Under the Roberge v. Bolduc [1991]The examination of titles is an obligation of means. However, the lawyer in charge of the title search must carry out his task in a prudent and diligent manner, i.e. if elements lead him to believe that a more rigorous search is necessary, he must push his analysis further.
In this decision, L’Heureux-Dubé J. stated at paragraph 437: “The fact that a professional has followed the practice of his peers may be strong evidence of reasonable and diligent conduct, but it is not determinative. The fact that a professional has followed the practice of his peers may constitute strong evidence of reasonable and diligent conduct, but it is not determinative. “It is therefore essential to be meticulous and attentive to the various details, depending on the legal context.
One of the challenges that can arise during a title examination concerns the application of the correct rules of law relating to the time of disposal of the property. In an analysis that goes beyond the effective date of the Civil Code of Quebec (RLRQ, c CCQ-1991) (hereinafter the “Code”), i.e. the 1er On January 1, 1994, the rules governing certain areas of the law differed from the law currently applicable, in particular, the laws governing matrimonial regimes during marriage and at the time of its dissolution.
Examination of the section on marital status in deeds transferring ownership makes it possible to identify the matrimonial regime applicable to the parties at the time of the deed.
THE LAW ON THE APPLICATION OF THE REFORM OF THE CIVIL CODE
Article 2 of the Civil Code Reform Implementation Act states the following:
” The new law has no retroactive effect: it provides only for the future.
Thus, it does not alter the conditions of creation of a previously created legal situation, nor the conditions of extinction of a previously extinguished legal situation. Nor does it alter the effects already produced by a legal situation. . “.
Despite the various changes in matrimonial property regimes over the years, it is important to analyze the title deeds according to the law in effect at the time of the transaction.
MATRIMONIAL REGIMES IN THE CIVIL CODE OF QUEBEC AND THE CIVIL CODE OF LOWER CANADA
The three main matrimonial regimes are community of property, separation of property and partnership of acquests. The Civil Code of Lower Canada (S prov C 1865 (29 Vict), c. 41) (hereinafter the “Code of Lower Canada”) refers to all three regimes, while the Code contains only provisions relating to separation as to property and partnership of acquests.
Nevertheless, article 492 specifies that for the former regime of legal community, the rules for dissolution and liquidation of the regime of partnership of acquests may be invoked if they are not incompatible with the current regime.
SEPARATION OF PROPERTY
Under the current regime of separation as to property, with certain exceptions, including the presence of a duly published declaration of family residence (article 405 of the Code), each spouse manages his or her own real estate without the need for the spouse’s consent.
If we take the case of a couple married under the regime of separation as of today, and whose wife has bought a house alone, when the house is resold, she would in principle not need her spouse’s consent to resell her property, since she has unlimited powers over it.
If this same couple had married under the regime of separation as to property in 1960, and the sale of the immovable (personal property) had taken place that same year, the authorization of the spouse or the Court would have been required for any alienation or gift of the property (articles 763 and 178 of the Code of Lower Canada).
COMMUNITY OF PROPERTY
In community of property, there was common property, the husband’s own property, the wife’s own property and the wife’s reserved property. In this regime, there is a presumption of community property (article 1402 of the Code of Lower Canada). Reserved property is property that the wife has acquired through the fruit of her labor and that she has declared to be reserved property.
Although community of property does not appear anywhere in the Code, with the exception of article 492, this does not mean that this regime should not be dealt with when analyzing titles. It is therefore essential to be familiar with the rules set out in the Lower Canada Code and the laws that have amended it. In fact, a number of changes have been made to the regime in order, among other things, to give greater latitude and autonomy to women.
PARTNERSHIP OF ACQUESTS
Under the regime of partnership of acquests, each spouse has his or her own property and acquests. They all have free disposal of their own property and acquests. As with separation as to property, the presence of a declaration of family residence may have an impact on the alienation of real estate. The consent of the spouse is required for the donation of an acquest (article 462 of the Code).
Currently, the partition of acquests gives rise to a claim, but before the 1stth July 1989, the division of acquests gave rise to indivision. Dissolution of the regime therefore had different effects depending on the period of time.
If we take the case of a couple divorcing before the 1th July 1989, even if the property was in the husband’s acquests category, it became the property of both spouses, each owning half. As of today, the spouse would have a right of claim, but no right of ownership in the immovable.
IMPORTANT LAWS CONCERNING MATRIMONIAL PROPERTY REGIMES
In addition to a good basic knowledge of the different matrimonial regimes, it is also essential to be familiar with certain laws that have modified or clarified the rights of the parties.
In fact, when analyzing the period prior to the coming into force of the Code, it is also necessary to take into account certain relevant laws, such as the Act respecting matrimonial regimes, L.Q. 1969, c. 77 (Bill 10) of 1969 as well as the An Act respecting the legal capacity of married women, S.Q. 1963-64, C.66 (Bill 16) dated 1964.
These laws clarified the rights of the parties to a marriage. One of the aims of Bill 10 was to remove from the law the notion of “spouse”. Head of household It was a “family” that gave spouses a certain authority and absolute control over the family. The ” supremacy The “supremacy” granted to the husband allowed him to administer his wife’s property without her having any say in the matter.
One of the aims of Bill 16 was to give women full legal capacity, for example by deleting articles stating that they owed obedience to their husbands, in order to confirm the fact that from now on, they would be responsible for running the family in collaboration with their husbands.
THE VIDUITÉ CLAUSE
Over the years, legislators have also annulled certain legal provisions limiting women’s freedom and giving husbands a position of superiority. Such is the case of the viduité clause, which is now deemed unwritten under the Code.
” 757. A condition that is impossible or contrary to public policy is deemed unwritten.
A provision limiting the rights of the surviving spouse when he or she remarries or enters into a civil union is therefore deemed unwritten.
In fact, in the Laroche v. Lamothe 2018 QCCA 1726the Court came to the conclusion that the very existence of this clause demonstrates discrimination based on marital status, thus contravening section 10 of the Charter of Human Rights and Freedoms RLRQ, c. C-12 and an invasion of privacy contrary to Article 5 of the Charter.
Article 5 of the Civil Code Reform Implementation Act states the following:
“ The stipulations of a legal act predating the new law and which are contrary to its mandatory provisions are deprived of effect for the future. “
Authors Gagnon, Galarneau and Duchaine in the 5thth edition of their book, l’examen des titres immobiliers and citing Myrand v. Simard, REJB 1997-03151 (CS) and Gosselin v. Gosselin, EYB 2009-164578 (S.C.) clarify that void clauses existing before the Code came into force no longer have any effect.
CONCLUSION
When examining titles, it is therefore very important to take into consideration the period during which the deed transferring ownership was signed. It should also be remembered that, before the Code came into force, women regularly transacted under their spouse’s surname.
Following various legislative changes, it is now compulsory to use the family name at birth under articles 5 and 393 of the Code. Over time, we have also seen a positive evolution in women’s rights under the law. Women now enjoy greater legal protection and equal status with their spouses.
By Rebecca Simon
