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The purpose of this chapter is to introduce the concepts that form the basis of the law of real property in British Columbia and to provide general information about how land ownership works. This chapter also will provide background for the legal tools that follow. If the land you are concerned with is outside British Columbia you should consult a lawyer in that province about the applicable land law.
The law treats land and the ownership of land in a particular way which is different from the ordinary way of thinking about land and ownership. There is a specialized vocabulary in property law. That vocabulary includes technical words, such as profit à prendre or fee simple. In addition to having different terminology, property law uses some ordinary words, like land and ownership, differently than they are ordinarily used.
Land in law means not just the surface area of a piece of real estate but includes the undersurface and the air over the land.
Ownership, in its everyday usage, means the right of an owner to have the exclusive possession and use of something, and to be able to sell it or give it away. British Columbia law divides up land ownership into a bundle of separate ownership rights. This is rooted in English feudal law, when the King owned all the land but gave rights over parcels of land — estates — to lords. An estate is not the piece of land itself but a bundle of rights in relation to the piece of land.
To this day, a landowner owns not the land itself but an estate, or interest, in land. The Crown decides what rights are included in the bundle of rights called an estate. But the Crown has reserved to itself some rights over the land. In British Columbia, for example, you cannot drill an oil well on your property, even if you own the fee simple in land, because in most cases the Crown has reserved that right to itself.
We will use the term landowner to refer to the person who holds all the rights it is possible for a person to hold over land. The landowner holds the estate in fee simple. 36 As we will see the rights of a landowner include:
The way the law treats land ownership enables many different people to have legal rights in relation to a piece of property at the same time. The landowner can put a restrictive covenant on the property to benefit another landowner's property, grant an easement over the land to someone else, lease the land to a third person, and then sell the land to a fourth person. The covenant holder, the easement holder, the tenant and the purchaser each have a different part of the bundle of ownership rights over the land.
To keep straight who has which parts of the ownership bundle there is a land title system in British Columbia, based on a statute, 37 where the rights over a piece of land are recorded. It maintains a record, by property, of all the estates and charges on the title of that piece of property. By searching the title of a piece of property at the land title office, the purchaser in the situation referred to in the previous paragraph would know that he or she did not get all of the possible bundle of ownership rights over the property, because the seller had already disposed of some of them by creating a restrictive covenant, granting an easement, and entering into a lease. 38 Therefore, the purchaser would take title subject to the rights of the covenant holder, the easement holder, and the tenant.
This is a significant incentive for anyone to register an interest in a piece of property in the land title office. If someone does not, that party generally will not be able to assert the right against a purchaser who buys the property unaware of the unregistered right. 39
In law, land is referred to as real property or realty. 40 Real property includes the land and things attached to the land, such as houses. In law, a piece of property extends to the middle of the earth and to the heavens. 41 Real property also includes the rights a person has over land, for example, a right of way. Real property is distinguished from personal property, 42 which is the term used for things that are movable. 43
Under English feudal law, all land was owned by the King, who granted estates 44 in land. As discussed, an estate is a bundle of rights over the land. The largest estate, that is, the largest bundle of rights, was an estate in fee simple. Being the holder of an estate in fee simple meant having the right to exclusive use and possession of the land in perpetuity and a right to dispose of the land by sale, gift or will. It also meant having the right to further divide the rights in land and dispose of them separately.
The Crown determines which rights over land are included in the estate in fee simple and which are reserved to the Crown. Though it is accurate in one sense to say that the Crown actually owns all the land, it is more confusing than useful. Although the Crown is in the position of deciding what rights will be included in ownership of land, once the Crown has decided that and people own land under those rules, the Crown cannot step in and do what it wants. The Crown does not have the right to sell land in respect of which someone has a fee simple estate. Nor does the Crown have a right to go onto such land, or to use it as it wishes.
However, the Crown, that is, the government, can always take back rights in land by expropriation. But the difference between ownership rights reserved to the Crown and ownership rights taken back by the Crown is that a landowner has never had those rights which were reserved by the Crown. They were never part of the bundle of ownership rights which constituted the estate in fee simple granted by the Crown to the original landowner.
When the British settled British Columbia they brought with them the view that the Crown owned all the land and could grant estates in land to individuals. 45 The colonial governments assumed that the Crown owned all the land in the colony, and that they could, in turn, grant estates in land to individual people. 46
The colonial governments in what is now British Columbia largely ignored the fact that the lands they were settling were already occupied by First Nations peoples, who had a much different relationship to the land. In a very few areas in what is now British Columbia, the colonial government made treaties with First Nations peoples. 47 But in the rest of the province, the colonial governments proceeded as if the land was theirs for the taking. 48
Currently, First Nations are both litigating and negotiating their land claims and political rights. 49 Conservation groups and individual landowners may want to consult with First Nations in their area and work with them in developing conservation plans which reflect First Nations people's interests in and uses of the land. 50
The Land Act51 sets out the main rights in land which are reserved to the Crown in British Columbia and, therefore, not part of an estate in fee simple. The Land Act specifies that a disposition of Crown land reserves to the Crown:
The Crown can, in individual circumstances, reserve greater rights than those generally reserved.
Crown land is a term that is used to refer to land which the Crown has not sold or granted or land the Crown has repurchased. It is land in which the Crown itself holds the fee simple estate. It should not be confused with rights reserved to the Crown before it was granted in fee simple to other people.
Separating rights in land from the land itself was an ingenious legal development in that it made it possible to develop a framework to accommodate the interests of different people in one piece of land. If you think of your rights as owner of the fee simple in land as a bundle of sticks, each stick representing a right you have over the land, you will see that it is possible to separate the sticks in the bundle and deal with them individually. For example, by using a lease you can separate the right to occupy the land from the right to sell it. Or you can separate the right to walk on parts of your property from the right to occupy it and sell it, by granting an easement on your property. You also can take away the right to use the land in certain ways by way of a covenant.
Although this development in the law was ingenious, it also means that the law is very complicated. The more parties that have an interest in a piece of land, the more potential there is for conflict over who can do what with the land.
In addition, two or more parties can own an estate in land together. A person can own property with another person, with a society or with a company. 52 The shares of co-owners need not be of equal size.
Special ownership rules govern Indian reserves. Indian reserves are created by the federal government under its constitutional responsibility for "Indians and lands reserved for Indians." 53 The federal Crown holds title to Indian reserve land. 54 The Crown has a fiduciary responsibility to the First Nation for management of the reserve. Reserve land cannot be alienated or disposed of by the First Nation or by the federal government. 55 On the reserve itself, individual band members do not own the land on which their houses are built. They do not have an estate in fee simple. 56 They cannot themselves sell their piece of property.
If the Indian band wanted to conserve reserve land, for example, by placing a covenant on the land or granting an easement over the land, the band council would have to pass a resolution and send it to the federal government for approval, which then would grant the interest. 57
Two of the main features of ownership of land in fee simple are disposition, the unfettered right to dispose of the land, and possession, the right to occupy and use the land.
There are two ways that the right to possess the land can be divided from the fee simple estate — by lease and by life estate. They are very similar. In each case, the rights of the holder of the estate in fee simple, the landowner, are divided so that the landowner keeps the right to sell the land and the tenant gets the right to occupy and use the land for the term of the lease. In the case of a lease, the length of time is predetermined. In the case of a life estate, the life tenant's rights over the land last for the duration of the tenant's life.
The rights of either a tenant or a life tenant can be registered against the property in the land title office so that anyone who purchases the land from the landowner takes the land subject to the rights of the tenant 58 or life tenant.
The owner of the fee simple has the right to exclusive possession of his or her land as well as the right to use the land in the ways that he or she wants, subject only to the laws governing land use.
But landowners have neighbours. Neighbours may want to pass over the land to get to their own land. Or, a neighbour may need a landowner to limit the things the landowner does on his or her land so that the neighbour's land is not adversely affected. Or, a neighbour may need a landowner to do something on or to the landowner's property to prevent damage to the neighbour's land.
The common law developed mechanisms to cope with neighbours' interdependency. There are three legal tools in this report which come from that part of the law: common law covenants, common law easements, and profits à prendre. In addition, there are developments in statutes which have their roots in the common law. They are section 214 covenants, section 215 covenants, and statutory building schemes. 59
A common law covenant is a promise made by one landowner to a neighbour to do or not to do certain things on a parcel of land, for example, not to build on a certain part of a parcel of land.
A common law easement is a right granted by a landowner to a neighbour to cross over the landowner's land, a right the neighbour would not otherwise have without trespassing.
A profit à prendre is a right given by a landowner to a neighbour to come onto the landowner's property and take some of what is growing or located there, such as timber or gravel.
An owner of the fee simple does not cease to be the owner by granting a covenant, an easement or a profit à prendre over the owner's land. But by doing so the owner has given away, or sold, a part of the bundle of ownership rights to another party.
Under the common law, the circumstances under which easements, covenants, and profits à prendre would be recognized were very carefully circumscribed.
In the case of easements, there were three rules.
Covenants had all the same rules as easements. In addition, only restrictive covenants, by which a landowner agreed to refrain from some activity concerning the land, were allowed to run with the land, that is, bind future owners. Positive covenants, those requiring a landowner to do something rather than to refrain from doing something, did not run with the land and bind future owners.
Profits à prendre had less restrictive rules than covenants and easements and did not require the holder of the profit to own any land at all.
Running with the land: Covenants, easements and statutory rights of way work well as long as the landowner or landowners stay the same. But what if they do not? Suppose the original two owners of neighbouring properties are alQamar and James. Suppose alQamar has granted an easement to James to pass over alQamar's land. If alQamar sells his land to Claudette, can Claudette refuse to honour the agreement that alQamar made with James?
The answer is no. Once an easement is granted and registered, the law says that it runs with the land. It is not just an arrangement between current owners; it binds future owners. 60 If alQamar sells his fee simple estate in land, he sells it subject to the easement.
The current property owners can agree with each other to terminate the easement. And
the owner of the property over which the easement exists can apply to end it under the
provisions of the Property Law Act. [[Footnote: (61] -- 61. Property Law Act,
R.S.B.C. 1979, c. 340, s. 31.
In the sections that follow we will discuss how these use-sharing tools available at common law can be applied to protecting land and how the ancient rules governing their use limit their current usefulness as conservation tools. 62
Statutory developments: The rules governing common law use-sharing tools have been changed by statute in certain limited circumstances. But in most cases the rules were changed without having conservation of land in mind 63 and, therefore, these changed tools have their limitations in the conservation context.
A statutory right of way can be created under section 214 of the Land Title Act. A statutory right of way is like an easement, in that it gives the holder of a right of way the right to cross a piece of land. But the rules about a section 214 statutory right of way differ from the common law rules about easements in two main ways. First, it must be held by the Crown, certain Crown agencies, local governments, or a non-government body which is designated under section 214. Second, there is no need for the holder of the right of way to own property near the property over which the right of way runs.
Section 215 of the Land Title Act provides expressly for covenants on land for conservation purposes, without the requirement of two pieces of land. But the landowner can only grant the covenant in favour of the Crown or certain Crown agencies. The covenant cannot, for example, be in favour of a conservation group. 64
The [[Heritage Conservation Act> permits a landowner to grant a heritage conservation covenant on land, if the interest can be described in a way that brings it within the definition of heritage in the Act. Ironically, although many argue that land is our greatest heritage, the [[Heritage Conservation Act> is directed primarily at protecting things constructed by humans. These covenants must be granted first in favour of the Crown, the British Columbia Heritage Trust or a municipal council, but can be transferred to a conservation group. 65
The Land Title Act allows for a statutory building scheme 66 to be registered on title to a property. For example, if there is a subdivision development which will have several units or lots, it is possible to put mutual restrictive covenants on all the lots which bind all the landowners to a common scheme of protecting everyone's property.
We have discussed how the bundle of ownership rights in land can be split up among different people. But how can a prospective purchaser of a piece of property be sure that the seller has not already sold some of the ownership rights to other people?
As noted above, in British Columbia there is a land title office which maintains a record, by property, of all of the estates and charges on the title of that piece of property.
The land title system accomplishes three main purposes. First, it provides a way for people to know the status of the title of a piece of property. You can look up a particular piece of property and see who owns it and whether it has mortgages, covenants, liens, and other charges. As the purchaser you are deemed to know what is shown on the title at the land title office, whether you actually looked it up or not. Registration of a charge in the land title office serves as notice to the rest of the world. 67 You cannot claim, after purchasing a piece of property, that the seller never told you about the restrictive covenant limiting your use of the land, and that since you were not told you are not going to respect it.
Second, the land title system provides a way of ordering the priority among the holders of various interests in a piece of land. The interests are ranked in the order in which they are registered, not necessarily in the order the landowner dealt with them. 68
Third, and perhaps the most important feature of the land title system, is that title to land passes, not when the transfer is signed, but when the transfer is registered at the land title office. So the purchaser can rely on the land title system as a guarantee of the indefeasibility 69 of title: no one can come along afterward and claim the title from the purchaser. 70
Suppose a landowner sold property to Olivia, who paid cash but did not register the transaction at the land title office. Then the landowner purported to sell the land to Margaret, who did register the sale. Can Olivia get the land back from Margaret? No, because Olivia's interest was not registered on the title. 71
Take another example. Suppose that Laiwan bought an option to purchase land from Helga, 72 the landowner, and had it registered on the title to Helga's land. Helga sold the land to Aaron, who tried to register his interest. The land title office will not register a conveyance of title from Helga to Aaron until Laiwan's option to purchase has been discharged.
The Land Title Act specifies what interests in land can be registered on the title of property. All of the legal tools already discussed in this chapter are registrable on title. But some of the tools discussed in the tools section do not actually touch and concern the land and, therefore, cannot be registered on title to the property. Management contracts, for example, though an important legal tool, are not registrable on the title to property because they are between the owner of property in their personal capacity and someone else.
To be registrable, all transactions relating to land must be in writing. 73 Many transactions must also be in a prescribed form set by law.
A brief digression is necessary to explain three terms which recur through the tools section: common law, equity and statute law. These concepts are rooted in the development of English law.
The phrase common law dates back to the 11th century, when the law was administered by King's justices travelling on circuit and administering one law common to everyone: hence, common law. Common law courts predated the formation of a Parliament, so the justices were administering the King's law. Gradually the justices began to attempt to apply the same principles to similar sets of facts, establishing a body of precedents. This practice led to the development of the principles of common law. Common law in this sense means the judge-made law which was developed in the courts of common law.
The laws of England were incorporated into the laws of the province of British Columbia. Although much judge-made law has been changed by legislation, a great deal of British common law still applies in British Columbia.
There were flaws in the administration of the common law. Sometimes the common law principles resulted in injustice when they were applied to a particular case. For example, in the courts of common law the judges refused to look behind the title to land. If a landowner had left title to his or her land with a neighbour on that person's promise to look after it and give it back when the landowner returned, and the neighbour subsequently refused to return the land to its owner, the common law courts would not force the neighbour to give the land back, because the neighbour had title to the land. One author commented that
[I]n the rough days of the thirteenth century, a plaintiff was often unable to obtain a remedy in the common law courts, even when they should have had one for him, owing to the strength of the defendant, who would defy the court or intimidate the jury. 74
Where the remedy was inadequate or the deserving plaintiff had not won in the common law courts, the plaintiff could petition the King. The King referred these cases to his Chancellor, who looked at the fairness, or equity, of the matter. There came to be a body of law out of the decisions of the Chancellors known as equity. Eventually a separate court of Chancery was established. The out-of-luck landowner described above could to go the Chancellor who would enforce the return of the land.
In British Columbia, all courts are empowered to administer the principles of common law and the principles of equity. 75 Therefore, in current times the relevance of the distinction between common law and equity is primarily in terms of which body of law is to be applied to a particular situation. The principles of common law and the principles of equity are not contradictory but supplementary. 76
One of the greatest innovations of equity was the development of rules to enforce trusts. A trust is created when someone transfers property to another party who agrees to manage the property for the benefit of someone else, the beneficiary. The legal title to the property is in the trustee. But courts of equity would enforce the rights of the beneficiary, who were said to have an equitable interest in the property. In British Columbia today, both legal (common law) interests and equitable interests are registrable on the title of land.
It is also possible for laws to come into effect by an act of the legislature. Because the legislature is supreme, 77 it can always change laws, including common law, equity, or laws it has passed itself. It does this by enacting statutes in the provincial legislature. 78
The previous sections examined ways that the bundle of ownership rights in land can be divided up among several people. This section looks at the question of how long into the future you can protect land. This issue is of crucial importance in the conservation context, since the point of conserving land, or protecting it from harmful human impact, is to protect it long into the future. As we will see, the law of real property is designed to limit the length of time into the future during which a landowner can protect land.
If the owner of the fee simple were to live forever, he or she could have control over
the land forever. But people die. People can specify in their wills what they want to
happen to their property
The answer is — it all depends. The law places a limit on the length of time into the future that you can grant a right to a person in connection with land that you own now. But you can grant a right now of a kind that will last forever.
Think of a common law easement, for example. If you grant an easement to someone, it runs with the land, binding anyone who gets the land from you, whether by purchase, gift or inheritance. The easement can last forever. 80
Or consider a conservation organization. If the organization is incorporated as a society, it can exist indefinitely provided that its members keep the society in good standing by filing the required annual reports. If a landowner donates or sells an estate in fee simple in land now to a conservation organization, that group can keep it for as long as the society exists. 81
The rule developed at common law to put an outside limit on the length of time someone could control land after his or her death is called the rule against perpetuities, a rule against the perpetual control of land.
The rule against perpetuities says that an interest in land must vest, if at all, not later than a life in being plus 21 years. 82 The rule has been modified by statute in British Columbia. The Perpetuity Act says that if an interest must vest within eighty years of the disposition creating the interest, there is no violation of the rule against perpetuity. 83
The important phrase in the rule against perpetuities is that the interest must vest within the perpetuity period. This does not mean that the person or party taking the interest in land must be entitled to possession of the land within the perpetuity period.
An interest vests in you when you are entitled to the right. Notice how carefully that sentence is worded: you need not be entitled to the possession of the land, but you must be entitled to the right in land, for your interest to be vested. There must be no conditions standing in the way of exercising your right except a prior interest.
Some examples will make this clearer (although the rule against perpetuities is notoriously difficult to understand, even for lawyers!).
Imagine that you willed your property to your daughter Sachiko for life, 84 remainder to your grandson Fumio for life, remainder to the Nature Conservancy absolutely. The interests of Sachiko and Fumio and the Nature Conservancy are vested immediately. Sachiko is alive, Fumio is alive and the Nature Conservancy exists. Sachiko's interest vests in interest and in possession immediately. Fumio cannot take possession until Sachiko dies, and the Nature Conservancy cannot take possession until both Sachiko and Fumio are dead. But their interests are vested immediately.
Compare a will which bequeaths property "to my daughter Yin Li for life, remainder to my grandson Frederick, provided he is married at the time of Yin Li's death." The property is vested in Yin Li both in interest and in possession. But what about Frederick? His interest cannot vest immediately, because he is not married yet. His interest will vest if and when he marries. If he does not marry before Yin Li dies, he gets nothing, because his interest does not vest until he marries.
There are a number of legal limitations on a landowner's right to do whatever he or she wants with a parcel of land. At common law, the courts have been quick to protect the rights of the owners of land to do what they wanted with it, subject to a number of key limitations including:
Some aspects of the common law regarding the rights and duties of a landowner or occupier have now been embodied in, or changed by, legislation. In addition, there is now a vast range of laws of general application which may affect the way a landowner uses land.
At common law, landowners are not entitled to use their land in ways detrimental to their neighbours' use of their own land. 85 An owner of land may be able to sue for nuisance against someone who does something that adversely affects the landowner's land.
The tort 86 of nuisance can sometimes provide a legal avenue for the environmental protection of private land, for example, if the land is being polluted by a neighbouring owner. Essentially, the law of nuisance is about the obligations of neighbourliness. 87
Nuisance law covers a wide range of objectionable activities, such as noise, vibrations, noxious odours, air and water pollution, obstruction of streets and highways, dangerous structures, and interference with riparian rights. 88
To succeed in an action for nuisance the occupier of land 89 must show that he or she has suffered actual and substantial harm. The court in a private nuisance action balances the uses of land by one landowner against the rights of another to the enjoyment of the other's land.
A lawyer's advice may be necessary to determine whether a particular use of land is a nuisance and, ultimately, it will be up to a court to determine if it is.
Landowners, or anyone else entitled to the possession of land, have a right to exclude trespassers.
In British Columbia, under the Trespass Act, 90 if land is fenced or posted with signs prohibiting trespassing at the access points to the property, a person coming onto the land is deemed to be a trespasser unless that person can show that he or she had the consent of the owner, lessee or occupier.
It is important to consider whether and under what circumstances people are permitted onto the land, since if people are on the land with the consent of the owner or occupier, there is a higher standard of liability.
Who is responsible if a tree falls on a member of the public who is using a trail created by easements across private property? What if a conservation organization buys a remote piece of property and a hunter trespasses on it, trips over a root, and breaks his or her leg? 91
The Occupiers Liability Act, section 2., states that it:
determines the care that an occupier is required to show toward persons entering on the premises in respect of dangers to them, or to their property on the premises, or to the property on the premises of persons who have not themselves entered on the premises, that are due to the state of the premises, or to anything done or omitted to be done on the premises, and for which he is by law responsible. 92
The Act defines an occupier as a person who
(a) is in physical possession of premises, or
(b) has responsibility for, and control over, the condition of the premises, the activities conducted on those premises and the persons allowed to enter those premises. 93
The Act also provides that there may be more than one occupier of a piece of land. Where only one person has ownership and possession of the property, he or she is the occupier and therefore liable under the Act. This would apply to an owner of an estate in fee simple, a determinable estate in fee simple, a fee simple subject to a condition subsequent, or a life tenant.
The holder of a covenant on land would unlikely be liable as an occupier, since a covenant does not give the covenant holder a right to enter the land or control it. On the other hand, the holder of an easement or of a profit à prendre could, in some circumstances, be liable. 94 Further, if a landowner is liable to maintain property under a lease, he or she is bound by the Occupiers Liability Act. 95
Under the Occupiers Liability Act, the occupier owes a duty of care to people who may come on the land. The occupier's duty is to ensure that people and property on the premises are reasonably safe. There is no list of what will, and what will not, attract liability. However, the Act says that the standard of the duty of care is in relation to the condition of the premises, the activities on the premises or the conduct of third parties on the premises. 96
The duty of care is greater if the person coming onto the land is entitled to be there, for example, if the premises are open to the public, than if they are not, for example, if the person is a trespasser. 97
Landowners are subject to general laws which may affect the use, occupation, or disposition of their land. Legislation is wide-ranging and includes:
It is beyond the scope of this report to review all of the legislation which may affect the obligations of an owner or occupier of land.
The government, or designated agencies, can expropriate (take away) land or an interest in land. Under the Expropriation Act 100 landowners have a right to notice of expropriation, a right to contest the expropriation, a right to compensation for the land at market value and for expenses related to the expropriation, and a right to contest the compensation amount.
Under the Assessment Act 101 the provincial government sets out the basis on which the amount of property tax is assessed, and provides procedures to challenge the amount of the assessment.
The provincial government also assesses a transfer tax when land changes hands. The Property Purchase Tax Act 102 sets out when and how much tax is payable.
The federal government assesses a capital gains tax if land is sold for more than it was bought for, subject to exceptions in the Income Tax Act. 103
A brief review of some taxation issues in relation to land is found at Appendix A.
36. For simplicity we will refer to the holder of the fee simple estate as the owner of the fee simple estate.
37. Land Title Act, R.S.B.C. 1979, c. 219.
38. Special rules apply to the registrability of leases. See [[Chapter 21 on Leases in Part Three.
39. This is subject to certain exceptions. See Land Title Act, s. 23(1).
40. This does not mean that other property is unreal. The term real property comes from a Latin word, res, meaning thing.
41. This is what makes ownership of a strata title condominium possible: you buy rights to the part of the land which is between X feet and Y feet over the surface of the land!
42. Personal property or personalty does not refer to who owns the property. It refers to any property which is not land.
43. Personalty also includes rights which you personally may have, such as a licence. Although the distinction between real and personal property is simple in theory, in practice the distinction is sometimes hard to apply.
44. One author notes that, "[T]he term 'estate' is probably derived from status, for in a landholding society the relationship one had to one's land no doubt defined one's standing in the community. Later, however, the term 'estate' described the quantity of a person's interest in land. The concept of the estate is unique to English law. It is an abstraction, interposed between the tenant and the land so that a person does not own the land itself absolutely or allodially as in the civil law. Indeed, he cannot own the land for the Crown owns it. Instead, he owns an estate or interest in the land. Furthermore, it is the concept of seisin which links the abstract concept of the estate with the physical thing, the land. The person who has the seisin, or who is entitled to it in the future, has an estate in the land. Moreover, the idea of estates, as distinct from ownership of land, makes possible the fragmentation of ownership among different persons in succession." A.H. Oosterhoff, & W.B. Rayner, Anger and Honsberger: Law of Real Property, 2d ed. (Aurora, Ontario: Canada Law Book, 1985) at 26-27.
Another author notes, "[I]n an English common law jurisdiction, the system of holding and conveying land cannot be understood and appreciated without some knowledge of the doctrine of tenure which was generated by the feudal system. That system was introduced by William the Conqueror. It rests upon the hypothesis that all land was held mediately or immediately from the King and that service was due directly to him as overlord. To reward his followers the King granted feuds to his most powerful friends. They, in turn, made grants to their tenants. But the relation of feudal lord and tenant thus entered into was one of mutual obligation. A measure of security of title was assured the tenant by having his title warranted by the lord. He was bound to give the tenant lands of equal value if he were ejected by anyone who showed a superior title. A landholder could, therefore, have the status of both vassal and a mesne or middle lord, but with the King always lord paramount. Under such a system land could only be, technically and in theory, the subject of tenure, not ownership: Nulle terre sans seigneur. This principle of tenure, which still colours the general character of English land law, was originally no less a principle of government than of ownership." Victor Di Castri, Law of Vendor and Purchaser: The Law and Practice Relating to Contracts for Sale of Land in the Common Law Provinces of Canada, 3rd ed. (Toronto: Carswell, 1988-) [looseleaf] at 1-1 paragraph [1].
45. British Columbia was actually formed out of three separate British colonies. Each of the three parts, Vancouver Island, the lower mainland and the north of the province, was originally granted to the Hudson Bay Company on condition that each part be settled. The three colonies were amalgamated and in 1871 joined confederation as the province of British Columbia.
46. Although there were some inconsistencies about how the colonists treated the questions of ownership — for example, a few treaties were made in British Columbia — mostly in British Columbia the colonists proceeded on the basis that they owned the land.
47. There are only the fourteen Douglas Treaties on Vancouver Island and Treaty 8 in northeastern British Columbia.
48. First Nations, who before contact
exercised dominion over what is now Canada, generally are now restricted in their land
base to reserves created under the Indian Act. "In total, Canada's 596 Indian
bands have 2,261 Indian reserves covering approximately 27,100 km
49. The first issue for the courts to decide is how the two landholding systems, that of the First Nations peoples and that of the colonizers, are to be reconciled. The most important case to date in this regard is Delgamuukw et al. v. The Queen in Right of British Columbia et al. (1991), 79 D.L.R. (4th) 185 (B.C.S.C.); varied (1993) 104 D.L.R. (4th) 470 (B.C.C.A.). Delgamuukw is currently under appeal to the Supreme Court of Canada. Under section 35 of the Constitution Act, 1982, aboriginal rights are constitutionally protected. But it will be up to the courts to decide the content of "aboriginal rights."
50. In most cases land claims in British Columbia are not asserted over land held in fee simple.
51. Land Act, s. 47.
52. See [[Chapter 11 on Co-ownership.
53. Constitution Act, 1867 (U.K.), 30 & 31 Vict., c. 3 (formerly British North America Act, 1867).
54. A little-used section of the Indian Act permits the creation of reserves not vested in the Crown. Section 36 provides, "[W]here lands have been set apart for the use and benefit of a band and legal title thereto is not vested in Her Majesty, this Act applies as though the lands were a reserve within the meaning of this Act." R.S.C. 1985, c. I-5, s. 36.
55. Section 37 of the Indian Act provides that lands in a reserve shall not be sold until they have been absolutely surrendered to the Crown by the band, and there are extensive provisions governing how the band must take its decision to surrender the reserve land. The federal Crown has a fiduciary responsibility to members of the band in the administration of the reserve lands. In Guerin v. The Queen (1984), 13 D.L.R. (4th) 321 (S.C.C.), the court held that the Crown had breached its fiduciary duty to the band by negotiating a lease for a golf course on terms very unfavourable to the band, and then failing even to provide a copy of the lease to the band for twelve years. The federal government was ordered to pay $10 million to the band as damages for breach of its duty.
56. Instead they have what is called a "certificate of possession" which entitles them to occupy a certain house: Indian Act, R.S.C. 1985, c. I-5, s. 20.
57. Indian Act, ss. 37-41.
58. There are some exceptions. See [[Chapter 21 on Leases for a more detailed discussion of the registration of leases.
59. For a detailed discussion of each of these tools, see Chapters 14 to 20.
60. Provided it is registered in the land title office.
62. See chapters on Restrictive Covenants, Common Law Easements, and Profits à Prendre in [[Part Three>.
63. The exception is section 215(1.1)(e) of the Land Title Act.
64. See [[Chapter 17 on Section 215 Covenants.
65. See [[Chapter 18 on Heritage Conservation Covenants.
66. See [[Chapter 16 on Statutory Building Schemes.
67. Land Title Act, s. 27.
68. Land Title Act, ss 22-28. There are some circumstances in which the order of registration is not the order of priority, for example, if the holder of an earlier-registered instrument agrees that a later-registered interest should come ahead of his or her instrument.
69. Indefeasible means "that which cannot be defeated, revoked, or made void. This term is usually applied to an estate or right which cannot be defeated." Henry Campbell Black, Black's Law Dictionary, 6th ed. (St. Paul, Minnesota: West Publishing Co., 1990) at 769.
70. "Section 20 of the Land Title Act provides that, except as between parties to the same, no instrument purporting to transfer, charge, deal with or affect land or an estate or interest in land, effectively passes that interest either at law or in equity unless the instrument is registered in conformity with the Act." CCH Canadian, British Columbia Real Estate Law Guide (Don Mills: CCH Canadian, 1979-) [looseleaf] at paragraph 10,205. "However, if a purchaser has actual knowledge of an unregistered interest and later does something which in light of their notice is improper or unfair, a court could find that a fraud was committed, and then the purchaser could not rely on the protection of the Land Title Act." CCH Canadian, British Columbia Real Estate Law Guide at paragraph 10,234. And, there are certain statutory exceptions to a certificate of indefeasible title which are contained in section 23 of the Land Title Act.
71. She will have a remedy against the seller, but will not be able to get the land back.
72. See [[Chapter 9 on Options to Purchase in [[Part Three>.
73. Land Title Act, s. 39.
74. P.V. Baker & P.St.J. Langan, Snell's Equity, 29th ed. (London Sweet & Maxwell, 1990) at 8.
75. Law and Equity Act, R.S.B.C. 1979, c. 224.
76. And in case the principles of common law and the principles of equity conflict, the principles of equity prevail: Law and Equity Act, s. 41.
77. The authority of the British Columbia legislature to pass laws is limited to matters within provincial rather than federal jurisdiction; and legislation must conform with the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B of the Canada Act, 1982 (U.K.), 1982, c. 11.
78. Statutes may contain the power to make regulations, which have the force of law but are not passed by the legislature as a whole. The Constitution Act and the Canadian Charter of Rights and Freedoms impose certain limits on the legislature's ability to make laws.
79. Or, if they do not have a will, their property passes by law to their next of kin.
80. This is the case unless the person who owns the land benefited by the common law easement grants a release of the easement to you or the person who purchased the land from you, or unless you or the person who buys the land from you applies to court for an order releasing the easement.
81. Of course if you donate or sell your fee simple estate to a conservation organization, it, being the new owner, can do what it wants with it: sell it, use it as it wishes, and so on. So, although you have accomplished a result which may last forever — whereas a donation or sale to a person never will — you have not managed to maintain control over the use of the land, except to the extent that you trust the conservation group to manage the land properly in perpetuity (forever). Nevertheless, you have accomplished a potentially perpetual result by granting an interest in land, the fee simple, to a party that does not die.
82. "Vesting" is when a transfer of ownership occurs because a legal condition has been satisfied. For example, ownership of an estate vests in a son on his 30th birthday where he was left the land in his deceased father's will "when he turns thirty." The "life in being" refers to the remaining duration of the life of a person who is in existence at the time when the deed takes effect.
83. Perpetuity Act, R.S.B.C. 1979, c. 321, s. 3.
84. The will might provide that your property was to go "to Sachiko for as long as she lives."
85. The Latin maxim sic utere tuo ut alienum non laedas — meaning "use your own property so as not to injure that of your neighbour" — is often quoted as a statement of the applicable common law. See Beth Bilson, The Canadian Law of Nuisance (Toronto: Butterworths, 1991) at 7.
86. Tort is the name in law for a wrong,
apart from breach of contract, committed by one party against another which the law will
remedy.
87. John G. Fleming, The Law of Torts, 7th ed. (Agincourt, Ontario: Carswell, 1987) at 379.
88. Allen M. Linden, Canadian Tort Law, 3d ed. (Toronto: Butterworths, 1982). The law of nuisance is divided into public nuisance, which is actionable when someone creates suffering and inconvenience common to all, but actionable by an individual landowner only if that person suffers more harm than others; and private nuisance, which is the unreasonable interference with the use and enjoyment of a particular piece of land. The detailed rules about public and private nuisance are beyond the scope of this report. Riparian rights relate to the use of water.
89. The tenant, life tenant and owner of a profit à prendre can sue for nuisance if their use and enjoyment of the land is impaired.
90. Trespass Act, R.S.B.C. 1979, c. 411.
91. The structure of this section is derived from Arlene J. Kwasniak, "Conservation Easements and Occupiers Liability," an address made to Edmonton Metropolitan Regional Planning (Alberta, Environmental Law Centre, April 1992).
92. Occupiers Liability Act, R.S.B.C. 1979, c. 303, s. 2.
93. Ibid., s. 1.
94. Kwasniak, above at footnote 91, at 27.
95. Occupiers Liability Act, R.S.B.C. 1979, c. 303, s. 6. Special rules apply to leases.
96. The standard of care generally will be lower for property which is clearly less developed, such as a rural woodlot, than a developed property, such as a city house or a shopping mall.
97. In the latter case, the duty of care is not to create a danger with intent to do harm, or to act with reckless disregard of the safety of trespassers or their property. However, there may be a higher duty of care to prevent harm to children.
98. Agricultural Land Commission Act, R.S.B.C. 1979, c. 9.
99. Water Act, R.S.B.C. 1979, c. 429.
100. Expropriation Act, S.B.C. 1987, c. 23.
101. Assessment Act, R.S.B.C. 1979, c. 21.
102. Property Transfer Tax Act, S.B.C. 1987, c. 15.
103. Income Tax Act, R.S.C. 1952, c. 148 and amendments.
