ACQUISITION OF TITLE TO REAL PROPERTY RESULTING FROM POSSESSION AFTER TEN YEARS

Article 2910 of the Quebec Civil Code ("CCQ") defines acquisitive prescription as a means of acquiring the right of ownership through possession. To assert the right of ownership, the possessor must prove that he has possessed the property as owner for at least ten years. The possessor retroactively acquires ownership of the property by prescription, effective from the date of taking possession of the property, notwithstanding that title may be registered at the land registry office in someone else's name. Acquisitive prescription results exclusively from effective possession of real property for at least ten years. In order to register title, a judgment is required to recognize the acquisition. The judgment does not grant title, it merely serves to recognize or declare it so that it can be registered. The existence of effective possession requires a combination of two elements: one material (the corpus) and the other intent (the animus). (1) The corpus of possession refers to physical control of the property taking the form of material acts of use, occupation, enjoyment, or transformation of the property. It is not necessary for an act of possession to leave traces or tangible signs. The corpus may take the form of maintenance work. (2) Animus is the possessor’s intention to act as the true owner of the property. To ease the burden of proving animus, the legislature provides for a presumption of animus when the corpus is proven. Without the existence of animus, physical control of property (corpus) amounts to simple detention rather than effective possession which is required to acquire ownership through acquisitive prescription. To be effective, possession must be "useful", that is, it must be exercised in a peaceful, continuous, public, and non-ambiguous manner pursuant to Article 922 CCQ. These characteristics mean the following: Peaceful To be peaceful, possession must not begin with violence and must exist without offending or violating any notice from the registered owner. Continuous Possession is continuous if the possessor performs regular acts at regular intervals. Article 925 CCQ establishes a presumption that current possession is presumed to have been continuous since the day possession began. Furthermore, possession remains continuous even if its exercise is prevented or interrupted. Public Possession is public to the extent that it is not clandestine or carried out with a view to not being noticed. It must be apparent to others. Non-equivocal Non-equivocal possession is unambiguous and exclusive. Exclusivity constitutes an important criterion for assessing the nature of possession. Possession is ambiguous when the possessor’s acts compete with those performed by others. When acts of possession do not reveal animus, equivocal possession arises. Any equivocal act is interpreted in favor of the registered owner. It is incumbent upon the possessor to prove useful possession for at least ten years. Certain presumptions exist to facilitate the task. The animus is presumed from the material act of possession. Art 921 CCQ Actual possession is presumed to have been continuous since the date that possession commenced by the current possessor or his predecessor(s). Art. 925 CCQ The possessor is presumed to be the owner of the real right that he exercises. "A person contesting the presumption has the burden of proving his own right and, as the case may be, that the possessor has no title, a defective title, or defective possession". Art 928 CCQ Physical control of the property is a question of fact which may take different forms. For example, without limitation: storage of objects; installation of furniture; planting of flowers or plants; maintenance for landscaping. Regarding landscaping, where use of the property is not exclusive but concurrent between neighbours, landscaping for aesthetic purposes has been held to be examples only of good neighbourliness and lacking the corpus and animus required to establish acquisitive prescription. See Monito c. Bédard, 2025 QCCS 830, par. 45-47, 50; Kilian c. Allard, 2022 QCCS 836, par. 35, 55-59. In addition, geography and the configuration of the property may be relevant. For example, the existence of a retaining wall that is not on the official property line or exclusivity of access to the disputed parcel from the possessor's property may support the possessor's claim. It may happen that the claim of ownership based upon acquisitive prescription is contested for the reason that the possession is not exclusive but jointly exercised by two neighbours. Acquisitive prescription may also apply to ownership of dismembered rights to property as opposed to full ownership. For example, undivided co-ownership of a parcel of land. In such a case, the unambiguous character of possession adapts to the context where the useful possession is not exclusive but joint between two or more possessors. The parties must use and maintain the property jointly to satisfy the conditions of acquisitive prescription. If so, they will be declared joint undivided owners of the property. Prud'homme c. Prud'homme et al., 2020 QCCA 1547.

THE SELLER'S LEGAL WARRANTY OF QUALITY IS CONDITIONAL UPON THE EXERCISE OF PRUDENCE AND DILIGENCE BY THE PURCHASER

Introduction The recent Quebec Superior Court decision of Paquette v. Bélanger, 2026 QCCS 430 provides an interesting illustration of the applicable legal principles. Purchaser claims $107,802 from Seller pursuant to the acquisition of a residential duplex in March 2015. Purchaser claims that the property does not comply with municipal regulations regarding both zoning and construction. More particularly, renovations to convert a balcony to an annex were carried out by the Seller without a permit which allegedly precludes Purchaser from obtaining a permit to carry out corrective work since the renovations that the Seller carried out were structurally unsound. Furthermore, the distance between the annex and the property line was less than legally required by the zoning by-law. Prior to purchasing the property, the inspector hired by Purchaser recommended that she obtain from the Seller all documents relating to the renovations carried out by him. for renovations carried out by the Seller's predecessor(s) (Seller purchased the property 2022-10-19), it was recommended that she obtain all relevant permits and documents from the city. It was also recommended that she consult a structural expert to verify the annex that appeared to have shifted. Purchaser obtained a copy of the certificate of location dated 2012-10-02 which affirmed that the constructions on the property complied with both construction and zoning regulations. However, it obviously did not apply to renovations carried out by the Seller posterior to his acquisition of the property. Applicable Legal Principles Article 1725 of the Quebec Civil Code provides that the seller legally warrants the conformity of the property with the law. However, the warranty would not apply in the event that a prudent and diligent purchaser could have discovered the non-conformity from the nature, situation or use of the property. The analysis is a two-step process: first, determine if the non-compliance with the applicable regulation has a significant negative impact on the property; second, determine whether the presence of material indicators exist that would lead a person acting reasonably to suspect the existence of the negative regulatory impact. The Court found that contrary to what the Purchaser alleged, the evidence did not establish that the city refused to issue a permit for the corrective work nor that it required the demolition of renovations that were done without a permit. The evidence in fact established that the Purchaser did not transmit within the prescribed delays, which in fact were extended by the city, documentation required review the request for a permit to carry out the corrective work. The Court concluded that with regard to the first phase of the analysis, the property was in fact not compliant with municipal zoning law because the annexe was built without a permit and too close to the boundary and as a result, a derogation would be required to regularize the situation. With respect to the second phase of the analysis, the Court noted that the Purchaser was made aware of the structural issue by her inspector and was advised to verify with the city whether a permit had been issued for the renovations carried out by the Seller i.e. that the property was in compliance. The Court decided that a person moderately informed acting reasonably would have obtained the satisfactory assurances which she neglected to do. Moreover, the Court found that the Purchaser knowingly chose to accept the risk and proceed with the purchase of the property in the state that it was in instead of taking reasonable steps to shed light on the problems the responsibility for which she now attributes to the Seller. Purchaser also alleged the existence of a structural defect. However, although her inspector recommended that she retain a structural expert to verify the issue, she neglected to do so. The Court, referring to case law, found that the simple possibility that a purchaser had an opportunity to discover the presence of a defect but does nothing could constitute negligence and confirm that the defect is apparent and therefore not the responsibility of the seller. Conclusion Purchaser would be well advised to use reasonable efforts to identify risks regarding the property and if necessary, negotiate responsibility for dealing with the consequences of such risks with the seller before purchasing the property.