What is a servitude and how to find out if your property is affected?
A servitude, under Québec law, is a real right established on one immovable (the “servient land”) for the benefit of another immovable (the “dominant land”). It allows the owner of the dominant land to exercise certain rights over the servient land, or conversely restricts the servient landowner from exercising certain rights. Servitudes are attached to the land itself, not to the person, meaning they continue to exist even when the property is sold.
Servitudes can take different forms depending on their purpose. Common examples include rights of way, which allow passage across a neighbouring property, or utility servitudes, such as those permitting the installation of pipelines, drainage systems, or electrical lines. Some servitudes may restrict construction or usage, for instance by prohibiting building above a certain height or within a specific area.
In Québec, servitudes are generally established by contract, by law, or by the effect of the situation of the premises. Most commonly, they are created through a notarial deed and must be published in the land register to be enforceable against third parties. Without proper publication, a servitude may not be set up against a new purchaser of the servient land.
To determine whether a property is affected by a servitude, the first step is to consult the land register. A title search will reveal any registered servitudes affecting the immovable, typically described in prior deeds of sale or specific servitude agreements. It is also important to review the certificate of location, which may identify visible servitudes or encroachments impacting the property.
Finally, even if no servitude appears clearly in the documentation, certain rights may arise from long-standing use or the natural situation of the land. In such cases, a legal analysis may be required to determine whether a servitude exists. Consulting a notary or a lawyer is often advisable to properly interpret the documents and assess the legal implications for the property.
This text is provided for legal information purposes only. If you have a specific question regarding your personal situation, please contact a lawyer.
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