The Supreme Court of Canada clarifies the scope of the accessory rule in Quebec real estate law

In Zardev Inc. v. Dydzak, 2026 SCC 27, the Supreme Court of Canada clarifies the scope of the rule that the accessory follows the principal and confirms that a parcel of land, even if not expressly included in a deed of sale, may, in certain circumstances, constitute the accessory of a property sold and be transferred with it.

The facts

The case originates from the sale, between 1959 and 1971, of about fifty riparian lots on Lake Masson, in the Laurentians. Due to the rise in the lake level caused by a dam built in 1881, a portion of the land adjacent to the lake remained submerged, but it was not part of the domain of the State. Although the deeds of sale described the lots as “bounded by Lake”, they did not specifically mention whether these submerged lots were included in the sale or not. Following the cadastral renewal, the owners discovered that these submerged lots were still registered in the name of the developer and requested to each be declared owners of the portion adjacent to their property, as accessories.

Judicial History

In 2021, the Superior Court dismissed the application for a declaratory judgment, concluding that the deeds of sale pertained solely to the lots expressly described and that the submerged portions could not be equated with accessories.

In 2024, the Quebec Court of Appeal overturned this decision, ruling that the submerged lots were accessories to the riparian lots and had, consequently, been transferred to the buyers during the sales.

By a majority of eight judges to one, the Supreme Court dismissed the appeal and upheld the Court of Appeal’s decision, while relying on reasons that partly differ from those adopted by the latter.

The Supreme Court’s Decision

The rule of accessory following the principal remains a fundamental rule in Quebec sales law.

Article 1718 of the Civil Code of Québec restates the “accessory follows the principal” maxim by providing for the simultaneous transfer of the accessory and the principal in the context of a sale.^[1] The Court notes that this rule reflects a presumption about the parties’ intention, namely that the parties are presumed to wish to transfer everything necessary for the full enjoyment of the property sold, even if those elements are not expressly stated in the deed of sale, unless a contrary intention clearly emerges from the contract. Indeed, the obligations of a contract are not limited to its express provisions: they also include those arising from the nature of the contract, in conformity with usage, equity or law. It was therefore necessary to determine whether the submerged lots were accessories to the riparian lots that had been transferred to the buyers despite the absence of an express provision in the deeds of sale.

In other words, the transfer of the accessory is the rule; its exclusion must be demonstrated. The maxim is a suppletive rule of private law that completes the contract when it does not expressly address the issue. It serves to give effect to the parties’ implied or presumed intent and will be set aside only if the contract clearly provides otherwise.

The decisive test is the destination of the sold property

The Court sets forth a general test according to which an accessory is a property that is destined to serve the principal property sold and is necessary for the agreed use of the latter, taking into account the “destination” of the property as established by the parties at the time of sale. This “functional” test is defined in a way that allows for a great deal of latitude and flexibility, so that it can be applied in an almost infinite number of contexts. The destination of a property is its “particular end”.

The analysis should not be limited to cadastral descriptions or the physical layout of the site. The court must instead determine what the legitimate expectations of the parties were and what end they intended to give the property at the time of the sale. The abstract application of the test of “necessity”, a test assessed objectively without regard to the common intention of the buyer and the seller, is therefore excluded.

The Court is careful to point out that it is not establishing a general rule that any submerged land automatically belongs to the riparian owner. The analysis remains contextual and depends, in particular, on the destination of the property sold, the reasonable expectations of the parties, and the content of the deeds of sale.

The submerged lands were necessary for the waterfront purpose of the properties

The Court concludes that the sold lots were destined to serve as waterfront vacation homes with direct and exclusive access to the lake. This destination emerges not only from the description of the land but also from the servitude imposed by the developer, the usage restrictions, and the overall economics of the deeds of sale.

A property will be an accessory if it is destined to serve the principal property and is necessary for the agreed use of the latter. The notion of necessity is not abstract; it must be assessed based on the contractual destination of the property sold.

It is therefore necessary to consider the context of the sale, the nature of the real estate project, the legitimate expectations of the buyers, and the practical end of the property. In this decision, the destination retained was that of waterfront vacation lots.

Thus, the submerged lots were necessary for the realization of this destination since they ensured:

• a direct access to the body of water;
• the exclusivity of the lakeshore;
• the owners’ privacy;
• the preservation of the value and waterfront character of the properties.

The Court also notes that if the water level in the lake were to fall, the owners would have ceased to be riparian owners if the submerged lots had remained the property of the developer or its successors. This consideration confirms their accessory nature.

The exclusion of the accessory must be clear and unequivocal

The Court rejected the subsidiary argument that the deeds of sale implicitly excluded the submerged lots since the lots were described precisely and included the phrase “bounded by Lake.”

According to the majority, the mere description of the principal lot is not sufficient to exclude the application of article 1718 C.c.Q. To exclude the rule of the accessory, there must be a clear expression of the parties’ intention. However, not only did the deeds of sale provide for no express exclusion, but the buyers were also unaware of the existence of the submerged lots.

The Court confirms that there is no legal rule excluding the possibility that one property may be an accessory to another property. The fact that a lot is distinct in terms of land ownership or cadastral records does not preclude it from being classified as an accessory lot.

Practical implications for real estate stakeholders

Although the facts are unique, the ruling offers several practical lessons for stakeholders in the real estate sector.

Increased Focus on the Economic Destination of the Asset

The case confirms that the intended use of the property sold and the parties’ intention can take precedence over a strictly cadastral reading of the property sold. Thus, the interpretation of a real-estate sale is not limited to the cadastral description of the land; the courts may take into account the intended use of the property sold to determine whether certain rights, lots, or land components have been transferred as accessories.

More detailed deeds of sale

The Court reiterates that a seller who wishes to retain a right or a property that may be considered as accessory must expressly exclude it. An ambiguous wording or a simple description of the physical boundaries of the land may not be sufficient. Similarly, this case underscores the importance of drafting deeds with precision, notably by expressly and unequivocally describing what is included and what is excluded. The deeds of servitude should also be tailored to the specific characteristics of each project and clearly define the parties’ intentions, applicable restrictions, and permitted uses.

These lessons are particularly relevant for projects involving riparian strips, residual lands, rights of way or access servitude, docks, private marinas, or other related rights.

The Court nevertheless acknowledges that it will likely be rare for a parcel of land to be recognized as an accessory to a lot sold. Usually, a land is, by its nature, an independent property that can be used in a variety of ways. There is therefore often a common intention to individualize each parcel of land. It will therefore be difficult for a buyer to show that, according to the parties’ intention, the lot alleged to be an “accessory” has no purpose of its own, but rather is destined to serve another lot.

A scope extending beyond the riparian context

Finally, this judgment provides an analytical framework that is expected to extend well beyond the realm of riparian properties. It may have an impact on disputes dealing with the implied transfer of accessory lots, real rights, works, or other elements necessary for the full enjoyment of a property sold.

The teachings of the Court may also be applied in the context of the sale of movable property.

Key Takeaways

The Supreme Court confirms that the analysis of titles cannot be separated from the destination of the property sold. When a property is acquired for a specific end, the courts may conclude that certain property or rights not expressly mentioned in the deed of sale have nevertheless been transferred as accessories, when they are intended to serve the principal property and are necessary for its use according to the parties’ intention.

^[1] The maxim touches various fields of Québec law, including as the very source of the law of accession (art. 954 et seq.), the law of usufruct (art. 1124), the law of servitudes (art. 1178), or matters of suretyship (art. 2344).