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WHAT IS IT? A bequest is a gift to someone made in a will. A donation is a gift to someone made while the gift giver is alive. In this chapter we are concerned with gifts or bequests of title to land — that is, a gift or bequest of the fee simple. 104
AN EXAMPLE. The Denman Conservancy was concerned about how little of Denman Island land was conserved, and how threatened its lands were.
The Conservancy targeted a piece of property on Pickles Road which was marsh land and waterfowl habitat, and which was located between an already-protected piece and a piece of vacant Crown land.
The Conservancy worked hand in hand with the Islands Trust to buy the threatened Pickles Road property from a forest company. The Conservancy raised $35,000 toward the purchase price and received a matching grant from a foundation which wished to remain anonymous. In order to acquire the land, the Islands Trust had to apply to have it subdivided from a larger lot within the Agricultural Land Reserve. The Agricultural Land Commission approved the subdivision on condition that the Islands Trust would undertake to get title to the adjoining Crown lands, so that the lands could be consolidated.
As the Islands Trust Fund is able to apply to have Crown land transferred to it, Denman Conservancy and the Trust agreed that the newly-purchased property and the adjacent Crown lands be consolidated into a single wildlife sanctuary held by the Islands Trust Fund with the Conservancy acting as the local management group. The Conservancy is now developing a management plan for the Trust Fund board.
There are currently section 215(1.1)(e) covenants on the title in favour of the Crown in Right of the Province as represented by the Ministry of the Environment, Lands and Parks and the Regional District of Comox-Strathcona. Once the management plan is complete, additional covenants will be placed on the land to reflect and secure the conservation objectives of the management plan.
POSSIBLE APPLICATIONS. Large conservation organizations have donation and bequest programs that are one of the main ways that those organizations conserve lands. 105
But before accepting donations or bequests, a conservation organization must think carefully about its acquisition and maintenance strategy. The type of land that is offered may or may not fit with the organization's conservation plans. For example, the conservation organization may want to acquire only lands with particular ecological significance. If the donated parcel does not fit with those plans, the organization must ask itself whether it will be possible to sell the parcel or trade it for a more important piece. It will also need to consider whether the landowner is willing to donate the land if the conservation organization later wants to sell it or trade it for land to be preserved, rather than conserve the donated parcel. If so, the organization will want to consider accepting the land; if not, it may not. Also, land ownership carries with it responsibilities — payment of taxes, occupier's liability, and maintenance obligations.
The conservation organization should also find out if anything registered on title to the property will restrict its use. For example, if a landowner had encumbered the land with a covenant registered under section 215 of the Land Title Act in favour of the government before donating or bequeathing it to a conservation organization, it could tie the hands of the conservation organization to a certain extent. The group must be careful that it can live with any such restrictions.
LEGAL BASIS. A donation of land is a voluntary transfer of title from the giver to the recipient during the giver's lifetime. 106 A bequest of land is a gift made in a will. When the giver of the gift dies, the will is probated. The conservation organization can decide at that point if it wants to accept the gift. If it does not, the land goes to the next person named in the will. 107
HOW IS IT CREATED? A gift of an interest in land must be made by a document called a deed. A bequest of land is made in a will. In either case, a transfer of title to the donee or the beneficiary must be registered at the land title office.
HOW LONG CAN IT LAST? The conservation organization can own the property for as long as the group exists. Or, the conservation organization can sell the land to someone else.
WHO MONITORS AND MAINTAINS THE LAND? The conservation organization, being the new owner, is responsible for looking after the property and has all the other obligations that go with ownership. The conservation organization can contract with someone else to manage the land — either by way of a management agreement or by leasing the land to someone else. 108
HOW CAN THE LAND BE PROTECTED OVER TIME? If the land has been given outright to the conservation organization, with no other covenants registered on title to the land, there is no way for anyone outside the group to enforce the former landowner's wishes about how the land is cared for by the conservation organization.
HOW IS IT TERMINATED? The conservation organization can end its ownership of the fee simple estate by selling or giving it to someone else. Another option for the conservation organization would be to encumber the land with covenants or easements, perhaps drawn in favour of itself in appropriate cases, 109 in order to ensure that the land was protected indefinitely. It could then sell the land to someone else or trade it for another parcel.
104. Technically, a gift of land in a will is called a "devise," and a "bequest" refers only to a gift of personal property in a will. However, we have used the term "bequest" because it is more commonly known. In this chapter we are focusing on gifts of the whole fee simple, although a lesser interest in land can also be the subject of a gift. Also, see Chapter 7 on Conditional Gifts.
105. The Nature Conservancy of Canada> accepts donations of land from private citizens. Its mission statement says, "The Nature Conservancy of Canada> is the only national organization dedicated to preserving biological diversity through the purchase and protection of ecologically significant natural areas and places of special beauty and educational interest." In its information for donors, the Nature Conservancy of Canada> says, "[t]here are always particular lands marked for preservation and specific goals towards which the Conservancy is working. In addition, assistance is always required in meeting general expenses of administration and broad ongoing objectives. ... because of the nature of its work, the Conservancy has received donations of lands or lands and buildings. The gift may be ecologically important land or property which has little ecological significance but which is nevertheless valuable. In the latter instance, under agreement with the donor, it would be desirable for the Conservancy to have the flexibility to sell these assets to raise money for the acquisition of ecologically important and sensitive areas elsewhere in Canada." See Appendix B> for a discussion of other conservation organizations.
106. The gift can be an outright gift or it can be a conditional gift. See Chapter 7 on Conditional Gifts.
107. Like a donation, a bequest can be a conditional gift.
108. See Chapter 21 on Leases and Chapter 22 on Management Agreements.
109. If the conservation group has two adjacent parcels, it can draw an easement or a covenant with itself as covenant holder. This is permitted under the Property Law Act, R.S.B.C. 1979, c. 340, s. 18(5).
