2011 QCCQ 17645, 2011 QCCQ 17645

Gifford c. Joanisse 2011 QCCQ 17645 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF HULL TOWN OF GATINEAU " Civil Division " No: 550-22-010011-078 DATE: December 22, 2011 ______________________________________________________________________ BY THE HONOURABLE RAYMOND SÉGUIN, J.Q.C. ______________________________________________________________________ COLLEEN GIFFORD Plaintiff v.

ROBERT JOANISSE Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ I - THE PROCEEDINGS [ 1 ] On the 4 th of January 1989, the parties bought together a farm in the municipality of Low, district of Labelle, in the province of Québec, where they lived together for approximately two years as common law spouses and gave birth to their two children. [ 2 ] In February 1992, the plaintiff left the family household. [ 3 ] On July 3 rd , 2007 the plaintiff filed a motion for partition of an undivided property, pursuant to

section 1030 of the C.c.Q. , in which he asks an order from the tribunal to sell the property by agreement and split the proceeds in half. [ 4 ] The defendant contests the motion on two grounds: first, by a cross-demand, he claims $74,640.87 from the defendant, since he assumed alone all the expenses relevant to the upkeep of the property since February 1 st , 1992 to October 1 st 2011, (19 years), for a total of $149,281.74; therefore the plaintiff should be condemned to pay half of it, being $74,640.87, as undivided co-owner; second, since he occupied alone the property for more than 19 years, he acquired the said property through acquisitive prescription, under sections 2875 and 2910 of the Civil Code of Quebec . [ 5 ] The plaintiff replies that the defendant has no right to the reimbursement of $74,640.87, since he implicitly renounced to the payment of this debt over the years, which means that his right is prescribed pursuant to

article 2925 of C.c.Q. ; furthermore, the plaintiff contends that the concept of acquisitive prescription does not apply in this case, since the prescription has been interrupted in 2001, when the plaintiff was called to sign a notarized right of way on the immoveable, in 2001. II - THE FACTS [ 6 ] The plaintiff agrees with the

summary of the facts provided by the defendant in his written arguments, as follows: For more than 19 years, he has lived on the property, had diligently paid alone all charges and expenses. During the hearing, he has manifested the belief that he does not owe any money to the plaintiff nor does he claim any against her in return. There is no violence in the circumstances surrounding the defendant's possession.

On the contrary, from the testimony of the plaintiff, it was made clear that she had left the property on her own volition, the parties' relationship having broken down to the point where cohabitation was no longer viable. In her own words, she has reiterated, on two occasions that, " I left never to return ". Indeed, true to her word, the plaintiff never again set foot on the property since her departure. The defendant's possession was known to third parties and unavoidably by the plaintiff herself.

In the defendant's mind as well as in his testimony, he has declared that the plaintiff had essentially abandoned the property and their relationship and he believed that, for all intents and purposes, thus acquired through the plaintiff's behaviour and actions over the years, full usage, enjoyment and, ultimately, all rights of ownership to said property. Since February 1992 or for more than 19 years, he

has administered and exploited the fruits of his land. He has cut the wood that was present of his lots and has raised boars and built the buildings and installations for doing so. III - THE ISSUES [ 7 ] Did the defendant acquire the property through the operation of prescription? IV - ANALYSIS AND DISCUSSION [ 8 ]

Section 916 of the Civil code of Quebec stipulates that property may be acquired amongst other means by prescription: Art. 916. Property is acquired by contract, succession, occupation, prescription, accession or any other mode provided by law. [ 9 ] The rules governing prescription and acquisitive prescription are defined as follows in the code: Art. 2875. Prescription is a means of acquiring or of being released by the lapse of time and according to the conditions fixed by law: prescription is called acquisitive in the first case and extinctive in the second. … Art. 2910.

Acquisitive prescription is a means of acquiring a right of ownership or one of its dismemberments, through the effect of possession. [ 10 ] The period for acquisitive prescription is ten years according to art. 2917 of the Civil code of Quebec . [ 11 ]

Section 921 of the C.c.Q. defines possession in those terms: Art. 921. Possession is the exercise in fact, by a person himself or by another person having detention of the property, of a real right, with the intention of acting as the holder of that right. [ 12 ] To be effective the possession must respect these specific conditions under art. 922 of the C.c.Q. Art. 922. Only peaceful, continuous, public and unequivocal possession produces effects in law. [ 13 ] The defendant refers to the following decision of Cauchon v.

Gagnon [1] where the Court of Appeal determined that exclusive possession by one undivided co-owner of the property against the other co-owners may give rise to acquisitive prescription: [9] Devant notre Cour, les appelants ne font plus cette concession et plaident que la juge d'instance a erré en invoquant les articles 992 et 2917 C.c.Q. alors que la prescription applicable serait la prescription de 30 ans des articles 2193 et 2242 C.c.B.C. et qu'au surplus, l'intimé, étant lui-même copropriétaire de la cour commune, il ne pouvait justifier une possession exclusive et non équivoque pouvant conduire à la prescription acquisitive. [10] Dans le cas de la copropriété indivise, la possession d'un des copropriétaires n'est pas équivoque ou cesse de l'être si les actes du possesseur manifestent une contradiction aux droits des autres copropriétaires et révèlent son intention de posséder à

titre exclusif. S'il établit ainsi sa possession à

titre exclusif, le copropriétaire peut alors prescrire contre les autres indivisaires et devenir seul propriétaire du bien[1]. [ 14 ] The plaintiff argues that in this case, the prescription has been interrupted, in 2001, when the defendant called her to sign a notarized right of way on the property, which gesture constitutes a recognition of her ownership, thus interrupting the prescription according to

section 2898 C.c.Q. : Art. 2898. Acknowledgement of a right, as well as renunciation of the benefit of a period of time which has elapsed, interrupts prescription. [ 15 ] It must be noted that the defendant recognizes that the plaintiff signed the said notarized right of way, in 2001. [ 16 ] The plaintiff pleads that since the prescription began to run again in 2001 following this notarized contract, the 10 year period had not been reached in 2007, when she instituted her motion, according to the dispositions of

section 2903 of the C.c.Q. : Art. 2903.

Following interruption, prescription begins to run again for the same period. [ 17 ] Furthermore, the plaintiff relies on this other ground to explain why she left the house, following the separation, in her lawyer's written argument: Furthermore, although the plaintiff did not exercise possession on her immoveable it is readily recognizable that she did not want to return to the home because of the conditions of her separation… […] In this case the plaintiff left without intention to come back because she feared for her safety and had been living in a dysfunctional relationship [ 18 ] Finally, the plaintiff concludes that the defendant could not possibly think that her sole departure granted him full ownership; consequently, he cannot be considered of good faith according to

section 932 C.c.Q. , which stipulates:

Art. 932.

A possessor is in good faith if, when his possession begins, he is justified in believing he holds the real right he is exercising… [19] The circumstances of this case indicate that one of the conditions for an effective possession is missing: that is, thepossession was not unequivocal. [20] The simple fact of the defendant when he called the plaintiff in 2001 to sign a right of way on the property shows that he wasnot considering himself as a certain and exclusive owner. [21] To sustain this conclusion, the tribunal relies on the comments of professor Pierre Claude Lafond who writes in Précis dedroit des biens[2]: 553 – Il est indispensable que la possession soit certaine et exclusive.

L'interprétation du comportement du possesseur doit tendreuniquement vers la titularité du droit. Elle devient équivoque lorsque les actes du possesseur ne révèlent pas suffisamment son animus etpeuvent s'interpréter de diverses façons. C'est le cas lorsqu'ils ne supposent pas nécessairement chez lui la prétention à un droit exclusif. • Letellier de Just c. Placements d'Abraham inc., (QC CS), [2001] R.D.I. 65, REJB 2001-22314 (C.S) (possessionéquivoque). • Levasseur c.

Defoy, (QC CS), REJB 2001-27013 (C.S.) (possession équivoque). • Lessard et Meldrum, (QC CS), [2003] R.D.I. 323, REJB 2003-40378 (C.S.) (en l'espèce, le tribunal confondmalheureusement le vice d'équivoque et la précarité du droit, qui constitue la négation de toute possession). • Paquette c. Robillard, B.E. 2005BE-831, REJB 2005-92873 (C.Q.). • Christian ATIAS, Droit civil – Les biens, 7e éd., Paris, Litec, 2003, p. 231. • Pierre MARTINEAU, Les biens, 5e éd., coll.

« Cours de Thémis », Montréal, Éditions Thémis, 1979, p. 58. [22] Consequently, the Tribunal rejects the said defence of acquisitive prescription, declares both parties co-owners of the saidundivided property and orders the partition according to the prescriptions of the Title six of the Civil code of Quebec. [23] THEREFORE, THE TRIBUNAL: DECLARES the parties undivided owners of the property described hereafter: ORDERS the partition of the undivided property described as: All the property known and designated as:

a) A certain parcel of land being part of lot FOUR (4 pt), in range Two (R. II), township of Low, of rectangular figure, measuringthree hundred and fifteen feet (315') in the East and West lines; nine hundred and thirty-six feet (936') in the North and South lines,english measure more or less and bounded as follows: to the North, by lot 3 of said range and Township; to the East, by the division linebetween ranges 1 and 2 hereinafter described in paragraph c); to the South, by part of same lot being partly the property described inparagraph

b) partly the property of one named Swinburne or representatives; to the West, by part of same lot, property of one nameFijalkwski or representatives.

b) Another part of said lot FOUR (4 pt), Range TWO (R. II), Township of Low and also a part of lot FIVE (5 pt) of said range andTownship, of irregular figure, and contained between the following boundaries; to the North, by part of lot 4 hereinabove described inparagraph a); to the East, by the parcel of land hereinafter described in paragraph c); to the South by Martindale road; to the West, part ofsame lots 4 and 5, property of one named Swinburne or representatives.

The measurements are approximately three hundred and twelvefeet (312') in the North line; four hundred and fifteen feet (415') in the East line; three hundred and twenty-five feet (325') on the roadand five hundred and twenty-five feet (525') in the West line, English measure, more or less.

c) Lot FOUR (4), Range ONE (R. I), Township of Low, SAVE AND EXCEPT the following: - Part sold to Eldon McCorkell, as per deed registered at the Gatineau registration division on the 15th of August 1978, undernumber 158-019. - Part sold to Mark Legault as per deed registered at said registry office on January 11th 1980, under number 170-634. The whole containing 73.79 acres more or less.

With buildings thereon erected, members and appurtenances; ORDERS the sale by agreement of the immovable property described above; ORDERS the nomination of the notary Jacques Marcel Ste-Marie to act as the practitioner of the sale with the power to operate thepartition according to the title six of the Civil code of Québec (partition of successions). THE WHOLE WITH COSTS against the defendant.

__________________________________ RAYMOND SÉGUIN, J.C.Q. Me Vendelin Weber ALBERTI WEBER, Attorneys For the Defendant Me Lora Houle Me Wayne Lora For the Plaintiff Date of hearing: October 13 st 2011