Chapter 1: The Evolution of Ownership

History of Land Ownership

Tenure - the holding of land without ownership.

Estate - status or extent of rights associated with tenure.

Types of estates: 

1. Estate to Uses - title in the name of a registered owner who may hold title as a trustee or beneficial owner. Ownership was held for a future buyer and was used to avoid a dower right. 
2. Fee Simple - the highest or absolute right in real property. Freehold ownership.
3. Fee Simple with Conditions - terminates under certain conditions.
4. Life Estate - an ownership right to an individual for a lifetime period.
5. Future Estate - an interest in land that arises at the end of a life estate. 
6. Leasehold Estate - an interest in land for a specified period of time.

Concurrent Ownership

When 2 or more have a right of ownership at the same time. (Joint tenancy or Tenants in Common)

Joint Tenancy - ownership by 2 or more whereby on the death of one (the right of survivorship), the surviving tenant take the whole estate. All owners have the same size of interest.

Four Unities (if these conditions are not satisfied - tenancy in common has been created):

• Title - all joint tenants must get a title from the same instrument (ex. deed or will).
• Time - the interest of each joint tenant must begin at the same time.
• Possession - If Jones and Smith own 2 acres as joint tenants - they both own 2 acres.
• Interest - the interest of each joint tenant must be identical in nature, extent, and duration.

Termination - a joint tenant may destroy the right of survivorship before death without the consent of other joint tenants. If there are 2 or more other joint tenants, they still joint together but tenants in common with the severed person. 

Tenants in Common - unlike joint tenancy, the interest of deceased person does not pass to the survivor. 

 

Matrimonial Home - a special status given to selected properties pursuant to the Family Law Act.

Family Law Act - Part 1 - equal division of property on divorce or death with stated exclusions. Part 2 - details the rights of the non-owner spouse to equal possession of the matrimonial home and sets out rights of possession of that home. According to the Law Family Act, there can be more than 1 matrimonial home. 

Family Property - property acquired during the marriage is equally divided between the spouses. Each calculates the value of the own property, after deducting the net value of the property that he/she brought into the marriage, excluding matrimonial home. The spouse with the greater net value pays the other an amount to equalize their holdings. 

Non-Owner Right to Possession - the Act confirms the right of the non-owner spouse to equal possession of a matrimonial home. The spouse has the right to be notified of any proceedings by a 3 rd party that could affect the possessory right. 

 

Ownership Alternatives

Condominium  - the fee simple ownership of a specified amount of space in the multi-occupancy building with tenancy in common. A unit owner can sell a unit, but the unit ownership and tenants in common ownership must be sold as a package. 

Legal Structure - Condo is established through a declaration (Constitution of the Corporation) and the description(Presentation of Property). The unit owners are personally liable for all debts and obligations of the condo corp. 

Co-operatives - provides a joint ownership alternative in which a property is owned by a corporation and members have a lease for a unit and may acquire a share in the corporation. Co-ops are managed by a board of directors. 

Equity Co-operative (with share capital) - corporation that owners the land and buildings with members as shareholders in the corporation. 

Non-Profit Co-operative (without share capital) - has the primary objective of providing housing for its members without the purpose of gain for those members. 

Co-ownership - any situation in which 2 or more persons own property jointly. The joint ownership of land does not necessarily mean that a partnership exists. 

Partnership - a contractual relationship between 2 or more parties, typically evidenced by a partnership agreement. All assets cannot be disposed of without the consent of the partners. The partnership must be registered under the Business Names Act.

Limited Partnership - an investment agreement that limits a partner's liability to the amount invested while also limiting the profit he can make.Must have at least 1 general partner. Limited partners - passive investors. 

 

Scope of Ownership

Real Estate vs. Real Property - Real Estate refers solely to tangible aspects of a property, while real property includes both tangible (land and improvements) and intangible (rights).  Real property is immovable, while personal property is movable. 

Personal Property - all property, except land and the improvements thereon. 

Fixtures - permanent improvements to the property that may not be removed at the expiration of the term of lease or tenure. 

Chattles - personal property that is tangible and movable.

Bundle of Rights - rights of ownership associated with the possession, use, enjoyment, and disposition of real estate. Each right represents a privilege of ownership. These rights can be separated into fractional interests (a single right within the bundle of rights in fee simple ownership).

Air Rights - rights to use space above the physical surface of the land. Air rights can become a separate unit of real property. Can be a limited value.

Surface Rights - rights associated with the ground level.

Mineral Rights - a right to enter or use lands for the purpose of removing minerals located therein. 

Riparian Rights - are associated with access to the water.

Easement - is a right enjoyed by 1 tenement over another tenement. For ex. 1 landowner with a right over another, usually granted for a special purpose rather than general use and occupation. 

Right-of-Way - a right to pass over another land.

The Dominant Tenement - the estate or interest in land that derives benefit from an easement over a servient tenement (land over which an easement exists in favor of a dominant tenement). 

Profit a Prendre - the right to enter upon a property based on a written agreement and take something from it, such as corps, minerals or timber.

Adverse Possession - using the land like an owner and ignoring the claims of other persons including the owner. The possessor then becomes the owner. Possessory in ON is only granted under the Registry Act. 

Encroachment - unauthorized intrusion onto the lands and property of another.

 

Ownership Limitations

Expropriation - taking of private property for public use, with fair compensation to the owner. The expropriating authority is the Crown.

Escheat - reversion of property to the state in the event the owner dies leaving no will and having no legaly qualified heir to whom the property may pass. 

Restrictive Covenants - a limitation placed upon the use of property, contained in the deed. For ex. a developer may restrict the type of homes to be built. Limiting conditions regarding the property. Registrants should be aware of all restrictions that affect any sub-division to provide accurate info to the buyer.