Other Interests in Land

• Author: Robert Chambers
• Pages: 128-165

128

CHA PTER 7

OTHER INTERESTS

INLAND

A. INTRODUC TION

Much of the law of property applies generally to land, goods, and other

things, all of which ca n be owned, shared, held in trust, subject to

security interest s, and so on. As discu ssed in Chapter 3, title to land is

dierent from the ownership and pos session of other things. This chap-

ter deals with another way in which land is treated di erently. There

are property rights to m ake use of land that is owned and posses sed by

someone else that have no counterpart s in other areas of property l aw.

Four types of property r ights are discussed in this chapter: re nt-

charges, prof‌its à prendre, easements, and restrictive c ovenants. A rent-

charge (as the name implies) is a right to payments of money, a prof‌it

is a right to enter land and ta ke away a natural resource (e.g., wood or

minerals), an easement is a right to make some use of neighbour ing land

(e.g., a right of way to cross it), and a restrictive covenant is a right to

restrict the use of neighbour ing land (e.g., for residential purposes only).

The f‌irst three have been part of t he common law for many centuries,

whereas the restr ictive covenant was established by the r ules of equity

in the nineteenth centur y.

1) Incorporeal Hereditaments

Rentcharges, prof‌its, and easements are classif‌ied as incor poreal here-

ditaments. Like many ter ms in the law of property, this is outdated and

Other Interest s inLand 129

unhelpful. A hereditament was a right that could be inherited back

when real property would descend to the heir on the de ath of its owner.

It could be granted to a person and their heir s, just like a fee simple

estate. We no longer have inheritance, so hereditaments form part of

the estate of a deceased person and are given away by will or on intes-

tacy (just like any other right in rem or right in personam that continues

af ter de ath).

Hereditaments are either corporeal or incorporeal. These adjectives

imply a distinction bet ween tang ible and intangible thin gs, which

sometimes f‌inds expre ssion in the cases. For example, the BC Court

of Appeal quoted the leading English textbook on real property with

approval: “Corporeal hereditaments are lands, buildings, minerals,

trees and all other t hings which are part of or axed to land — in other

words, the physical matter over which ownership i s exercised. Incorpor-

eal hereditaments, on the other hand, are not th ings at all, but rights.”1

However, all hereditaments are rights to land. The dist inction is

based on posses sion. An estate is a corporeal hereditament because it

is a right to posses s land. As discussed in Chapter 3, it is a right to pos-

sess a space on the ear th regardless of the contents of that space. Most

estates include the empty air space above the ground. If a house burns

down, the estate rema ins unchanged: the owner still has t he same right

to possess the sp ace where the house used to be.

In contrast, a prof‌it à prendre is incorporeal because it is not a right

to possession but a right to make some us e of land possessed by another.

A right to cut trees on someone’s land can be a prof‌it. It is a right to enter

the land and remove trees. When it is exerci sed, the prof‌it holder will

remove physical objects from the land and obtain t he right to possess

them as goods.

We continue to classify property r ights as corporeal hereditaments

or incorporeal hereditaments even though both are r ights to land, nei-

ther is inherited, a nd the terms do not reveal the real signif‌ica nce of the

distinction, which is ba sed on the right to possession. As Laskin J said

(dissenting) in Saskatchewan Minerals v Keyes,

The language of “corporeal” and “i ncorporeal” does not point up the

distinction bet ween the legal intere st and its subject-matter. On this

1 R v Esquimalt, [1972] 5 WWR 362 at 365, Maclean JA, quoting t he third edition

of Megarry and Wade on The Law of R eal Property; see Charles H arpum, Stuart

Bridge, & Mart in Dixon, Megarry & Wade: The Law of Real Prope rty, 8th ed

(London: Sweet & Maxwel l, 2012) at 8 & 1359. See also Pegg v Pe gg (1992), 1

Alta LR (3d) 249, 21 RPR (2d) 149 at para 15 (QB); Bank of Montreal v Dynex

Petroleum Ltd, 2002 SCC 7 at para 8.

THE LAW OF PROPERTY130

distinction, a ll legal interests are “ incorporeal,” and it is only the

unconfronted force of a long history t hat makes it necess ary in thi s

case to exa mine certain i nstitutions of propert y in the common law

provinces th rough an antiquated s ystem of classif‌icat ion and an anti-

quated terminology.2

Rentcharges, prof‌its, and easements a re not the only incorporeal

hereditaments. There are other hereditaments that are sig nif‌icant in

England (but not in Canada). For example, a franchise is a right to hold

a public market in a specif‌ic place. The right to hold the market is dif-

ferent from the right to possess t he land where the market is held. As

Russell LJ said in Oswestry Corp v Hud d,

In connection with a m arket there is a distinct ion to be drawn between

the “market,” in the sense of t he right to hold a concourse of buyers

and sellers, and t he place where the concourse is held — the “market

place.” A market in the former sense i s a local monopoly right in the

nature of an incorp oreal hereditament, commonly or iginati ng in a

grant from the Crow n.3

Another incor poreal hereditament is an advowson, which is the right

of a patron to nominate someone to an ecclesiastical l iving when the

oce becomes vacant.4 Land in England can b e subject to a liability for

chancel rep airs, which requires the owners to contr ibute to the cost of

repairing the ch ancel (i.e., the eastern h alf) of the local church.5

2) Limits on Property Rights to Use Land

There is a wide variety of ways in which pe ople can have property right s

to use land they do not possess, but the choice is not unlimited. Land-

owners are generally free to gr ant licences (i.e., rights in personam) to

people to use the land as the parties see f‌it. However, a right to use land

cannot be a right in rem that is enforceable generally again st others unless

it is recognized at law or in equity as an acceptable form of property.

In Keppell v Bailey,6 the owners of three dierent ironworks got

together with others to form a company for the construction of a rail-

road to be used to carr y limestone from a quarry to thei r ironworks. The

owners promised the company th at they and their heirs, successors, and

2 [1972] SCR 703 at 722, 23 DLR (3d) 573.

3 [1966] 1 WLR 363 at 377 (CA).

4 Sharpe v The Bishop of Worcester, [2015] EWCA Civ 399 at para 16.

5 Aston Cantlow and Wilmcote with Billesle y Parochial Church Council v Wallbank,

[2003] UKHL 37, [2004] AC 546 at paras 97–109.

6 (1834) 2 My & K 517, 39 ER 1042 [cited to My & K].