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 dierent 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 dierent 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 oce, such as a political
oce 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 oce 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
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.
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