Canadian Property Law/Real Property
- 1 Introduction
- 2 Type of Estates
- 3 Conveyancing
- 4 Adverse possession
- 5 Future Interests and Conditional Conveyancing
- 6 Leaseholds
- 7 Concurrent estates
- 8 Non-possessory interests in land
- 9 Land Registration
A basic concept required to understand real property in Canadian law is this: in the Middle Ages, the king technically owned all the land in England, which he gave or rented out in large parcels to his most trusted barons (or "lords") in return for keeping him in power. The barons let the peasants live on his land and protected them; in return, he extracted large amounts of rent from them. This system binding the peasants to the barons was known as the "land tenure" system, as the peasants were "tenants" of the barons. This system was the basis for the proper ordering of society.
Therefore, it was in the interest of the king and the barons that everyone knew at all times who had "seisin" of the land, i.e., which peasants had to pay rent to the lord for which piece of land. Any land where this was unclear was "wasted". The Medieval rules of real property transfer were therefore very strict in ensuring that it was always very clear who was receiving the land; any lack of clarity ("abeyance of seisin") was forbidden, and the transfer was nul.
Type of Estates
As English society evolved, the "incidents of tenure" (i.e., obligations to the lord) became regularized, and decreased over time. By the time Canada inherited British property law, the only incident of tenure left was "Escheat", that is, when a tenancy ends, the land reverts back to the lord. Even today, when someone dies without an heir, their land becomes property of the Crown (i.e., the government).
With the passage of the Tenures Abolition Act in 1660, although all land was still technically owned by the Crown, peasants could buy and sell their rights to the land they were living on, as well as pass it on by will or by gift. This type of property right became known as an "estate in free and common soccage" or a "free estate". This is why property rights over land are known as "real estate".
An "estate", in English medieval legal parlance, was an amount of time over which one held property rights. There are three types of estate: Fee simple, fee tail and life estate.
This is the most prevalent type of common law estate. It is what most people think of when they speak of "owning" land. Although the land is technically owned by the Crown, the holder of fee simple can use the land, exclude others from it, and dispose of it.
Under fee simple, the rights to land transfer automatically from the holder of the fee simple to his heir. The holder of the rights in fee simple can grant the land to someone other than his heir. In order to do this, he must use the phrase to [the new owner] and his heirs. Any other phraseology will not legally transfer fee simple by grant. It will instead be regarded as a "life estate" (see below).
The other main type of estate is the life estate. Very simply, this means that someone holds the rights to the land for the duration of his life, after which it reverts back to the owner in fee simple or his heirs. For instance, an elderly landowner might remarry late in life. He may then wish to leave the estate to his new wife for the remainder of her life; when she dies, the land will revert to his heirs, rather than her heirs.
There is no particular phraseology required to grant a life estate. Something such as "to X for life" is usually sufficient. If the phrase "to X and his heirs" is not used, then the transfer is presumed to be a life estate.
Fee tail is a rare estate, abolished in Canada everywhere except for Manitoba, in which only the lineal heir may inherit land. One can only transfer one's property rights in the land for as long as one lives; afterwards, the property rights revert to one's lineal descendents. This limits how land can be bought and sold, therefore reducing the value of the land.
Grants and Wills
Grants of land were regarded with suspicion by common law courts (why would anyone give away their land, which was their main source of income?). That is why it became difficult to grant land in fee simple. The words "to X and his heirs" became absolutely necessary to make such a grant possible. Even the words "to X in fee simple" was not good enough.
Wills were interpreted much more flexibly. Legislation ensured this. The intention of the testator is usually the decisive factor for a judge in deciding whether the land was given in fee simple or as a life estate.
Conditions for Adverse Possession
Actual and exclusive possession: is a question of fact. Things to consider are: surveyed boundaries, construction of a fence, construction of permanent improvements.
Open and notorious possession: is possession which is not secretive. If the true owner were to visit the area he/she should have knowledge of the possessory facts.
Continuous possession: Refers to the statutory time period. An interruption in adverse possession will restart the count.
Hostile possession: Does not imply violence. It is merely possession which is against the true owner’s will.
- any type of agreement between the possessor and the true owner will destroy a claim of adverse possession.
Future Interests and Conditional Conveyancing
1) No remainders after a grant in fee simple
2) A remainder must always be supported by a precedent freehold estate
3) The benefit of a condition subsequent cannot be enjoyed by a stranger
Rule against perpetuities
The rule against perpetuities is a rule in property law which prohibits a contingent grant or will from vesting outside a certain period of time. If there is a possibility of the estate vesting outside of the period, regardless how remote, the whole interest is void, and is stricken from a grant. The rule is concerned with the utility of unused property and tries to prevent people from tying up assets for too long a period of time—a concept often referred to as control by the "dead hand".
Landlord and tenants
Assignment and Subleases
Non-possessory interests in land
An easement is the right of use over the real property of another. Historically it was limited to the right of way and rights over flowing waters. Traditionally it was a right that could only attach to an adjacent land and was for the benefit of all, not a specific person. The right is often described as the right to use the land of another for a special purpose. It is distinguished from a license that only gives one a personal privilege to do something on the land of another usually the permission to pass over the property without creating a trespass.
Typically, an easement is composed of two tenements (types of land). There is the dominant tenement which is the plot of land to which the benefit an appurtenant easement is attached. Second, there is the subservient tenement which is the plot of land which bears the burden of the easement.
Easements may be considered public or private. A private easement is limited to a specific individual such as the owner of an adjoining land. A public easement is one that grants the right to a large group of individuals or to the public in general, such as the easement on public streets and highways or of the right to navigate a river. An appurtenant easement is one that belongs to the owner of the land that benefits from the easement, as compared to other easements (easements in gross) that do not require ownership to obtain the use.
An easement may be implied or express. An express easement is typically included in a document such as a deed or other officially recorded grant, or incorporated by reference to a subdivision plan, or restrictive covenants in an association agreement.
In Torrens jurisdictions easements must be registered to bind successive purchasers.