Article by Steve Samson and Jan-Hendrik Burger, ©2006 Blake, Cassels & Graydon LLP
This article was originally published in Blakes Bulletin on Real Estate, March 2006
As Québec is a civil law jurisdiction, real estate law is conceptually different. In Québec, ownership is always an absolute right and it allows the owner to grant different dismemberments (interests) such as use, servitude (an easement at Common law) or emphyteusis (a ground lease at Common law). Land, as well as any construction and works of a permanent nature located on land, are called immovable whereas ownership and all dismemberments are called immovable real rights.
Land Registration Systems
Like all other Canadian provinces, Québec has a public land registration system. Registration is required for all acquisition, creation, recognition, modification, transmission, or extinction of an immovable real right in order to be opposable to third parties. Since 2003, information held by Québec land registry offices has been transferred to the Internet. Such information includes deeds filed in the land register since 1974 (soon to be available from 1947), legal discharges dating back to 2003, and plans of renovated lots, which can now only be accessed through the Internet. Since the information is exclusively on the Internet, it may be relied upon as it appears electronically. The creation of a distinct lot, by cadastral number, is one of the requirements to be met for the purpose of obtaining any building permit.
Policy Framework For Development Approvals
The Act Respecting Land Use Planning and Development (the Act) requires each Regional County Municipality (RCM) to have a Land Use Planning and Development Plan (the Plan). An RCM (similar to the "regional municipalities" in Ontario and the "regional districts" in British Columbia) are an agglomeration of many local municipalities. Each municipality in the RCM will be bound by the general guidelines expressed in the Plan. The Plan must determine the general aims of land development policy of the RCM, delimit urbanisation perimeters, identify zones where land occupation is subject to special restrictions for reasons of public safety (like flood zones), identify any part of the territory that is of historical, cultural, or ecological interest to the RCM, and plan the organisation of land transport.
Planning Programme. Local municipalities in the territory of the RCM will use the Plan to enact a local Planning Programme. The guidelines expressed in the Planning Programme must comply with the RCM Plan. Local municipalities use the Planning Programme to enact various types of by-laws, such as zoning by-laws, subdivision by-laws, building by-laws, comprehensive development programmes, site planning and architectural integration programmes, as well as municipal works agreements. A local Planning Programme has obligatory content requirements as set out in the Act, but it may also contain various additional projects. For example, a Planning Programme may contain a particular development project which aims to revitalise a part of the municipality. Such a development project is often accompanied by a programme for the acquisition of buildings or land. In this sense, the Québec framework is similar to the one in B.C., which contains mandatory content requirements and optional content guidelines for community plans. All by-laws enacted by the local municipalities must comply with the guidelines included in both the RCM Plan and the Planning Programme. If a local municipality amends or revises a local Planning Programme on its own initiative, the RCM must verify the regional conformity of the change and the municipality will have to modify its development by-laws accordingly. The cities of Montréal and Québec must additionally comply with their own constitutive legislation.
In Montréal, the land use planning regime applicable to the Montréal Metro Community (Montréal), is complemented by an Act Respecting the Communauté Métropolitaine de Montréal (LCMM). Beyond the Plan provided for under the Act, Montréal also has powers pursuant to the LCMM to define criteria under a scheme relating to the urbanization of its territory, to policies with regard to the supply of drinking water and wastewater treatment, to urban consolidation, natural resource protection and optimization of public infrastructure and public services. A further obligation on Montréal is to determine the approximate density of occupation of the land throughout its territory. Montréal must also define the areas that are of metropolitan interest and outline the development potential of the residential, commercial and industrial sectors covered in the Plan.
Zoning authority, as in Ontario, is entrusted to the local municipality, which fixes the development standards which must be observed with respect to the use of land. In Québec, the Act provides for alternate mechanisms to amend zoning by-laws for the purpose of land development. Generally, the municipality can modify or replace its by-laws on an applicant’s initiative or its own initiative. This process requires the municipality to hold public consultations, conduct a referendum and verify that the proposed by-law complies with the Planning Programme and the RCM Plan.
Alternately, if the municipality has enacted a by-law governing comprehensive development programmes (CDP), a proponent who wishes to develop a zone within the municipality’s territory must first submit a description of the proposed CDP. Once this CDP has been approved by the municipality, the normal process required to modify a by-law will be engaged.
Municipalities can also enact Site Planning and Architectural Integration Programmes (SPAIP). SPAIP are used to regulate the look, design and quality of construction. Both CDP and SPAIP by-laws fulfill a function similar to a site plan approval in Ontario.
Local municipalities are also entrusted with the power to make subdivision by-laws. Such by-laws may require that the owner of any landsite obtain the prior approval of the municipality for any plan of subdivision. Such plan will have to comply with the terms and conditions set out in the by-laws (i.e., use, size of subdivision, access, etc.). The owner may also be required to obtain a subdivision permit and pay fees to the municipality to obtain such a permit.
The municipalities may require, as a preliminary condition to the approval of the subdivision, that the owner (i) give up to 10% of the landsite to establish parks and playgrounds and to preserve natural areas; or (ii) pay a fee up to 10% of the value of the land; or (iii) contribute with a combination of the above not exceeding 10% of the value of the land. Such conditions may also be applicable to the issuance of a construction permit under the zoning by-laws. These powers granted to municipalities are consistent with the B.C. and Ontario frameworks, which are also geared to ensure the provision of community facilities and to accommodate the environment.
In Québec, divided co-ownership of immovables is regulated by the Civil Code of Quebec. Although a divided co-ownership development (condominium at common law) requires no specific planning approval in Québec, the projected development must comply with the zoning by-laws and possibly with an existing CDP or SPAIP. Furthermore, some municipal restrictions may apply regarding conversion of existing rental buildings into condominiums in areas, for example, where there is a lack of rental properties.
Once the project development is in compliance with municipal by-laws and if applicable, with existing CDP or SPAIP, a divided co-ownership is established by publishing a declaration at the land registry offices under which ownership of the immovable is divided into fractions which are intended to be further transferred to different co-owners in a document called the Declaration of Co-ownership (Declaration).
Alienation of such private fraction – commonly known as condo – is void unless the said Declaration and the cadastral plan have been modified prior to such alienation so as (i) to create a new fraction having its own cadastral number and (ii) to determine the relative value of such fraction or to record the modifications made to the boundaries between adjacent condos.
Upon the publication of the Declaration, the co-owners as a body constitute a legal person called a syndicate, the objects of which are to preserve the immovable, to maintain and manage the common portions, to protect the rights attaching to the immovable or the co-ownership and to take all measures directed to the common interest.
In Québec, local municipalities do not have a direct power to impose capital contribution upon developers. This is unlike the legal framework in Ontario and B.C., where development cost charges can be levied. The Act prescribes that the municipalities can only enact a by-law which subordinates the issuance of a building permit, subdivision permit or a certificate of authorisation to the making of an agreement pertaining to work for the construction of municipal infrastructure and to the payment or apportionment of expenditures incurred in respect of such work. In the case of a CDP, the municipal council may require the owners of the immovables situated in the zone contemplated in the programme to assume the cost of certain components of the programme, particularly of infrastructure and public services, and to furnish such financial guarantees as it determines.
The issuance of building permits in Québec is similar to Ontario and B.C. Although Québec has a Building Act that specifies the minimum safety standards applicable to all construction works in the province, building permits are issued pursuant to the Act by each of the local municipalities.
A municipal council can require a building permit or a certificate of authorization, which shall be issued by the officer designated in the Act provided that (i) the application is in conformity with the zoning and building by-laws; (ii) the applicant has provided the information required by the officer pursuant to the Act; (iii) the application is accompanied with all the plans and documents required by by-law; and (iv) the fee for obtaining the permit or the certificate has been paid.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.