Practical Guide
Hidden Defect Found During a Renovation in Quebec
The wall is open, the crew is on site, and behind the drywall there is a crack nobody saw before the purchase. The …
A fence quarrel never stays between two neighbours. It ends up in the certificate of location, in the Déclarations du vendeur, and then on the notary’s table when the buyer learns about it four days before signing. Here is what the Code civil du Québec actually allows, what the City refuses to decide, and what has to be put in writing when the property sells.
Neighbour disputes: article 976 does not require proving fault
The text fits in one sentence. Article 976 of the Code civil du Québec: “Neighbours shall suffer the normal neighbourhood annoyances that are not beyond the limit of tolerance they owe each other, according to the nature or location of their land or local custom.”
What follows is less well known. In Ciment du Saint-Laurent inc. v. Barrette, 2008 SCC 64, the Supreme Court of Canada recognized two distinct regimes in Quebec: civil liability founded on faulty conduct, and a no fault liability regime founded on the measure of the annoyances suffered by the victim, under article 976. The Court writes that the very wording of that article requires no proof of faulty conduct, and that an owner who causes abnormal annoyances without any intention to harm is not for that reason abusing his right.
In practical terms: “my neighbour complies with every by-law” is not a complete defence. What gets measured is the result suffered, not the conduct.
The bar is not low for all that. Éducaloi sums up the conditions: you need an annoyance that is continuous or repetitive, real and serious, assessed against the local environment, since what is normal in a farming setting may not be in an urban one. Éducaloi also points out that a neighbour is not necessarily adjacent: a court has already treated two people 1.5 kilometres apart as neighbours, and a neighbour can be a business.
Two classic subjects are handled elsewhere on this site: noise, in noise and soundproofing in a condo, and branches, roots and the felling permit, in cutting down a tree in Quebec.
Views and distances: the one metre fifty rule
This is the rule that delays sales, and it is written down in black and white.
Article 993: no one may have direct views on the neighbouring land less than one metre fifty from the dividing line. That rule does not apply where the view is on a public road or a public park, or where it is a solid or translucent door.
Article 994 says how to measure: from the exterior facing of the wall where the opening is made, perpendicular to it, up to the dividing line, and from the outer line if there is a projecting window. Article 995 allows translucent fixed lights in a wall that is not a common wall, even less than one metre fifty away. Article 996 leaves no room: a co-owner of a common wall may not make any opening in it without the other’s agreement.
Why this matters in a transaction. Éducaloi indicates that the situation is corrected by signing a document with the neighbour at the notary, and that without that the problem can prevent or delay the sale of the property. A sunroom added without checking the distance, a glass door cut into a side wall: those files surface at the time of the title examination.
Common fence, common wall and the dividing line
Article 1002 grants two rights, not one. Every owner may fence his land at his own expense. He may also compel his neighbour to make on the dividing line, half and half or at shared expense, a fence to divide their lands which takes into account the situation and use made of the premises. A neighbour who refuses to pay does not automatically have the last word.
Article 1003 sets out the presumption: a fence on the dividing line is presumed to be common, and a wall against which buildings are erected on either side is presumed to be common up to the point of disjunction. Article 1006 puts the maintenance, repair and rebuilding of a common wall on the owners, in proportion to each one’s right, and allows an owner who does not use it to abandon his right through a notice filed at the Bureau de la publicité foncière (the land registry office).
The trap at the outset: the fence is not the line. Article 977 specifies that the limits of land are determined by the titles, the cadastral plans and the boundary markers of the land. Article 978 allows an owner to compel his neighbour to have the boundaries determined, after a demand letter to consent to the boundary determination and to agree on the choice of an arpenteur géomètre (land surveyor). The minutes of the boundary determination have to be entered in the land register.
When a structure crosses the line, Éducaloi describes the options according to the seriousness and the good faith of the neighbour: a sum of money for the loss of land, purchase of the encroached portion, or, if the encroachment is deliberate or causes serious inconvenience, removal of the structure and restoration of the premises. Those agreements get signed at the notary. An out of date certificate of location is the starting point of a good share of these files, and the list of checks to make before an offer is in the buyer’s guide.
What the City handles, what the court handles
This is the costliest confusion in time. The City applies its by-laws. It does not decide your private rights.
On its page devoted to fences and hedges, the Ville de Montréal is explicit about the dividing line between two lots: “The Ville de Montréal has no jurisdiction in this area.” It refers readers to the Quebec government site. What it does govern is maximum heights, generally 0.90 m in front and 2 m in the back and side yards, the requirement of a permit depending on the borough, and the mandatory fence around a pool under the Règlement sur la sécurité des piscines résidentielles.
| The problem | Who can act | What it produces |
|---|---|---|
| Height, material, fence permit | City or borough | Compliance required |
| Nuisance covered by a by-law | City or borough | Statement of offence, order to correct |
| Location of the dividing line | Arpenteur géomètre, then court | Boundary determination in the land register |
| View less than 1.5 m, encroachment | Notary by agreement, otherwise court | Published deed or judgment |
| Indemnity for the disturbance suffered | Small claims or Cour du Québec | A sum of money |
Mediation then small claims: the real recourse and its ceiling
The sequence always starts the same way. You talk to the neighbour, you write, you send a demand letter. Éducaloi lays it out in that order and adds that if negotiation and the demand letter fail, you go to court to be compensated, to have the disturbance stopped, or to compel the neighbour to act.
Mediation is no longer optional below a certain threshold. According to the ministère de la Justice, mediation is mandatory in small claims for claims of $5,000 and less, not counting interest, and voluntary above that. It is free: the mediator’s fees, generally a lawyer or a notary, are paid by the ministère for a maximum of 3 hours. It applies in every judicial district, its rollout having run from November 2023 to March 2026. Without an agreement, the file is transferred automatically to arbitration where it is eligible, and an unjustified absence leads to the same transfer.
Then the ceiling. The maximum amount claimable before the Division des petites créances of the Cour du Québec is $15,000, without counting interest. You cannot split a claim into several causes of $15,000 or less. You can, on the other hand, voluntarily reduce your claim to stay in small claims, by saying so in the application.
Two clarifications are in order. Small claims decide a claim for money: if what you want is to have the disturbance stopped, a structure removed or a window corrected, it is a lawyer who has to tell you which court to file in and in what form. And nobody can guarantee you the outcome. Whether an annoyance is abnormal is assessed case by case, with dated evidence, witnesses and often an expert report.
Neighbour disputes and the sale: what gets declared on the DV form
The Déclarations du vendeur sur l’immeuble form, DV 00001, is mandatory for a mainly residential immovable of fewer than five dwellings, outside divided co-ownership, and it gets filled out with the brokerage contract. The OACIQ writes that these declarations reduce the risk of a lawsuit over bad surprises, and that the seller answers every question to the best of his knowledge and in good faith, provides the available documents and details his answers in section D15.
Here is what sellers do not know: the form asks no question using the word “dispute.” A neighbour conflict therefore has no box of its own. It gets declared elsewhere, and that is exactly where the omissions happen.
- D2.8: hypothecs, servitudes, encroachments or other charges.
- D2.10: since the acquisition, has the parking, the right of way, the fence, the hedge or the retaining wall separating you from your neighbour been changed, moved or replaced by you or by your neighbour.
- D2.11: addition or modification of windows, a pool, a shed, fences, a deck, hedges, retaining walls.
- D2.12: notice of non-compliance received from an insurance company, from the municipality or from the government.
- D14.5: any other element that could have an impact on the value of the immovable, the income it generates, the expenses it entails or the use that can be made of it.
- D15: the details, with the number of the clause concerned.
The form adds that a positive answer to D2.8, D2.9, D2.10 or D2.11 may make a new certificate of location necessary. A demand letter received from the neighbour, a verbal understanding about maintaining a fence, a boundary determination never completed: it gets said, and it gets said in writing. What a seller knew and did not declare gets argued afterward, and that characterization belongs to a lawyer.
On the buyer’s side, five questions before the offer, asked in writing through your broker. Has a demand letter been sent or received concerning the immovable? Is a file or a complaint open at the City? Are minutes of a boundary determination entered in the land register? Is there a notarized agreement about a view, an encroachment, a right of way or the common ownership of a fence? Does the certificate of location show the fence in its current position? A vague answer justifies having the file checked by a lawyer or a notary before you commit.
Frequently asked questions
My neighbour put his fence 30 cm onto my land. Can I remove it myself? No. You notify him, then you establish the real line through a boundary determination with an arpenteur géomètre, whose minutes are entered in the land register. What follows ranges from an indemnity to buying the strip of land to removing the structure, depending on the situation.
I am selling. Do I have to mention a conflict that is not before a court? The DV form has no “dispute” box, but it has D2.10, D2.12 and D14.5, and section D15 exists precisely to explain a situation. A disagreement touching the fence, a view, a right of way or a notice from the municipality gets told there, with the documents.
Can the City settle my property line quarrel? No. The Ville de Montréal writes that it has no jurisdiction over the dividing line between two lots. It applies its by-laws on height, material and permits. The rest falls under the Code civil du Québec and the courts.
Does a neighbour dispute lower the price of my house? No public Quebec data lets me put a number on that effect, and I will not invent one. What I do see is that an undocumented file makes a buyer back away at the time of the title examination, later and more painfully than a disclosure made at the start.
To round this out, read the Déclarations du vendeur form and the documents to gather before the first meeting.
Is a neighbour conflict complicating your sale, or worrying you before an offer? Write to me. I check the certificate of location, the declarations and the municipal by-law before you sign anything at all.
Georges Matar
Residential Real Estate Broker · RE/MAX DU CARTIER INC.
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