Wednesday, May 12, 2010


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There was a time when people went to their cottage by the lake for peace and quiet and to cohabit with nature. More recently, with population growth and increases in the standard of living, cottage country is becoming more crowded and conflicts over property rights are becoming more frequent.
One such conflict that frequently arises is over the right of way to the lake. A right of way is usually a real servitude which is a charge imposed on one property (the servient land) in favor of another property (the dominant land). The rights and obligations are attached to the land and pass to future acquirers in perpetuity.
Often, the details of the servitude are not clearly set out in the constituting document. For example, the deed may state that there exists a right of access to the lake by foot over property no. 2 in favor of property no. 1, without stating on what part of the servient land the servitude is to be exercised or the precise dimensions of the right of way.
Problems often arise when the owner of the servient land tries to change or restrict the right of way. For example, the owner of the servient land may build a fence, plant trees or shrubs or enlarge his house in a way that may interfere with the exercise of the right of way.
In one such case, the servient land was a 25 ft. wide strip of vacant land that had previously been owned by a property developer who used the land to grant rights of way to purchasers of lots that he subdivided and sold. When he no longer needed the land, he sold it to the owner of the adjacent lot for whom it had some utility since it was too small to build on. The new owner unilaterally decided that those who were using the land for a right of way didn’t require 25 ft. to access the lake by foot, so he installed a fence to limit the users to a narrow 6 ft. strip. Furthermore, he moved the entrance to the right of way to the farthest extremity of the land as far away from his house as possible to a place where the path was more abrupt and dangerous. Also, the restricted path led right over a swampy patch that was muddy and slippery.
How do we balance the competing property rights of the parties in such circumstances?
Article 1186 of the Civil Code of Quebec states that the owner of the servient land cannot do anything that would tend to diminish the exercise of the servitude or render it less convenient. However he could, at his own expense, transfer the site of the servitude to another place if he has a legitimate interest to do so and if the exercise of the servitude in the new place would be no less convenient to the owner of the dominant land.
In order to define the emplacement of the servitude, the first step is to examine the title itself. If it is ambiguous, then try to determine the common intention of the parties at the time that the servitude was created instead of the literal sense of the terms used in the Act. The intention of the parties is determined by examining the essence of the Act that
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created the servitude, the physical characteristics of the place at the time the servitude was created, the historical and social context of the servitude as well as the subsequent conduct of the parties. The subsequent conduct of the parties is usually a powerful indicator of what their common intention truly was.
If the owner of the dominant land were to establish that the servient land was used for no other purpose than the right of way; almost the entire property was used for the exercise of the right of way; and the changes unilaterally made by the new owner of the servient land resulted in the reduction of the exercise of the right of way from 25 ft. to 5 or 6 ft., the owner of the servient land would be acting illegally.
In another case, the servient owner wanted to transfer the servitude to the northern part of his property and reduce it from 20 ft. to 5 ft. The owner of the dominant land did not mind moving the servitude to a different place but would not agree to reduce it from 20ft. to 5 ft. in width. The owner of the servient land argued that the servitude was a right of access by foot to the lake and that it could be exercised just as easily within 5 ft. as 20 ft.
The Court held that a 75% reduction in the site of the servitude is substantial and diminishes its exercise. A 20 foot passage would allow the owner of the dominant land to partake in recreational activities relating to swimming and boating, by enabling him to transport a canoe or a small boat as long as it is done by foot. The reduction of the right of way to 5 ft. would unduly diminish such access. The Court also ordered the servient owner to pay nominal damages for unduly interfering with the rights of access of the owner of the dominant land.
While the principles of law that are to be applied in such circumstances are relatively clear, determining whether the owner of the servient land has an interest in transferring the servitude and whether the exercise of the servitude has been diminished or rendered less convenient for the dominant owner is more problematic.

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