Chapter 6: Interest in Land Flashcards
“Property” in Real property
refers to the legal interest recognized and protected by law
Real property
Are the bundle of rights or interests in land
Lad includes:
the surface, mineral and oil rights, and buildings and other fixtures
- Fixtures are things that are essentially attached to the building or to the land.
In real property, Interest may be owned…
Separately
For example, one type of interest is an interest in possession. Is one of the bundle of interests associated with real property, and that can be owned separately from a title. If someone has a lease for example, they have that interest in possession. The lease gives them the right to possession of the land for a certain period of time.
How is land use regulated?
Land use is publicly regulated.
Is regulated depending on the nature of the land and there is often overlapping regulations. For example, municipal, cities, towns, etc., will use regulations in bylaws associated with the property.
Aboriginal title and rights are…
sui generis
What does it mean that aboriginal title and rights are sui generis?
a unique collective right, stemming from Indigenous people’s prior occupation and connection with the land (so is a different type of title and the rights are different than we might thing of “traditional” property rights in western or common law)
Title is the strongest type of Aboriginal interest in land and is similar but not identical to the fee simple form of title (means ownership in the way we understand it) discussed below. It gives the Aboriginal nation collective territorial control in the form of exclusive use and occupation including pro-active management of the land for modern uses and economic purposes
Aboriginal Title and Rights: Important limitations
- the ownership is communal or collective for the benefit of present and future Indigenous generations
- Title is inalienable (unsellable) except to the Crown and: That means that they can’t sell it. Is collective ownership, not individual.
- it is subject to possible infringement by the Crown, when justified for the public interest: The government can infringe on title in certain circumstances.
Aboriginal Rights
- A right is a lesser form of interest recognizing a non-exclusive Aboriginal practice, custom or tradition
It is less than a title. - A right entitles the Aboriginal nation to continue the use or tradition on a non-exclusive basis; it does not depend on the existence of Aboriginal title over the affected land
They could have a right with respect to some practice or custom in a space, but they don’t actually have title to that land. - Rights are recognized when the practice, custom or tradition was integral to the culture of the Aboriginal community prior to contact with European societies
If the tradition or practice was a fundamental part of the culture prior to first contact with Europeans then that could be a recognized right. - A right may co-exist with the Crown’s other uses or activities that are in the public interest
Infringement of Aboriginal Title of Rights
- A court will determine whether there is infringement by a proposed activity or legislation. The onus of proving a prima facie infringement lies on the Aboriginal individual or group.
- If the court finds that there is a right and it is infringed, the second step is to determine if the infringement is “justified”. Justification requires the Crown to prove that it had a valid legislative objective and the plan is consistent with the Crown’s fiduciary relationship with Aboriginal people.
- The fiduciary responsibility requires that the Aboriginal interest be given priority. Examples of Aboriginal rights that are given priority over non-Aboriginal rights are hunting, fishing and harvesting for food. Commercial scale harvesting requires existence of trade before European contact.
Duty to Consult and Accommodate
- When proposed new uses or changes in use such as cutting down trees or mining could negatively impact Aboriginal interests, the government must consult with affected groups and make a genuine good faith effort to accommodate their interests
- The extent of the duty to consult and accommodate varies on a case-by-case basis & does not give an Aboriginal objector veto power; nor does it require the Crown to reach an agreed solution
- Sometimes the business interests who propose the infringement (the proponent) undertakes negotiations directly with the Aboriginal group, this alone does not fulfill the Crown’s duty
Two categories or interest in land
- Estates in time: exclusive possession for a period of time
- Interests less than estates: right to use but not exclusive possession
Estates in TIme
- Freehold estates
Indeterminate in time - Fee simple (now and indefinitely)
Amounts to complete ownership (infinite time) - Life estate (indefinite)
Holder for the life of one person
Upon death, estate reverts to grantor or her heirs (reversion)
Or goes to third person as remainder - Leasehold estates
An interest in land for a definite time with exclusive possession - Concurrent interests in estates – sharing title
- Tenancy in common
Equal undivided interests - Joint tenancy
Concurrent holders with right of survivorship
May be terminated by severance
Interests less than Estates
- Interests in land that are less than estates are as follows:
Easements
Right of way
Restrictive covenants
Oil, gas, and mineral leases
Profit à prendre
Easements
- A right of the owner of the dominant tenement over the land of the servient tenement
- Not for occupation - not for exclusive possession
- Often a right-of-way
- All future owners are bound (property interest)
- Statutory easements allow power lines
- Easements by prescription may be created by continuous use
