Solving Property Line Problems the Quebec Way

Proud of its English and French roots, Canada has two juridical systems that reflect this dual heritage. While Anglo-Saxon provinces function under a civil law system that draws from the principles of common law, the Province of Quebec, with its French majority, has a system that is based on the Napoleonic code. In the matter of bringing about the resolution of property line conflicts, the Napoleonic-derived civil code of Québec has some interesting provisions that are, for the most part, unknown to surveyors practicing under the common law system. The following is a brief overview of the situation and its major issues.

Bornage

To most surveyors trained under the common law system, bornage1 is unknown and, for those few who have heard of it, it can seem quite exotic2. Nevertheless, it is a very interesting tool that allows for the amicable resolution of conflicts pertaining to the location of boundaries, known as a bornage under a private agreement. It also provides for judiciary intervention if required, which transforms the process into a judiciary demarcation. The surveyor is called upon to play a major role in this process. Let's take a closer look.

Bornage involves two distinct and consecutive steps: 1) delimitation, which is the intellectual process of re-establishing a boundary. This culminates in the production of minutes of the surveyor's operations, to stand in lieu of a report, hereinafter called the expert report. This is followed by 2) demarcation, the technical process by which the limits take on physical attributes through the installation of boundary markers. This step culminates in the production of the minutes of the determination of the boundaries.

Provisions for bornage are made in the Civil Code of Quebec (C.C.Q.)3 and its companion, the Code of Civil Procedure (C.C.P.)4. These two acts, fundamental to Quebec law, along with the Charter of Human Rights and Freedoms5 and general rules of law, govern people, the relationships between persons, as well as property.

During the course of relationships between neighbors, situations may arise where the common limit between two properties becomes the subject of litigation, either because the original boundary markers (or bornes) have disappeared, have been moved, are doubtful, or simply do not exist. This situation is less than desirable. The civil code of Quebec provides for this by stating that, "Every owner may compel his neighbour to have the boundaries between their contiguous lands determined in order to fix the boundary markers, set displaced or missing boundary markers back in place, verify ancient boundary markers or rectify the dividing line between their properties."6 This obligation takes the form of a formal notice to perform a bornage7 , but this may be substituted by a private agreement to perform a bornage.

At this stage, it is imperative that the parties agree on the choice of a surveyor. Failure to do so will result in the competent tribunal substituting itself to the parties and appointing a surveyor, after having ruled on the right to bornage8. This is one of the objectives of the formal notice, which includes a delay before the party that has given notice may ask the court for a motion to institute proceedings, if the parties do not agree on the choice of a land surveyor and/or the right to a bornage. If, at this stage, the parties agree on the right to a bornage and on the choice of a surveyor, the process becomes a bornage by private agreement. If the surveyor is chosen by the court, bornage is then said to be done by judicial decision. In both cases, the surveyor becomes the expert for both parties as well as an auxiliary of the court, because, as we see below, even a bornage by private agreement can later find its way to court.

Whether the bornage is done through private agreement or through the judiciary, the selected or appointed surveyor will proceed as per his oath of office as would an expert9. He must consider the recorded, factual and testimonial evidence. He must, among other things, study the titles, the cadastre, and all pertinent documents, and he must record the claims of the parties and their witnesses as well as perform a field investigation and a survey of all assertions of rights and evidentiary elements.

As an expert, the surveyor's far-reaching powers come with great responsibilities. He must produce an expert report in which he must set forth the claims of the parties, as well as his opinion on the position of the boundaries. He must detail and justify his opinion so that the court may appreciate the facts10, even if the bornage is done as a private agreement. The surveyor is an auxiliary of the court, and, as such, is not an ordinary witness. On the subject of surveyors, Justice Ross Goodwin11 states the following:

"Without expanding at length on the subject, any expert, whether he appears at the behest of one party or the other, has but one mandate: that of enlightening the Court through his particular experiences and studies. As soon as he is recognized, the expert is the only witness who may express an opinion. The surveyor has been assigned a particular role by the legislator. Whether appointed by the Court or accepted by the parties, his report takes on a special character. He does not hold the title of Judge. He does, however, perform the investigations and analysis pertaining to the land and titles. He furthermore gathers testimonies under oath within a framework similar to that of a judicial hearing. He is bound to abide by the fundamental rules of natural justice. He appreciates the evidence and other elements brought to bear by the parties. His conclusions are drawn up in a fashion that they may become enforceable through consent of the parties or by a decision of the Court." (Unofficial translation)

The surveyor's report is, first and foremost, intended for parties who may be ignorant of the principles of law and of surveying that determine the delimitation of their land and, eventually, intended for a judge who is not necessarily familiar with surveying techniques. The surveyor has a duty to enlighten them through the expert report. A complete, well supported, and convincing report can prevent litigation from finding its way to court. If, despite the arguments and the demonstration of facts, the report is sent to the courts, the judge must be able to find the elements he will require to hand down a judicious decision.

The expert report is provided to the parties12 for disposition according to procedure, as we see further on. The mandate of the surveyor is fulfilled with the production and submission of the export report. The opinion, as delivered by the surveyor, on the location of the limits, is a circumstantial analysis of facts and evidence leading to the determination of a property line. The expert report is not binding.

Upon receipt of the report, the parties can concur with the recommendations of the surveyor. In this case, a covenant, specifically stating the agreement of both parties, is entered into. It mandates the surveyor to lay bornes (or boundary markers) and to prepare the minutes of the determination of the boundaries. This is a distinct mandate that can be assigned to another surveyor.

Should the parties disagree, one of the parties may refer to a tribunal of competent jurisdiction13. The expert report is then submitted to the court who will render a judgment. Since the surveyor is considered an expert by both parties as well as auxiliary of the court, his report carries much authority. Barring obvious procedural errors, the surveyor's report is always received favorably by the court on questions of facts, the questions of law always remaining the domain of the court. Nevertheless, this does not exclude the possibility that one of the parties may challenge the facts as reported by the expert. In its decision, the court will determine the line of demarcation it judges to be the most appropriate under the circumstances and will order the surveyor to proceed with the abornement (the process of setting boundary markers) and to prepare the minutes of the determination of the boundaries.

The bornes (boundary markers) are set in the presence of witnesses, after the parties have been duly informed of the date of said abornement. As soon as possible after the bornes have been set, the surveyor prepares minutes of proceedings that must be signed by both parties. Failure to act by the parties at this point can result in the report being admitted to probate by the Court. The duly ratified minutes of determination of boundaries must then be published in the Land Register14.

There are three key moments during the procedure when the process can result in legal proceedings:

  1. after the delivery of a formal notice, if the parties do not agree on the choice of a surveyor;
  2. after production of the expert report, if one of the parties does not agree with the surveyor's opinion as to the position of the boundary;
  3. after the setting of survey markers, if one of the parties refuses to sign the minutes of determination of boundaries

Under all other circumstances, the determination of boundaries will be considered as a demarcation of boundaries by private agreement.

The costs of determining boundaries are common15, generally being shared proportionally. Furthermore, the expert reserves the right to recovery jointly against all parties involved16.

Bornage is a procedure where the surveyor is called upon to play his role of arbiter of property rights boundaries to the fullest. Undeniably, it provides a solution to the ever-present problem of conflicts pertaining to the limits of land possessions. Although bornage is unique to Québec in Canada, its principles are shared across all Canadian jurisdictions:

  1. Surveyors must be impartial,
  2. Re-establishment principles respect original monumentation,
  3. Questions of fact are distinct from questions of law, and
  4. Issues can always be referred to court.

It is a great tool to resolve property limit problems "the Québec way."

Click here for this article in French 

About the Author

Daniel Fortin, CLS, A.-G., is the Association of Canada Lands Surveyors past president. He has a Bachelors Degree in Applied Sciences (surveying) from Laval University, is a member of the Ordre des Arpenteurs-géometres du Québec (OAGQ) since 1982, and has held a Canada Lands Surveyor's Commission since 1995. He has been in private practice for 20 years before joining the Federal Public Service in 2002. He presently leads the Strategic Development and Liaison Unit at the Canada Centre for Cadastral Management. He gave continuing education courses to members of the OAGQ in subjects such as the "bornage," property rights, and principles of delimitation.

Endnotes

  1. Since there is no satisfactory English translation of the word bornage, the French term will be used in the current text. Reader should keep in mind that bornage is actually a boundary dispute resolution process and does not refer to the placement of original monuments.
  2. Sharing the same French heritage, the state of Louisiana also governs civil rights through a civil code. A few old judgements of the Supreme Court of Louisiana dealt with bornage: AM Gray v. Celeste Couvillon, August 1857; Henderson v. St. Charles Church, June term 1828.
  3. R.S.Q. c. C-1991 (http://www.canlii.org/qc/laws/sta/c-1991/20070813/whole.html)
  4. R.S.Q. c. C-25 (http://www.canlii.org///qc/laws/sta/c-25/20071114/whole.html)
  5. R.S.Q.. c. C-12 (http://www.canlii.org/qc/laws/sta/c-12/20071213/whole.html)
  6. S. 978 C.C.Q.
  7. S. 787 C.C.P.
  8. S. 787 C.C.P.
  9. S. 787 C.C.P.
  10. S. 421 C.C.P.
  11. Ruest c. Groupe Gestion 2000 inc. [1997] R.D.I. (C.S.) p. 239
  12. If the process is judiciary at this stage, a copy must be remitted to the Court.
  13. S. 790 C.C.P.
  14. According to s. 2813 C.C.Q., the minutes of determination of boundaries is an authentic act. It carries as much authority as official documents issued by the government of Canada or of Québec, such as letters patent, orders and proclamations.
  15. S. 793 C.C.P.
  16. S. 422 C.C.P.

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