Destination.

AuthorLametti, David
PositionSpecial Section: McGill Companion to Law

How do we know when a right of way or some restriction on a land use really serves a piece of land? When an elevator or a furnace gets incorporated in an integral manner into a building or a house, thus going to the "utility of the immoveable" so that it can no longer be removed by the person who installed it? When a condo owner uses their unit for some purpose that may not be allowed, such as renting it out weekly? These questions might have important practical and economic consequences. A right of way might be necessary to get to one's own property, while a restriction on use, say a restriction enjoining a person from using their land as a grocery store, might be of great economic value to the person and property--no doubt a grocery store owner--that gets the benefit of that restriction. If the elevator or furnace is installed, and gets classified as part of the building, the person that installed either appliance may lose an important right to remove them if they do not get paid. And a condo owner may find that the weekly renting of a furnished condo, in this age when it can easily be done online, is an excellent source of revenue.

The resolution of such cases will be determined by the "destination" of the land or building, with some weighty degree of objectivity attached to the meaning of the term. Yet, it is human beings, or perhaps other living creatures, that "enjoy" property or derive utility from it, and it is human beings who determine how resources are used or modified. So why are some uses deemed personal, while others are deemed attached to an immoveable in some permanent way, such that the rights and obligations, as our common law friends say, "run with the land"? When does some right "benefit the immoveable," or again as a common lawyer might ask, "touch and concern" the land? If an immoveable "serving" another immoveable is thus a fiction--the land and the use is only serving some human purpose after all--why is the fiction sometimes accepted, forcing legal consequences, and other times not? And how is it applied?

Generally stated, destination is the idea that a resource or "object of social wealth" has or has been given a specific purpose, goal, or duty, or is otherwise meant to be used in a certain way or as part of another resource. In its formal manifestations, destination helps determine legal classifications and legal outcomes in certain instances: moveable or immoveable, for example. However, it is also a larger organizing concept that channels the way objects of social wealth are used, and in particular, circumscribes the range of given uses for certain resources and occasionally even requires specific uses. Destination performs this role both explicitly, through codal provisions and statutes, for instance; and implicitly, through tacitly accepted...

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