The perpetual servitude and resolutory condition

Gaston Litige Mediation Litigation Arbitration

On October 31, 2019, in the decision Caron v. 9072 2166 Québec Inc., the Court of Appeal clarified the principle of resolutory condition in connection with servitudes (easements).


The decision is summarized by the following facts:

The appellants sold a portion of their property in 2003 to a purchaser (the “First Purchaser”), who intended to use the property as a residence and planned to build a greenhouse.

The project of the First Purchaser required the approval of the Commission de protection du territoire agricole (“CPTAQ”) to obtain an agricultural exemption.

Because of the uncertainty regarding such exemption from the CPTAQ, the appellants granted the First Purchaser and his successors and assigns, free of charge, by means of a clause provided for in the deed of sale, a servitude to access the public road.

The deed of sale also included the following specific terms as to the exercise of the servitude:

  • in the case of the sale of the property, any new purchaser must negotiate the free element with the owner of the servient land;
  • a resolutory condition clause resulting in the automatic termination of the servitude upon the development by the First Purchaser of a private road allowing him to access his property from the public road (the “Resolutory Clause”); and
  • the exercise of the servitude at the dominant land’s owner, and his successors’ and assigns’, own risk.

Thereafter, the property was sold a few times and ended up in the hands of the respondent. However, no construction was done to access the public road, as mentioned in the Resolutory Clause.

That being said, the appellants required the cancellation of the servitude affecting their building and alleged that the sale of the property had led to the termination of the servitude. They claimed that the rights granted to the First Purchaser for the servitude were of a personal nature for him alone, and that the servitude was temporary. They alleged that the servitude had been extinguished by the express renunciation of the owner of the dominant land.

However, the respondent evoked a real and perpetual servitude that still gave him access to the public road.

Clarification of applicable concepts

Resolving condition

A resolutory condition is known as a condition which suspends the extinction of the obligation. Article 1497 of the C.C.Q. reads as follows:

“1497. An obligation is conditional where it is made to depend upon a future and uncertain event, either by suspending it until the event occurs or is certain not to occur, or by making its extinction dependent on whether or not the event occurs.”

Real and perpetual servitude

The real right is explained by the fact that a servitude constitutes an inseparable accessory of the property to which it is attached. It is therefore known as a “land to land” right.

In addition, a servitude is generally considered perpetual. Thus, in principle, successive owners enjoy or suffer any easement attached to the property.


The Court of Appeal reiterated the remarks and confirmed the judgment of the Superior Court to the effect that it was indeed a real and perpetual servitude. In other words, there were no circumstances that led to the termination of the servitude.

In response to the appellants’ claims, the Court first pointed out that the parties to the Sale Act did indeed provide the possibility of sale of the property as well as the transmission of the servitude through time. It was therefore wrong to claim a personal and temporary servitude, especially as a servitude is not for the benefit of a person but is attached to the land for the benefit of the owner of such land.

At the same time, the Court emphasized the concept of Article 1427 of the C.C.Q., which states that a contract is interpreted as a whole and that clauses cannot be taken separately. Although the act establishing the servitude contained a termination provision for the servitude, the interpretation of the act clearly demonstrated that the intention of the parties was to allow the transfer of the property without terminating the servitude.

The Court also stated that the existence of a resolutory condition did not preclude the perpetuity of the servitude. In fact, Article 1497 of the C.C.Q. provides that a resolutory condition is, by its nature, uncertain. Therefore, since the condition was never realized, it was wrong to claim that the servitude was extinguished.

Finally, with respect to the express waiver alleged by the appellants, the Court stated that there was no evidence of an express waiver by the owner of the dominant land. In addition, the Court insisted that Article 1191 of the C.C.Q. applied, which forbids the tacit renunciation of a servitude.

By Mance Ménard St-Pierre