Executive Summary: Key Legal and Evidentiary Issues

• Dispute centered on the interpretation and continued enforceability of two real servitudes created in 1955.

• Servitude of view was found to impose a height restriction on construction on the servient property, despite lack of explicit language.

• Servitudes were upheld as continuous, meaning non-use did not result in their extinction under Quebec civil law.

• The servitude of view was not limited to a single historic building, allowing future buildings to benefit from the same rights.

• Court rejected claims that the trial judge misinterpreted the servitude by failing to favor the servient tenement.

• The appeal failed to raise any manifest or determinative error justifying intervention by the Court of Appeal.

Background of the dispute

The case involves two neighboring properties in Montreal subject to a conventional servitude created in 1955. The servitude was granted by Royal Bank of Canada (predecessor of the appellant, 9083-7956 Québec inc.) in favor of Gazette Printing Company Limited (predecessor of the respondent, 9056-6316 Québec inc.). The servitude had two components: a foundation servitude permitting structural encroachment onto the servient lot, and a servitude of view allowing windows at a legally non-compliant proximity.

The servitude was intended to facilitate Gazette’s plan to expand its building by constructing an extension and adding two new floors. Gazette completed this construction in 1956 and 1959. The properties changed hands over time, but the original servitudes remained registered.

Superior Court findings

In 2024, the respondent sought a declaratory judgment to confirm the existence and extent of the servitudes. The Superior Court held that both servitudes were still valid and enforceable. The judge interpreted the servitude of view as including a restriction preventing the owner of the servient lot from building above 38.5 feet, as such construction would obstruct the dominant property’s views. The court rejected arguments that the servitudes had been extinguished by non-use or that their purpose had been fulfilled with the historic construction.

Arguments on appeal

The appellant challenged the judgment, primarily arguing that the servitude of view did not include any prohibition against building above a specified height. It contended the clause was clear and required no interpretation. Alternatively, it claimed the servitudes should be reduced or considered expired due to prolonged non-use or completion of their original purpose.

The appellant also invoked the principle that, in the event of ambiguity, servitudes must be interpreted in favor of the servient tenement.

Decision of the Court of Appeal

The Quebec Court of Appeal rejected the appeal in full. It confirmed that interpreting servitudes, like contracts, involves a factual and legal analysis of the clause and the parties’ intent. The trial judge was right to examine the context and intent behind the clause, and her findings were free of manifest or determinative error. The Court affirmed that the servitude of view includes a construction height restriction to preserve the intended benefits for the dominant estate.

Further, the Court agreed with the lower court that both servitudes were continuous in nature. Therefore, periods of inactivity could not extinguish them by prescription. It also found no evidence of any acts contrary to the servitudes’ exercise that could trigger extinction. Finally, the Court dismissed the claim that the servitudes had reached their term, finding no textual limitation tying them to a single building project.

Final outcome

The appeal was dismissed with costs. The servitudes remain valid and continue to impose obligations on the servient property, including a prohibition on construction above the defined height threshold. The Court upheld the interpretation favoring the continued full effect of the servitudes.