VII.

Distinction between Movables and Immovables

899 CCQ: Property, whether corporeal or incorporeal, is divided into immovables and
movables.
A fundamental classification or summa divisio. Not a definition, but a
principle/description used to organize different regimes, e.g. taxation, transfers
of property. Movables and immovables are regulated by law in different ways.
Part of the droit commun or jus commune of Quebec. Also has bearing on
legislation found outside the Code. Used to solve problems in statutes, Ks, etc.
The distinction is therefore functional in nature.
Stems from Roman laws predilection toward land, symbol of wealth and power.
Physical criterion: fixity with the soil.
Any immovable is made up of movables, and any object can be moved.
Examples of incorporeal things: principal real rights in immovables
(servitudes, usufructs) and accessory real rights in immovables (hypothecs). So
corporeal and incorporeal dont necessarily mean physical entities. (See
below.)
899-907 CCQ sets out a structure of analysis to determine whether something is movable
or immovable. Replace 374-398 CCLC.
Immovables (in order of decreasing fixity with the soil):
900(1) CCQ
1. land; immovable par excellence : includes surface of soil and sub-soil
2. constructions & works of a permanent nature located thereon; participates in
fixity of soil (cant merely rest on top of the soil); immovable by adhesion
900(2) CCQ
3. plants and minerals; as long as they are not separated or extracted from the land.
(Doesnt include mines, which belong to the State.) Can become movables when
object to an act of alienation.
900(1), 901, 902 CCQ
4. things forming an integral part thereof; immovable by integration lose
individuality and ensure utility of immovable; may be temporarily detached.
(Utility must be considered in light of contemporary technology and lifestyle.)
Even if integral parts are temporarily detached (902), they retain their immovable
character if theyre destined to be put back.
903 CCQ / Act Respecting the Reform of the Civil CodeArt 48:
5. movables which are permanently physically attached, without being
incorporated (doesnt lose individuality), and serve utility of immovable, as long
as they remain there; immovable by attachment (under CCLC, immovable
by destination)

 904 CCQ: immovable by reason of the object to which it is attached

6. real rights in immovables, and actions to assert such rights or to obtain
possession of immovables (e.g. servitudes, usufructs, hypothecs)
Real rights in movable and immovable objects are classified depending on the thing to
which they are attached. A servitude is classified as an immovable as it bears upon land.
A hypothec on a vehicle (which is movable) would be classified as a movable.
Belair v. Ville de Ste-Rose (1922), Que. C.A.
Facts: City of Ste-Rose took action against Belair to recover taxes imposed on part of a
bridge that he erected between Ste-Rose and Ste-Therese. The taxing power is conferred
by the Cities and Towns Act, which contains no definition of the word immovable.
Judge turned to CCLC to ascertain scope of the term.
Issue: Is the bridge an immovable and therefore a taxable part of the municipality?
Held: Yes and yes.
Ratio (decided under CCLC):
CCLC 375: Property is immovable either by its nature or its destination or by reason
of the object to which it is attached, or lastly by determination by law.
376: Lands and buildings (btiments) are immovable by their nature.
377: Windmills and watermills, built on piles and forming part of the building, are
also immovable by their nature when they are constructed for a permanency.
Judge interpreted buildings to mean structures in CCLC 376; a bridge resting on
piers is a structure permanently affixed to the soil or bed of the river.
Quality of fixity with the soil leads to bridges classification as immovable.
In judging permanence of the property, looking for durable quality with
significant connection to the soil, rather than a temporal quality. Permanence =
placed there without the intention of moving it. Intensity, rather than permanency, of
the attachment is the most important.
CCQ 900(1): immovable by adhesion
Nadeau v. Rousseau (1928) 44 B.R. 545
Facts: Rousseau built a furnace system into a house, with an agreement with Proulx that
until the system is paid off, the Rousseau remains the owner of it. Proulx went bankrupt.
The house was seized and sold in justice to Nadeau by sheriff before payments were
finished. Nadeau claimed that the furnaces were incorporated into the house such that
they ha lost their identity and could not be revendicated.
Issue: Has the furnace system become immobilized? Can Rousseau retain ownership of
it?
Held: Yes, it is immobilized. Rousseau has no ownership claim.
Ratio:
Although the furnaces were placed in the basement and could be taken out, they
were also built into the walls, physically attached to a complicated system of

water and gas pipes. The furnaces form an integral part of the house and
therefore loses its individuality.
Judge states that in this day and age, une maison dhabitation bourgeoise
would be incomplete without a heating system; thus, the furnaces are
indispensable to it.
The agreement between Rousseau and Proulx cannot change the immovable
nature of the furnaces, which is determined by law.
CCQ 900(1), 901: immovable by integration
CCQ 2672: Moveables charged with a hypothec which are permanently physically
attached or joined to an immovable without losing their individuality and without being
incorporated with the immovable are deemed, for the enforcement of the hypothec, to
retain their movable character for as long as the hypothec subsists.
Horn Elevator Ltd. v. Domaine dIberville Lte, 1971, Que C.A.
Facts: Horn Elevator seeking order to seize elevator from building. Horn sold and
installed elevator with the clause that they would retain ownership until it is fully paid
off. Building owner went bankrupt before payment completed. Domaine has seizure
notice cancelled on grounds that the elevator is an immovable.
Issue: Is the elevator an immovable, meaning that appellant is no longer the owner?
Held: Yes, appeal dismissed.
Ratio: Elevator is integral part of a 15-storey building and completes it (same argument
as made in Nadeau). It was incorporated with the immovable and lost its individuality.
Physically connected and plays functional role. Therefore, Horn no longer owns it, the
owner of the building does.
The fact that the elevator could be removed without serious damage to the building does
not preclude it from being immobilized: parts of an immovable that are temporarily
detached retain their immovable character (902).
Comments: The integrity of the whole must be considered in terms of the buildings
destination. Things can be integral to the utility of a building without becoming
immovable, e.g. an air conditioner. A movable will become more incorporated if it was
made specifically for the immovable.
CCQ 901, 902: immovable by integration
Whether something is movable or immovable is not dependent on ownership.
Immobilization means that the initially movable thing becomes immovable in the eyes of
the law, and belongs to the owner of the immovable. When a painter arrives to paint
your house, the paint becomes incorporated with the building and the house owner
becomes the new owner of the paint by accession.
956 CCQ: The owner of an immovable becomes the owner by accession of the
constructions, works or plantations he has made with materials which do not belong to
him.

How do you reinforce the personal right of the owner of a movable that becomes
incorporated into an immovable? Through an accessory real right: a legal hypothec over
the immovable.
2724(3) CCQ: A person who takes part in construction of a building and is unpaid can
create a legal hypothec in the building.
Conventional hypothecs are established by contract. A legal hypothec is
established in the absence of an agreement by operation of law.
State-owned immovables are immune to legal hypothecs.
In this way, the law ensures that the newly formed personal right is fulfilled via
an accessory real right.
If theres already a hypothec on the building, they are settled according to the
rules delineated by the Code.