PART 6 – THE LAW OF REAL PROPERTY
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Chapter 27 – Interests
in Land
Prepared by Douglas H. Peterson, University of
Alberta
Copyright © 2004 McGraw-Hill Ryerson Limited
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INTERESTS IN LAND
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Historical Development
Estates in Land
Interests in Land
Fixtures
Title to Land
Registration of Property Interests
Copyright © 2004 McGraw-Hill Ryerson Limited
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INTRODUCTION
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Interests in land takes many forms
Ownership
Leases
Property rights are commonly referred to as
“estates” in land
Property vs. Title – property is the thing
itself and title is legal interest in the thing
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HISTORICAL DEVELOPMENT
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Real Property – land anything permanently
attached to it
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Common law
Real property includes buildings, that below and
that above
Carrot theory – center of the earth to the
heavens above
Today – reasonable depth and reasonable height
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Crown often owns what is below
Fixture – a chattel that is constructively or
permanently attached to the land
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HISTORICAL DEVELOPMENT
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Real versus Personal Property
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Distinction according to type of property and
rights in such property
Real = land and attachments
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Immovable
Real – (“real action”) historically legal remedy a party
could get when rights to land had been interfered
with
Personal = chattels
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Moveable
Personal action – action for money damages
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HISTORICAL DEVELOPMENT
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Feudal System
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Land was granted by the Crown in return for promises
(Ownership remained with Crown)
land held by crown given to lords who held subject to
certain rights and duties – portions to vassals then subvassals subject to further rights and duties
Holder had to comply with promise to necessary armed
men or services in support of the crown
Other services such as Agricultural and administrative
Escheat – reversion of land back to the crown when the
promise underlying the grant was broken
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HISTORICAL DEVELOPMENT
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Types of Interest in Land
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Estates
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Estates
Non-possessory interests
Tenure – a method of holding land granted by the Crown
Was free or un-free
2 Main Principals of Ownership
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Estates in time – time during which holder of interest has
exclusive right to possession of land
Interests less than estates – according to kinds of use
permitted or restricted upon the land
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TYPES OF ESTATES
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Nature of Estates
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Exclusive right to possession for period of time
Fee Simple
Life Estate
Leasehold Estate
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FEE SIMPLE
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The right to use land subject only to local
restrictions
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The highest level of land ownership
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Unconditional ownership
Effectively amounts to complete ownership
May dispose immediately or after death
Generally unlimited use and abuse of property
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FEE SIMPLE
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Limitations on rights of ownership
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Tort obligations associated with land
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Government regulation
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Environmental, planning, and zoning legislation
Expropriation
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Nuisance, occupiers’ liability
Forced sale to government for public purpose
Requires compensation to fee simple owner
Crown rights reserved
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Crown often reserves rights to minerals and certain
precious metals
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FEE SIMPLE
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Escheat – the reversion of land to the Crown
when a person possessed of the fee dies
intestate and without heirs
Deed – written or printed instrument effecting
legal disposition
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Execution
Delivery
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LIFE ESTATE
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Right to possession is based upon a person’s
lifetime
An estate in land for the life of one person
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Exclusive possession during lifetime
Life estate holder liable for waste
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Waste and act that significantly affects value of
land
Protection of party with reversion or remainder
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LIFE ESTATE
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No right to dispose of property on death
Reversion to party with fee simple
Remainder to person selected by party with
fee simple
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Reversion – the balance of fee simple reserved
to the grantor and her heirs at the end of a life
estate
Remainder – the balance of a fee simple that
goes to a third person at the end of a life estate
Remainder person - a person who holds the
reversion or remainder in a fee simple
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INTERESTS IN LAND
EXAMPLE OF CREATION OF ESTATES IN LAND
Copyright © 2004 by McGraw-Hill Ryerson Limited.
“Owner” of All Land
CROWN
Grants Estate in Fee
Simple to a Person
FIRST
GRANTEE
‘A’
Has Fee Simple
May Grant Lesser
Estate (Life Estate) to
‘B’
‘B’
Remainder After
Grant of Life
Estate May Be
Granted to ‘C’
‘C’
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On Death of ‘B’ Life
Estate Ends and B’s
Remainder and Life
Estate Merge to Form
Fee Simple Again in ‘C’
‘C’
Has Fee
Simple
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LEASEHOLD ESTATE
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Land leased to a tenant for a definite period
of time
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Right to exclusive possession for specified period
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Period must be stated with certainty at outset
Compare life estate: uncertain duration of life
Nature of leases
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Examined below
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THE CONDOMINIUM
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Mixed estates (joint control)
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Individual ownership and shared ownership
Individual (fee simple)– single unit
Common – (tenants-in-common) common areas
such as pool, gym, recreation center
Common law
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Property ownership either horizontal or vertical
plane
Property rights above and below the ground
“Air rights” and “strata title”
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THE CONDOMINIUM
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Required documentation varies by province
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Declaration; strata plan; condominium plan
Exclusive use area
Common use area
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Co-ownership of common elements tied to
ownership of individual unit
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If title to individual passes so does interest in
common elements
Cannot sever the two
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THE CONDOMINIUM
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Condominium Corporation – a corporation –
whose members are the condominium
owners
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Responsible for managing the property as a
whole
Management financed by condominium fees
Investment risks
Maintenance of a condominium
Insurance
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CO-OPERATIVE HOUSING CORPORATIONS
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Cooperative Housing – alternative to
condominiums
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Member buys a share in cooperative
organization and by virtue of equity gets a unit
in development
Corporation, as owner of building, is responsible
for maintenance and payment of mortgage
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INTERESTS IN LAND (EASEMENT)
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Easements - a right enjoyed by one
landowner over the land of another for a
special purpose but not for occupation of the
land
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Right to use neighbor’s land
Positive
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Allows one party to do something
Negative
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Prohibits one party from doing something
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INTERESTS IN LAND (EASEMENT)
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Right of way – an easement that gives the
holder a right to pass back and forth over
the land of another in order to get to and
from her own land
Dominant tenement – the piece of land that
benefits from an easement
Servient tenement – the land subject to the
easement
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INTERESTS IN LAND (EASEMENT)
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Acquisition of Easement
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Express grant: agreement between parties
Implied by law: necessary for practical
convenience
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Prescription: long, open, and uninterrupted use
of a right of way
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Landlocked
Use visible and apparent
Statutory: public utilities
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INTERESTS IN LAND (RESTRICTIVE
COVENANT)
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Negative covenants limiting the use of land
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Owner some control over use of property even
after it has been sold to another
A covenant requiring the holder of the land to
refrain from certain conduct or certain use of the
land
Need dominant tenement and servient tenement
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INTERESTS IN LAND (RESTRICTIVE
COVENANT)
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Issue: enforcement of covenants on
subsequent holders of the land (rule of
privity)
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Covenants run with the land
Must be reasonable and not against public policy
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INTERESTS IN LAND (DIFFERENCES)
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Easement and Restrictive Covenants
Restrictive covenant
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Is contractual
Must limit servient’s use of the land
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Easement may arise from implication or prescription
Easement
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Easement may allow dominant’s use of land
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INTERESTS IN LAND (MINERAL RIGHTS)
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Right belongs to owners in fee simple
Crown often reserves rights to minerals
Profit a Prendre – an interest in land
permitting the lessee to remove material
extracted from the ground
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INTERESTS IN LAND (MINERAL RIGHTS)
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Mineral eases
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Right to extract and retain minerals from under
the surface of land occupied by others
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Several interests in one agreement
Usually accompanied by a right to possession of
small area of land
No ownership of minerals until actually extracted
Usually acquired from government
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Private fee simple generally excludes minerals
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RIPARIAN RIGHTS
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Riparian owner
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Person who owns land adjacent to a
watercourse; or
Has land through which a natural stream flows
either above or below surface
Right to take water
Restriction
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Cannot interfere with the downstream flow
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POSSESSORY INTERESTS IN LAND
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Adverse possession – a possessory title to
land under the registry system
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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)
Possessory title good against everyone, including
true owner
Need not be the same occupant continuously
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ENCROACHMENTS
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Encroachment – a possessory right to the
property of another that may be acquired by
the passage of time
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Overhanging roof, building over the property line
If true owner permits encroachment for a long
period of time, right to demand removal is lost
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FIXTURES
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Fixtures – chattels that are permanently or
constructively attached to real property
Issue: fixture or removable chattel
Traditional Rule
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Use and enjoyment
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Chattel attached to improve the land became part of
the land
Chattel attached for the better use of chattel not a
fixture
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FIXTURES
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Factors – reviewed on a case by case basis
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Attached by own weight or affixed to land
Can be removed without damage
Degree of annexation
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Object of annexation
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Can be removed without damage
Use of the chattel
Tenants – different rules
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Can remove trade fixtures
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Display cabinets, shelving, signs, mirrors, equipment,
and machinery
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TITLE TO LAND
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Tenancy in Common – concurrent holders of
equal shares in an estate
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No right of survivorship
Interests not necessarily equal
Joint Tenancy – concurrent holders each of
whom has a right of survivorship
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Undivided interest
Identical in time, interest, possession
Right of Survivorship – the right of a surviving
tenant to the interest of a deceased joint tenant
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REGISTRATION OF PROPERTY INTERESTS
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Two Systems
Registry Systems – registry office – searches
of the title to a piece of land
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Bona fide purchaser – a purchaser who buys the
land without knowledge of an unregistered claim
No assurance of validity of interests
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Purchaser must search title and bears risk of
“good chain of title”
Title insurance common protection for mistakes
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REGISTRATIONS OF PROPERTY INTERESTS
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Land Titles System
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(Torrens System) – a system of land registration
where the land titles office brings all outstanding
interests in the land up to date and certifies
them as being correct
Certificate cannot be defeated
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Guaranteed by government
All interests on certificate are valid
No other interests are valid
Insurance - compensation for mistakes
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SUMMARY
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Real Property
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Includes land and attachments
Various Interests
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Estates
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Non-Possessory Interests
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Fee Simple, Life Estate, Leasehold Estate
Joint tenancy, tenancy-in-common
Easement, right of way, restrictive covenant
Adverse Possession
Interests registered
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