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PRESCRIPTION - Acquisitive prescription - Civil Code of Québec - Immovable - Mandatory judicial demand - Possession

Wednesday, April 12, 2017 @ 8:44 AM  


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Appeal from a judgment of the Quebec Court of Appeal affirming a decision dismissing Ostiguy and Savard’s application for an injunction. The parties were owners of contiguous lots on which their respective chalets were located. Between 1994 and 2011, the respondent, Allie, and her family used one or two parking spaces situated on the property of their then neighbour in full view of everyone, and no objection to their doing so was raised. In 2011, the appellants, Ostiguy and Savard, purchased this neighbouring lot. A few months after taking possession of their property, they applied for an injunction to stop Allie from parking vehicles on it. Allie replied that she had acquired the two parking spaces through 10 year prescription. The trial judge agreed with her in part, holding that the evidence showed that she had acquired by prescription one of the two parking spaces she claimed. The Court was called upon to decide whether acquisitive prescription could be set up against a new owner whose title was registered in the land register before the possessor’s right was asserted in court. In the Court of Appeal, the majority answered this question in the affirmative and dismissed the appeal.

HELD: Appeal dismissed. The parties on each side in this case had a legitimate right to assert. The appellants acquired their title legally, by act of sale. Allie’s effective possession of one of the parking spaces on her neighbours’ lot was recognized and was just as legitimate. Although the legislature aspired, in 1991, to give the publication of rights a probative value that would create rights by means of, among others, arts. 2944, para. 2, and 2962 of the Civil Code of Québec (Code), it did not carry the reform through to completion. Its decision to abandon this reform confirmed that under the current Code, for rights acquired by prescription to be set up against third parties, there was no greater requirement that they be published than was the case under the Civil Code of Lower Canada (CCLC). This solution was the one that was most consistent with the general scheme of the Code and with the relevant provisions on prescription, as well as on the publication of rights and on sale. Even if the theory of apparent rights did apply in this case, it would logically have to protect all legitimate appearances of right, including those stemming from Allie’s possession. Ultimately, as far as acquisitive prescription in Quebec civil law was concerned, the role of land registration under the current Code was as it was under the CCLC and no more. In light of this limited role, the fact that rights acquired by prescription had not been published did not on its own preclude their being set up against third parties. Acquisitive prescription operated regardless of rights registered in the land register, and whether the judgment under art. 2918 CCQ was right granting or declarative was immaterial to this issue. The acquisitive prescription claimed by Allie with regard to the parking space at issue prevailed over the title registered by the appellants in the land register.

Ostiguy v. Allie, [2017] S.C.J. No. 22, Supreme Court of Canada, B. McLachlin C.J. and M.J. Moldaver, A. Karakatsanis, R. Wagner, C. Gascon, S. Côté and R. Brown JJ., April 6, 2017. Digest No. TLD-Apr10013SCC