Like all other immovable real rights which must, by law, be
published (registered) to be enforceable against third parties,
servitudes must be registered in the land register.
Once a servitude is registered in the land register against the
immovables that it affects, all persons dealing with the immovables
are deemed to have knowledge of it.
What then is the fate of an unpublished servitude? When a
servitude is not published, it is effective between the parties who
created it, but is not binding on the purchasers of the immovables
it affects or that benefit from it, even if the deed of sale
provides that the immovable is sold "with all the active and
passive, apparent or unapparent servitudes" charged against
Also, based on the well-established principle in article 2963 of
the Civil Code of Québec, which states that
"[n]otice given or knowledge acquired of a right that has not
been published never compensates for absence of publication,"
even where the purchaser has knowledge of an unpublished servitude,
this does not cure the failure to register it in the land
However, a line of cases has considered whether knowledge of an
unpublished servitude could affect its unenforceability. Quite
recently, the Quebec Court of Appeal1 was asked to rule
on the enforceability of a servitude for the drawing of water that
was not registered in time. The owners of the property benefiting
from the servitude alleged that the owner of the servient land was
aware of the existence, or tolerated the exercise, of the servitude
even before it was registered in the land register.
Relying, among other things, on the principle in article 2963 of
the Civil Code of Québec, the Court of Appeal held
that this servitude for the drawing of water was unenforceable
against the owner of the servient land. However, in its reasoning,
the Court of Appeal confirmed that, nonetheless, it is still
possible to present evidence that the owner of the servient land
had knowledge of an unpublished servitude, but stressed that this
evidence must be very strong:
[Translation] If one wishes to prove that he verbally or
implicitly acknowledged the servitude, which is a priori
unenforceable against him, one cannot be content to adduce evidence
of the tolerance, even over a long time, or of the exercise, albeit
lengthy, of the servitude in question. The burden of proof to be
met by the owner of the allegedly dominant land is therefore a
In addition, the Court of Appeal added that this evidence must
attain a "necessary threshold" (without otherwise
defining it) to reach the conclusion that a servitude has been
implicitly created or recognized.
Ultimately, the Court of Appeal's judgment reminds us that,
to avoid any conflict over the existence of a servitude, the first
thing you should do is register it.
1 Beaulieu c. Sinotte, 2011 QCCA
2 Op. cit. no. 1, p. 12.
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Russell v. Township of Georgian Bay provides a useful reminder of the fact that while municipal officials sometimes appear to hold all of the cards in disputes with home owners, that is not always the case.
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