Other Interests in Land

• Author: Robert Chambers
• Pages: 128-165

128

CHAPTER 7

OTHER INTERESTS

INLAND

A. INTRODUCTION

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

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

security interest s, and so on. As discussed 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 counterparts in other areas of property law.

Four types of property rights are discussed in this chapter: rent-

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

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

is a right to enter land and take 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 the common law for many centuries,

whereas the restrictive covenant was established by the rules of equity

in the nineteenth century.

1) Incorporeal Hereditaments

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

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 Like many terms in the law of property, this is outdated and

Other Interest s inLand129

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 heirs, 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

after de ath).

Hereditaments are either corporeal or incorporeal. These adjectives

imply a distinction between tangible and intangible things, which

sometimes f‌inds expression 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 things at all, but rights.”1

However, all hereditaments are rights to land. The distinction is

based on possession. An estate is a corporeal hereditament because it

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

sess a space on the earth 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 space 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 exercised, the prof‌it holder will

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

them as goods.

We continue to classify property rights as corporeal hereditaments

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

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

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

(dissenting) in Saskatchewan Minerals v Keyes,

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

distinction bet ween the legal interest 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, all legal interests are “incorporeal,” and it is only the

unconfronted force of a long history that makes it necessary in this

case to examine certain institutions of property in the common law

provinces th rough an antiquated system of classif‌icat ion and an anti-

quated terminology.2

Rentcharges, prof‌its, and easements are not the only incorporeal

hereditaments. There are other hereditaments that are signif‌icant 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 the land where the market is held. As

Russell LJ said in Oswestry Corp v Hudd,

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

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

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

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

nature of an incorporeal hereditament, commonly originating 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 living when the

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

chancel repairs, which requires the owners to contribute to the cost of

repairing the chancel (i.e., the eastern half) 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 grant 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].