Water access woes
Owner ignores court, blocks deeded access to Lac Notre-Dame
Residents with deeded water access through their neighbour’s private property may find their “right-of-way” is a lot more easily obstructed than they may think and a lot more expensive to enforce.
Denise Deziel, a resident and board member of the Residents and Homeowners Association of Bishop’s Manor on Lac Notre-Dame in La Pêche, has had to learn this lesson the hard way, after purchasing her home in the community in 2016.
Deziel said that when she and her partner purchased the home, they did so in part because of a “servitude” included in her deed, which would provide her with access to a community beach located at the bottom of Chemin de Domaine.
Deziel alleges she has been harassed and intimidated by the property owner when she used the beach on the property, beginning almost immediately after she moved in, and she isn’t alone.
When Deziel spoke with The Low Down, she was joined by Marc Desrochier, the president of the RHA, and Callie Garvey, a fellow board member and resident of the community who said she no longer even tries to use the access.
When the community was originally created and lots began being divided and sold in the 1980s, each lot in the community was provided with water access through a "perpetual servitude" located on a single private lot, according to Desrochier. Over the years, the access became a “semi-private” beach, complete with picnic tables, a floating dock, and a stone fire-pit for community BBQs.
“The dock was the first to go,” Deziel recalled, adding that the BBQ followed quickly after.
"[The property owner] came in with a backhoe and leveled everything," Desrochier alleges, "he dug a big hole, dropped the BBQ in the hole, and filled it up."
Most recently, on Aug. 25, work was done on the land to remove a retaining wall and the sandy beach was covered with dirt.
‘No power to intervene’
One of the main issues for the Bishop’s Manor RHA is that all of the landscaping and construction on and near the property has been fully permitted by the municipality, even though the RHA has taken the homeowner – identified as Paul Tremblay in court and municipal permit documentation – to civil court twice, and won.
In 2018, the RHA received a judgement ordering Tremblay not to obstruct access, and in January 2021, Tremblay was found in contempt of court for “having obstructed the exercise of the easement by carrying out development and revegetation work,” and ordered to pay a $1,000 fine.
On Feb. 8, Tremblay was granted a permit from the municipality for planning and revegetation work.
La Pêche Mayor Guillaume Lamoureux told The Low Down that, when it comes to issues like servitudes, which are codified under civil law, a public body like the municipality has its hands tied.
“The municipality has no power to intervene,” Lamoureux wrote to The Low Down, after consulting with the municipality’s assistant director general and lawyer Sylvie Loubier. “In numerous cases the courts order municipalities not to intervene in matters of disagreement between neighbours.”
Lamoureux provided a briefing note from Loubier that included the example of Tousignant v. St-Jean-sur-Richelieu in 2019, where the plaintiff had sued the municipality for not intervening in a dispute between himself and another private citizen. The court concluded that the city was justified in not intervening because “rather than settling the dispute, its intervention would have the sole effect of bringing the parties back to square one.”
“Therefore, unless we have a court order allowing us to act, it is not the municipality's intention to take a position and intervene in the case,” Loubier wrote. “On the other hand, the municipality takes the liberty of strongly suggesting that the parties cooperate since, after all, they both want the quiet and peaceful enjoyment of Bishop's Manor.”
Lamoureux does note that, as part of the municipality’s overhaul of its permitting and certification, draft bylaw 101-2021 states that anytime a layout plan and location certificates are required, they must include the location of existing or projected servitudes.
“Previously, this information was only required when obtaining a permit for the expansion or construction of a primary building,” Lamoureux explained.
For now, the closest thing to a solution the municipality can suggest, that doesn’t include more civil court, comes from a quote from the Tousignant judgment, provided by Loubier: “It is sad that so much energy and resources, financial and judicial, are devoted to such a dispute, the only logical and reasonable solution of which, it must be said, depends only on the good will of the parties.”