Mainville, Sansfaçon, Baudouin

Appeal from a judgment of the Superior Court granting in part an application for a permanent injunction. The principal appeal is dismissed and the incidental appeal is allowed for the sole purpose of modifying a conclusion.

The appellant is the owner of land bordered by that of the respondents and by the right of way of a boulevard. The three pieces of land are both the dominant and the servient lands for three mutual servitudes established in 1972 – a servitude of right of way, a servitude of view, and a servitude of non-construction. The appellant wants to build an apartment building with an underground parking garage on its land, to which the respondents are opposed.

The trial judge found that the appellant could build an underground parking garage on the site of the servitudes, but that it could not carry out the work planned because the servitude of right of way would not be as convenient during the work required.

The judge made an error of mixed law and fact in finding that the servitude of right of way was the dominant servitude and that, accordingly, the servitude of non-construction had to be interpreted as being accessory to it. Although a narrow interpretation of the charges affecting land must be favoured when interpreting an act of servitude, it is important to neither neutralize the terms of the act establishing the servitude nor give them effect. The servitude of non-construction should have been interpreted according to its terms, as stipulated in the act establishing it. Those terms clearly prohibit all types of buildings, constructions, or structures as well as the presence of trees or any other object. While an underground work is not prohibited under the site of the servitude, the fact remains that completing such work would cause a breach of the servitude of non-construction.

The provisions relied on by the appellant do not allow the contemplated work to be performed on the site of the servitudes. Although the second paragraph of article 1186 of the Civil Code of Québec (S.Q. 1991, c. 64) (C.C.Q.) allows for the transfer of the site of the servitude in certain circumstances, the convenience test set out in that article prevents it in this case. Contrary to the servitude of right of way, which is a discontinuous servitude, the servitude of non-construction is a continuous servitude and does not require the actual intervention of the holder, which renders the convenience test moot. Moreover, the proceeding based on article 976 C.C.Q., which states that neighbours shall suffer the normal neighbourhood annoyances, remains above all a claim belonging to a person – not to land – that may be set up against another person – not other land. Thus it cannot be relied on by the party causing the inconvenience to neutralize a real right, such as a servitude of right of way, and even less so a servitude of non-construction. In addition, the right to access the land of another set out in article 987 C.C.Q., which authorizes temporary encroachment when necessary for maintenance purposes, does not include the right to erect permanent structures on neighbouring land because the impairment of the neighbour’s land must be minimal and temporary.

Finally, even disregarding the servitude of non-construction, as the judge did, it would have been necessary to find that the servitude of right of way could not be transferred and reduced under the second paragraph of article 1186 C.C.Q., as the convenience test is not met.

Text of the decision: http://citoyens.soquij.qc.ca