Amenities form part of the regime of the Civil Code of Québec (“CCQ”) governing disbursements for “constructions, works, or plantations” on another’s property.[1] The CCQ categorizes all such disbursements into three categories: those that are necessary; those that are useful; and those for amenities. In the CCQ, the term “amenities” is used to refer to a possessor who has made disbursements for amenities for himself on another’s property.[2] This suggests that amenities comprise disbursements that are of subjective, idiosyncratic, or sentimental value to the possessor; they serve to satisfy the personal taste of the person who incurs them.[3]
Under the CCQ regime of immovable accession, improvements made by the possessor of an immovable become property of the owner of the immovable.[4] In such instances, reimbursement for the possessor differs according to the classification of the improvement as necessary, useful, or for amenities.[5] The CCQ appears to value the corresponding disbursements in descending order. To illustrate, possessors who make necessary disbursements are guaranteed reimbursement for costs, as well as, depending on the whether the possession is in good or bad faith, the fruits and revenues arising therefrom.[6] For these purposes, possession is in good faith if the possessor is justified in believing that he or she holds the real rights that are being exercised; here, the right to make alterations on the immovable.[7] Where useful disbursements are concerned, good faith possessors are guaranteed similar protections, while the owner retains some control over reimbursing bad faith possessors.[8] By contrast, there is greater variation in the regime regarding reimbursement for amenities. From the possessor’s perspective, the reimbursement (if any) available to him or her will depend on (1) whether the possession was in good faith, and (2) what the owner decides to do with the amenity. In all cases, the possessor has no control over whether an amenity is to remain attached to an immovable or removed. In addition, possessors who have made disbursements for amenities cannot, regardless of the nature of possession, retain the immovable against the owner as security for reimbursement.[9]
A possessor in good faith can expect some form of compensation, regardless of the owner’s decision to keep or remove the amenity. If the owner chooses to keep the amenity, the good faith possessor is entitled to reimbursement for the amenity he or she is forced to abandon, limited to the lesser of the cost of the amenity and the value it adds to the immovable.[10] If the owner chooses removal, the good faith possessor can expect to keep any amenities that can be removed “advantageously” from the immovable.[11] The only situation where a good faith possessor is left without compensation is where the owner chooses to remove an amenity that cannot be detached without being destroyed.[12]
The regime is much less sympathetic to the bad faith possessor. It does, however, impose passive limitations on the owner to protect a minimum range of the possessor’s rights. Thus, the owner’s primary remedy is to demand removal of the amenity and complete restoration at the expense of the bad faith possessor.[13] Only if such a restoration is impossible[14] may the owner keep the amenities without compensating the possessor.[15]
[1]Art 957 CCQ.
[2]Arts 961-962 CCQ.
[3]See also: F Allard et al, eds, Private Law Dictionary of Property and Bilingual Lexicons (Cowansville, Que: Yvon Blais, forthcoming) sub verbo “disbursements for amenities”.
[4]Art 957 CCQ.
[5]Art 957 CCQ.
[6]Art 958 CCQ.
[7]See art 932 CCQ.
[8]Contrary to the ostensible intention of the CCQ, possible defects in the drafting of art 959 result in some useful disbursements giving an inferior right to reimbursement than some disbursements for amenities. See Audrey E. Boctor & David Lametti, “Rewarding Ownership, Valuing Possessors: Making Sense of Articles 957-962 of the CCQ” in Sylvio Normand, ed, Mélanges François Frenette (Quebec: PUL, 2006) 151.
[9]Unlike good faith possessors who have made necessary or useful disbursements. See art 963 CCQ.
[10]Art 961(2) CCQ.
[11]Art 961(1) CCQ.
[12]The regime is silent on this particular outcome of cases. However, the effect of arts 961 and 962 is likely that the possessor would not receive compensation for the destroyed amenity. The requirement of “advantageous” removal in art 961 CCQ appears to apply solely to the immovable.
[13]Art 962 CCQ.
[14]The criterion for impossibility appears to be objective. Thus, in cases of the possessor’s refusal where restoration of the immovable is possible, the owner may be expected to take on restoration (either by hiring a third party or doing it him/her-self) at the possessor’s expense. See art 1602 CCQ.
[15]See art 962 CCQ.
