You’ve probably heard the story of someone who built on someone else’s land by mistake and thought to yourself that this was unlikely or impossible. Well, think again. This is not a tall tale or an overstatement but a situation that frequently occurs in Quebec.
What should you do if someone has built a structure on your property or if you encroached on your neighbor’s property?
The principles of encroachment and acquisitive prescription will have to come into play to settle the issue once and for all! Did you know that after a while, you can acquire a neighbour's land on which you have built a structure?
To prove it to you, JuriGo presents in detail the process of acquisitive prescription and encroachment in Quebec!
What is acquisitive prescription in Quebec?
In Quebec, acquisitive prescription is a legal mechanism that makes it possible to acquire or lose the right to a property over time. Indeed, a person who possesses or uses a property for a certain period of time can, at the end of this period, legally become the owner of this same property, even if he was not the original owner.
Acquisitive prescription can, therefore, allow the possessor of a property to become its rightful owner, but extinctive prescription can also result in the loss of rights, such as the right to take legal action, for example.
How is it possible to become the owner of someone else's property? Because acquisitive prescription is one of the effects of possession! Possession is an established fact which is provided for in the Civil Code and which, when strictly observed, produces legal effects.
Yes, you probably suspect it, acquisitive prescription can allow you to acquire your neighbor's land by sale and by the effects of possession. JuriGo explains how and under what conditions this is possible!
Possession is the starting point of prescription!
It is essential to know the principle of possession because it is this fact that will produce the effects of acquisitive prescription! What is possession of a property?
Possession is a condition that should not be confused with ownership of a property which is rather a right. It occurs when a person has a hold on a property that does not belong to him which will have legal effects and can give him rights with regards to the property.
A person will be recognized as the possessor of property if he has two essential characteristics, namely the corpus and the animus!
The corpus is the exercise of a material hold over the property concerned. The person must have control and be able to perform material acts with respect to it in the same way as the true owner of the property would. For example, using a mower to mow the lawn.
The animus, on the other hand, is a more subjective concept that represents the will to present oneself in the eyes of third parties as the true owner of the property. The possessor who claims to hold the animus of a property must, therefore, assert his hold on the property; concerning the mower, the owner must present himself to his neighbors as the true owner of it when maintaining his peat.
The combination of the corpus and the animus must be accompanied by four conditions! For it to produce effects, the possession must be qualified as:
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Peaceful (obtained and maintained without the use of violence)
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Public (Presented for all to see)
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Continuous (Possession must not have been interrupted)
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Unequivocal (possessor's intention must be identifiable)
What happens if you own a property that meets all of these conditions? This now produces effects, namely those of acquisitive prescription! Note also that a thief can never benefit from the effects of acquisitive prescription since his possession was not through peaceful means.
When does possession start to run? It is the dispossession of the true owner of the property in question which determines the starting point of acquisitive prescription, and not the beginning of possession. This nuance is, therefore, clearly more favorable for a possessor especially since he can continue the possession initiated by another to complete the time required to prescribe.
How to interrupt or prevent the acquired prescription of a neighbor?
A prescription period can definitely start to run on the owner's dispossession but it can also be prevented in several ways!
If it is your land that risks being prescribed, the interruption could save you since it has the effect of starting the prescription period to zero!
Natural interruption consists of the owner taking back the physical possession of his property and consequently depriving the possessor of it. Concerning a building, this would be the case, in particular, of an owner who evicts the possessor of his land before the end of the 10-year prescription period. Moreover, this natural interruption must last more than a year in order to be effective.
The interruption can also be civil! This manner of proceeding consists of the filing of a lawsuit before the court to oppose the prescription of the possessor of the land. Legal action can take the form of a boundary action or a counterclaim but a simple formal notice may not be enough. However, a civil interruption of the prescription has the same effects as a natural interruption and restarts the computation of the period from zero.
Suspension can also help you since the law provides that the prescription does not run against people who are unable to act. This means that if you were not able, during the prescription period, to oppose it, you can invoke the suspension of the period to prevent the prescription of your property.
Have you been the victim of an acquisitive prescription action against YOUR property? Timelines are ticking faster than you might think, and interrupt or suspend defenses aren't that easy to invoke. Act now with a real estate lawyer!
Are you in danger of losing your property because of acquisitive prescription against YOUR property? Timelines are ticking faster than you might think. Interruption or suspension of the prescription period is not easy to invoke. Act now with a real estate lawyer!
What is the difference between prescription of land and movable property?
Now that you are familiar with the main principles of possession, it is important to understand the difference between the prescription of movable property and immovable property because the conditions and deadlines to be respected differ enormously. Here's what you need to know!
First of all, the adverse possession period is different! In real estate matters, for instance, when the situation concerns land, a house, a garage, or another structure, the ten-year prescription period must always be respected. It is impossible to prescribe immovable property within this period.
The situation is more complex in matters of movable properties! If you wish to prescribe movable property such as a mower, an ATV, or any other device that can be moved, you will have to distinguish between possessors with good or bad faith.
When the possessor behaves in good faith, the prescription period to be observed to prescribe a property is 3 years. Under Quebec civil law, the good faith of an individual is presumed and it is up to the person who alleges bad faith to prove it. On the other hand, when it is proven that a possessor behaved in bad faith, it is rather the 10-year period under the ten-year prescription that applies.
The need for judgment depends on the type of prescription! When the property concerned is immovable, it is necessary to present a request for a judicial acquisitive prescription before the court. It is different with a movable property since it is acquired automatically when the conditions of possession—whether in good faith or in bad faith—are met.
Obviously, nothing prevents the real owner from contesting the qualities of your possession before the court, whether it is the prescription of a piece of furniture or an immovable property.
Encroachment: What if a neighbor has built on a portion of your property?
Encroachment also involves the principle of acquisitive prescription. In simple terms, encroachment occurs when a structure was built on a portion of a neighbor’s land without the latter's consent. What should you do in such a case? Here is what the Civil Code of Quebec has to say on the subject!
Therefore, understand that if the encroachment is minimal and the person acted in good faith, it is the real owner who has the choice of sanctions. He can compel the encroacher to acquire the parcel by paying him the fair value or even compel him to pay him compensation.
If the encroachment is considerable, caused serious harm, or if the person acted in bad faith, the sanctions get tougher! The real owner can demand that the encroaching buildings be demolished, or even force him to acquire the entire land in addition to restoring the land to its original condition.
How does acquisitive prescription come into play? If a person has encroached in good faith on a neighbour's property over a 10-year period, it is not the provisions of article 992 CCQ that will apply but the principles of acquisitive prescription that will allow the encroacher to claim ownership of the parcel on which it was built.
Word of advice: Never build a structure without having duly analyzed the certificate of location beforehand because instances of garages built on a neighbor’s property happen more often than you think. This simple precaution could prevent years of litigation.
Do you still need the help of a lawyer to prescribe a property?
The answer depends on the type of property you wish to prescribe since the law imposes different requirements based on whether it is movable or immovable property. What is the difference in the legal process?
To prescribe movable property, judicial intervention is not necessary! Indeed, when the conditions of possession are met, a period of 3 years has elapsed (in the presence of good faith) and the prescription has not been interrupted, it is possible to become the owner of a moveable property without having to go to court.
However, when the prescription concerns real estate such as land, obtaining a judgment is necessary! This is not devoid of logic since real estate like land is expensive and involves important rights that are likely to affect third parties. This request is also necessary even in the absence of opposition.
In addition, there is a good chance that the request will be disputed! Unless you are prescribing an abandoned lot, the owner of the land is very likely to oppose your request for acquisitive prescription. It will therefore be important to find a lawyer to represent you who will be able to prove that all the elements of possession and prescription are met.
In terms of acquisitive real estate prescription, you will have to prove that you have been in possession of the land and that you have behaved like the true owner for 10 years since the dispossession of the real owner.
Proving the prescription of land or another building is sometimes a demanding burden and only an experienced lawyer will be able to prove your status as possessor-turned-owner.
Formalize your acquisitive prescription with a real estate lawyer!
Did you construct a structure on a portion of your neighbor’s land? Is your garage, house, or shed really on the boundary of an adjoining property for more than 10 years? In this case, you could benefit from the effects of acquisitive prescription and obtain a judgment officially declaring your new status as owner!
As we have explained, acquisitive real estate prescription does not become official until you obtain a judgment pronouncing your new status as the owner.
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