THE SUPERIOR COURT RENDERS AN UNEXPECTED DECISION ON SERVITUDE
Is the servitude of restriction of use a real servitude or a mere personal obligation? In Société Immobilière Duguay c. 547264 Ontario Limited et al., the Superior Court of Quebec addressed this question and departed from the position previously set forth by the Court of Appeal of Québec in various cases.
In 2001, the Court of Appeal of Québec rendered a fundamental decision in Épiciers Unis Métro-Richelieu Inc. c. The Standard Life Assurance Co.. The Court held that a servitude of restriction of use prohibiting the operation of a supermarket was only a personal obligation that could not bind prospective purchasers of the land. Indeed, according to the Court’s reasoning, the required permanent character of a real servitude was absent since the restriction of use was related to Metro and its business choices, and not to a building. Subsequently, in 2012, the Court of Appeal confirmed this decision in Provigo Distribution Inc. c. 9173-1588 Quebec Inc., in which the Court held that restrictions of use are not real servitudes.
However, on May 9, in Société Immobilière Duguay Inc., the Superior Court, district of Trois-Rivières, rendered a decision which departed from the above position previously held by the Court of Appeal. In this case, the Court was faced with a deed of sale providing for the creation, on an immovable property, of a real and perpetual servitude of non-construction and restriction of use, prohibiting the establishment of a clothing business, all for the benefit of the defendant’s buildings. In this case, the plaintiff sought an order of the Court cancelling the servitude, submitting that such servitude was only established for the exclusive benefit of the defendant and not for the benefit of the dominant land. The Court concluded that all of the requirements for the creation of a real and perpetual servitude were met and therefore, that a valid real servitude existed. The Court held that the servitude was not related to the personal advantage of a designated person, but rather to the economic advantage of the dominant land, the advantage being to ensure the conservation of the “commercial mix” of the sector for the benefit of the defendant and any subsequent owner.
As this decision has been appealed, the Court of Appeal will have to modify or confirm the state of the law on the question. Commercial property owners wishing to control the use of their lots and adjacent ones to limit competition should follow the developments in this case with interest.
 Société Immobilière Duguay c. 547264 Ontario Limited et al., 2018 QCCS 2099.
 Épiciers Unis Métro-Richelieu Inc. c. The Standard Life Assurance Co., J.E. 2001-719 (C.A.).
 Provigo Distribution Inc. c. 9173-1588 Québec Inc., 2012 QCCA 241.
 Paragraph 13 of the decision: (1) there must be two lands; 2) both lands are neighbors; 3) the lands belong to different owners; (4) the servitude is beneficial to the dominant land; (5) the servitude obliges the owner of the servient land to suffer or to not do something; and (6) the servitude is of a perpetual nature.