Servitudes and Right of Way in Quebec

The Fence, the Neighbour, and the Seventy-Year-Old Right of Way

A homeowner builds a fence across the back of her property, blocking a gravel path her neighbour has used for decades. The neighbour produces a 1954 notarial deed granting a right of way across what is now the fenced area. The homeowner is stunned -- she bought the property five years ago and nobody mentioned a servitude. But the deed is registered. The servitude runs with the land. The fence has to come down.

Servitudes and rights of way are among the most common encumbrances in Quebec real estate, and among the most consequential when missed. They determine what an owner can and cannot do with their property, and they survive changes of ownership. Under articles 1177 to 1194 of the Civil Code of Quebec (C.c.Q.), servitudes create a permanent relationship between two properties that notaries must identify, analyze, and communicate to clients.

Definition and Nature of Servitudes

What Is a Servitude?

A servitude is a charge imposed on an immovable (the servient land) in favor of another immovable (the dominant land) belonging to a different owner (article 1177 C.c.Q.). It is a real right — a right attached to the land itself, not to the person of the owner — that runs with the land and binds successive owners.

The essential characteristic of a servitude is that it creates a relationship between two properties, not between two persons. When the ownership of either the dominant or servient land changes, the servitude continues to bind the new owners.

Distinction from Personal Rights

A servitude must be distinguished from personal rights that may grant similar practical benefits. A lease, for example, may give a tenant the right to use a pathway across neighboring land, but this right is personal and does not run with the land. A servitude, by contrast, is a permanent (or at least long-term) right attached to the dominant land.

Types of Servitudes

Servitudes by Nature

Servitudes by nature arise from the natural situation of the land, independent of any human act. The most important example is the obligation of lower-lying land to receive water flowing naturally from higher land (article 979 C.c.Q.). These servitudes exist by operation of law and do not require registration.

Legal Servitudes

Legal servitudes are imposed by law to govern relations between neighboring properties. They include obligations relating to views and windows (articles 993-996 C.c.Q.), fences and walls (articles 1002-1008 C.c.Q.), and rights of access to enclosed land.

The right of way for enclosed land (droit de passage) is particularly important in Quebec real estate. Under article 997 C.c.Q., an owner whose land is enclosed — meaning it has no access or only insufficient access to a public road — may require a passage on a neighboring property. This right of way is established by agreement or, failing agreement, by the court, and compensation is payable to the owner of the servient land.

Conventional Servitudes

Conventional servitudes are created by agreement between the owners of the dominant and servient lands. These are the most common type of servitude encountered in title searches and are established by contract, typically notarial act, and registered at the land registry.

Conventional servitudes can take virtually any form, provided they do not impose personal obligations on the owner of the servient land (article 1178 C.c.Q.). Common examples include rights of way for vehicular or pedestrian access, utility easements for water, sewer, or electrical lines, drainage rights, restrictions on construction height or building placement, and rights to install and maintain infrastructure.

Creation and Registration

Formal Requirements

Conventional servitudes are typically created by notarial act and registered at the Bureau de la publicite des droits (land registry). Registration is essential for the servitude to be opposable to third parties — that is, to bind subsequent purchasers of the servient land.

An unregistered servitude may be valid between the original parties but will not bind a subsequent purchaser in good faith who was not aware of it. This is why thorough title searches are critical — and why tools like Paraito that provide comprehensive access to registry data are invaluable.

Description and Precision

The act creating a servitude should describe the servitude with precision — its nature, extent, location, and any conditions or limitations. Vague descriptions create disputes and interpretation challenges. A right of way, for example, should specify the exact path, width, permitted uses, and any seasonal or temporal restrictions.

Servitudes by Destination of the Owner

A servitude may also arise through "destination of the owner" (destination du proprietaire) — a concept unique to civil law systems. Under article 1183 C.c.Q., when an owner of two adjacent properties establishes a permanent arrangement between them that would constitute a servitude if the properties belonged to different owners, the arrangement becomes a servitude if one of the properties is subsequently sold to a different owner, provided the arrangement was apparent at the time of sale.

Rights and Obligations

Owner of the Dominant Land

The owner of the dominant land has the right to exercise the servitude according to its terms. This right includes doing whatever is necessary for the exercise of the servitude, including maintaining the infrastructure (road, path, pipes) through which the servitude is exercised.

However, the owner of the dominant land must exercise the servitude in the manner least burdensome to the servient land and cannot increase the burden beyond what was originally contemplated.

Owner of the Servient Land

The owner of the servient land must allow the exercise of the servitude and may not do anything that would impede its exercise. However, the owner retains all rights of ownership that are not incompatible with the servitude — they can use, build on, and develop their property, provided they do not interfere with the servitude.

If the originally designated location of the servitude becomes more burdensome to the servient land due to changes in circumstances, the owner of the servient land may request that the servitude be relocated at their expense, provided the new location is equally convenient for the dominant land (article 1186 C.c.Q.).

Right of Way Specific Issues

Enclosed Land

The right of way for enclosed land (article 997 C.c.Q.) is a legal servitude that does not require registration. It arises by operation of law whenever a property has no access or insufficient access to a public road.

The right of way must be established along the path that causes the least damage to the servient land, and compensation must be paid. If the enclosure results from the owner's own actions (such as subdividing their property without providing access), the right of way may be limited.

Determining the Path

When parties cannot agree on the path for a right of way, the court determines it based on the least damage principle, the historical use of the properties, the topography and physical features of the land, and the reasonable needs of the dominant land.

Maintenance and Costs

The owner of the dominant land is generally responsible for the maintenance and costs of exercising the servitude, unless the act creating the servitude provides otherwise. For a right of way, this includes maintaining the road or path in passable condition.

Servitudes in Real Estate Transactions

Title Search Implications

Identifying all servitudes affecting a property is a critical component of the title search. Registered servitudes appear in the index of immovables at the land registry and should be identified through a systematic search.

However, not all servitudes are registered — legal servitudes and servitudes by destination of the owner may not appear in the registry. The notary must be alert to physical evidence of unregistered servitudes (such as paths, utility lines, or structures crossing property boundaries) and to references in registered documents that may indicate the existence of servitudes.

Paraito helps notaries identify registered servitudes efficiently by providing structured access to registry data, allowing the notary to focus on analysis rather than data collection.

Impact on Property Value and Use

Servitudes can significantly affect a property's value and the owner's ability to develop or use the property as intended. A servitude restricting construction height may prevent a planned building project. A right of way through the center of a property may limit development options. Utility easements may restrict where structures can be placed.

The notary must advise the buyer about the practical implications of all identified servitudes, not just their legal existence.

Seller's Disclosure Obligations

The seller is obligated to disclose known servitudes affecting the property. Failure to disclose a known servitude may constitute a breach of the seller's warranty obligations and could give rise to a claim for damages.

Extinction of Servitudes

Modes of Extinction

Servitudes may be extinguished by confusion (when the dominant and servient lands come into the same ownership), by express renunciation by the owner of the dominant land, by expiry of the term if the servitude was created for a fixed period, by non-use for ten years (article 1191 C.c.Q.), and by impossibility of exercise (when changes to the land make the servitude impossible to exercise).

Radiation from the Registry

When a servitude is extinguished, it should be radiated (cancelled) from the land registry. The hypothec cancellation procedure applies by analogy to servitude radiation. Radiation requires appropriate documentation — a deed of renunciation, a court judgment, or proof of the circumstances giving rise to extinction.

What Experienced Practitioners Watch For

Servitudes rarely cause problems when they are identified and explained before closing. The trouble starts when they are missed -- or when their practical impact is underestimated.

Watch for unregistered servitudes. Legal servitudes (like the right of way for enclosed land) and servitudes by destination of the owner do not appear in the registry. Physical evidence -- worn paths, utility poles, drainage channels crossing property lines -- should trigger further investigation.

Verify whether old servitudes are still active. A servitude extinguishes after ten years of non-use under article 1191 C.c.Q. If a registered right of way has not been exercised in decades, there may be grounds to seek its radiation -- but only with proper evidence.

Explain impact, not just existence. Telling a client "there is a registered servitude" is not enough. Explain what it means in practice: where the neighbour can drive, what cannot be built in the servitude corridor, who pays for maintenance. That is the counsel that earns trust.

Further Reading on This Site

• Location Certificate Guide -- the document that reveals servitudes, encroachments, and physical evidence of rights of way.
• Complete Guide to Title Examination in Quebec -- the systematic process for identifying registered servitudes during title search.
• Publication of Property Rights in Quebec -- why registration is critical for the opposability of conventional servitudes.
• Property Index Consultation in Quebec -- how to search the index of immovables for servitude entries.
• Usufruct in Quebec Real Estate Law -- another real right that, like servitudes, creates a charge on immovable property.

External Resources

• Civil Code of Quebec (C.c.Q.) -- full text including articles 1177-1194 on servitudes and articles 979-997 on legal servitudes.
• Quebec Land Registry -- where conventional servitudes are registered and searched.
• Ordre des arpenteurs-geometres du Quebec -- the professional order for land surveyors who identify servitudes on certificates of location.
• CanLII - Canadian Legal Information Institute -- Quebec case law on servitude creation, interpretation, and extinction.

Sources

• Civil Code of Quebec, articles 1177-1194 (servitudes).
• Article 1177 C.c.Q. (definition of servitude as a charge on immovable property).
• Article 1178 C.c.Q. (prohibition on personal obligations for servient land owner).
• Article 1183 C.c.Q. (servitude by destination of the owner).
• Article 1186 C.c.Q. (relocation of servitude at servient owner's request).
• Article 1191 C.c.Q. (extinction by non-use for ten years).
• Article 979 C.c.Q. (natural flow of water).
• Article 997 C.c.Q. (right of way for enclosed land).
• Articles 993-996 C.c.Q. (views and windows).
• Articles 1002-1008 C.c.Q. (fences and walls).

Title search tools like Paraito help notaries systematically identify registered servitudes, freeing time for the analytical and advisory work that matters most. Request a demo to see how Paraito streamlines encumbrance identification.