Title to Land

AuthorRobert Chambers
As discus sed in the previous chapter, ownership of goods is simply the
best right to posse ss them for an unlimited period of t ime. The same is
true of ownership of land except th at 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 meani ngs. When a person dies,
they leave behind an est ate, 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 t he dierent kinds of estates t hat exist in
Canada. The chapter begin s with the concept of tenure, which is the
relationship between the Crown a nd a person who holds an estate, and
ends with Aboriginal title, which is another form of title to l and.
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 te nere, which mea ns to hold. In property law, tenure
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 serv ice, such as the duty to provide armed
soldiers or agricultural produce. Tenants in chief m ight 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 pyr amid 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 ten ant 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 bet ween landlords and tenants tod ay. 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 ha s been
abolished, and feudal serv ices are no longer required.
1) Subinfeudation
Subinfeudation was abolished in 1290 by the statute of Quia Emp tores,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 la ndlords. Quia Emptores is par t of the law of England that
became the law of Can ada when it became a British colony, and that
statute still applies in Can ada 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 Land 33
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.5 Most 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 a s more years passed, those payments
became triv ial due to inf‌lation and ceased to b e collected.
In Attorney General for Alberta v Huggard Assets Ltd,7 land in Albert a
had been granted by the Crow n 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 ga s, 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 “uncer tainty” in t he consideration moving
from the tenant is compat ible with “free and common soc age,” not-
withsta nding the dicta of Litt leton, Coke and Blackstone, to the con-
trary. One inst ance given by Littleton (Coke on Littleton 96A) of a
tenure on “certain” serv ices is where the tenure depends on the te nant
shearing al l sheep on the grantor’s land: a ser vice which can clea rly
be made more or less burdens ome according as the grantor c hooses
to have upon his land few or ma ny sheep.10
More importantly, the Privy Council adv ised 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].
10 Ibid at 235, Lord Asquit h.

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