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WHAT IS IT? A life estate is a right to exclusive possession and use of land for the period of a lifetime. Someone who owns an estate in fee simple can grant a life estate to one person, remainder to a second person. The first person would hold the property for his or her lifetime. When that person died, the second person would get the property in fee simple. Go to: an example of a will creating a life estate.
Suppose you own a piece of property which you want your children to benefit from during their lives, but you also want to give to a conservation organization. You could give your children a life estate, remainder to the conservation organization. 157
AN EXAMPLE. In the early 1970s the Nature Trust of British Columbia was interested in buying a piece of estuarine property, wetlands and adjacent uplands, on Vancouver Island. The owners were a married couple who wanted to continue to live on the land.
So, the Nature Trust purchased the property subject to a life tenancy in favour of the co-owners. That meant that the owners would be able to live on the land until they died, but they got the purchase price of the property when they needed it. When the owners die, the Nature Trust will own the property outright.
POSSIBLE APPLICATIONS. Sometimes landowners want to protect both the interests of the land, by conserving it, and the interests of their children, by guaranteeing that their children will have the use of the land. Creating a life estate for the children, remainder to a conservation organization, is one way to deal with both concerns.
Or, aging landowners might want to give or sell property to a conservation organization, but be guaranteed that they will have a place to live until they die. They might want to give the property away subject to a life estate for themselves.
LEGAL BASIS. A life estate is a common law estate in land, like an estate in fee simple. But it is limited in the length of time it lasts.
HOW IS IT CREATED? If you own a piece of property, you can grant someone a life estate in the property either when you are alive or in your will. The life estate is registered in the land title office. The life tenant then has the right to occupy and use the property.
HOW LONG CAN IT LAST? By definition, a life estate lasts for the life of the life tenant. After the life tenant dies, the land goes to the remainderman, 158 or, if no remainderman is designated, the land goes back to the grantor.
You can also create a determinable life estate. Like giving a gift of land on condition, a determinable life estate would be granted or bequeathed to a life tenant but if he or she breached a condition of the estate, the life tenant would lose the land and the land would go to the remainderman or back to the grantor. For example, the landowner might grant a piece of property "to my daughter Harbans for life on condition that she erect no buildings, remainder to the Coast Islands Conservancy of British Columbia." If Harbans erected a building the Coast Islands Conservancy could claim the land from her. 159
WHO MONITORS AND MAINTAINS THE LAND? The life tenant has the right to occupy the land during the life tenancy. Life tenants are responsible for looking after the land while they are life tenants. Because life tenants only have land for limited periods of time, they cannot do just anything they want with it as an owner in fee simple can. They have an obligation to protect the interests of the remainderman. The grantor can spell out the specific rights and obligations of the life tenant. Unless the grantor says otherwise, a life tenant cannot do anything which will diminish the value of the land, for example, by unnecessarily cutting trees or destroying buildings. 160 But a life tenant does not have to keep buildings in repair, or buy insurance. The life tenant has to pay property taxes. 161
The life tenant has the right to occupancy, so the remainderman or the grantor has no right to come onto the land to monitor its condition unless that right is set out in the life tenancy document.
HOW CAN THE LAND BE PROTECTED OVER TIME? During the life tenancy, the life tenant is responsible for protecting the land. If the life tenant was failing in those responsibilities, in the sense of committing waste, 162 the remainderman could take an action for damages or for an injunction.
HOW IS IT TERMINATED? A life estate terminates automatically when the life tenant dies, at which point it goes to the remainderman, if one has been named, or back to the grantor, if no remainderman has been named. If it is a life estate granted on condition, it may terminate if the life tenant violates the condition.
157. It is also possible to give a life estate to one person to hold during the lifetime of another person: for example, to Juan for the lifetime of Abdul. Such an estate is called an estate pur autre vie, from the French, meaning estate for another life.
158. This quaint legal term describes the person who is designated by the grantor to own the land after the life tenant. Non-sexist language has not caught up to the Middle Ages, hence there is no such term as a "remainderperson".
159. See Chapter 7 on Conditional Gifts for a more detailed discussion about how conditions can be put on gifts of land.
160. Unless the document says otherwise, the life tenant will be "impeachable for waste," and liable for voluntary waste. If the documents says that the life tenant is not impeachable for waste the life tenant will still be liable for equitable waste. Voluntary waste is "the commission of an act which is injurious to the inheritance or to those entitled in remainder or reversion, either (a) by diminishing the value of the estate, such as by felling trees, mining, or destroying buildings or gardens, (b) by increasing the burden on it, or (c) by impairing evidence of title." Anger and Honsberger, above at footnote 44, at 168; and the Law and Equity Act, R.S.B.C. 1979, c. 224, s. 12. Equitable waste is "wanton, malicious or unconscientious destruction, such as of houses or trees planted or left for purposes of ornament or shelter." See Anger and Honsberger, above at footnote 44, at 172.
161. These are the rules unless the document creating the life tenancy says otherwise. The grantor can stipulate what the life tenant is responsible for in the document.
162. See footnote 160 for a description of the term waste.
