Do you have a right of way? - It is preferable to use it, so as not to lose it

Article locked Published on by Me Annie Lapointe

Topic(s): Legal

Note aux lecteurs : Ces articles sont des résumés de décisions rendues dans les affaires citées. Veuillez noter qu'il ne s'agit pas d'une revue de la jurisprudence et que d'autres décisions peuvent être rendues par la suite ou être différentes et changer l'état du droit. C'est également le cas si les faits ne sont pas les mêmes que ceux présentés dans l'affaire mentionnée.

Do you have a right of way? - It is preferable to use it, so as not to lose it

“A servitude is a charge imposed on a building, the servient land, in favour of another building, the dominant land, and which belongs to a different owner.

This charge obliges the owner of the servient land to bear, on the part of the owner of the dominant land, certain acts of use or to refrain from exercising certain rights inherent in the property. ... (1).”

This can be a servitude of view, passage, or non-construction, for instance.

Normally, unless it has been provided for a period of time, a servitude is “perpetual.” On the other hand, although it may seem surprising to most people, the fact of having provided for a servitude, although it is written and published in the land register, does not protect against its possible extinction in case of non-use.

Indeed, certain servitudes, including servitudes of passage, can be extinguished by non-use if 10 years elapse from the moment the owner of the immovable holding the right of way ceases to exercise it.

A right of way is often (but not all the time (2)) created for the benefit of a lot, meaning a piece of land, which could benefit, for several reasons, from a passage on the land of a neighbour. This could be an advantage granted to get to a lake, or simply because it is the most appropriate way to get to one’s own land from the public road.

In a recent case, a person who has acquired land in a real-estate development and whose land (lot) is granted a right of way for the benefit of the neighbour, asks the Court a few years later to declare extinguished by the effect of the limitation period, the servitude of passage encumbering his lot in favour of the one of the neighbouring property, due to its non-use for ten years.

Indeed, we generally find it more interesting not to have a servitude that affects our property. However, the neighbouring owner disputes the request.

The difficulty is to demonstrate this “non-use” by the neighbour for 10 years. “He acknowledges that the pathway was used several times by tenants of neighbouring cottages to get to the snowshoe trail and that in 2010 he saw a truck coming out of the woods” (3). On the other hand, he states that he has never seen a person associated with his neighbour walking on the servitude in the 10 years preceding his request to the Court. However, the neighbour states the opposite, although he did not use the servitude often, he would have used it, at least once a year: “Based on the testimonial evidence, the Tribunal finds that the applicant failed to show the total absence of use of the servitude of passage, both on foot and in a vehicle for a continuous period of ten years” (4).

Indeed, it was decided that the frequency of use of the servitude is not relevant to the analysis. “It is sufficient that there has been a useful use of all the modes of passage provided for in the servitude on a few occasions by the owner of the dominant lot to prevent the limitation period from being complied with” (5). The plaintiff was therefore unsuccessful in this case.

Finally, note that if, for instance, a servitude is provided for passage by car and on foot, but there are no more cars that have passed through it for more than ten years, a mode of exercise of the servitude (for instance, passage by car) may also be subject to the limitation period after 10 years (6).

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