2013 QCCQ 15972, 2013 QCCQ 15972

Tamagor Association inc. c. Teichman 2013 QCCQ 15972 COURT OF QUÉBEC Small Claims Division CANADA PROVINCE OF QUÉBEC DISTRICT OF HULL TOWN OF GATINEAU Civil Division No: 550-32-020752-124 DATE: December 12, 2013 ______________________________________________________________________ BY THE HONOURABLE SERGE LAURIN, J.C.Q. ______________________________________________________________________ Tamagor Association Inc. 79, chemin Rouge Gorge Val-des-Monts (Qc) J8N 6E7 Applicant v.

Wolf Von Teichman […] Toronto (On) […] Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Tamagor Association Inc. (Association) is suing Mr. Teichman for his share of expenses related to the care of a private road, which constitutes a right of way. The Association is responsible for maintaining this access since 1982. Mr. Teichman refuses to pay and says that he's not a member of this Association and never paid any fees.

He feels his lot is worthless. [ 2 ] Mr Teichman files a counterclaim against the Association for abusive procedures. QUESTIONS IN DISPUTE [ 3 ] The Court has to decide if the Association is entitled to claim Mr. Teichman's share of expenses for maintaining the private road and the fees related. [ 4 ] The Court also has to decide if the counterclaim is well founded. THE FACTS [ 5 ] The facts can be summarized as follows. [ 6 ] Mr. Teichman purchased from McGregor Lake Pines Limited, lot 10-12 Township of Templeton, registry division of Hull, on the first day of February 1978.

The transaction was signed before a notary and the defendant is identified as '' hereinacting and represented by Mrs. Raymonde Charron ''. Mr. Teichman never contested the deed of sale and is still the owner. According to a document from the municipality of Val-Des-Monts, he is obliged to pay municipal taxes on his lot. [ 7 ] Mr. Teichman is bound by a special clause written on page 5,

section 7 of the deed:

« To subscribe yearly the annual fee required by the ''Property Owners Association of McGregor Lake Pines'' in view of assuring the protection of the wildlife, restoration of fish in the lakes and to safeguard generally the interests of said property owners. » [ 8 ] The evidence shows that in order to access his lot, Mr Teichman needs to circulate on private roads, which are maintained in good condition by the Association. ANALYSIS Principal claim [ 9 ] Different sections of th e Civil code of Quebec [1] are applicable in this situation, namely : « 997.

The owner of land enclosed by that of others in such a way that there is no access or only an inadequate, difficult or impassable access to it from the public road may, if all his neighbours refuse to grant him a servitude or another mode of access, require one of them to provide him with the necessary right of way to use and exploit his land. Where an owner claims his right under this article, he pays compensation proportionate to any damage he might cause. » « 1000.

The beneficiary of a right of way shall build and maintain all the works necessary to ensure that his right is exercised under conditions that cause the least possible damage to the land on which it is exercised. » « 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. 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. » [ 10 ] Also, the Court would wishes to quote

section 1493 concerning the unjust enrichment: « 1493. A person who is enriched at the expense of another shall, to the extent of his enrichment, indemnify the other for his correlative impoverishment, if there is no justification for the enrichment or the impoverishment. » [ 11 ] Finally,

section 2925 is also of interests : « 2925. An action to enforce a personal right or movable real right is prescribed by three years, if the prescriptive period is not otherwise established. » [ 12 ] In this file, Mr. Teichman is bound by the servitude he granted in the deed of sale. Although the Association was not in operation at the time of the sale, the clause is established in a pre corporate contract. Once a corporation, in favour of the clause, becomes enforced, the servient party is bonded to the corporation. [ 13 ] In order to access his lot by car or walk, Mr.

Teichman needs to use the private roads that have to be properly preserved and kept in good condition. The Association is entitled to claim these fees to Mr. Teichman. [ 14 ] Unfortunately, the Association did not proceed against Mr. Teichman in the requested delay and lost the right to sue as prescribed in

section 2925 C.c.Q. . In this case, the Court can grant the Association's claim for expenses relating to the last four years as described in the second notice from the Association dated May 29, 2012. [ 15 ] The Court grants reimbursement for the years 2009 (80 $), 2010 (80$), 2011 (80 $) and 2012 (120 $). Because Mr. Teichman did not sign a convention of interests, the Court cannot grant interest other than the legal interest rate and the additional indemnity provided by

section 1619 C.c.Q. . Counter claim [ 16 ] Concerning the counterclaim dated November 25, 2013, the defendant asks 1 031,33 $ for abusive procedures and excessive and aggressive use of the legal system. The Court concludes that the letters and notices of the Association and the present claim are neither excessive nor abusive. Mr. Teichman did not, beyond the balance of probabilities, prove his claim. The Court rejects the counterclaim. FOR THOSE GROUNDS, THE COURT: [ 17 ] CONDEMS the defendant to pay to the plaintiff the sum of 360 $ plus interests at the rate of 5% yearly and the additional indemnity provided by

article 1619 of the Civil code of Quebec starting December 11, 2012 and the judicial fees of 152 $; [ 18 ] REJECTS the counterclaim of the defendant.

__________________________________ Serge Laurin, J.c.Q. Date of hearing: November 25, 2013