Lexpert Magazine

LEXPERT MAGAZINE | JUNE 2017 13 he or she in fact exercised the right in ques- tion with the intention of exercising it as the holder of the right. His or her posses- sion must be 'peaceful, continuous, public and unequivocal' in order to produce ef- fects (art. 922 C.C.Q.). A possessor claim- ing ownership of an immovable must also obtain a judgment confirming the right so acquired," Justice Gascon wrote. And "[s]ince acquisitive prescription has its effects regardless of any rights registered in the land register, there is no need for a possessor to register a judicial application in advance [of a claim] in order to protect his or her rights." It was this aspect of the decision that prompted debate in the court, notes Niko- las Blanchette, who heads the litigation department and specializes in real estate and contract litigation at Fasken Martin- eau Dumoulin LLP in Montréal. Justice Suzanne Côté disagreed with the majority, which found that acqui- sition of prescrip- tion prevailed over the publication of rights. "Un- der art. 2918 of the Civil Code of Québec ("C.C.Q."), the acquisition of ownership of an immov- able by prescription is conditional on first obtaining a judgment following a judicial application," Justice Côté wrote. SCC rules on acquisitive prescription High court finds that Québec woman has a right to her neighbour's parking spots BY ELIZABETH RAYMER e Supreme Court's majority decision confirms the distinct roles of acquisitive prescription and the publication of rights, says Philippe Dumaine at Lapointe Rosen- stein Marchand Melançon, L.L.P. in Montréal, who suc- cessfully represent- ed the respondent. "e judgment confirms that rights that have been val- idly acquired by prescription super- sede rights that are registered in the land register and, that the registration of rights in the land register does not in itself serve as a defence to an adverse claim based on acquisitive prescription," Dumaine says. In this case, says Blanchette, "if the pre- vious owner had sent a letter to Mme. Al- lie, telling her she had no rights, it would have stopped the whole process; it would not have become unequivocal possession." e decision may increase vigilance by property purchasers, at least in Québec. "It is imperative that property owners be aware of any encroachment on their prop- erty and that any such encroachment be disclosed by the property owner to a poten- tial purchaser in the context of a sale," says Dumaine. "Should a property owner be aware of, and fail to disclose, the existence of such encroachment to a potential pur- chaser, such purchaser would have a claim against the property owner in the event that he who encroached invoked a claim based on acquisitive prescription." Winning a claim against a seller who hasn't disclosed previous acquisition by prescription is not a perfect solution — "at the end of the day, money doesn't replace property," says Blanchette — but it will provide some equitable resolution. A QUÉBEC COUPLE who bought a property with the understanding that it had a parking space able to accommodate several cars — part of which a neighbour's son had been using for many years — had their appeal to recognize their title to the full space dismissed by the Supreme Court of Canada in April. In Ostiguy c. Allie, the majority of the Supreme Court found that the respondent had satisfied the demands for acquisitive prescription under the Civil Code of Que- bec (CCQ ). e appellants, Alain Ostiguy and Valérie Savard, purchased a mountainside chalet on Mont Brome in Québec in 2011. Aer they arrived they noticed that their parking space, which could hold up to four cars, was being used by the son of the re- spondent, Hélène Allie. ey gave the man formal notice to stop using their parking space, but when he continued to do so the appellants applied for a permanent injunc- tion to assert the registration of their title of ownership in the register of land rights. In a cross demand, the respondent claimed ownership of half of the appellants' park- ing space by way of acquisitive prescription. "In the C.C.Q., acquisitive prescription is recognized as a 'means of acquiring a right of ownership, or one of its dismem- berments, through the effect of possession' (art. 2910 C.C.Q.)," Justice Clément Gas- con wrote for the majority of the court. "e possessor must prove that, for at least 10 years in the case of an immovable, PHILIPPE DUMAINE > LAPOINTE ROSENSTEIN MARCHAND MELANÇON, L.L.P. NIKOLAS BLANCHETTE > FASKEN MARTINEAU DUMOULIN LLP ON THE CASE "THE JUDGMENT CONFIRMS THAT RIGHTS THAT HAVE BEEN VALIDLY ACQUIRED BY PRESCRIPTION SUPERSEDE RIGHTS THAT ARE REGISTERED IN THE LAND REGISTER AND, THAT THE REGISTRATION OF RIGHTS DOES NOT IN ITSELF SERVE AS A DEFENCE TO AN ADVERSE CLAIM BASED ON ACQUISITIVE PRESCRIPTION." > PHILIPPE DUMAINE, LAPOINTE ROSENSTEIN MARCHAND MELANÇON, L.L.P.

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