Property Law - Canadian Law Information

2 min read

22 Dec

GENERAL OVERVIEW

Vacant land, a farm, a condominium, a house, a building, and an office tower are all examples of real estate or “real property”.

There are other forms of property – personal property and intellectual property – but that which in Quebec is seen as “immoveable” is real property in the common law jurisdictions.

Interests in real property are not all the same. The highest or best interest one can have in real property is the fee simple absolute – the “fee”.

The person with the fee in the real property, subject, to provincial and municipal laws, can add or demolish buildings, subdivide the land, rent out a portion of the land or building or sell a part or all of it.

Those who do not own the fee may nevertheless have an interest or an estate in the property – a life interest or a leasehold interest in the land or structures on it.

But a person with either a life estate or leasehold interest cannot significantly alter the land or the structures on the land without the express permission of the person holding the fee.

Life estate and leasehold interests are time limited, while the fee is not.

In a condominium, all of the condominium owners together own the land on which the condominium structures are built, and the unit owners acquire title and exclusive possession of a residential unit, parking unit, and/or locker space.

Condominiums have common elements for the benefit of all owners and exclusive use areas for unit owners such as balconies or yards.

Why is property law important? In one way or another and in some capacity, we all "occupy" property every hour of every day. Ownership of that property or our right or rights pertaining to that property (real, personal, or intellectual) are vital to peaceful living.

Can property rights be transferred? Yes, they can. They can be gifted, sold, or passed on in a will. The property right transferred may be full and complete ownership or it might be less than that, like the right to occupy it for a set period of time (possibly as a tenant).

Is there a transfer of property without a will? If the deceased is married and leaves behind children or relatives, provincial law sets out who receives what portion of the deceased's assets (property). This is usually referred to as "succession law".

Can property be subject to an easement? Yes, although you may own real property, it may be subject to a right in favour of another, often an adjoining land owner who has a limited right, possibly to pass over a strip of your property.

MORE INFORMATION AND CONTENTS BELOW the CAUTION

Caution: Legal information is not legal advice.

This website merely provides a general guide to the subject matter.

New and interesting information will be periodically added on this topic.

ADDITIONAL INFORMATION

DIVISION OF PROPERTY AFTER SEPARATION

In Ontario, property acquired during a marriage is likely to be divided equally when the parties separate. Parties that separate after a lengthy cohabitation may have to rely on the common law to obtain an interest in property acquired during cohabitation if both names are not on the title. This is a complex area of law and personal issues need to be addressed with the help of a practicing lawyer.

MORE CONTENT BELOW SUGGESTION AND CAUTION

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This book contains a full chapter on "Property Law".

AVOID PARTICIPATING IN MORTGAGE FRAUD:

An agreement to buy property can and should be conditional upon you finding satisfactory mortgage financing. As a buyer, you do not waive that condition until you have a written commitment to provide mortgage financing on terms satisfactory to you from a money lender - preferably, an institutional money lender. To better understand how you might be caught up in illegal “activity”, see the CBC program below and consult with your own lawyer: Mortgage fraud caught on camera: Undercover investigation (Marketplace) - Bing video

SQUATTERS' RIGHTS BE GONE: Under the common law, if someone exclusively, continuously, openly, and notoriously used and occupied another's land, they would acquire squatter's rights or possessory title (which could be sold to another). For land in Ontario regostered in Land Titles this no longer applies and legal title cannot be lost to a squatter. Alberta has just amended its laws to the same effect - squatters get nothing.

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