Expropriation: Understand your rights, obligations and how the process works

Receiving a notice of expropriation can be a stressful and bewildering experience, and understandably so. Having your property taken away against your will at a time you did not choose can take a heavy emotional toll. A clear understanding of your rights, your obligations and how the expropriation process works can help you make the best of this difficult situation.

In recent years, the Government of Québec has enacted a number of laws^[1] that have had a significant effect on certain expropriation rules. Expropriation is a complex process and it is important to have a knowledgeable team on your side. At De Grandpré Chait, our Municipal Law and Expropriation team has a wealth of experience in this area and would be happy to help you navigate this process and receive full and fair compensation for your losses. This article will help you understand the basics of the expropriation process.

What you will learn:

●     What is expropriation?

●     How does the expropriation process work?

●     What are the possible remedies for expropriation?

●     How can a lawyer from De Grandpré Chait help me?

What is expropriation?

The right to own property is a fundamental right under the Quebec Charter of Human Rights and Freedoms.^[2] Furthermore, article 952 of the Civil Code of Québec states that “no owner may be compelled to transfer his ownership except by expropriation according to law for public utility and in return for a just and prior compensation.”^[3] Expropriation means legally acquiring property without the consent of the owner or the holder of the real property right.

Who has the right to expropriate property?

Most public bodies and some semipublic agencies have expropriation powers. In Quebec, this mainly includes the municipal and provincial governments,but public transit authorities,^[4] Hydro-Québec^[5] and certain private organizations that have government authorization may also have the right to expropriate property

What are the possible grounds for expropriation?

Expropriation is only allowed for reasons of public interest. Usually, this can be determined by examining the intentions of the organization doing the expropriating. For example, under section 570 of the Cities and Towns Act, a municipality may expropriate property to carry out roadworks, create a park or transfer the property to a school or social services centre.^[6]

In general, if an organization has the power to acquire property for a public purpose by negotiating an agreement, it also has the power to expropriate property for that same purpose.

What kind of property does the right to expropriate relate to?

Expropriation may relate to immovable property or to a dismemberment of the right of ownership, and may also relate to movable property that is accessory to the immovable property being expropriated.^[7]

Immovable property can mean land only, or land with a building or other structure on it.^[8]

The dismemberments of the right of ownership are usufruct, use, servitude and emphyteusis.^[9]

How does the expropriation process work?

What is a notice of expropriation?

The expropriation process begins when a bailiff serves a notice of expropriation to the owner of the property (or dismemberment thereof). This document identifies the lot number of the property that is being expropriated. The property is described using its cadastral number. Sometimes, expropriation can apply to part of the property only. In this case, the part of the property being expropriated will be specified in a technical report signed by a surveyor. The notice of expropriation always includes a plan of the property being expropriated.^[10] Then, the expropriator must register the notice in the land register.

The notice of expropriation also contains the specific reasons for the expropriation and must usually state that the owner has 30 days to contest it.^[11]

Finally, the notice of expropriation states that the owner has 15 days to provide the expropriator with the names and addresses of all lessees, the nature, date, term and rent for each lease, the names and addresses of all occupants in good faith, and the conditions on which they occupy the premises.^[12]

This is so that the expropriator can also send a notice to these people to inform them of the expropriation process underway.

In some circumstances, the notice of expropriation may also contain a request for other information from the expropriated owner, tenant or occupant in good faith, usually of a financial nature.^[13] It is a good idea to seek legal advice before submitting these documents.

What are the steps in the expropriation process?

1. Appearance before the Administrative Tribunal of Québec.

After receiving a notice of expropriation, the owner, lessee or occupant in good faith must appear before the Administrative Tribunal of Québec.^[14] This is the court that determines the amount of compensation that must be paid because of the expropriation.^[15]

2. Determination of the amount paid in advance (provisional compensation)

If the expropriated property is used for industrial, trade or agricultural purposes, the Tribunal’s first task will be to determine the compensation that must be paid before the expropriator may take possession. This advance compensation is to help the company relocate and to minimize disruption of its economic activities.

3. Sending a notice of transfer

Once the provisional compensation has been paid to all expropriated owners, tenants and occupants in good faith, the expropriator sends an official notice of transfer and then registers this notice in the land register.^[16] The notice of transfer will inform you when you must hand over possession of your property.

4. Tribunal hearing to determine final compensation

The final step in the expropriation process is to determine the final compensation that the owner, lessee and/or occupant in good faith will receive.

Like in any other legal proceeding, the parties can negotiate an out-of-court agreement and avoid this step.

 What are the possible remedies for expropriation?

Contesting the expropriation

Like any decision made by a public authority, the decision to expropriate property can be contested in court.^[17] Expropriation is an exceptional and exorbitant power that deprives people of their property rights. The right to expropriate must therefore be interpreted strictly and restrictively^[18] and may only be exercised in complete accordance with the law.

On the other hand, given the discretionary nature of the decision to expropriate, it takes a very serious reason to have it overturned, for example, if the expropriator has exceeded or abused its powers,^[19] has acted in bad faith^[20] or has attempted an expropriation for a reason that is not in the public interest. Remember that you can only contest the legality of the expropriation, not whether it is appropriate.^[21]

Requesting total expropriation

As mentioned above, expropriation may concern an entire property, or just part of it. When only part of a property is expropriated, the remaining part is generally referred to as the “remainder”.

If the expropriation will make the remaining part, i.e. the “remainder”, of the property unsuitable for use, the owner may ask the Tribunal to order total expropriation of the property. Interestingly, such a request is possible not only in cases where part of a lot is expropriated, but can also be made regarding the remainder of a group of properties. For example, the Tribunal recently ordered total expropriation of a lot next to the one being expropriated, because the owner demonstrated that he had development plans that required both lots.^[22] Note that the suitability of the remaining property is not an objective question, but rather, is determined according to the expropriated person’s personal and subjective situation.

Determination of full and fair compensation

Certainly the most important and publicized aspect of the expropriation process is the determination of compensation. This compensation is divided into two parts: the value of the expropriated property, and the damage directly caused by the expropriation.

Compensation for the value of the property is determined using the legal concept of “owner value”, which is not the same as market value. In the context of expropriation, the market value of the property is the minimum amount^[23] that must be compensated. Owner value is not a set price, but rather, seeks to establish fair compensation that accounts for all the advantages and disadvantages experienced by the expropriated person. This is done by first establishing the best and most beneficial use of the property. Because the owner is experiencing a forced dispossession at a time they did not choose, it is essential that they not be prejudiced by adverse circumstances, even temporarily.

Compensation for the damage directly caused by expropriation, on the other hand, covers all damage or loss caused to the expropriated owner, tenant or occupant in good faith. As such, this damage can be wide ranging and different for everyone. Relying on a team of seasoned professionals is the best way to ensure that you include all possible damage and losses in your claim.

How can De Grandpré Chait’s municipal and expropriation lawyers help me?

Remember that expropriation is a highly specialized legal process that infringes on your fundamental property rights. For this reason, it is wise to seek professional representation in these matters, especially because the expropriator will most certainly have done so!

Each step of the expropriation process requires strategic analysis to ensure maximum control over the process and the outcome. The Municipal Law and Expropriation team at De Grandpré Chait can help you determine the best strategies for receiving full and fair compensation. We prioritize an individual, personalized and human approach that is tailored to meet our clients’ needs.

>> For peace of mind and maximum compensation, contact us today.

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[1] Act respecting the Réseau électrique métropolitain, CQLR c R-25.02;_{Act respecting the Réseau structurant de transport en commun de la Ville de Québec, CQLR c R-25.03; Act respecting the acceleration of certain infrastructure projects, CQLR c A-2.001.}

_{[2] Section 6, Charter of Human Rights and Freedoms, CQLR c C-12.}

_{[3] Article 952, Civil Code of Québec.}

_{[4] Section 92, Act respecting public transit authorities, CQLR c S-30.01.}

_{[5] Section 33, Hydro-Québec Act, CQLR c H-5.}

_{[6] Section 570, Cities and Towns Act, CQLR c C-19.}

_{[7] Section 38, Expropriation Act, CQLR c E-24.}

_{[9] Article 1119, Civil Code of Québec.}

_{[10] Section 39, Expropriation Act, supra note 7.}

_{[11] Section 40, Expropriation Act, supra note 7. This information is not required for expropriations carried out under the Act respecting the Réseau électrique métropolitain or the Act respecting the acceleration of certain infrastructure projects, supra note 1.}

_{[12] Section 40, Expropriation Act, supra note 7.}

_{[13] This is the case for expropriations carried out under the Act respecting the acceleration of certain infrastructure projects, supra note 1.}

_{[14] Section 41, Expropriation Act, supra note 7.}

_{[15] Section 32, Act respecting administrative justice, CQLR c J-3.}

_{[16] Section 53.1 et seq., Expropriation Act, supra note 7.}

_{[17] Section 44, Expropriation Act, supra note 7; Article 529, Civil Code of Québec.}

_{[18] Leiriao v. Val-Bélair (Town), 1991 CanLII 46 (SCC), [1991] 3 SCR 349.}

_{[19] Lorrainville (Municipalité de) c. Falardeau, 2009 QCCA 2021.}

_{[20] Laval (Ville de) c. Dubois, 2001 CanLII 9918 (QC CA); leave to the Supreme Court of Canada.}

[21] Laval (Ville de) c. Dubois, supra note 20 at paras 15-16.

[22] Laval (City) c Azim Nanji Holdings Inc., 2021 CanLII 28302 (QC TAQ).

[23] Alma (Ville) c. Harvey, [2004] QC TAQ 430, at paras 31-32.