A Quebec couple who bought a property with the understanding that it had a parking space able to accommodate several cars — part of which a neighbour’s son had been using for many years — has had their appeal to recognize their title to the full space dismissed by the Supreme Court of Canada.
The appellants, Alain Ostiguy and Valérie Savard, purchased a mountainside chalet on Mont Brome in Bromont, Quebec in 2011. A few months after they arrived they noticed that their parking space, which could hold up to four cars, was being used by the son of the respondent, Hélène Allie. They gave the respondent’s son formal notice to stop using their parking space, but when he continued to use it periodically the appellants applied to the Superior Court of Quebec for a permanent injunction to assert the registration of their title of ownership in the register of land rights against the respondent. In a cross demand, the respondent claimed ownership of half of the appellants’ parking space by way of acquisitive prescription under the C.C.Q.
“In the C.C.Q., acquisitive prescription is recognized as a ‘means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession’ (art. 2910 C.C.Q.),” Justice Clément Gascon wrote, with Chief Justice Beverley McLachlin and Justices Michael Moldaver, Adromache Karakatsanis, Richard Wagner and Russell Brown concurring.
“The possessor must prove that, for at least 10 years in the case of an immovable, he or she in fact exercised the right in question with the intention of exercising it as the holder of the right. His or her possession must be ‘peaceful, continuous, public and unequivocal’ in order to produce effects (art. 922 C.C.Q.). A possessor claiming ownership of an immovable must also obtain a judgment confirming the right so acquired,” Justice Gascon wrote.
Further, “[s]ince acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance [of a claim] in order to protect his or her rights.” Since the respondent had, by way of her son, been using part of the parking space for more than 10 years in the manner described in the C.C.Q. for acquisitive prescription (‘peaceful, continuous, public and unequivocal’), the majority of the court found that she had acquired the right to the parking property as a result of possession, even though she had not previously brought legal proceedings to have her right recognized.
In dissenting reasons, Justice Suzanne Côté found that “Under art. 2918 of the Civil Code of Québec (“C.C.Q.”), the acquisition of ownership of an immovable by prescription is conditional on first obtaining a judgment following a judicial application.”
Further, she noted, “The abandonment of the land register reform [in Quebec] did not relieve possessors of art. 2918’s judicial application requirement. … In this case, [the respondent] did not make the required judicial application under art. 2918 until well after [the appellants] acquired title to the contested immovable and published their title in the land register. [The appellants] are therefore prior in time and — as revealed by the register — prior in rank. The result is that [the respondent’s] possession is not opposable against [the appellants’] title.”
One of the most important aspects of the Supreme Court of Canada’s majority decision is that it confirms the distinct roles of acquisitive prescription and the publication of rights, Philippe Dumaine, an attorney at Lapointe Rosenstein Marchand Melançon, LLP in Montreal who successfully represented the respondent, told Legal Feeds.
“In that regard, the judgment confirms that rights that have been validly acquired by prescription supersede rights that are registered in the land register and, that the registration of rights in the land register does not in itself serve as a defence to an adverse claim based on acquisitive prescription,” Dumaine says of the court’s decision.
An implication of the decision may be increased vigilance by real estate purchasers, at least in jurisdictions such as Quebec where acquisitive prescription is a method legally used to acquire property rights.
“It is imperative that property owners be aware of any encroachment on their property and that any such encroachment be disclosed by the property owner to a potential purchaser in the context of a sale,” says Dumaine.
“Should a property owner be aware of, and fail to disclose, the existence of such encroachment to a potential purchaser,” he adds, “such purchaser would have a claim against the property owner in the event that he who encroached invoked a claim [to the property] based on acquisitive prescription.”