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A Beautiful Day in the Neighbourhood

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Matthew Rosen

on 1 December 2009

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Transcript of A Beautiful Day in the Neighbourhood

A Beautiful Day in the Neighbourhood Marc and Chantal move into the neighbourhood in 2006, and notice that there is no fence separating their property from their neighbours. Seeing the fencing project as an opportunity to improve the aesthetic look of their home, Marc and Chantal have a beautiful wrought-iron fence erected on the dividing line between their and their neighbour’s property. Marc and Chantal, however, run into financial trouble and realize they won’t be able to fully cover the cost of the fence. Consulting their handy civil code, though, they note article 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.”
Noting the fence is indeed on the dividing line, they go over to their neighbour’s house and attempt to collect money to pay for half of the fence. Their neighbours object, though, because this codal article doesn’t just allow individuals to force their neighbours to pay the cost of erecting a fence that they had no say in building. Marc and Chantal’s neighbours never consented to the building of the wrought-iron fence, so they can’t be made to pay for it after the fact. Marc and Chantal find themselves in quite a financial hole.
This is the "luxurious" fence in question Here is a picture of Marc and Chantal
(the owners) with their daughter,
Maude Bruno, the owner, up against a wall he used as a model for the modfications
to his common wall with Pam This is Nathalie and Michel McHugh's home. Nathalie and Michel commissioned a stone wall to be built between their home and the home of their neighbour, Daphne Bonnevie. The stone wall was built 5 feet onto Nathalie and Michel's side of the property, with Nathalie and Michel paying for the entire cost of erecting the wall. Two years after the construction, Daphne realized that it would be incredibly useful if she were able to construct an opening in the stone wall for her dog to roam through. Offering to pay one half of the cost of putting up the fence at the time it was erected, Nathalie and Michel cite codal article 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.”
A professional is brought in to determine the current cost of the stone wall, and Daphne is also forced to pay ½ of the value of the 5 feet into Nathalie and Michel’s land that the wall is built. Once the private wall is rendered common, the neighbours are able to discuss placing an opening in the wall for Daphne's dog.
Bruno, a male fashion model, lives in a single family unit which neighbours Pam’s unit. When Pam and Bruno moved into their respective homes, a wall already existed on the dividing line between the two properties. Bruno wished to paint and redesign the wall in order to accommodate one of his fashion shoots without obtaining Pam’s consent. Pam, a very conservative woman who hardly tolerated Bruno’s lifestyle in the first place, objected and cited C.C.Q. article 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.”
Since the fence was on the dividing line, it is presumed to be common and Bruno and Pam would have to jointly consent to any changes made to it. Bruno’s photo shoot would have to wait another day. Meet Nathalie and Michel McHugh, owners of this single family unit One of the owners of one of the units in the condominium has decided to renovate the master bedroom, the wall of which is a common wall shared with the unit next door. During renovations, the common wall is severely damaged. Since it is a common wall, the owner of the unit being renovated asks his neighbour to contribute to its repair. Understandably upset, the neighbour invokes codal article 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.”
One of the principles stemming from this article is that when damage is done to a common wall for the utility of one of the owner’s only, the cost of putting up beams and joists to repair it fall solely to the owner who benefitted from the damage done to the common wall.
The fence between Pam and Bruno’s respective units measured 6 feet at the time it was built. Pam, however, is an intensely private woman and wished for the fence to be heightened an additional three feet. Bruno disagreed with her choice to extend the height of the wall, but Pam went ahead and had the work done anyways. Furious, Bruno would like to know what he is entitled to. Consulting his Civil Code, he notices that art.1007 states:
“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.”
Satisfied, Bruno accepts Pam’s payment as compensation and a compromise is struck for a time. Soon after, however, the two run into trouble. Pam, being the sole owner of the top 3 feet of the wall, paints that top 3 feet a colour that offends Bruno’s delicate fashion sensibilities. Wishing to know how he can gain co-ownership over the top 3 feet of the wall, Bruno consults his Civil Code and notes Art.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.”
Bruno repays the compensation and pays ½ of the cost of the heightening and rebuilding, and peace once again reigns in the neighbourhood.
Meet Pam, the entrepeneur behind the land development Here is the fence, with the added three foot extension
put in place by Pam The development plan reveals an important problem. The condominium owners will not have direct access to the lake. This is a land-land problem because it is independent of who the owners of the condominium are.

Pam consults with a property lawyer who advises her to establish a servitude by which the land on which the condo sits will be dominant and her land will be servient. The inhabitants and guests of the condo will be able to make transient use this servitude, within the limits of the law.

Art. 1177. 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.
Here is the planned servitude, called a right-of-way servitude. The right-of-way servitude is an example of a discontinuous, apparent servitude. During the winter of 2010, there’s a particularly nasty ice storm that severely damages a fence on the dividing line between Daphne and her neighbour Catherine's property. Daphne and Catherine had already agreed that they are co-owners of the fence. They are unsure of how to proceed, since they are only aware of the general principle stemming from article 950 C.C.Q.:
“The owner of the property assumes the risks of loss.”
Daphne and Catherine know that they are both responsible to pay for the cost of repairing the wall, but neither knows the extent of their obligation to repair the wall. Pam, ever the helpful neighbour, chimes in with Article 1006 C.C.Q:
“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.”
Each neighbour is therefore responsible for 50% of the costs of the repairs.
Meet Daphne Bonnevie, the owner of this unit In 2004, Pam Bradley acquired land from the Oka monastery with the intention of developing a residential area. She plans on developing the property to build a 6-unit condominium and 6 single-family dwellings. Pam will own one of the dwellings and the others will be sold as will the condo project.This is her dream.
Pam sets up a corporation, DreamCo Enterprises (DCE) that will be responsible for the project development. Naturally, Pam is the President, and she intends to hire staff as appropriate.
DCE develops the land and houses in 2005 and sells them.
Pam buys the 1st house from DCE, which is a copy of her dream house by Andrew Lloyd Wright. Pam is the owner.
Art. 947. Ownership is the right to use, enjoy and dispose of property fully and freely, subject to the limits and conditions for doing so determined by law. Here is the fence with the damage from the ice storm. After some thought, Pam wonders: how wide must the right-of-way servitude be?
There is no prescribed answer for this. However, when referring to the code, we notice the language in Art. 1177 (previous) states that the “servient land is required to tolerate certain acts of use of the dominant land…”
In this specific instance, the servient land should tolerate normal usage of the right-of-way servitude such as the daily use by condo-owners but also tolerate the occasional boat drop. It would be expected that Pam should tolerate a reasonably sized boat. Notice that in all cases, it is important to disclose to prospective buyers that the servient property is charged with a servitude (Hanbay inc. c. Saputo , (C.S., 2004-06-28), SOQUIJ AZ-50260335, J.E. 2004-1580, REJB 2004-66582), even if it is unapparent (Ibrahim c. Entreprises de construction B.M.S.S. inc., (C.S., 1993-08-10), SOQUIJ AZ-93023056, [1993] R.D.I. 435). This is an example of a reasonably sized boat It would not be reasonable to expect the servitude to withstand the passage of a yacht such as this one.
Catherine Flores is widely known as the premier baker of apple pies in the area. She hoped to begin operating a kiosk at a local market where she would sell her delicious pies. In order to have access to her own organically grown apples, Catherine had an apple tree planted in her yard, next to the fence separating her property from Daphne's property next door. When the apple tree finally bore fruit, Catherine discovered that a large portion of the apples were actually falling in to Daphne's yard! Daphne claimed that since the apples were on her land, she was entitled to keep them, and refused to return them to Catherine upon her request. To whom do the apples belong?
To answer this question, we turn to article 949 CcQ, which states: “The fruits and revenues of property belong to the owner, who bears the costs he incurred to produce them.” Catherine purchased and planted the apple tree on land of which she is the owner. The apples are the “fruits” of this property. Since Catherine has purchased the fertilizer for the tree, and incurred all costs related to growing the tree, then the apples
clearly belong to her within the meaning of article 949. Meet Catherine Flores, the baker who owns this single family unit Here we can see just how close her apple tree comes to the fence dividing her property from Daphne's Over the past few months, since the condominium is relatively new, there have been
numerous expenses that should be shared equally among the co-owners. A community
garden was created, safety lights were situated around the property, and a new intercom
system was installed in the lobby. Even though Steven was a part of the Annual General
Meeting where these expenses were approved, and he benefits from having these
improvements, he still feels as though he shouldn’t have to contribute. He has neglected
to pay his share of all of the condo expenses for the past four months. At the next
meeting, Steven tried to participate in a vote, but was informed that he no longer had the
right to vote. He demanded he be allowed to vote on the basis that he was a co-owner of
the property. Does Steven have the right to vote?
No, Steven lost his right to vote when he stopped paying his share of the common
expenses. Article 1049 CcQ says “Any co-owner who has not paid his share of the
common expenses or his contribution to the contingency fund for more than three months
is deprived of his voting rights.” Steven has not paid his share for four months, and thus
has lost his right to vote. Jacqueline is a photo-journalist and is often traveling the world. Since she will only be living in the condo for a few months of the year, she wants to share the condo with two of her brothers who will both live in the condo for a few months of the year each. She wants to make this official by having her brothers also declared co-owners. How can Jacqueline go about doing this?
We turn our attention to article 1098 (3) CcQ, “to amend the declaration of co-ownership in order to permit the holding of a fraction by several persons having a right of periodical and successive enjoyment”. The decision can be made by “a majority vote of three-quarters of ninety per cent of the voting rights of all the co-owners”. This means that if Jacqueline wants her condo (the ‘fraction’ or the building that she owns) to be owned by several people who will each enjoy the property at different times, she has to have a majority vote of three-quarters of 90% of the voting rights, which equals 67.5% of the total voting rights. Catherine owns a ground floor condo next to Vincent and Julietta. Catherine has a small patch of fertile soil that she isn’t planning on using, because she is not interested in gardening, nor does she have the time. Julietta loves growing her own fresh herbs. Catherine and Vincent and Julietta would like to alter the boundaries of their yard areas in order to transfer the patch of fertile soil from Catherine’s ownership to Vincent and Julietta. They’d like to do this with the least hassle possible.
According to article 1100 CcQ, Catherine, Vincent and Julietta can alter their boundaries without waiting for a general meeting as long as they get approval from both the syndicate and their hypothecary creditors. This boundary change also cannot have
any effect on the total voting rights or the value attached to those portions. The syndicate can then alter the declaration of ownership. Bill and Shirley are extremely spiritual people, and believe in expressing their
faith through the display of prayer flags, mandalas, and their own art which they proudly
display in their windows and on their balcony. The declaration of ownership does not
include any limitations on how Bill and Shirley can enjoy and make use of their
property. The syndicate, however, despises what they call the “tacky display of ‘70s
hoopla”, and have ordered Bill and Shirley remove all “unseemly” decorations from
their balcony. What can Bill and Shirley do?
The syndicate does not have the right to tell Bill and Shirley how they can
enjoy their property, since there was no prior agreement with regards to the types of
decorations they could display. Article 1102 CcQ says that “any decision of the syndicate which, contrary to the declaration of co-ownership, imposes on a co-owner a change in the relative value of his fraction, a change of destination of his private portion or a change in the use he may make of it is without effect”. This means that Bill and Shirley have free reign to use their private portion in the manner they see fit. Things have been quite tense between Steven and the other co-owners. Steven ended
up paying all of his outstanding share of the common costs, and has regained his voting
rights. At the next meeting, Steven brings forward a question regarding soliciting in the
building. He would like for an exception to be made so that Boy Scout troops may sell
their cookies in the building. He proposes that if individual co-owners do not want to be
bothered, they can put a sign on their day to that effect, and the Boy Scouts will not
knock. He feels that this is a reasonable request, and was shocked when the the majority
voted against. He believes that the decision was made out of spite. Does Steven have any
recourse to annul this decision?
Steven needs to look at article 1103 CcQ, which says that a co-owner can go to court
to annul a decision of the general meeting, if the decision was based with intent to injure.
Steven must take this action during a period of sixty days from the meeting, or he will
forfeit the ability to do so. Steven would be wise to think through this decision, however,
because if the court decides that Steven brought a “futile or vexatious” action, (meaning
the action would not succeed, and was simply a cause of frustration or annoyance), then
Steven may have to pay damages. Her lawyer also suggests that servitudes be established such that the condo owners will be ensured to have a viewing enjoyment of the waterfront subject to limits set forth by the building of single-dwelling homes. Six right-to-view servitudes should be established in order to achieve this objective.
Pam, as President of DCE agrees with this idea and asks her lawyer to prepare the paperwork so that at the appropriate time, the servitudes may be established.

Art. 1181. A servitude is established by contract, by will, by destination of proprietor or by the effect of law.
It may not be established without title, and possession, even immemorial, is insufficient for this purpose.

Art. 1179. Servitudes are either continuous or discontinuous.
Continuous servitudes, such as servitudes of view or of no building, do not require the actual intervention of the holder.
Discontinuous servitudes, such as pedestrian or vehicular rights of way, require the actual intervention of the holder.

Art. 1180. Servitudes are either apparent or unapparent.
A servitude is apparent if it is manifested by an external sign; otherwise it is unapparent.

This is an example of a servitude established by contract. The right-of-view servitude is an example of a continuous, unapparent servitude.


Pam has one more question. Is there a time limit for the duration of the servitude?

Her lawyer opens the Civil Code of Québec to article 1190 which reads «The parties may, in writing, exclude the possibility of redeeming a servitude for a period of not over thirty years».

Pam asks her lawyer to specify that the servitude will be established for its maximum term that is, 30 years.
In 2008, members of the condominium corporation got together and made a request to change the site of the right-of-way servitude on the servient land. They would prefer to have full use of their yard. They would like to change the site (l’assiette) of the servitude in order for it to be on the other side of Pam’s house. For convenience, they would like to make sure that the servitude doesn’t land in front of rocks submerged in front of Pam’s property. The current servitude site is paved and the condominium corporation offered to offset the costs of paving the site of the proposed servitude.

Art. 1186. In no case may the owner of the dominant land make any change that would aggravate the situation of the servient land.
In no case may the owner of the servient land do anything that would tend to diminish the exercise of the servitude or to render it less convenient.
However, he may, at his own expense, provided he has an interest in doing so, transfer the site of the servitude to another place where its exercise will be no less convenient to the owner of the dominant land

Pam, who has no intention to accept this, is in no obligation to do so by virtue of Art. 1186.

Similarly, Pam, who wanted to tear out the pavement in order to put in grass, cannot do so by virtue of the same article. This would affect and diminish the exercise of the servitude and render it less convenient to pull heavy loads.
As an owner, Pam builds a dock off of her waterfront.

Art. 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.

However, as soon as the dock is built, someone attaches their boat to it.

Pam waits several days and finally gets upset and wishes to revendicate her dock.

Art. 912. The holder of a right of ownership or other real right may take legal action to have his right acknowledged. Over the course of the next few years, a series of disputes would arise between the condominium owners The owners of the single-family units would also have their own share of problems Here is Daphne's proposed opening to the stone wall
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