Ch.22 Interests in Land Flashcards
Indigenous peoples have unique rights of use of ancestral lands in Canada
Form of communal right
Falls short of recognizing full sovereignty, equality, or fairness
Indigenous rights and title to lands limited to lands previously occupied prior to European sovereignty
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
Fee Simple
In Canada, all land still owned by Crown:
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
Escheat
reversion of land to Crown when a person possessed of the fee dies intestate and without heirs
Expropriation
forceful taking of land by a government or government agency for public purposes
If a person grants land during their lifetime, usually by way of formal document
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
Deed or transfer
written or printed instrument affecting legal disposition
Life estate
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.
Leasehold estate
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
Condominium
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
Condominium Development
Defining the common elements from those owned exclusively by unit owners
Both pass on transfer of title
Condominium Management
Management through board or condominium corporation
Provide for insurance, common element expenses, enforce rules
Governed by by-laws – similar structure to corporations
Co-operative Housing Corporations
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
Registration of Property Interests
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
Public registration system and certification of title is designed to:
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
Two distinct systems in Canada:
Registry System
Land Titles System
Registry System
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
Land Titles System
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
Advantage of Land Titles System over Registry System:
Certainty of title
Consists of two databases:
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
Easements
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
Right-of-way
right to pass over the land of another, usually to gain access to one’s property
Restrictive covenant
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
Riparian owner:
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)
Adverse possession
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
Encroachment
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
Fixtures
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?
Early rule
- 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
Basic tests (at Common Law) that apply to fixtures:
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
Joint tenancy
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
Tenancy-in-common
joint holding of interests in land that need not be equal
Right of survivorship
right of joint tenant to other’s interest upon their death
Not applicable for tenancy-in-common
