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What then is the fate of an unpublished servitude?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 it.
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that has not been published never compensates for absence of publication," even where the purchaser has knowledge of an unpublished servitude, this does not cure the failure to register it in the land register.
However, a line of cases has considered whether knowledge of an unpublished servitude could affect its unenforceability.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that, nonetheless, it is still possible to present evidence that the owner of the servient land had knowledge of an unpublished servitude, but stressed that this evidence must be very strong: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 heavy one.2
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.
Footnotes
1 Beaulieu c. Sinotte, 2011 QCCA 1743.
2 Op. cit. no. 1, p. 12.
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