The legal consequences of real and personal servitudes differ significantly. Real servitudes are rights in property in favour of another property while personal servitudes are rights in a property in favour of a person, independent of any property that he may or may not possess. The distinction at the time of their creation is not always evident and sometimes leads to confusion, as was recently illustrated by the Court of Appeal decision of Belzil et al. -vs- Hôtel et Suites Le Lincoln Inc. et al., 2021 QCCA 626.
The definition of a real servitude is found at Article 1177 of the Quebec Civil Code:
1177. La servitude est une charge imposée sur un immeuble, le fonds servant, en faveur d’un autre immeuble, le fonds dominant, et qui appartient à un propriétaire différent. | 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. |
Cette charge oblige le propriétaire du fonds servant à supporter, de la part du propriétaire du fonds dominant, certains actes d’usage ou à s’abstenir lui-même d’exercer certains droits inhérents à la propriété. | 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. |
La servitude s’étend à tout ce qui est nécessaire à son exercice. | A servitude extends to all that is necessary for its exercise. |
To be valid, a real servitude must meet six conditions which are:
1. There must be two separate properties
2. Each property must have a different owner
3. The two properties must be in proximity to each other
4. The servitude must create a benefit for one of the properties
5. The owner of the servient property must tolerate certain acts of use by the owner of the dominant property or abstain from exercising certain rights inherent in ownership
6. The servitude is perpetual
To be valid, a personal servitude must satisfy three conditions:
1. Creation of a real right in property
2. In favour of a person independently of any property which he may or may not possess
3. Established for a limited period of time
A third possibility is that a purely personal right is created i.e. a right in favour of a person (not a property) and a corresponding obligation on the part of another person (not a property) with no property right being affected.
The facts of the case can be summarized as follows:
1944-06-25 | Manoir des Laurentides ("Manoir") opens (hotel, chalet, beach access, marina) |
2000 | Manoir decides to replace chalets with condos |
2005-07-12 | Deed of servitude between the promoter of the condos and municipality of St-Donat comprising a renunciation by the promoter of all rights in the beach access and marina |
2005-07-13 | Declaration of co-ownership (legal creation of condos) |
2007-06-07 | Minister of Environment and Sustainable Development grants lease to Manoir for beach access and marina |
Appellants (condo owners) benefit from access to common pool, beach access and marina and pay share of related costs to Manoir | |
2012-12- | Manoir sold to 9265-9374 Quebec Inc. |
2015-12-14 | 9265-9374 Quebec Inc. goes bankrupt |
2016-10-21 | Le Lincoln (Respondent) acquires Manoir and demolishes the hotel with intention to build a new hotel |
Summer 2017 | Appellants (condo owners) refuse to pay share of costs to use beach access and marina and Le Lincoln denies them access. |
The trial judge decided that the deed of servitude created a real servitude that bound the property of which the Appellants subsequently became co-owners thereby depriving the Appellants of access to the beach and the marina. The Court of Appeal reversed the judgment for the reasons hereinafter described.
Although the intention of the parties can be considered in order to determine the nature of the servitude, they cannot decree a result that does not meet the conditions particular to each type of servitude.
According to the Court of Appeal:
The Deed of Servitude did not create a real right in favour of the dominant (Le Lincoln) property as the trial judge concluded, but merely a personal obligation assumed by the promoter. It is impossible to conclude that the property of the Appellants is at the service of the property of Le Lincoln. The litigious clause of the Deed was designed to force the owner of Appellants' property to do or not to do certain acts in favour of the occupant of the Le Lincoln property but the Appellants' property itself is unaffected. In fact, the obligation was assumed personally by the owner of Appellants' property at the time namely, the promoter. When the promoter sold the condos to the Appellants, there was no provision in the sale agreements to require Appellants to assume the promoter's personal obligation not to use the beach or marina. Consequently, the renunciation of access by the promoter to the beach and marina had no legal consequence for the Appellants, who only became owners after.
