|
WHAT IS IT? Buying land means just that: becoming the owner of the property.
But you will recall from the discussion in Chapter 5 that it is not accurate, strictly speaking, to speak of owning land. Rather, one owns an estate in land, a bundle of rights which taken together comprise ownership of the land.
The fee simple is the largest estate you can own in land. For practical purposes, if you are the sole owner of the fee simple, and there are no encumbrances, such as covenants and easements, you have the most rights you can possibly have over a piece of property. An estate in fee simple has been described in this way.
The estate in fee simple is the largest estate or interest known in law and is the most absolute in terms of the rights which it confers. It permits the owner to exercise every conceivable act of ownership upon it or with respect to it, including the right to commit waste. Moreover, his rights extend, in theory at least, "up to the sky and down to the centre of the earth." 120
Though a sole owner of the estate in fee simple has the most rights it is possible to have over land, that does not mean the owner can do whatever he or she wants with it. Use of the land is subject to a great many laws, ranging from laws governing subdivision of the property into smaller lots, to zoning laws, to environmental protection laws, and others.
In this chapter we are going to discuss only purchase of the fee simple. However, it is possible to buy an estate in land smaller than a fee simple — that is, a smaller part of the bundle of rights of ownership, or the same bundle for a shorter time. For example, one can purchase a life estate. 121 It is also possible for more than one individual, corporation or society to be co-owners of the fee simple. 122
POSSIBLE APPLICATIONS. For a conservation organization to buy land seems like the surest way to protect it, since if a conservation organization owns the land, no one else can cause it harm. Purchasing the land may be the only viable option if the owner is unwilling to negotiate any other way to protect the conservation value of the land.
Once the conservation organization has title to the property, it can put covenants or easements 123 on it for conservation purposes, provided there is an appropriate party to hold the covenant or easement. This will protect the land if it is sold to someone else. So the organization could choose to resell the land, or a part of it, but with covenants or easements in place to protect it. For example, the conservation organization could put a section 215 covenant on the land in favour of the government, 124 a heritage conservation covenant in favour of the municipality or, if it owned another piece of property, an easement or covenant in favour of its other piece of property.
If a conservation organization owns a piece of property it may be able to sell a piece of it, in order to finance the maintenance of the remainder in an environmentally sound state. 125
Or, the organization can purchase the land and lease it back to the vendor, or to some other person, with appropriate provisions for the protection of the land. The rent from the lease can offset the purchase price and the maintenance costs.
LEGAL BASIS. When a conservation organization buys a piece of property from a landowner, the organization takes all the interest that the landowner has. So, it takes the land subject to any covenants, easements, or other charges which may already be registered against the title.
HOW IS IT CREATED? A conservation organization acquires title to the land by buying it and having itself registered immediately as the new owner in the land title office.
HOW LONG CAN IT LAST? Provided that the conservation organization remains in good standing as a society or non-profit corporation, 126 the organization can go on forever. So the organization can own the property for as long as the organization exists.
WHO MONITORS AND MAINTAINS THE LAND? The conservation organization, being the owner, is responsible for looking after the property. The conservation organization can contract with someone else to manage the land — either by way of a management contract or by leasing the land to someone else. 127
The cost and energy associated with maintaining land over time are factors that a conservation organization will have to take into account in considering the purchase of land as a conservation option. Some conservation organizations active in acquiring land have a policy that they will not acquire a piece of property unless there is another party — for example, the Ministry of Environment, Lands and Parks — willing to maintain the land.
Since the conservation organization is the owner, it has both the responsibility and the power to protect the land over time. But if the organization failed to act as a responsible steward of the land no one could take legal action to compel it to change its ways.
HOW IS IT TERMINATED? The conservation organization ends its ownership of the land by selling or giving the land to someone else.
One option for the conservation organization would be to encumber the land with appropriate covenants or easements, perhaps drawn in favour of itself in appropriate cases, 128 to ensure that the land was protected indefinitely. It could then sell the land to someone else or trade it for another parcel.
120. Anger and Honsberger, above at footnote 44, at 98.
121. The purchase of a life estate gives you almost all the bundle of ownership rights. If I have a life estate in a piece of property I have almost all of the ownership rights in the land — but only for as long as I live. I can sell my life estate, but the purchaser, like me, would have ownership rights only for the length of my life estate. See Chapter 5, Everything You Always Wanted to Know about Land ..., and Chapter 12 on Life Estates.
122. See Chapter 11 on Co-ownership.
123. See Chapter 14 on Restrictive Covenants and Chapter 15 on Easements.
124. See Chapter 17 on Section 215 Covenants, Chapter 18 on Heritage Conservation Covenants, Chapter 14 on Restrictive Covenants and Chapter 15 on Easements.
125. Co-owners of land do not have an unrestricted right to divide up the land into smaller parcels. All subdivision of land is subject to local zoning bylaws and the provisions of the Land Title Act respecting subdivisions. In addition, other laws may apply. For example, land in the Agricultural Land Reserve may not be subdivided except in accordance with the Agricultural Land Commission Act, subdivisions of land into strata lots is governed by the Condominium Act, and the Islands Trust Act governs subdivisions within the area of the Islands Trust.
126. See Chapter 4, Conservation Organizations, for a discussion about incorporating.
127. See Chapter 21 on Leases and Chapter 22 on Management Agreements.
128. If the conservation organization has two adjacent parcels, it can draw an easement or a covenant with itself as covenant holder. This is permitted under Property Law Act, R.S.B.C. 1979, c. 340, s. 18(5).
