Public and Private Property in Québec

Overview

A vacant-looking parcel, an unused government building and a riverbed present different ownership questions. The public domain (domaine public) cannot be identified solely by public access, government maintenance or the absence of a visible owner. Québec civil law first asks who holds the property (biens), how the title arose and which legal restrictions attach to it. Arts. 915 to 920 CCQ connect that inquiry to property of the State, the history of concessions and the ownership and use of watercourses.

JurisClasseur Québec, fascicule 5, supplies the principal doctrinal framework for this lesson, including the historical dimension of land titles. The lesson uses that framework to organize a title investigation: identify the holder, establish the origin of the title, test any claim based on occupation, and separate ownership from permitted use. The private domain (domaine privé) refers here to property outside the State's domain. It should not be used to assume that unused State property is open to acquisition by prescription. Historical grants and special legislation can determine the result even where the current deed appears straightforward.

Learning Objectives

• Distinguish State property, property of legal persons established in the public interest, common things and private property.
• Apply the limits on appropriation and the rules governing original State titles, riverbeds and legal access to water.
• Investigate historical concessions and the former shoreline reserve without confusing the transfer of a bank with ownership of a watercourse bed.

Identifying the holder and the governing regime

State property and property devoted to public utility

Art. 915 CCQ recognizes property belonging to persons or to the State, as well as property appropriated to a purpose. The State (État) must be distinguished from a legal person established in the public interest (personne morale de droit public). That distinction affects art. 916 CCQ. The prohibition against appropriating State property by occupation, prescription or accession does not depend on proof that the particular asset is used by the public. The provision then separately addresses property of public legal persons appropriated to public utility (utilité publique).

An assessment of a municipal parcel therefore requires both the identity of its owner and the relevant appropriation to public utility. The fact that a legal person performs a public function does not allow every asset it holds to be described in the same way without investigation. Conversely, a temporary interruption of public use does not by itself establish a lawful change in appropriation. The instrument, legislation, administrative decisions and actual function of the property should be examined together. Where the characterization is contested, evidence of use and the legal basis of that use must be obtained.

Different public-law rules can govern authority to sell, grant occupation rights or transfer administration. A public body's willingness to negotiate does not prove that the person negotiating has authority to convey the property. The civil-law inquiry must be paired with the body's enabling law and the instrument authorizing the transaction. The purchaser should identify the required decision, the property description and any retained rights. A draft sale that assumes these matters can conceal a defect in the power to transact.

Common things and public access

Common things (choses communes) under art. 913 CCQ are conceptually different from owned public property. Their use is governed by laws of general interest and, in some respects, the Code. Water and air not intended for public utility may be appropriated when collected and placed in receptacles under the conditions of that article. That rule does not make a lake bed ownerless or grant a right to cross adjoining land. Classification of the water, the bed, the bank and the means of access requires separate analysis.

Public access can exist without public ownership, and public ownership does not necessarily imply unrestricted access for every purpose. A right of passage, a permit or a specific statutory right may explain a person's presence. The title question asks who owns; the access question asks what a particular person may lawfully do. The lesson on access, views and passage deals with neighbouring land and enclosure. It should be consulted when a water-access problem also involves crossing a private parcel.

Establishing the source of title

Original title and later acquisitions

Original title (titre originaire) is addressed by art. 918 CCQ. Parts of the territory that are not owned by natural or legal persons and have not been transferred to a trust patrimony belong to the State, whose original titles to that property are presumed. A claimant asserting that a parcel left the State's domain must therefore identify the legal basis of the transfer. A history of occupation, tax payments or local belief should be examined as evidence, but cannot simply be substituted for the instrument or acquisition rule required.

The presumption concerning original titles must be distinguished from a later acquisition by the State. If the State purchases land from a private owner, the transaction and the seller's title remain relevant to the acquired right. The investigation should therefore establish whether the State relies on its original domain or on a subsequent transaction. Confusing the two can lead an examiner to omit either the original concession or a later link in the chain of title (chaîne de titres).

A concession (concession) must be read with the law and conditions that governed it. The location described in a modern cadastral plan may not reproduce the legal scope of an old grant, including reserves or rights retained by the State. The examiner should compare descriptions, dates and the parties named in successive instruments. Where a plan and title disagree, the discrepancy is an issue to resolve through evidence and the applicable legal rules, rather than a reason to assume that the most recent document enlarged the grant.

Historical instruments and the chain of title

The JCQ fascicule explains why historical instruments remain relevant to current ownership. Letters patent (lettres patentes), earlier concession documents and conditions of settlement can have different roles in the title history. A complete investigation records the legal effect of each document instead of treating every document as a present-day deed of sale. The date of an original concession and the date of later letters patent may answer different questions under a statutory scheme. A title opinion should state which date is being used and why.

The current Act respecting the lands in the domain of the State, chapter T-8.1, includes provisions addressing older instruments and the former shoreline reserve. Its rules must be read alongside the actual title. Section 44, for example, addresses letters patent issued using language concerning the original acquirer's legal representatives or successors. Such a document does not dispense with identifying the current claimant's connection to the persons whose rights it recognizes. A missing link in the private chain remains a separate issue from proving that the land left the State's domain.

Historical investigation also prevents a false inference from modern administrative conduct. A public official's informal answer, a maintenance practice or a map prepared for another purpose may assist the inquiry without constituting a conveyance. Preserve the document and identify what it actually establishes. The analysis should distinguish proof of location, proof of use, proof of an administrative decision and proof of ownership. Each can be relevant, but they do not necessarily establish the same legal fact.

Testing appropriation and prescription claims

The prohibition and its statutory exception

Art. 916 CCQ lists modes of acquisition and then restricts appropriation of State property through occupation, prescription or accession. Its exception concerns property acquired by the State through succession, vacancy or confiscation while it has not been mingled with the State's other property. Both the manner of State acquisition and the subsequent treatment of the asset matter. The exception should not be described as a general permission to acquire abandoned public land. A claimant must establish the facts that bring the particular property within it.

Confiscation (confiscation) itself has a specific effect under art. 917 CCQ: property confiscated under law becomes State property or, in certain cases, property of the authorized public legal person. The possibility of a later appropriation under art. 916 CCQ is a further inquiry. The legal event of confiscation, the relevant owner and any mingling must be identified. An item held by authorities as evidence should not be assumed to have been confiscated merely because it is physically in their custody.

Acquisitive prescription (prescription acquisitive) must also be separated from extinctive prescription (prescription extinctive). Art. 2877 CCQ makes prescription applicable for and against all, including the State, subject to express legal provisions. Art. 916 CCQ supplies a restriction on appropriation; it is not a statement that every obligation or remedy involving the State is immune from all time limits. The acquisitive prescription lesson and the separate prescription lesson explain the different functions of the two regimes.

Worked example: a long-used strip beside a depot

Factual Scenario

In this hypothetical, a workshop owner has fenced and maintained a strip beside a depot for eighteen years. The deed does not include the strip. An official title search shows that the State bought the strip from a private seller before the occupation began. The depot has been closed for several years. The workshop owner argues that the closure put the strip into a private category and that possession has now produced ownership. Assume that no later sale or special statutory transfer occurred.

Riverbeds, banks and the former reserve

The Code's watercourse rules

Art. 919 CCQ addresses beds of navigable and floatable lakes and watercourses up to the high-water line (ligne des hautes eaux). It also addresses non-navigable and non-floatable waters bordering land alienated by the State after 9 February 1918, while reserving the effect of a different rule in the law or the concession. That express reservation is why the Code's date cannot be treated as the only date relevant to every shoreline file. Special legislation concerning earlier reserves may alter what accompanied the land grant.

Navigability and floatability require evidence appropriate to the watercourse and the legal issue. A recreational photograph is not a complete title investigation. The physical characteristics, relevant portion of the watercourse, historical evidence and governing law should be identified. The high-water line also requires proper location evidence. A fluctuating water level on the inspection date does not itself determine the legal boundary. An examiner may need the work of a land surveyor and relevant hydrological evidence to connect the legal rule to the parcel.

Art. 920 CCQ permits travel on lakes and watercourses subject to legal access, respect for riparian owners' rights, remaining off the banks and compliance with conditions of water use. Ownership of a riparian lot, ownership of the bed and the public ability to travel on water should therefore be analysed separately. A paddler's lawful presence on the water does not establish a right to land on any adjoining bank. Equally, a shoreline owner's objection cannot be evaluated without identifying the conduct and the right allegedly infringed.

Read the reserve and its devolution separately

The former shoreline reserve (réserve riveraine) is addressed by sections 45 to 45.5 of the Act respecting the lands in the domain of the State. Section 45 records successive rules beginning on 1 June 1884, an extension beginning on 1 January 1970, the change from 60.350 metres to 60 metres on 22 December 1977, and the end of the general reserve for sales or transfers after 17 December 1987. The rule applicable to a historical transfer must be identified before deciding what was reserved.

Devolution (dévolution) under section 45.1 is a separate step. Subject to the statutory qualifications, the former reserve that remained within the State's domain on 17 December 1987 is transferred to the holder of the letters patent or notarial act, or that holder's successors. Private-law effects operate retroactively from the date of those letters patent or that notarial act. Section 45.1.1 addresses certain descriptions or exclusions in the original instrument. The examiner must then test the exceptions and retained rights in the following provisions. It is unsafe to conclude that every former reserve is now freely usable private land without reading those qualifications.

Section 45.1 expressly prevents the devolution from transferring ownership of the beds of non-navigable rivers and lakes and their islands. A person can therefore acquire the former reserve without acquiring the adjacent bed. Sections 45.2 and following preserve specified situations within the State's domain or outside the general devolution, and section 45.3 subjects the transfer to specified occupation and use rights. Section 45.4 addresses particular public fishing access on identified lands. These are distinct mechanisms with their own factual and historical requirements.

Worked example: the deed ends at a historical reserve

Factual Scenario

In this hypothetical, a purchaser finds that an old concession beside a non-navigable lake excluded a shoreline reserve. Later deeds repeat the exclusion. The seller nevertheless claims ownership to the water and proposes a dock on the lake bed. The file contains letters patent but no analysis of the reserve legislation, exceptions or existing occupation rights. Assume that the location and historical status of the lake have yet to be verified.

Practice Checklist

• Identify the legal owner and distinguish State property from property of a public legal person.
• Obtain the original concession and later title instruments; separate title, location and use evidence.
• Test art. 916 CCQ before calculating an acquisitive-prescription period.
• Distinguish the water, bed, bank, high-water line and lawful means of access.
• Apply the historical reserve, devolution, exceptions and retained-use provisions to the relevant dates.
• Confirm both ownership and authority for the proposed transaction or activity.