Savard, Beaupré, Moore

Appeal from a judgment of the Superior Court dismissing an application for a declaratory judgment. Allowed.

The trial judge declared that a deed providing that an owner of a lot and his or her successors [translation] “undertake” to use the lot exclusively for the purposes of light or commercial industry and to waive any action arising from the industrial activities of the owner of a neighbouring lot was a real servitude and not a personal obligation.  

The judge committed a palpable and overriding error by relying almost exclusively on the characterization of the right provided by the parties to the deed, without considering whether the content of the deed truly corresponded to a real servitude. He should have examined the scope of the rights and obligations created by the deed to determine whether they were those of a servitude. This error justifies the Court to proceed with this analysis.

Restrictions on the use of an immovable, like those provided in clause 2 of the deed in dispute, may constitute a real servitude. However, the distinction between a servitude limiting use and a personal obligation has to do with the condition related to the advantage conferred, which must truly pertain to the land and not the commercial or industrial activity performed on the land. In this case, the clauses limiting use do not pertain to a physical development of the premises, and they do not otherwise pertain to another person’s land. They pertain only to the type of activity that may be performed there and cannot be constitutive of a servitude, whether real or personal. They instead constitute personal obligations that therefore cannot bind subsequent purchases without their consent.

The same is true for the clause whereby the owner of the “servient lands” and the owner’s representatives, heirs, successors, or subsequent purchases undertake not to bring any action against the party of the second part as a result of that party’s industrial activities. The sole object of the servitude is the waiver of any actions seeking compensation for injury related to the respondents’ industrial use. Whether it is an action based on fault under article 1457 of the Civil Code of Québec (S.Q. 1991, c. 64) (CCQ) or one based on neighbourhood disturbances under article 976 CCQ, it is a waiver of the exercise of a personal right by the owner or by the person who has the use of the land. The charge is therefore not at all imposed on the servient land. In this case, the idea is not to ensure the tranquility of neighbouring lands, but to ensure the economic tranquility of those carrying on an industrial activity by avoiding all civil liability toward their neighbours. As soon as this activity ceases, this clause loses its object, which is inconsistent with the condition of perpetuity characteristic of a real servitude. Most importantly, this establishes that the advantage does not truly pertain to the land itself but rather only to the activity that is performed there.

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