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Articles in this section are of general information and in every situation are subject to the application and interpretation of a law, rule or factual situation that may differ. Consult us for any specific question.

What exactly is the “prescription”?

26 August 2021

Make no mistake, this article will not discuss of the prescriptions that your doctor writes for you following his diagnosis. Instead, this article will explain the legal concept commonly known as “prescription”.

In law, there are two types of prescription: extinctive and acquisitive.

Extinctive prescription

“Extinctive prescription is a means of extinguishing a right which has not been used or of pleading the non-admissibility of an action.” (section 2921 of Civil Code of Québec)

In clearer terms, the law sets time limits in which you must act to exercise your rights in court or to simply keep them. If you do not exercise them in time, you risk losing them.

Here are some examples :

  • When you obtain a judgment in your favour, you have ten (10) years to exercise this right. Otherwise, after that time, your judgment can no longer be enforced against your debtor.
  • If a person owes you money, but refuses or neglects to pay you, you must file a judicial demand before the expiry of a three (3) years period from the date the debt was incurred, when it is due. By default, the debt is prescribed automatically and you can say goodbye to your money.
  • When the beneficiary of a right-of-way does not use it for a period of more than ten (10) years, the right-of-way is extinguished. The beneficiary will have to re-negotiate a right of way with the owner of the property or another neighbor.
  • In matters of defamation, if someone damages your reputation by spreading false information about you, you have one (1) year from the day on which you learned of the defamation to file a judicial demand against this person.
  • In municipal matters, it is even more severe: if a municipality has committed a fault against you and you want to claim monetary compensation, there are specific requirements and very short deadlines that must be met. Generally, you must send a written notice within 15 or 60 days (depending on the law applicable to the municipality) following the act reproached and file a legal claim within six (6) months.

It is important to talk to a lawyer without delay when you want your rights respected.

Acquisitive Prescription

“Acquisitive prescription is a means of acquiring a right of ownership, or one of its dismemberments, through the effect of possession” (section 2910 of Civil Code of Québec)

The delay to acquire an immovable by acquisitive prescription is ten (10) years. Thus, if you possess as an owner and use a part of the immovable for more than 10 years in a peaceful, continuous, public and unequivocal manner, you could ask to be officially recognized as the owner of this part of the immovable.

The criteria mentioned above must be respected in order to acquire by prescription. However, and most importantly, you can only acquire this part of the immovable as a result of a judicial demand.

It is also possible to prescribe a movable. This prescription is of three (3) years from the dispossession of the owner.

Do not hesitate to consult us in prescription matter.