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| Peter Kalichman |
On August 24, 2015, the Court of Appeal rendered an important decision
regarding acquisitive prescription[1].
The majority of the Court dismissed the appeal from the decision of Justice
Dumas, J.S.C., effectively recognizing that the Respondent, Ms. Allie, had
acquired title to two parking spots that were, according to the Land Registry,
squarely located on the property of Appellants, Mr. Ostiguy and Ms. Savard. In
dissent, Justice Jacques, J.C.A. (ad hoc),
concerned over the stability of real estate transactions, explained why he
would have granted the appeal.
In 1993, the Respondent purchased a chalet in Bromont. From that point
on, she and her guests made use of two of the four adjacent parking spots. Appellants
purchased a neighboring chalet in 2011 thinking that it came with two of the
four parking spots, the other two of which belonged to Respondent. They soon
discovered that all four parking spots were situated on their property.
Appellants brought injunctive proceedings to prevent Respondent from using their
parking spots. Respondent, in turn, brought a cross-demand seeking to be
declared owner of the spots by acquisitive prescription.
Appellants argued unsuccessfully that Respondent’s possession did not meet
the criteria of article 2910 CCQ. However, the more interesting and significant
ground of appeal concerned the interpretation of art. 2918 CCQ, which reads as
follows:
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2918. Celui qui, pendant dix ans, a possédé un
immeuble à titre de propriétaire ne peut en acquérir la propriété qu’à la
suite d’une demande en justice.
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2918. A person who has
for ten years possessed an immovable as its owner may acquire the ownership
of it only upon a judicial demand.
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Appellants argued that Respondent’s possession of the parking spots
could not be set up against them because her judicial demand was brought
subsequent to the publication of their deed of sale in the Land Registry. Justice Savard, J.C.A., writing for the
majority, recognizes that there is currently a controversy over the interpretation
of article 2918 CCQ, namely: does the judgment granting the judicial demand create
title from that point forward or recognize it retroactively? Unlike Justice
Jacques, the majority do not feel it is necessary to resolve this controversy
in order to dispose of the appeal. For
them, article 2918 CCQ, even though it imposes a requirement of a judicial
demand, does not alter the state of the law regarding the effect of possession.
As the Court writes:
[30]
(…) la possession utile d’un possesseur est opposable au propriétaire dont le
titre est inscrit au registre foncier, peu importe que cette inscription
survienne après que le délai acquisitif (dix ans) soit révolu et même avant la
demande en justice requise en vertu de cette disposition.
For Justice Jacques, it is clear that the judicial demand is essential
in order to acquire property by prescription. Consequently, unlike the
majority, Justice Jacques finds that the disposition of the appeal necessarily
requires that the controversy surrounding article 2918 CCQ be resolved. Finding
no support for giving it retroactive effect, he determines that the judgment contemplated
by article 2918 CCQ thus creates title. The Respondent was therefore in a
position to acquire the parking spots by prescription but needed to bring a
judicial demand in order to complete and perfect her right. Moreover, in order for the right to be set up
against Appellants, it needed to be published in the Land Registry before
Appellants’ deed of sale, which it wasn’t.
Justice Jacques places great emphasis on the pre-inscription of rights
under article 2966 CCQ as a means of securing the eventual right of ownership
for parties looking to acquire title by prescription.
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