W1 - The Historical Context of Land Law in Canada Flashcards
At the time of colonization, how many types of law where there in Canada, and what were they?
- Common Law (English), Aboriginal Law, and Civil Law (French)
What ended the colonial wars between France and England?
The Treaty of Paris
Is Feaudalisum and Tenure the same thing?
Basically yes. Tenure was the system of land ownership that developed under feudalism.
In England, who was the first feudal lord?
William the Conqueror
What does tenure literally mean?
To hold
What are the 3 orders of medieval Society? Rank them from most to least powerful.
- Nobility.
- Clergy.
- Everyone else
Bonus question! When did the last feudal territory renounce feudalism? (note: not applicable to law, just a fun fact)
2008
What is the Doctrine of Tenure?
Individuals and corporations hold interests in land of the Crown, but no outright ownership at common law
What is a modern allegory to the feudal system?
A sublet (peasant) pays rent to the lessee (local lord), pays rent to the landlord (king)
What is Escheat?
the reversion of lands in English feudal law to the Lord of the fee when there are no heirs capable of inheriting under the original grant
Basically, the government/Crown gets it if a landowner dies with no heir
What is an Incident of Tenure? Give an example.
An incident is a privilege/tax attached to ownership of Land. Ex. Lord Smith receives land that has a Mill on it, and that tenure comes with an incident to collect revenue from that Mill.
What is the Classification of Tenure?
It encompasses the duties, responsibilities, and benefits that come with possession of land.
What differs types of Tenure are there?
Free and Unfree
What are the types of Free Tenures?
Tenures of chivalry (knights service and grand sergeant)
Tenures of franklamoign and divine service (clergy)
Tenures of socage (agricultural service)
What is Subinfeudation? Give a modern equivalent.
subdivision of a feudal estate by a vassal (holder of land by tenure) who in turn became a feudal lord over his tenants
This made the feudal ladder long and complicated
Basically, the process of a renter setting up a sublet.
When did the Statue of Quia Emptores pass and what did it do?
Passed in 1290, and prevented lords from alienating their property through Subinfeudation. Division of feudal land thereafter could only occur through substitution
After the Statue of Quia Emptores passed, who could grant new tenures?
Only the Crown
What system governs the modern conception of land ownership, and what does it mean?
Fee Simple: absolute ownership “a absolute and permanent tenure in land with freedom to dispose of it at will
What is Wardship?
Allowed Monarch to hold lands of a tenant who died and only had heirs under the age of 21
Monarch was entitled to revenues produced by the land until the heirs became 21
Does Escheat still exist?
Yes.
Did the Tenure Abolition Act 1660 abolish tenure? What else did it (not) do?
Did not abolish Tenure. Instead it removed many tenurial incidents, and covered all tenure into socage tenure
What does “reception” refer to, and how does it work?
“reception” refers to how English law was received and used in Canada
Declares that the law of England (at a specified date) would be the enforced law in the land
This is why English cases are still persuasive in Canadian law
Which level of government declared a reception date for a given jurisdiction?
the local provincial/territorial legislature
What is the doctrine of continuity?
assured that pre-existing laws would continue unless they were changed by a “competent authority”
Basically, English laws would be in effect up until the point that the federal/provincial government amended them
Is Aboriginal land governed under the tenurial system?
No. It is a Sui generis system
What was the Royal Proclamation?
was a constitutional document that explained how access to land was to be governed between Indigenous nations and settlers of North America
Is all Canadian land held in free socage?
No. Not Aboriginal land, nor Quebecois land
What does the Escheats act of 2015 do?
sets out a procedure in which a public guardian and trustee may take possession of unclaimed property which has become property of the Crown by virtue of an existing regulation or statute
What is Seisin?
Determined rights to possession of land and conveying interest in land
What is the Doctorine of Estates?
sets out bundle of rights for landholder - the set of rights that a landowner could hold as opposed to a landholder
Between Freehold and leasehold, which is superior?
Freehold
