of skill C. Liability a) Contractual liability b) Liability for defects or lack of maintenance of common parts … 632
15Protection of tenants’ rights a) Right to remain in the premises b) Right of preemption c) Limitation of work d) Recourse for damages Undivided co-ownership as a solution? Surface property Nature of surface property Definition Composite right Subject Constitution of surface property By agreement Division of the object of property rights Transfer of the right of accession Waiver of the benefit of the accession A. Construction lease B. Simple permission to build By prescription … 693
164.2.3 Rights and obligations of the surface owner and of the subsurface owner Rights and obligations of the surface manager Rights Obligations Rights and obligations of the subsurface owner Rights Obligations End of surface ownership Causes of extinction A. End of term or occurrence of a resolutive condition B. Consolidation C. Loss of constructions a) Total loss b) Partial loss c) Expropriation Effects The housing cooperative: owner or tenant? Definition and characteristics Legal qualification Timeshare (timeshare): a new form of ownership? Legal qualification Legal vehicles of timeshare
TOPIC 5 DISMEMBERMENTS OF THE RIGHT OF OWNERSHIP
Usufruct Nature and constitution of the usufruct Definition Characteristics A. Division of the attributes of the right of property B. Right in rem … 741
17 C. Objects of the law D. Temporary right Distinction with the lease Constitution of the usufruct Methods of constitution A. By contract B. By will C. By law D. By judgment E. By prescription Terms of usufruct Rights and obligations of the Usufructuary and bare owner Rights and obligations of the usufructuary Rights of the usufructuary Right of use A. Measurement of use B. Administration C. Ancillary property D. Legal actions Right to fruits and income A. Definitions B. Acquisition of fruits and income a) Fruits b) Income Receivables Annuity Securities Methods of exercising the usufruct Obligations of the usufructuary Before the usufruct A. Inventory B. Guarantee of the performance of his obligations C. Insurance During the usufruct A. Conservation of the substance B . Maintenance repairs C. Land charges … 785
18 a) Ordinary charges b) Extraordinary charges D. Succession charges a) Usufructuary or universal usufructuary b) Usufructuary in particular E. Legal costs After the usufruct A. Restitution of the property B. Accountability of rights and obligations of the nu -owner Rights of the bare owner Obligations of the bare owner End of the usufruct A. Death of the usufructuary B. End of the term C. Consolidation D. Total loss of the property E. Abandonment F. Conversion of the usufruct into an annuity G. Resolution of the grantor’s right H. Loss of right I. Non-use for ten years Use Nature and constitution of use Definition Character Non-transferability Rights and obligations of the user Rights Obligations Before use During use After use End of use easements Nature of the easement Definition … 826
19 Characteristics A. Real estate law a) General b) Public service easements B. Accessory right of a fund C. Perpetual right D. Indivisible right E. Non-exclusive usus F. Passive charge a) Principle b) Special situations Preference pact Stipulations of non-competition Distinction from other rights Distinction between real and personal easement Distinction between easement and personal right Classification of easements Positive and negative easements A. Positive easements B. Negative easements Continuous and discontinuous easements A. Continuous easements B. Discontinuous easements C. Interest of the distinction Visible and non-apparent easements A. Visible easements B. Non-apparent easements C. Specific applications D.Interests of the distinction Methods of constitution of easements By contract Express agreement Recognition deed By will By destination of the owner Definition … 870
20 Conditions of constitution A. Material arrangement B. Sole owner C. Permanence of the arrangement D. Written document E. Priority F. No agreement regulating the arrangement G. Publicity By operation of law Exercise of the easement Rights and obligations of the owner of the dominant land Rights A. Mode of exercise of the easement B. Ancillary rights C. Use and conservation works Obligations A. Notice of work B. Compliance with the condition of the land being used C. Exercise costs D. Maintenance Rights and obligations of the owner of the servicing land Rights Obligations A. Respect for the use of the easement B. Fixity of the basis of the easement C. Use or conservation works Judicial protection Recourse in claim of easement A. Confessory action for servitude B. Possessory action Recourse of the owner of the serving fund A.Negative action of easement B. Possessory action End of easement A. Consolidation … 907
21B. Waiver C. End of term D. Repurchase E. Non-use for ten years F. Expropriation Long lease Nature of long lease Definition Legal nature Constituent elements of long lease Immovable Obligation to make constructions, works or plantations Term Powers attached to the quality of owner A. Principle B. Temperaments Distinction with other institutions Distinction with leasing Distinction with surface property Forms of constitution Simple mode Coexistence of long-lease and divided co-ownership Rights and obligations of the owner and the long-term owner Rights and obligations of the owner Rights Obligations Rights and obligations of the emphytéote Rights A. Rights attached to the quality of owner B. Assignment C. Possessory and petitory actions Bonds A. Condition of the buildings B.Payment of the price … 963
22C. Payment of land rights D. Constructions, works and plantations E. Repairs F. Conservation of the building End of the emphyteusis Causes of extinction A. End of the term B. Loss or total expropriation of the building C. Termination a) Non- payment of the price for three years b) Deterioration of the transferred building c) Endangering the owner’s rights D. Abandonment a) Conditions of exercise b) Special effects E. Consolidation F.Non-use for ten years Effects of extinction
TOPIC 6 MODES OF ACQUIRING THE RIGHT OF OWNERSHIP
Classification of modes of acquiring property Originating modes Derived modes Voluntary modes Involuntary modes Acquisition of property by contract Modalities and effects of transfer of property ownership between the parties Modalities and effects of the transfer of ownership with regard to third parties Alienation of furniture … 992
23 Alienation of buildings Acquisition of property by operation of law By occupation Definition Area of occupation A. Res nullius a) The treasure b) The products of hunting and fishing c) The products of the sea B. The res derelictae (abandoned goods) Effects of occupation By accession Nature of accession Property accession Natural accession Fruits and income from the property Ownership of the bed of watercourses Effects of watercourses A. Alluvium a) Lais b) Relais B. Avulsion C Islands D. Abandonment of the bed of watercourses Artificial accession Presumptions deriving from accession A. Presumption of ownership of improvements B. Presumption relating to the author of the works and the ownership of the materials used Improvements made by the owner with the materials of others A. Acquisition of the right of ownership B. Meaning of materials C.Indemnity
24 Improvements made on another person s property A. Quality of the possessor B. Quality of the expenses a) Notion of expenses b) Necessary expenses c) Useful expenses General rule Useful and expensive expenses Approval expenses C. Right of retention D. Defensive means Movable accession A. General principle of equity B. Right of retention a) Principle b) Relinquishment c) Enforceability By prescription Nature and foundations of acquisitive prescription Definition Foundations Time limits Conditions of application of acquisitive prescription Scope of prescription A. Principle of prescriptibility a ) General application b) Case of lost, forgotten or stolen property B. Exclusions a) Sacred things b) State property c) Property of municipalities and legal entities governed by public law Conditions of application of the ten-year prescription in real estate matters
25 Real estate rights that may be acquired by prescription Useful possession Legal proceedings Effects of the fulfillment of the ten-year prescription Conditions of application of the three-year prescription in movable matters Movable rights that may be acquired by prescription Possession in good faith A. Concept of good faith B. Period of good faith Effects of the fulfillment of the three-year prescription Modalities for the temporal realization of acquisitive prescription Computation of time limits Joining and continuation of possessions A. Having a universal or universal cause B. Having a special cause Interruption of prescription Definition Types of interruptions A. Natural interruption a) Involuntary loss b) Willful loss B.Civil interruption a) Legal request by the owner b) Recognition by the possessor Effects of the interruption of acquisitive prescription A. Natural interruption B. Civil interruption a) Legal request b) Recognition by the possessor
26 Suspension of prescription Definition Rationale Causes A. The unborn child B. The minor and the adult under protective supervision C. The spouses living together D. People who are in fact unable to act Waiver of prescription Waiver early Waiver of the limitation period acquired A. Forms of the waiver B. Legal nature of the waiver C. Required capacity of the waiver D. Effects of the waiver of the limitation period acquired a) As to the owner and the possessor b) As to third parties Waiver of benefit of elapsed time.
