April 10, 2018
Duval Hesler, Bouchard, Schrager
Appeal from a judgment of the Superior Court dismissing an application for declaratory judgment. Allowed.
In 1985, the appellant purchased a presbytery from the Fabrique of the parish of Sainte-Béatrix. The sale comprised a number of undertakings, including the Fabrique’s right to use premises located in the building [translation] “for as long as the fabrique thinks proper”. On October 20, 2013, in accordance with s. 2 of the Act respecting fabriques (CQLR, c. F-1), the Bishop of Joliette adopted a decree abolishing the parish of Sainte-Béatrix. A new entity, the respondent, was created out of three abolished parishes. On April 16, 2014, the appellant, relying on the decree, notified the respondent that the right of use under the 1985 deed of sale was a personal right and had ended with the dissolution by the Fabrique. The respondent, who uses the premises for a rural nursing service, contested that decision and the appellant filed an application for a declaration that the right of use was extinguished. The trial judge dismissed the application on the ground that the respondent had assumed the rights and obligations of the Fabrique and had continued to exercise them. Moreover, by using the expression [translation] “for as long as the said fabrique thinks proper”, the judge accepted that the parties had left it to the Fabrique to determine the term of such right of use, which, under article 1123 of the Civil Code of Québec (S.Q. 1991, c. 64), cannot last longer than 100 years. She therefore declared that the right of use was not extinguished and now belonged to the respondent.
The stipulation whereby the right of use could be exercised “for as long as the fabrique thinks proper” is a condition that ends the appellant’s obligation, not a term. The parties chose to make its extinction dependant on the arrival of a future, but uncertain, event, namely the Fabrique’s discretionary decision to end it or not. This potestative condition cannot be equated with a term. Further, in the same provision, the parties had stipulated a period of 20 years after which the right of use would end, in the event the immovable was destroyed. This indicates that the expression [translation] “for as long as the fabrique thinks proper” does not mean that it would last 100 years. The parties likely contemplated a much shorter period of time. A right to use established in favour of a legal person without a term ends 30 years after the conclusion of the contract. Given that this contract was concluded on January 24, 1985, the right of use was extinguished on January 24, 2015.
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