Ch.22 Interests in Land

Question 1

Indigenous peoples have unique rights of use of ancestral lands in Canada

Answer 1

Form of communal right

Falls short of recognizing full sovereignty, equality, or fairness

Question 2

Indigenous rights and title to lands limited to lands previously occupied prior to European sovereignty

Answer 2

Where that occupation continued thereafter to exclusion of others
Two large limitations:
- Indigenous rights are communal rights of a band, not of individuals
- Cannot be transferred to anyone but Crown

Question 3

Fee Simple
In Canada, all land still owned by Crown:

Answer 3

Estates of land in fee simple are granted by Crown patent to individuals

Crown often reserves right to minerals or precious metals

Can dispose of land by way of sale, will, or inheritance

Escheat

Expropriation

Question 4

Escheat

Answer 4

reversion of land to Crown when a person possessed of the fee dies intestate and without heirs

Question 5

Expropriation

Answer 5

forceful taking of land by a government or government agency for public purposes

Question 6

If a person grants land during their lifetime, usually by way of formal document

Answer 6

Deed or transfer

Grand embodied in deed:
- 1) Execution of deed by the grantor
- 2) Delivery of the document to the grantee, passes title to the land to the recipient

Owner of land may use the land as they see fit

Question 7

Deed or transfer

Answer 7

written or printed instrument affecting legal disposition

Question 8

Life estate

Answer 8

estate in land in which the right to possession is based upon a person’s lifetime

Highest estate in land that the person in possession of the fee simple might grant

Frequently made within a family, where person who possesses fee simple wants to use land during his or her lifetime, but pass property on upon death

Life tenant muse use land in reasonable manner and not commit waste
Cannot tear down buildings, destroy property, destroy trees, etc.

Question 9

Leasehold estate

Answer 9

grant of the right to possession of a parcel of land for a period of time in return for the payment of rent to landowner

Contractual in nature and given for fixed term

Treated by law differently from freehold interests
- Parties may insert any rights or obligations they wish into agreement

Grants tenant exclusive possession of property for term of lease

Question 10

Condominium

Answer 10

A form of ownership of real property, usually including a building, in which certain units are owned in fee simple and the common elements are owned by the various unit owners as tenants-in-common

Question 11

Condominium Development

Answer 11

Defining the common elements from those owned exclusively by unit owners

Both pass on transfer of title

Question 12

Condominium Management

Answer 12

Management through board or condominium corporation

Provide for insurance, common element expenses, enforce rules

Governed by by-laws – similar structure to corporations

Question 13

Co-operative Housing Corporations

Answer 13

Means by which a group may acquire indirect interest in land through a corporation

Used to establish residential housing units where land and building acquired and owned by corporation

Members of co-operative acquire share in corporation and lease of a housing unit
- Responsible for their portion of expenses of corporation

Corporation responsible for maintenance and mortgage payments

Question 14

Registration of Property Interests

Answer 14

Historically, individual guarded all documents related to land title

• Created difficulties if title was destroyed or lost – prospective purchaser had to rely on landowner’s word
• Led to system of land registration:
  -All land in country or district was identified
  -Public record office established to act as recorder and custodian of all land-related documents

Question 15

Public registration system and certification of title is designed to:

Answer 15

Reduce chance of fraud in land transactions

Eliminate need for safeguarding title by individual

All interests in property require registration to protect them; all unregistered interests in land are void

Question 16

Two distinct systems in Canada:

Answer 16

Registry System
Land Titles System

Question 17

Registry System

Answer 17

provincial government operated system for registration of interests in land

Good “chain of title” - trace back present owner’s title to ensure good title

Need to establish a good chain of title for 40-year period before present owner is “clear”

Onus on prospective purchaser

Purchaser may sue seller for damages

Question 18

Land Titles System

Answer 18

provincial government-operated system for the registration of interests in land where the government confirms and warrants the particular interests in land

Title of present owner confirmed and warranted by province

To avoid confusion, particular language for different instruments:
- Deed = transfer
- Mortgage = charge

Question 19

Advantage of Land Titles System over Registry System:

Answer 19

Certainty of title

Question 20

Consists of two databases:

Answer 20

1) Title Index Database
2) Property Mapping Database

Goal to convert all Registry areas into Land Titles System

Compensation comes from the provincial government if they are negligent in the records

Question 21

Easements

Answer 21

right to use the property of another, usually for a particular purpose

Example: Travel across the lands of another to gain access to a body of water not adjacent to own land

Right of way

Question 22

Right-of-way

Answer 22

right to pass over the land of another, usually to gain access to one’s property

Question 23

Restrictive covenant

Answer 23

means by which owner of property may continue to exercise control over its use after property has been conveyed to another

Promise not to use the property in a particular way
- Examples: prevent cutting of trees on property sold, control uses of land, control of keeping of animals, etc.
- Used for: better enjoyment of adjacent property or character of area

Void against public policy if attempts to prevent purchase or use by a person based on race, creed, colour, nationality, or religion

Question 24

Riparian owner:

Answer 24

Owns land adjacent to a watercourse, OR

Has land through which natural stream flows either above or below surface

Common law rights with respect to use and flow of water:
- Right to take water from stream or watercourse
- Cannot interfere with downstream flow
- Must return quantity of water used
- Cannot do anything to change quality of water used (e.g. temperature)

Question 25

Adverse possession

Answer 25

possessory title to land under the Registry System

Acquired by continuous, open, and notorious possession of land inconsistent with the title of the true owner

For a period of time (usually 10 - 20 years)

Occupants in possession must do acts normally required by the owner (pay taxes, maintain fences, etc.)
- Treat it as the occupant’s own

Question 26

Encroachment

Answer 26

possessory right to the property of another that may be acquired by the passage of time

Examples: Roof “overhang”, building constructed too close to property line or on neighbor’s property

After undisturbed possession for 10 to 20 years (depending on province, right to object encroachment is lost

Only acquired in areas where land recorded in Registry System

Question 27

Fixtures

Answer 27

Chattels that are permanently or constructively attached to real property

Some objects not normally part of the land, but are affixed to it
- Did they become part of the real property or are they still chattels that may be removed?

Question 28

Early rule

Answer 28

• use and enjoyment of particular item
  
  • Chattel attached to improve land became part of realty, but anything attached for the better use of the of the chattel did not

Question 29

Basic tests (at Common Law) that apply to fixtures:

Answer 29

1) Attached by own weight
2) Affixed slightly are realty unless intended to continue as chattels

Degree of annexation and object of annexation

Intention only material from presumption of degree and object of annexation

Tenant’s fixtures – purposes of trade

Question 30

Joint tenancy

Answer 30

joint holding of equal interests in land with the right of the surviving tenant to the interest of a deceased joint tenant

Identical in time, interest, and possession

Arises out of same instrument

Question 31

Tenancy-in-common

Answer 31

joint holding of interests in land that need not be equal

Question 32

Right of survivorship

Answer 32

right of joint tenant to other’s interest upon their death

Not applicable for tenancy-in-common