Acquisitive prescription (Possession/usucapio)
JOSHUA KRANE
a. 921 possession relates to an exercise in fact, which corresponds to a real right. The possessor will show that he is exercising, in fact, a real right (“corpus”). The possessor must have the intention of acting as the titulary (“animus”). The law presumes (#1) animus with the establishment of corpus – the legal title can provide an explanation as to who is the owner. For example, the lease will destroy the presumption, which will otherwise explain the material control over the object[1].
a.921 detention occurs when the titulary has mere control over the object without the intent to control it. A lease is an example of a detention. A lessee might appear to have corpus, but the lessee has a personal right (not simply a situation in fact).
Possession is different from ownership because possession is not a right. The owner does not need to act within his right, but the possessor must exercise his possession.
Possession is also different from administration of the property of another (like a tutor) who appears to act as the owner, but the tutor only has the power of administration.
Possession is also different from “apparent ownership” (colour of right) since the law will attach the effect of a right, even if the right is not valid. For example, a third person who acquires title from an apparent owner, then the 3rd party’s claim will be valid, even against the legal owner. The effects of appearance, however, will protect the 3rd party but not the apparent owner.
a.922 - For possession to produce the effects that the law requires must be:
1. Peaceful, where the possessor exercises corpus without force
2. Continuous, where the exercise of corpus is active and is established after 1 year where the possessor has not been deposed in that time
3. Public, where the possessor is exercising corpus openly so that it can be noticed by others
4. Unequivocal, where the possession is clear (do several persons claim to possess the right?)
The possessor is presumed (#2) to have possessed in the four qualities, therefore the burden who contests the utility must disprove one of the qualities.
Consider a.927 where thieves are possessors, but the thief cannot benefit from the possession since the acquisition was not peaceful nor was it in good faith. However, the acquirer from the thief can have a useful possession.
Effects of Possession
Good faith will enable certain effects. a.932 explains requirement of good faith possession when possession begins – meaning that possessor must have some form of a title, even if it is defective. The possessor feels that he is exercising the real right to which he thinks he is entitled, until he is informed otherwise. A possessor will be in good faith until that person is informed that their title is not valid. Where a contract is defective, and no one knows, there might still be good faith.
1. a.931 depending on good faith, the possessor can keep the fruit/income and the costs incurred to produce. If the possessor is in bad faith, the net income goes to the rightful owner.
2. a.933 the owner may have to pay an indemnity to the possessor for improvements/repairs to the property, where good faith helps to determine the disbursement.
3. a.929 explains that the possessor, after 1 year can file for an action en complainte complaining of disturbance or an action en reintegrante to be placed back within possession (which must be done within 1 year).
4. a.928 creates a presumption (#3) where the possessor is presumed to hold the very title of the real right. Most of the time the possessor is the titulary making it easier to show possession rather than title.
5. a.2910-2920 allows for the possessor to claim the title after 10 years; however good faith is not relevant. A shorter prescription is possible such as the acquisition of the right of ownership of a moveable if it is in good faith. A judgment is required to show ownership of an immovable.
Therefore, for acquisitive prescription, one needs to possess the object, possess it in good quality, and fulfill the time requirement.
Sivret v Giroux [1971]Facts:
· An unmarried couple splits up. One spouse owns land, in which the couple built a cottage. The couple used the cottage as a secondary residence. Since they have parted company, the owner of the land denies access to the cottage to the other house.
Issue: The spouse files for possession of the house as owner, and access to the land as superficiary. Can those actions be maintained?
Held:
Reasoning:
· The plaintiff is within a year of dispossession. The possession is equivocal, meaning that it fails one of the qualities required to establish possession. Therefore the spouse cannot benefit from the effects of possession. The court would find it unimaginable that people could share possession after a break up.
· The possession of the other spouse would be equivocal as well. However, all the defendant must do is show that the other spouse’s claim is invalid.
· Under a.955, the court makes a presumption that the owner of the land owns the constructions built upon it.
Occupation
Recall a.914, 934, things without an owner belong to no one. Objects without an owner can be appropriated without occupation. Immovable without an owner belong to the state. An occupant can appropriate the object by taking it into his control to become its immediate master.
Tremblay v Boivin [1960]Facts:
· Tremblay goes hunting moose with his friends, where they have a right to hunt on the territory. They find a moose and shoot it. Boivin arrives on the scene and claims to have right to the moose. The defendants take the moose, alleging that they had shot animal first and that it had limped away.
Issue: Who owns the moose?
Held: The plaintiff owns the moose and is entitled to damages for the seizure of the carcass.
Reasoning:
Hunting rights can be defined as being the right to acquire savage animals through occupation. Therefore, the first person to seize such an animal becomes the owner. A hunter who hunts on land where he is forbidden from hunting may be pursued for “trespass”, but he does not become an owner.
Wild animals are not fruit, and can be acquired only by occupation.
Objects, which have not yet been subjected to private appropriation, are acquired by the first person who exercises control over them. A person MAY, if he/she has made an act of occupation on his/her own territory, go fetch this animal on a neighbour’s territory. However, they must prove a real act of possession, sufficiently realised. Here, it is necessary to ask which of the two groups injured the moose to the point that it could no longer escape.
The defendants did not sufficiently wound the animal to then claim it. Here, the animal was sufficiently far away from the defendant to presume that it would have escaped had the plaintiff would not shot it again (and killed it).
Rationale:
· When two persons occupy and object and claim to appropriate it, the person who occupied it first will be entitled to it, unless the defendant can rebut that presumption to show that the object belongs to him.
a.938 deals with “treasure”. If the finder finds it on his/her own land, it belongs to him/her. If it is found on the land of another, one-half belongs to the owner of the land and one-half to the finder, unless the finder is acting for the owner (see Boivin).
a.939-946 deal with movables lost or forgotten. Ownership of the movable remains with the owner unless the object is deemed to be abandoned or is of slight value and left in a public place; thieves cannot gain possession, but third parties in exchange (unaware successors) with a thief may gain possession.
Boivin v Quebec [2000]Facts:
· Divers found gold bars at the bottom of a lake. The police did try to identify the owner of the gold bars.
Issue: Can the finder claim to occupy the gold bars?
Held: The bars are not a treasure and the state has not claim.
Reasoning:
· We have an owner if the thing has not been abandoned. It seems unlikely that someone would abandon/lose/forget gold bars.
· If the find is a treasure, then the state can claim half of the value of the treasure (applying article a.938). However, for the law to presume that the object is a treasure, it must presume that the object is abandoned, because it is buried/hidden for a long time.
· People generally do not throw gold bars in the lake, and the object might be stolen. The thief may have wanted to recover the gold bars at some point in the future. Therefore, the operative thing for the court to do is wait to see if the owner can be found – it seems to be the most likely hypothesis.
· In the court’s conclusion, the court reserves the right for the owner to recover the object. The court will enforce the delay of prescription until it has passed (10 years) for the possessor to become owner since Boivin has not title and is not in good faith.
Rationale:
· Where we do not know if the object has been abandoned, the court can employ the mechanism of acquisitive prescription to transfer the real right.
Accession
As the owner of movable or immovable property, the person is entitled to all that it produces and all that is joined as an accessory as stated in a.948. This right of accession is not only an attribute of ownership, it is also one of the modes of acquiring ownership. Accession in relation to what is produced by property is considered with ownership and usufruct. “Artificial/voluntary accession” occurs when the ownership of a thing involves the accession of whatever has been joined to it by human action.
Artificial accession of Immovables
a.951 carries that the owner of the land owns what is below the land and what is above to the land. Air/space cannot be owned. The owner of the land has the full right of enjoyment and can forbid encroachment thereupon. Should the owner be prevented from full enjoyment, the owner can stop the encroachment unless it is expropriated. Municipal laws may place limitations on height of a construction.
Lacroix v the Queen [1953]Facts:
· A claim is being made by the neighbours of the airport that a flight path has been established over their land. Normally, aircraft operate at a height that does not interfere otherwise.
Issue: Is appellant entitled to damages on the basis that he owns not only the surface of his land but also what is above and below?
Held: No.
Reasoning:
· At the time of expropriation, the owner of the land in question, the land contained no buildings and was used for agriculture only. Since the airspace cannot be appropriated, it cannot be expropriated either.
·
· The owner of the soil does not own the space above him (based on the rulings of other foreign courts). Any buildings constructed on the land become part of the land, but does not mean that the airspace is appropriated.
Rationale:
· By putting up buildings or other constructions the owner does not take possession of the air but unites or incorporates something to the surface of his land. The Crown could not expropriate that which is not susceptible of possession.
As a point of departure, a claim could be made for neighbourhood annoyance. However, the airport is the creation of statutory authority, which authorizes the airport to operate (therefore creating the nuisance).
The owner of the soil can occupy the space above and below his land, but does not own it.
a.955 presumes that the owner of the land owns the constructions/tree on it. This presumption can be displaced by bringing forth a title (which would be a granting of a right of superficies). The owner of the land would be different than the owner of the construction/tree. The right can be acquired through expropriation or acquisitive prescription along with contract/succession.
a.956 (and a.901) the land owner becomes the owner by accession of the materials used to construct the immovable (the owner must pay for the construction). a.957 deals with the situation where the possessor has made improvements – the owner acquires ownership, but may have to pay an indemnity (based on nature of construction & good faith of possessor).
Bornage and Encroachment
Bornage is conducted by a land surveyor, which establishes the boundary lines. A neighbour may compel a neighbour to determine the division line, when the land is being subdivided or it has never been divided before. This process is recorded in the register and will suggest where the line falls (will mark the line on the ground). As soon as there is a dispute, the superior court will supervise and adjudicate.
Where the construction of one neighbour encroaches on the other, a.953 recognizes the right to stop the encroachment. It would be tantamount to an unlawful expropriation otherwise. Full enjoyment means that the owner can demand the demolition of the encroachment.
Themens v Royer [1937]Facts:
· The encroachment is 6’ on a 25’ land width, which is considerably substantial. The defendant pleaded that it was in good faith. Defendant is warned to cease this encroachment by demolishing the part of the building sitting on the plaintiff’s land. The defendant wanted the rules of possessor to apply to making improvements. The defendant offered to buy the property to solve the issue of the encroachment.
Issue: Can the defendant be allowed to pay an indemnity and keep the construction?
Held: No. The court orders the demolition.
Reasoning:
To permit the defendant to keep this land over which he erroneous built, even if paying the actual price of the land, would manifestly violate her right of ownership. Reasons of equity cannot be invoked here (under 417, 418 CCLC), because it cannot truly be said that defendant made improvements to plaintiff’s land.
As well, the “good faith” envisioned in these articles cannot be other than that which results from possession based upon a title, the fault of which is unknown to the possessor. The mistake made here cannot give rise to putative title leading to possession in good faith. Although defendant acted in good faith in the ordinary sense of the word, this does not suffice to permit him to invoke the articles.
It would have been easy to delimit the boundaries here, and the fact that defendant did not put him in this position. Moreover, plaintiff, acting as administrator for his sister, did not know of the construction until 14 years after its building, but that does not matter. The plaintiff does not consent merely because he does not know of the encroachment.
Rationale:
· Where the encroachment is severe or in bad faith, the court can require the demolition of the construction and payment of an indemnity.
Would Themens be decided differently? A six-foot encroachment seems considerable and thus the decision should favour the plaintiff. The possessor in good faith must have a title and does not know about it. In this case, good faith is impossible, because there is no title.
Under the new Code, the defendant could claim the property via possession, since good faith is not required.
Now, with article a.992, the new Code seems to give considerable favour to the encroacher, unless the encroachment in bad faith, or is severe. This provision is very limited, since it must not be severe and must be in good faith. The first paragraph seems to be contrary to the definition of ownership and the protection of encroachment.