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I

n 1991 the Quebec Government adopted the new Civil Code which came into force on January 1, 1994. Rewriting it was a monumental task as it was a complete overhaul of the Civil Code of Lower Canada, which had been in place since before Confederation. Civil laws were updated, refined and harmonized, giving Quebeckers a solid fabric of laws with which to meet the Twenty-First Century.

One change that affects real property rights is the chapter dealing with acquisitive prescription. We have all heard phrases like "possession is nine tenths of the law" and "they got it by squatter's rights." Many of us believe that someone can claim ownership of a property simply by using it uncontested for thirty years. Based on the old civil code that might have been true, but the period of possession required for acquisitive prescription for immovables under the new civil code has been reduced to ten years.

One is most likely to encounter such a situation in relation to encroachments. Suppose your neighbour set a fence along your common property line but in fact the fence did not follow the line, veering in slightly onto your property. This is an encroachment. The property on her side of the fence, used by her family actively, would lead any casual observer to suppose that the property bounded by her fence was hers. In fact, you may know that it is not, because you may know that the fence does not follow the titled line. Let's suppose further that the fence was built in 1980. Under the old terms of the law, her family or any new owner of her property could claim ownership in 2010 provided that you never challenged the location of the fence. Under the new law, it would only require ten years from the coming in to effect of the law before the neighbour could acquire ownership, meaning that her claim to ownership by acquisitive prescription would arise in 2004.

However, ownership is not acquired by the mere passage of time. There is another step required, that of judgement. The person who wants title through acquisitive prescription must go before the courts to make a claim. But if you wait until the prescription deadline before challenging the location of the fence, you might discover that the judge is awarding title to your neighbour.

Acquisitive prescription does not apply to servitudes, and it does not apply where the parties have come to an agreement regarding the location of a fence or other encroachment. If there is an exchange of letters acknowledging an arrangement regarding the fence, this would certainly weaken any claim to acquisition that the neighbour might have, and it is possible that a simple challenge or advisory to an encroaching neighbour could recommence the ten year period from the date of the challenge. To be sure, if you have reason to believe that your property may be subject to such an acquisition, consult your notary or lawyer to make sure that you take the appropriate action. But remember that while you should not be shy to exercise your rights of ownership, mediation and accommodation generally make it easier to remain on good terms with the neighbours.

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