Morissette, G. Gagnon, Gagné
Appeals from a declaratory judgment of the Superior Court. Allowed.
The appellants and the respondent occupy neighbouring properties on the territory of the municipality of Lac-Tremblant-Nord. The uniqueness of their immovables is that they must use Lac Tremblant as an access road. The trial judge declared that the lot on which the respondent’s residence is situated is enclosed. According to the judge, the respondent’s land has an access on the lake, which constitutes a public road. With respect to the criteria set out in article 997 of the Civil Code of Québec (S.Q. 1991, c. 64), however, that access is insufficient.
Economic enclosure involves considerations of proportionality and intended use, as well as a cost-benefit analysis. The broader context of neighbour relations therefore becomes relevant. In addition, the law seeks to grant a road out of necessity and not out of convenience.
In the present case, article 997 C.C.Q. cannot apply to property situated in the municipality of Lac Tremblant-Nord with lake access. First, the state of enclosure claimed by the respondent depends less on the actual state of his land than on his decision to change the use he intends to make of it, that is, to transform his secondary residence or vacation home – which is surrounded by residences of the same type– into a principal residence to live in year round.
Second, the state of enclosure includes a highly subjective element. In this respect, article 540 of the Civil Code of Lower Canada referred to an objective or easily objectifiable factual situation, which consisted in a physical characteristic of a parcel of land, or in an insurmountable legal obstacle in the absence of what was still called at the time a “servitude established by law”. For economic reasons, the evolution of the law favoured extending the right of owners who considered themselves enclosed to allow them to exploit all of their property’s potential, but the purpose of that transformation cannot be ignored: it was again based on objective data, or at least, on data that was objectifiable.
Third, the property’s destination was transformed in such a way as to thwart the development policy promoted by the municipality in its constituent act of 1915 (Loi constituant en corporation la municipalité du Lac Tremblant Nord (S.Q. 1915, c. 112)), followed since then and strongly reaffirmed by the municipality’s elected officials in its 2006 by-law (Règlement # 2006 007 abolissant les accès véhiculaires). In fact, the respondent’s application attempts to reconcile the attributes of urban life and the incompatible advantages of a high degree of isolation in a sparsely-populated natural, forest, and lake setting.
Fourth, what the respondent proposes to open up his property is particularly disproportionate if a cost-benefit analysis is carried out: the construction cost of the proposed road is at least double the value of his land. In addition, he has other, less costly means that do not affect neighbouring properties, to remedy the access difficulties of which he complains.
*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca