SUPERIOR COURT RENDERS UNEXPECTED DECISION ON EASEMENTS

Is a servitude restricting use a real servitude or a mere personal obligation? The Superior Court considers this question in Société Immobilière Duguay v. 547264 Ontario Limited et al [1], rendering a judgment that differs from the trend established by the Quebec Court of Appeal for several years. In 2001, in Épiciers Unis Métro-Richelieu Inc. v. The Standard Life Assurance Co. the Court of Appeal handed down a landmark decision to the effect that a servitude restricting use and prohibiting the operation of a supermarket was no more than a personal obligation that could not bind potential purchasers of the land. The Court ruled that the permanent nature required of a real servitude was absent, since the restriction of use was attached not to an immovable, but to Métro and its business choices. Furthermore, in 2012, in Provigo Distribution Inc. v.

. 9173-1588 Québec Inc. [2], the Court of Appeal confirmed the 2001 ruling that restrictions on use do not constitute real servitudes. However, on May 9, in the Société Immobilière Duguay Inc. case, the Superior Court, District of Trois-Rivières, rendered a decision that went against the trend established by the Court of Appeal. The case involved a deed of sale providing for the creation of a real and perpetual servitude of non-construction and restriction of use on an immovable, preventing the establishment of any clothing business or trade, all for the benefit of the defendant’s immovables. The plaintiff applied to the Court to have the servitude cancelled, arguing that it had been established for the exclusive benefit of the defendant and not for the dominant land. The Court concluded that all the constituent elements of a real and perpetual servitude had been established [3], and that it was therefore a valid real servitude. The judge indicated that the servitude in question was not related to the personal benefit of a designated person, but rather to the economic benefit of the dominant land, said benefit being to ensure the maintenance of the “commercial mix” of the area for the benefit of the defendant and that of any subsequent owner. As this decision has been appealed, the Court of Appeal will have to modify or confirm the state of the law on this issue. Commercial property owners wishing to ensure control over the use of their lots and adjacent lots, and thus limit competition, should follow developments in this case with interest.

 

[1] Société Immobilière Duguay v. 547264 Ontario Limited et al, 2018 QCCS 2099. [ 2] Provigo Distribution Inc. v.

. 9173-1588 Québec Inc. 2012 QCCA 241. [ 3] Paragraph 13 of the decision: 1) there must be two pieces of land; 2) the two pieces of land must be adjacent; 3) the two pieces of land must belong to different owners; 4) the servitude must consist of a benefit for the dominant piece of land; 5) it must oblige the owner of the servient piece of land to suffer or not to do something; and 6) the servitude must be perpetual in nature.

 

By Mathieu Tremblay

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