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Real rights and individual rights

It is important to differentiate the rights of individuals in order to determine the appropriate remedies. For example: a bank lends a buyer the sum of $200,000, and this loan is secured by a hypothec on the immovable. After a few years, the buyer fails to repay the bank. Will the bank be able to seize the immovable or will it take a personal recourse for repayment against the buyer?

Real rights

Real rights are exercised in relation to movable or immovable property. Real rights include the right of ownership, usufruct, use, easements and emphyteusis. A mortgage is said to be an accessory real right.

A real right allows the property to be tracked, no matter who owns it, and is transferred from one owner to another. A Hydro-Québec servitude on an immovable published in the Land Register will follow from one owner to another without Hydro-Québec having to publish it with each sale. The fact that real rights are published in the Land Register makes them enforceable against third parties.

It is important to note that the seller must declare all real rights affecting his property. At the notary’s office, the seller will hand over to the buyer all the titles of ownership he holds. When preparing the deed of sale, the notary will indicate all these real rights in the property deed.

Personal rights

Personal rights are those rights that are exercised in relation to a person. They are also called rights of claim.

The following example illustrates the difference between a real right and a personal right:

To purchase a property, a person borrows a sum of money secured by a hypothec on the immovable. Following a default in payment, the bank sells the immovable under court supervision in order to get reimbursed. If the sale yields a sum that is less than the amount owed, the bank can then take a personal recourse against the buyer to obtain the balance of the sums owed.

Last updated on: May 18, 2022
Reference number: 208971