Title to Land

• Author: Robert Chambers
• Pages: 31-65

31

CHAPTER 3

TITLE TO LAND

A. INTRODUCTION

As discussed in the previous chapter, ownership of goods is simply the

best right to possess them for an unlimited period of time. The same is

true of ownership of land except that a right to possess land is called an

estate, and the right to poss ess land indef‌initely is called a fee simple e state.

The word estate has two dierent meanings. When a person dies,

they leave behind an estate, which is all of their property (using prop-

erty in its widest sense to mean all of their a ssignable rights in rem and

rights in personam). An estate in land is a right in rem to possess land

for some period of time. Both meanings are commonly used, although

people often refer to the latter as real e state.

Most of this chapter is concerned with estates in land, including

the nature of an estate and the dierent kinds of estates that exist in

Canada. The chapter begins with the concept of tenure, which is the

relationship between the Crown and a person who holds an estate, and

ends with Aboriginal title, which is another form of title to land.

B. TENURE

Most people think of tenure as holding an oce, such as a political

oce or an appointment as a professor at a university. The word comes

from the Latin tenere, which means to hold. In property law, tenure

THE LAW OF PROPERTY32

refers to holding an estate in land. I n feudal England, the Crown would

grant estates to ten ants in chief, who would hold an oce that involved

more than just having possession of land.1 They would owe duties to

the Crown of loyalty and service, such as the duty to provide armed

soldiers or agricultural produce. Tenants in chief might grant portions

of their land to lesser ten ants in exchange for loyalty and services from

them, who in turn might g rant estates to even lesser tenants. Go ods and

services would f‌low up the feudal pyramid in exchange for the use of

the land and the land lord’s protection. The process of a tenant granting

an estate to a lesser tenant was called subinfeudation.

The landlords who held estates had relationships with the people

who lived and worked on the land that went well beyond the relation-

ships that exist between landlords and tenants today. Tenure provided

what we would now regard as a form of local government, with execu-

tive and judicial decisions bei ng made at the local level. Disputes would

be resolved in local manor court s according to local laws and customs.2

We still have tenure today, which is why we say that someone holds

an estate in land. However, it is only a vestige of what it once was. It no

longer functions as a system of government, subinfeudation has been

abolished, and feudal services are no longer required.

1) Subinfeudation

Subinfeudation was abolished in 1290 by the statute of Quia Emptores,3

which also provided tenant s with the right to transfer thei r land without

the landlord’s permission. That did not dismantle the feudal pyramid

then in existence, but it was gradua lly reduced, so most freehold estates

in England are now held directly from the Crown. The statute does not

apply to life estates or leasehold estates, which is why private persons

can still be landlords. Quia Emptores is part of the law of England that

became the law of Canada when it became a British colony, and that

statute still applies in Canada today.4

1 See John Baker, An Introduct ion to English Legal History, 5th ed (Oxford: Oxford

University Pre ss, 2019) at 241–49.

2 The common law of Englan d was called the common law to disting uish it from

these loca l laws. Ibid, ch 2.

3 18 Edw 1, c 1.

4 See, for example, Hongkong Bank of Can ada v Wheeler Holdings Ltd, [1993] 1 SCR

167, 100 DLR (4th) 40.

Title to Land33

2) Feudal Services

Tenures used to be classif‌ied according to the types of serv ices that the

tenants were required to provide to t heir landlord, such as agr icultural,

military, or spiritual services.5Most forms of tenure were abolished

by the Tenures Abolition Act 16606 and converted into a form of tenure

called free and common socage. Under socage tenure, the tenants’ obli-

gations (usually to provide some form of agricultural service or prod-

uct) were f‌ixed. As years passed, those obligations were exchanged for

payments of f‌ixed amounts, and as more years passed, those payments

became trivial due to inf‌lation and ceased to be collected.

In Attorney General for Alberta v Huggard Assets Ltd,7 land in Albert a

had been granted by the Crown subject to an obligation to pay royal-

ties at variable rates for any petroleum and natural gas extracted from

it: “TO HAVE AND TO HOLD the same unto the grantee in fee simple.

Yielding and paying unto Us and Our Successors such royalty upon the

said petroleum and natural gas, if any, from time to time prescribed by

regulations of Our Governor in Council.”8

A majority of the Supreme Court of Canada held th at the obligation

to pay royalties was invalid because it was not f‌ixed and therefore con-

trary to the Tenures Abolition Act 1660, which limited tenure to free and

common socage. This was reversed on appeal to t he Judicial Committee

of the Privy Council i n London.9 The Privy Council advi sed that socage

tenure was not always completely f‌ixed:

A considerable degree of “uncertainty” in the consideration moving

from the tenant is compatible with “free and common socage,” not-

withstanding the dicta of Littleton, Coke and Blackstone, to the con-

trary. One instance given by Littleton (Coke on Littleton 96A) of a

tenure on “certain” serv ices is where the tenure depends on the te nant

shearing all sheep on the grantor’s land: a service which can clearly

be made more or less burdensome according as the grantor chooses

to have upon his land few or ma ny sheep.10

More importantly, the Privy Council advised that the Tenures Abolition

Act 1660 was just a statute that could be repealed or altered:

5 Baker, above note 1 at 245–47.

6 12 Car 2, c 24.

7 [1951] SCR 427, [1951] 2 DLR 305.

8 Ibid at 429.

9 [1953] UKPC 11, [1953] AC 420, [1953] 3 DLR 225 [cited to DLR].

10Ibid at 235, Lord Asquit h.