Thursday, November 12, 2015


The introduction to a recent Superior Court judgment begins as follows:

9209-1537 Québec Inc. (Habitations du Sud-Ouest) v. Lombardo, 2015 QCCS 4266

“An American journalist of the late 19th century mischievously defined a neighbour as: “One whom we are commanded to love as ourselves, and who does all he knows how to make us disobedient.”

This is another case of a property dispute arising between neighbours, which are becoming more and more frequent. The decision provides an interesting case study of encroachment i.e. how does the law resolve the problem of a construction that encroaches on a neighbouring property?

Rocco owned a house as well as two adjacent vacant lots, one of which he sold to Habitations upon which it intended to build a six-unit condominium.

During the construction of the foundation, an error occurred that resulted in encroachment on Rocco’s property. The footing of the foundation was poured in a T shape configuration instead of an L, thereby encroaching on Rocco’s property by about 5”.

Thereafter, the parties negotiated for almost one year but were unable to come to an agreement. Although Habitations was prepared to grant a limited right of way to Rocco, the latter insisted on terms that were much too rich for Habitations’ liking. Arguably, Rocco was attempting to exploit Habitations’ good faith error to gain a disproportionate advantage. The lack of resolution of the dispute caused Habitations serious difficulty because it could not sell its condo units with clear title. Finally, Habitations filed suit in which it asked the court to order Rocco to sign a deed of servitude to regularize the encroachment and to pay damages for his delay in doing so.

Rocco contested the suit and made a counterclaim in the amount of $70,000.00 representing the cost to restore his garden, and $25,000.00 for stress and inconvenience.

Article 992 of the Quebec Civil Code provides legal recourses when a neighbour builds beyond the limit of his property. It provides different remedies depending upon the particular facts.

1) If the encroachment is minor, was built in good faith and does not cause serious prejudice, the victim of the encroachment may elect to sell his parcel of land or to be compensated for the temporary loss of use of this parcel of land. The loss is “temporary” in the sense that a construction may have a limited useful life although with proper maintenance, any construction can last a very long time.

2) If the encroachment is considerable, built in bad faith or causes a serious prejudice, the victim can force the demolition of the construction or require the encroacher to purchase the victim’s entire property. It is generally recognized by case law that an encroachment of less than 10% of the victim’s land is considered minor.

The foregoing recourses would not however apply when the victim has consented, expressly or implicitly, to the encroachment. In such a case, the consent of the victim creates in favour of the owner of the construction what is called a right of superficies. In this situation, the owner of the construction coexists with the victim of the encroachment who owns the subsoil and their respective rights are governed by the Quebec Civil Code (Articles 1110 and following).

The right of superficies creates a servitude on the victim’s land to regularize the encroachment so that they both may exercise their respective rights of property with clarity of legal title.

In the case at bar, the evidence established that the victim implicitly by his conduct acquiesced in Habitations’ right of superficies.

1) When Rocco first learned of the encroachment, he told Habitation that it would not be a problem;

2) Later on during negotiations under the auspices of a notary, Rocco agreed to the right of superficies in consideration for a limited right of passage through Habitations’ property to his back yard;

The Court also found that the encroachment amounted to 5.5” at the base of the foundation, i.e. 7 to 10 feet below ground and consequently was determined to be relatively insignificant and would not cause Rocco or his successor in title any prejudice;

This was a dispute that began in 2010 but was not resolved until judgment was rendered in September 2015.

Had Rocco been more reasonable (i.e. treated his neighbour as he would have his neighbour treat him), the dispute could have been settled much earlier and at a minimal cost to both parties.

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