When checking the certificate of location for your future property, you notice that your neighbours have the right to travel across your land. This right is sometimes called a “servitude”. But what if you don’t want to have your neighbours walking through your backyard! Is it possible to put an end to this annoying situation?
When you buy a property in Quebec, you don’t become the owner of an address, but rather a lot. A lot is a parcel of land. And this lot may be affected by one or more “servitudes”. Some servitudes give rights to others. For example, servitudes can give a “right of way” to one or more people. People who have a right of way are allowed to travel across someone else’s lot in a vehicle or on foot. Another example is a servitude benefitting Hydro-Québec that gives their employees the right to access a lot to install or maintain equipment.
Some servitudes may also limit what you’re allowed to do on your own lot. For example, a no-construction servitude bans you from building anything on all or part of your lot.
Servitudes are usually created in contracts between the people involved, but they can also be created in a will or by the law. For example, the Civil Code of Québec says that if someone owns a lot with no access to public roads, one of their neighbours must give them a right of way so that they can get to the road.
How to end a servitude
You have options for ending a servitude, even in situations where the contract says a servitude is permanent. Here are the five ways you can end a servitude.
You can ask the person benefitting from the servitude to agree to end it in a contract. You can offer to give them money or not.
A servitude ends automatically when you become the owner of both the lot affected by the servitude and the lot that benefits from it. These lots are sometimes called “the servient land” and “the dominant land” respectively. For example, this could happen if you buy your neighbour’s lot.
The contract itself may give you two other ways to end the servitude. Sometimes, the contract says that a servitude is temporary or that it will expire after a certain amount of time. Other times, the contract might say that the owner of the lot affected by the servitude has the option to end it by paying a certain amount of money.
The last way to end a servitude is the most complicated: a servitude ends if it hasn’t been used for 10 years. But how can you prove this?
Gather proof of your situation
In a 2024 case, the owner of a lot in Saint-François-de-l’Île-d’Orléans asked the Superior Court to end the right of way created by a servitude affecting her property. Previous owners had created this servitude to give their neighbours access to the road. The servitude included two rights of way on the property. “Right of Way A” allowed right of way on the property from the northwest. “Right of Way B” allowed right of way on the property from the southeast. According to the current owner, “Right of Way A” had ended.
In 2021, the owner informed her new neighbours, a couple who had just bought the lot benefitting from the servitude, that they could only use “Right of Way B”. The new neighbours didn’t listen to her because they built their house based on being able to use “Right of Way A”. The owner filed a court application in 2023 arguing that “Right of Way A” had ended because it wasn’t used by the old neighbours for 10 years.
With the help of photos and testimony from the old neighbours, the owner convinced the judge that “Right of Way A” hadn’t been used for 10 years, between 2006 and 2018. This means that the servitude ended. Any use after 2018 doesn’t restart the clock, because a servitude can’t be reactivated once it has ended. The judge informed the new neighbours that they needed to use “Right of Way B” to get to the road from now on. This right of way was still active. Unfortunately, the new neighbours had the bad luck of buying a lot when one of the servitudes had ended three years ago.