Chapter 4 - Estates & Interests In Land

Question 1

Estates

Answer 1

Land itself is not subject to ownership except by the crown; Only ownership = estate in the land

• A bundle of rights held by the owner
• Legal concept that has no tangle or visible existence

Still in existence today are fee simple estates, life estates, and estate pur autre vie

Question 2

Fee Simple or Freehold Estates

Answer 2

Could be inherited and with no qualification on the type of heir who could inherit.

Leave the fee to their heirs in a will

No will = closest blood relative or the law of each province will decide how the property will be divided among the heirs

No will & no heirs = property will “escheat” or revert back to the Crown

Question 3

Life Estates & Estate Pur Autre Vie

Answer 3

Land which lasts for the lifetime of the holder (Life Tenant)

• Freehold estate - for an uncertain amount of time
• Terminates upon the death of life tenant

Estate Pur Autre Vie: Vendor holds a life estate, sells it to another person, that person can be forced to vacate if the Vendor dies
- The duration of the estate is based on Vendor’s lifetime

Question 4

Rights & Obligations of the Life Tenant

Answer 4

Generally liable for all yearly operational expenses

Waste:
VOLUNTARY WASTE: direct, positive acts which result in damage to the property beyond the use a life tenant is entitled to make (pulling down a garage)

PERMISSIVE WASTE: Allowing deterioration without any positive acts (simply allowing the building on the property to decay & does not to prevent this)

AMELIORATING WASTE: Direct positive acts which improve the property

EQUITABLE WASTE: Destroying the buildings on the property so that the remainderman would have little or nothing of value to inherit
- Solved by Courts of Equity

Question 5

Rights & Obligations of the Remainderman

Answer 5

The right to have the property pass to them in essentially the same condition as it was originally granted to the life tenant, subject to liability for waste

Must pay the principal on outstanding mortgage & insurance premiums

Rights & obligations correspond to that of the life tenant

Question 6

Interests in Land Less Than Estates

Answer 6

Interests in land are said to “run with the land”

Have an effect on the rights of the owners to use a property (including a neighbouring property) as well as on the market value of a property

Question 7

Easement

Answer 7

Privilege acquired by a landowner for the benefit of their land over the land of another. (ex: rights of way, rights to light, rights of support)

DOMINANT TENEMENT: Land receiving the benefit

SERVIENT TENEMENT: Land over which the right is exercisable

Every parcel of land has a natural legal right to receive both vertical and lateral support from the adjacent soil

Question 8

Requirements of an Easement

Answer 8

There must be both a Dominant and a Servient Tenement: There must be be two parcels of land affected by every easement

The easement must accommodate the Dominant Tenement: the land which must benefit from an easement and not merely the land-owner. For example, a right-of-way may give better access to the dominant property

The easement must be capable of forming the subject-matter of a grant:

• Identify its boundaries
• The person granting the easement & the person whose land receives the benefit of the easement must have the necessary capacity to be grantor and grantee. For example, a tenant cannot create an easement which binds the property after the tenancy expires.

Question 9

Creation of an Easement

Answer 9

Easements may be granted for any length of time

May be created by statute, by an express document, by implication of law or by prescription:

STATUTORY RIGHTS OF WAY: Land Title allows the Crown, municipality, or other designated persons to create easements without dominant tenements.

• Does not have to fulfil the common law requirements listed above
• BC Hydro & Power Authority uses this power to acquire rights of way for power poles even though they do not own the land to be benefitted by the easement

EXPRESS DOCUMENT: a deed of property granted or reserved a right of way.
- Agreement by the owners of the dominant and servient tenements

IMPLIED EASEMENT: The intention of the parties granting the easement has not been sufficiently explicit.
- Ie; One of two commonly supported houses has been sold and no mention was made of any easement of support.

Question 10

Release of an Easement

Answer 10

An easement may be released by an express agreement between the present owners of the dominant & servient tenements

Can also be released by implication if the dominant owner shows an intention to release it, for example, by abandonment.

Question 11

Restrictive Covenants

Answer 11

Imposes a restriction on the use of one person’s land for the benefit of another piece of land - Must be a negative obligation

COVENANTEE: The person who imposes the restriction

COVENANTOR: Person who agrees to be bound by the restriction

Question 12

Requirements of a Restrictive Covenant

Answer 12

It must be negative in nature
- Ex: by imposing a restriction on building upon or using of property in a particular manner;

Must benefit/enhance the value of the convantee’s land in some way;

Both the benefited and burdened land must be precisely identified in the agreement or document creating the restrictive covenant;

Must be intended by the parties to bind the land; cannot be a personal promise;

If the original covenantor has transferred their land, the new owner must have had notice of the agreement before acquiring the land.

Question 13

Release of the Covenant

Answer 13

May be released by an express agreement between the present owners.

May be released by a covenantee’s implicit agreement
- Land has been used for years in a way that is inconsistent with the covenant

May be released if the character of the neighbourhood has changed.

Question 14

Building Schemes

Answer 14

Group of restrictive covenants attaching to two or more lots within a particular development plan

Used by a developer selling lots in a residential subdivision and wants to maintain uniformity in the use of the lots to protect their value

Some restrictions may be stated positively but their effect is negative
- Ex: “The Owner may use up to 65% of siding or trim made of non-cedar products”

Like a restrictive covenant, they will be registered against the titles of the lots.

Question 15

Release of a Building Scheme

Answer 15

Once the vendor/developer has sold the last lot in the development, the restrictions may be modified/discharged by an express agreement between all the present lot owners

Absent an express agreement, a present owner may apply to have the scheme discharged if the character of the development or neighbourhood has changed

May be discharged if it impedes the reasonable use of a lot and does not benefit or cause injury to the other lots subject to the scheme.

Presumed to have been released if the owners benefitting from the scheme have agreed to or ignored previous activities inconsistent with the scheme.

Question 16

Licence (Interest)

Answer 16

Not an interest in land; contractual right or privilege to do something

May entitle a person to enter upon and use the grantor’s land in a certain manner or for a certain purpose
- Ex: an oral agreement to dump topsoil on the land for a short period of time.

Doesn’t create an interest in land & therefore does not bind subsequent purchasers;
- A license may be joined with an interest in land (an easement or profit a prendre - right to take natural resources), in which case it would run with the land

Question 17

Airspace, Subsurface, & Water Rights

Answer 17

Landowner owns rights in the airspace above their property only to the extent that they can make effective use of it

Landowner must trace the title deeds back to the original grants from the

Crown in order to determine the exact rights in the subsoil

As the Crown is the absolute owner of property, it may expropriate property for a wide range of purposes.

Further limitations can be imposed by municipalities; for example, the right to require a person subdividing land to provide for and construct highways.
- Power of the municipality only arises where there is a subdivision of land

Value attached to airspace & subsurface rights; acquisition of airspace worth millions
- Ex: developer erecting a downtown office tower can increase the floor space ratio of the tower by acquiring the rights to the airspace of adjacent properties and thereby circumventing restrictive zoning bylaws

All water except groundwater = property of provincial government &
Reasons for cancelled water licenses:
- Failure to use the water for the licensed purpose for 3 consecutive years
- Failure to pay the licence fees for 3 consecutive years

Question 18

Fixtures & Chattels

Answer 18

Contract of purchase/sale identifies items included in the purchase price & which items the vendor can remove when they vacate

FIXTURES: items that go with the land & belong to purchaser upon completion

CHATTELS: the personal property of the vendor

Two-Part Test to define

• Degree: attached to the land by their own weight will
• Purpose: object affixed in order to enhance the land

Question 19

Co-Ownership of Land

Answer 19

Land owned by more than one person - joint tenancy or by tenant in common

Each strata lot has only one vote; Co-Owners share one vote

Question 20

Joint Tenancy

Answer 20

Each owner owns an undivided interest in the whole of the property

Survivorship - When one joint tenant dies, the entire tenancy remains with the surviving
- Cannot leave their interests to anyone in their wills

Law will only recognize a joint tenancy if it has been expressly created
- If a document transfers property to two co-owners without saying how they will hold the property, the law will presume they are tenants in common, to which the doctrine of survivorship does not apply.

Question 21

Requirements of a Joint Tenancy

Answer 21

UNITY OF TIME: All joint tenants must receive their interests at the same time

UNITY OF TITLE: All joint tenants must obtain their interest form the same document

UNITY OF INTEREST: All joint tenants must have the same interest in land
- Extent , nature & duration must be identical (ex: one cannot have fee simple & another life estate)

UNITY OF POSSESSION: Each interest is an undivided interest in the whole of the property/no one holds any part separately to the exclusion of the others

Question 22

Termination of a Joint Tenancy

Answer 22

OPERATION OF LAW: Dependent on the continuance of the three utilities of title, interest & possession; if any of these are destroyed, the joint tenancy is severed & tenancy in common is created.

PARTITION BY AGREEMENT: Joint tenants may agree to partition the property and the agreement is enforceable by either party or a person deriving title under them.

• Does not create a tenancy in common; may create a tenancy in common by contract
• Each co-owner takes their part solely, beneficially, and free from any rights of the other co-owners

PARTITION OR SALE BY COURT ORDER: Importance of this statutory procedure is that the partition can be initiated unilaterally; mutual agreement is not needed.

Question 23

Tenancy in Common

Answer 23

One Unity - Possession

Tenants in common may have different shares in their property

Question 24

Termination of a Tenancy in Common

Answer 24

Terminated by:

• Agreement between the parties to sell one tenant’s interest to the other; or
• Agreement between the parties to sell the whole interest to a third party; or
• By a court order under the Partition of Property Act

Not terminated based on one party’s actions

• Purchaser will be the new tenant in common
• No right of survivorship, a tenant in common may leave their share in a will to whomever