Under common law, prior to statutes governing transfers, there were at least three ways that one could transfer an estate in land. Given that the transfer of estates in land is now largely governed by statute, only a brief discussion by way of introduction is necessary.
At common law this was, at one time, the only way that one could transfer an estate in land. The essential element to this method of transferring an estate in land was a public ceremony. The parties, that is, the person who wished to transfer the property and the person who wished to acquire the property, gathered on the surface of that land. The person who held the estate in that land would then proceed to transfer possession of a clump of the dirt taken from that land to the transferee. The happening of this event would serve as evidence of livery of seisin. On occasion the ceremony would be accompanied by a document that evidenced the livery of seisin, but that did not become a requirement until the Statute of Frauds(1). After the passing of this statute, in the absence of writing evidencing the livery of seisin, only an estate at will would have been created.
Other methods of transfer developed in order to avoid the complexities of livery of seisin. A system called “lease and release” was used until legislation allowed for transfers of property in land without livery of seisin.
3) By Deed of Grant.
You might be wondering, in reference to the above methods of transferring property in land, why did A just not transfer the estate in fee simple to B by deed of grant? The reason for this seems to be a rather odd distinction that was made by common lawyers between corporeal and incorporeal hereditaments. In general, corporeal hereditaments were said to be freehold estates in land while incorporeal hereditaments were said to be forms in property in land other than freehold estates.(2) It was possible to transfer by deed of grant incorporeal hereditaments but not corporeal hereditaments. In Ontario this has been changed by the Conveyancing and Law of Property Act.(3) Section 2 of the Act states that:
All corporeal tenements and hereditaments, as regards the conveyance of the immediate freehold thereof, lie in grant as well as livery.
As a result, all forms of property in land may be transferred by deed of grant in the Province of Ontario. Similar legislation has been passed in other jurisdictions.(4)
The acceptable methods of transferring property in land in the Province of Ontario are set out in the Conveyancing and Law of Property Act.(5) Section 3 of the Act states that:
A feoffment, otherwise than by deed, is void and no feoffment shall have any tortious operation.
This statute made it impossible to prove that a person acquired by transfer a form of property in land in the absence of a deed of grant.
It is worth noting that s. 2 of the Act states that "conveyance[s] of the immediate freehold . . .lie in grant as well as livery". This would seem to be a contradiction. Does this section not indicate that a person may transfer a freehold estate in land by way of feoffment with livery of seisin? The short answer is yes. It may be possible to transfer a freehold estate in land by way of feoffment with livery of seisin. However the person who acquired the freehold estate could not prove the acquisition of the property in absence of a deed of grant. Consequently it may not be such a good idea to attempt to transfer property in the Province of Ontario by way of feoffment with livery of seisin.(6)
After coming to the conclusion that the only safe way to transfer property in land in the Province of Ontario is by deed of grant, it might be helpful to know what a deed is. In short, a deed is a thing. This thing is usually a document. The document must express a present intention to transfer property and must have been sealed and delivered.
A seal is a thing affixed to the document that is alleged to be a deed. This thing is affixed with the intention of formalizing some process. So a seal is any substance attached to a document with the intention of formalizing or authenticating the process. Think pledges signed and sealed in blood. Today the intent to formalize is conventionally indicated by affixing a red paper dot, purchasable in large quantities in office supply stores.
A person must also prove delivery to prove deed. The only fact that will prove delivery is a transfer of possession to a person who is not the agent of the person attempting to transfer the property in land. An interesting case on this point is Re Sammon (1979) 94 D.L.R. (3d) 594 (Ont. C.A.)
A grant is a series of words written on or contained in a deed.
The Statute of Frauds enacted in England in 1677 provides that certain types of contracts and other transactions must be in writing to be enforceable. By this Statute, in order to transfer property in land, the deed must be signed by the transferor. An unsigned deed is still a deed but transfer of property could not be achieved using an unsigned deed.
Section 70 (1) of the Act states;
After the grant from the crown of land, and letters patent issued thereof, every instrument affecting the land or any part thereof shall be adjudged fraudulent and void against any subsequent purchaser or mortgagee for valuable consideration without actual notice, unless the instrument is registered before registration under which the subsequent purchaser or mortgagee claims.
This section of the Act is primarily for the purpose of ensuring certainty in transferring property in land in Ontario. Consider the impact of the statute on the following situation. At time one A grants to B an estate in fee simple in that land. B acquires possession of a document that, as luck would have it, is a deed evidencing the acquisition of the estate in fee simple. B does nothing with this deed, nor is he aware that there are any requirements with respect to registration. At time two A grants an estate in fee simple in that land to C. Like B, C also acquires possession of a document that is a deed evidencing the acquisition of the estate in land. C had no knowledge that A had transacted with B. Unlike B, C registers the deed with the local bureaucrat under the provisions of the Act. At time three B discovers what A had done. B then discovers what C had done. What is the impact of the section of the Act of this fact situation?
Section 74(1) of the act provides that;
The registration of an instrument under this or any other former Act constitutes notice of the instrument to all persons claiming an interest in the land, subsequent to such registration, notwithstanding any defect in the proof of registration, but nevertheless it is the duty of a land registrar not to register any instrument except on such proof as is required by this Act.
How would this section of the Act affect the previous fact situation? Is the fact that B had no knowledge of the actions of A or C relevant?
There are two commonly used Public Registry systems both of which have been used in Ontario to record transfers of property in land.
1) The Torrens System is a system under which the last registered document may be relied on. If there has been a previous error such that the last registered document should not have been registered, a claim may be made against the insurance fund supporting the system. Most land in Ontario is registered using this system especially in the north of the province. However, as the population is concentrated in the south, you are more likely to be working with the Registry System.
2) The Registry System does not have an insurance fund, and users of the system must find root of title (which is an ostensibly reliable registered transfer document at least 40 years old) and a chain of transfers from that estate holder to the current transferor. S 70 (1) above means that the grantee who registers first in the Registry system makes fraudulent any previous grants not registered in the registry system.
A new system of land registration is being gradually introduced across Ontario as a result of this statute. Any licensed individual may electronically change the name of the estate holder in the system. When fully implemented, filings will be electronically only. No hard copy documentation will be needed. In case of fraudulent filings, remedies are available against the Law Society.
1. 29 Car. 2, c.3 (1677), s.3
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2. “ Real property may be classed as either a corporeal
or an incorporeal hereditament. An hereditament is a right…. A corporeal
hereditament is land…. An incorporeal hereditament, on the other hand
is a right annexed to a corporeal thing. …These include such rights
as (a) a rent charge, (b) an easement, and (c) a profit a prendre ….[An
easement] is an incorporeal hereditament and is real property as it is an
interest in the land itself. The owner of [an easement], however, has no interest
in the land out of which it issues.” Anger and Honsberger (2d)
page 924.
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It seems that this distinction was based on a rather odd conception of property. The old common law courts considered a freehold estate in land to be tangible. Therefore there was a requirement of feoffment with livery of seisin. The common law considered forms of property in land such as easements and estates in remainder as being intangible legal concepts. As such, livery of seisin would not be possible, and transferring these forms of property by deed was allowed. Why do people talk that way? Are not all forms of property legal concepts with no tangible form? Land is tangible, property in land is not.
3. R.S.O. 1990, c. C- 34.
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4. In England see: Law of Property Act, 1925, s.
51(1).
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6. Moreover, do not forget the implication of the Statute
of Frauds. Does it not require that all transfers of property in land
be in writing? Although the requirement of writing is only one element of
a deed, it seems that the statute would at the very least preclude the transfer
of an estate in land by way of livery of seisin without evidence in writing.
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8. R. S.O. 1990, c. L.4
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