Canadian Property Law/Introduction

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Introduction[edit]

In Canada there are two parallel legal regimes that apply to many areas of law. The most prevailent is the common law which is used in most provinces and territories to the exception of Quebec which is under the civil law system.

Meaning of property[edit]

Philosophically, "property" in law does not refer to a thing but to a relationship. The subject of property enjoys a "bundle of rights" over an object of property. The bundle of rights includes the right to use the object, the right to exclude others from using or enjoying the object, and the right to dispose of the object. An object in this sense need not be a physical thing. In the days of slavery, a slave was an object of property. In modern times, many abstract concepts (such as patents or copyrights) can be objects of property.

That having been said, the terms "property" and "object of property" are often used interchangeably in practice.

Common law[edit]

The common law practice of property is divided into two general types of property: Personal Property and Real Property

Real vs. Personal Property[edit]

There are two categories of property in common law: Real property and Personal property. Real property is, essentially, the rights to land and the things that are attached to it. Personal property is, essentially, rights to any other possession.

Real property was, in English history, much more important than personal property. In the Middle Ages, when the economy relied almost exclusively on agriculture, land was the key to wealth. Therefore, the legal rules around real property developed into a much more complex state than personal property. Even though today, land is much less central to the economy, much Canadian real property law still obeys the complex English property rules of the Middle Ages.

Personal property, on the other hand, had relatively simple legal rules up until the 20th century, when personal property began to have a much greater value (things such as company shares, drug patents, and computer technology are all types of personal property). Therefore, the rules of personal property have become much more complex in recent decades, although they will seem much more modern than real property rules.

Civil law[edit]

Civil law property law derives mainly from the Civil Code of Quebec, and applies only to property in that province. Its inspiration comes from French civil law, but it varies in several important ways, and has gradually incorporated several important common law concepts.

Similar to the "real" and "personal" division between types of property, civil law divides property into two types: Movable Property and Immovable Property.

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