Real estate servitudes: definitions and legal concepts

Servitudes (sometimes incorrectly referred as "easements") affect many properties and, consequently, many property owners. Various types of servitudes can have complex implications and different interpretations. Below is a summary of the legal implications related to servitudes in Quebec (Canada).

Author : M^e Manuel St-Aubin, lawyer at St-Aubin avocats

Date Written : May 2021

Last update : 2025-01 (2e)

1. Definition of Servitude

A servitude (sometimes incorrectly referred as "easements") is a restriction on the right of ownership, meaning it affects the exercise of a property owner's rights.

The definition of a servitude is provided in Article 1177, paragraph 1 of the Civil Code of Québec (C.c.Q.):

• 1177. A servitude is a charge imposed on an immovable, the servient land, in favour of another immovable, the dominant land, belonging to a different owner.

It is important not to confuse the right of way with the servitude of right of way (in french "servitude de passage"). The right of way is often related to landlocked property, whereas the servitude of passage is governed by servitude law.

In summary, the main conditions for the existence of a servitude are:

• A charge must be imposed on a property (the servient land);
• The charge must benefit another property (the dominant land);
• The servient and dominant properties must belong to different owners.

The "charge" imposed on a property is the central element of a servitude. When referring to a "charge," its definition is reiterated in Article 1177, paragraph 2 of the Civil Code of Québec (C.c.Q.):

• 1177. [...] Under the charge the owner of the servient land is required to tolerate certain acts of use by the owner of the dominant land or himself abstain from exercising certain rights inherent in ownership.
• A servitude extends to all that is necessary for its exercise.

A servitude, therefore, has a useful purpose for the benefiting property and can take various forms, such as rights of passage, water drainage rights, view easements, etc.

Additionally, the owner of the servient land may be required to undertake certain obligations (e.g., building a road, installing certain infrastructures, etc.) in connection with the servitude, as per Article 1178 C.c.Q.

It is important to note that a servitude benefits a property rather than a specific person. Ultimately, the owner of the benefiting property (the dominant land) will gain an advantage from it.

2. How are Servitudes Created

Contrary to what one might think, servitudes are not always established in writing. A servitude can exist without the need for a written document[1].

According to the Civil Code, there are four ways to establish a servitude[2]:

• By contract;
• By will;
• By destination of the owner[3];
• By operation of law (for example, the servitude of water drainage provided for in Article 979 C.c.Q.).

3. Servitude by Destination of the Owner

The servitude by destination of the owner is a particular method of creating a servitude, provided for in Article 1183 of the Civil Code of Quebec:

• 1183. Servitude by destination of the owner is evidenced in writing by the owner of the land who, in contemplation of its future parcelling, immediately establishes the nature, scope and situation of the servitude on one part of the land in favour of other parts.

For a servitude to qualify as a servitude by destination of the owner under Article 1183 C.c.Q., the Court of Appeal of Qubec, in the case St-Amour v. Major, 2017 QCCA 555, outlined the following four criteria:

1. The servitude must be established in writing (a simple written document suffices, and a formal contract is not required, as stated by the Court of Appeal in the referenced case);
2. The arrangement must be the result of a single owner’s decision;
3. The servitude must have a perpetual character;
4. The arrangement creating the servitude must have been established before the subdivision of the land[4].

Building upon these criteria, the Court further specified two additional conditions:

• There must be no separate agreement governing the arrangement to verify the intent of the parties; and
• The servitude must be registered in the land registry to be enforceable against third parties[5].

The written document that establishes a servitude by destination of the owner must meet specific requirements, which were reiterated by the Court of Appeal of Qubec in Domaine Baie Mud IOPHO inc. v. Nowacki, 2014 QCCA 1226:

• The document must clearly express an intention to establish a servitude for the benefit of another property;
• The document must be explicit;
• The document must identify the land, describe the layout, nature, extent, and location of the servitude;
• It must include either a site plan reflecting the actual layout or a physical description of the arrangement (in short, the highest level of precision is required)[6].

4. Enforceability of the Servitude

For a servitude to be enforceable against subsequent property owners, it must be registered in the land registry (Articles 2938 and 2943 C.c.Q.).

If the servitude is not registered in the land registry, it cannot generally be enforced against future owners who acquire the property after the original servitude was granted. However, between the original parties who signed the servitude agreement, it may still be enforceable.

5. Obligations of Owners of Immovables Affected by a Servitude

To fully understand the obligations of property owners affected by a servitude, it is always essential to first examine the document that created the servitude. Often, the rights and obligations will be specified in this document.

Otherwise, here is an overview of the main obligations of property owners affected by a servitude as outlined in the law.

a) Carrying Out Work or Taking Measures to Use or Maintain the Servitude[7]

Unless otherwise stipulated in the servitude agreement, the owner of the property benefiting from the servitude (the dominant land) "may, at their expense, take the necessary measures or carry out any work required to use and maintain the servitude"[8]. This means that the dominant owner may carry out maintenance work and constructions if they are necessary for the use or preservation of the servitude.

If work needs to be undertaken by the dominant landowner, prior notice to the owner of the servient land is not necessarily required (subject to the provisions of the servitude agreement)[9].

b) Not Aggravating the Condition of the Servient Land[10]

As stated in Article 1186 C.c.Q., "in no case may the owner of the dominant land make any change that would aggravate the situation of the servient land".

Regarding the definition of "aggravation", Justice Rochon of the Quebec Court of Appeal, in the case Investissements A.G. Grolimond ltée c. St-Hilaire, 2009 QCCA 2356, stated :

• *TRANSLATED : [33] To aggravate a situation means to make it worse. It means making it more burdensome or more difficult to endure. There can be no aggravation of a servitude if the changes made do not cause significant harm to the servient land. It is therefore necessary to examine the condition of the property before the respondent undertook their work.

Further in the same case, the Court outlined limitations on what the dominant landowner can do:

• *TRANSLATED [29] The work carried out by the owner of the dominant land is not without limits. It must be necessary for the use and maintenance of the servitude (Article 1184 C.c.Q.). No changes can worsen the condition of the servient land (Article 1186 C.c.Q.). If necessary, any work by the dominant owner that does not meet these conditions must be removed or, in some cases, compensated through damages.

[…]

• [31] The owner of the servient land is not prevented from seeking legal action to stop the construction of any work that, in their opinion, would violate Articles 1184 and 1186 C.c.Q. or the conditions and restrictions outlined in the servitude deed. This is precisely what the appellant did in this case.[11].

Examples of Aggravation:

• In Lebire v. Investissements immobiliers Prodige ltée, 2020 QCCQ 1960, it was determined that if the owner of a dominant land with only a right of way permanently parks vehicles there, this constitutes an aggravation of the servient land.
• In Kose v. Trinh, 2016 QCCA 699, if a servitude grants a right of passage to a lake but does not include the right to use the beach, and the beneficiaries still use the beach, this can be considered an aggravation of the servient land.

c) Not diminishes the Exercise of the Servitude[12]

In no case the owner of the servient land « do anything that would tend to diminish the exercise of the servitude or to render it less convenient »[13].

However, under certain conditions, the owner of the servient land may relocate the servitude (the location where the servitude is exercised is normally defined in the servitude agreement).

To do so, the following conditions under Article 1186, paragraph 2 C.c.Q. must be met:

• The new location of the servitude must ensure that its exercise remains ‘just as convenient’ for the dominant owner[14]
• The relocation must be carried out at the servient owner's expense;
• The servient owner must have a valid interest in making the change.

Additionally, relocating the servitude’s area (the defined space where the servitude is exercised) may result in a reduction of its surface area, as noted by the Québec Court of Appeal in Dutil v. Allard, 2020 QCCA 325[15].

d) In Case of Subdivision of the Lots/Lands

If the dominant land (the land benefiting from the servitude) is divided, the servitude remains applicable to each portion of the divided land. However, this must not worsen the condition of the servient land[16].

The Civil Code of Quebec provides the following regarding rights of passage:

• 1187 […] "Thus, in the case of a right of way, all owners of lots resulting from the division of the dominant land shall exercise it over the same place"[17].

Regarding the notion of aggravation, the Quebec Superior Court, in Bolduc v. Decelles, 2016 QCCS 2624, clarified:

• TRANSLATED : [32] In principle, the fact that more than one person exercises the servitude in a useful way and in the same location does not constitute an aggravation, as the burden exists propter rem (with respect to the property, regardless of the number of owners)[18].

For the servient land, if it is divided, the division does not affect the rights of the dominant landowner[19].

6. Duration of the Servitude

A change in ownership of the lands affected by the servitude does not terminate it. In fact, the servitude "follows the properties, regardless of whose hands they pass into"[20].

This highlights the importance of carefully analyzing property titles, as some servitudes may still be in effect even after more than 100 years!

7. Extinction of the Servitude

There are several situations that can lead to the termination of a servitude. Here are a few examples.

a) Abandoning the Servient Land by to the Owner of the Dominant Land (Article 1185 C.c.Q.)

• 1185. The owner of the servient land, charged by the title with making the necessary works for the exercise and preservation of the servitude, may free himself of the charge by abandoning the entire servient land or any part of it sufficient for the exercise of the servitude to the owner of the dominant land.

b) Redemption of the Right of Way Servitude by the Owner of the Servient Land[21] :

The redemption of a servitude by the owner of the servient land is a rarely used method to terminate a servitude, but it is provided for in the Civil Code of Quebec:

• 1189. Except in the case of land enclosed by that of others, a servitude of right of way may be redeemed where its usefulness to the dominant land is out of proportion to the inconvenience or depreciation it entails for the servient land.
• Failing agreement, the court, if it grants the right of redemption, fixes the price, taking into account, in particular, the length of time for which the servitude has existed and the change of value entailed by the servitude both in favour of the servient land and to the detriment of the dominant land.

It is important to note that this redemption right applies only to right of way servitudes.

Redemption is a solution when the owner of the servient land suffers significant inconvenience due to the existence of the servitude. For example, case law has recognized that car traffic near a private residence, raised dust, and security concerns can be considered inconveniences that justify redemption (Fleurant v. Deraspe, 2001 CanLII 20786 (QC CS)).

This option has not been widely used, in part due to Article 64 of the Act to Implement the Reform of the Civil Code (RLRQ c CCQ-1992), which imposed a 30-year waiting period starting from January 1, 1994, before exercising the right of redemption for servitudes that existed as of that date (the effective date of the Civil Code of Québec).

In a court-ordered redemption request, the court will determine the purchase price based on the factors listed in Article 1189, paragraph 2 C.c.Q., including:

• The age of the servitude;
• The change in value resulting from the termination of the servitude for the owner of the servient land;
• The change in value resulting from the termination of the servitude for the owner of the dominant land.

Since the evaluation criteria are not exhaustive, specific case facts may influence the court’s assessment of the redemption price. Unfortunately, there is very little case law available to clarify all applicable factors in the redemption of servitudes.

c) Causes of Extinction According to Article 1191 C.c.Q.:

d) Applicable Prescription

As mentioned above, a servitude can be extinguished due to non-use for a period of 10 years.

To calculate these time limits, it is necessary to refer to the Civil Code of Quebec and distinguish between a “continuous servitude” and a “discontinuous servitude”:

• « 1179 […] Continuous servitudes, such as servitudes of view or of non-construction, are those the exercise of which does not require the actual intervention of the holder.
• Discontinuous servitudes, such as pedestrian or vehicular rights of way, are those the exercise of which requires the actual intervention of the holder.

Once we have determined whether the servitude is continuous or discontinuous, we can apply the 10-year prescription period as outlined in Article 1192 of the Civil Code of Québec :

• 1192. In the case of discontinuous servitudes, prescription begins to run from the day the owner of the dominant land ceases to exercise the servitude and, in the case of continuous servitudes, from the day any act contrary to their exercise is done.

Discontinuous Servitude : For example, in the case of a right of way servitude, the 10-year period is calculated from the last time the beneficiary used the servitude.[22].

Continuous Servitude : For example, in the case of a non-construction servitude, the 10-year prescription period would be calculated from the moment a construction is built in violation of the servitude agreement. 

Obligation of the Servient Landowner to Perform an Act : The prescription period applicable to an obligation related to a servitude under Article 1178 C.c.Q. is 10 years, as confirmed by the Québec Court of Appeal in Bagur c. Massonnat, 2023 QCCA 805 (paragraphs 25 and following).

The Court of Appeal of Quebec, in Montmarquette v. Dugré, 2024 QCCA 1659, confirmed that a servitude is an indivisible obligation under Article 1519 C.c.Q. As a result, the interruption of prescription for non-use applies to all rights holders deriving from the same servitude (paragraph 12).

8. To remember

It is important to remember that when dealing with servitudes, the first step is to refer to the servitude agreement itself to fully understand its scope and implications.

Additionally, the facts of the case are always crucial in interpreting a servitude.

Finally, legal remedies are available to enforce existing servitudes[23], including injunctions. However, these remedies must be carefully tailored and precisely formulated based on the specific facts of the case, as they cannot be considered "standardized" legal actions.

NOTICE : The information in this article is general in nature and does not constitute legal advice or counsel nor does it necessarily reflect the full and exhaustive state of the law. For any legal questions specific to your situation, we recommend that you contact our lawyers.

[1] Art. 1181 al. 1 C.c.Q.

[2] Art. 1181 al. 1 C.c.Q.

[3] Art. 1183 C.c.Q.

[4] St-Amour c. Major, 2017 QCCA 555 https://canlii.ca/t/h3200, par. 66.

[5] Id.

[6] Domaine Baie Mud IOPHO inc. c. Nowacki, 2014 QCCA 1226 https://canlii.ca/t/g7ftq, par. 3-4.

[7] Art. 1184 C.c.Q.

[8] Art. 1184 al. 1 C.c.Q.

[9] Investissements A.G. Grolimond ltée c. St-Hilaire, 2009 QCCA 2356, https://canlii.ca/t/270lb, par. 25.

[10] Art. 1186 al. 1 C.c.Q.

[11] Investissements A.G. Grolimond ltée c. St-Hilaire, 2009 QCCA 2356.

[12] Art. 1186 al. 2 C.c.Q.

[13] Art. 1186 al. 2 C.c.Q.

[14] Art. 1186 al. 2 C.c.Q.

[15] Dutil c. Allard, 2020 QCCA 325, https://canlii.ca/t/j5jn2, par. 21-31.

[16] Art. 1187 al. 1 C.c.Q.

[17] Art. 1187 al. 2 C.c.Q.

[18] Bolduc c. Decelles, 2016 QCCS 2624, https://canlii.ca/t/gs1lj; See also Ferme Bruloka c. Poulin, 2020 QCCQ 2819 ;

[19] Art. 1188 C.c.Q.

[20] Art. 1182 C.c.Q.

[21] Note that the opposite (redemption by the dominant landowner) is not possible according to Kar-Oli inc. c. Boilard, 2006 QCCS 4933 (CanLII), https://canlii.ca/t/1p6xc, par. 77; Note that « toutefois, l'article 64 de la Loi sur l'application de la réforme du Code civil (L.Q. 1992, chap. 57) précise que pour les servitudes existantes, lors de l'entrée en vigueur du Code civil du Québec, la faculté de rachat ne pourra s'exercer qu'à l'expiration d'un délai de 30 ans à compter de l'entrée en vigueur du nouveau code », Dufresne-Sanfaçon c. Tremblay, 1997 CanLII 8666, par 19.

[22] Ross c. Bouchard, 2019 QCCS 712 (CanLII), https://canlii.ca/t/hxtkl : « [24] En matière de servitude discontinue, la prescription commence à courir « du jour où le propriétaire du fonds dominant cesse d’exercer la servitude »[12]. Dans les faits, ceci signifie que le point de départ de la prescription serait le jour suivant le dernier exercice utile de la servitude de passage » ; Voir aussi Vosniades c. Baillargeon, 2007 QCCS 1296 (CanLII), https://canlii.ca/t/1r0gl, par 56-58.

[23] Refer in particular to Article 953 C.c.Q.