Introduction and Framework
I have attempted to be as accurate and clear as possible. I have not attempted to write a definitive text on property in land in the common law system. That would be beyond both the scope of the project and my abilities at this time. You will note the almost complete lack of cases cited in support of these propositions. I have not attempted to create a reference text of cases that are alleged authority for a specific proposition. That is what legal research skills are for. What I have attempted to do, and hope I have succeeded at, is to summarize the main principles of property in land in the common law system. View this not as a text, but as a study guide. Nothing more.
That said, there are errors. Probably more than I would care to admit. Consequently, reliance on this work is solely at the risk of the reader. I take no responsibility for mistakes made in reliance on this work. Blind faith in the writing of another is a sure path to failure whether that writer be a judge, professor or student. Now, when the consequences are not as serious, is a good time to learn that lesson.
Having said that, the following is a framework for your studies on property in land:
I) Common law and equity
An estate in land may be held at common law or in equity. Equitable estates will be discussed in detail in Equity and the Statute of Uses. For now, it is sufficient to know that an estate in land is held in equity if the grant or devise results in one person holding an estate at common law to the use of another person. The person holding the estate at common law is, in equity, a trustee for the other person. Always analyze property in land at common law first. Then consider whether there are interests in equity.
II) Ways to acquire Property in Land
The chapter on Transfers deals with transfers of an estate in land but an estate in land may be acquired through any of
1. a crown grant
2. a transfer
3. inheritance which is acquiring an estate as a result of being the heir of a person who held an estate immediately before dying, discussed in estates of inheritance
4. a devise which is a term that looks like a grant but is contained in a will and follows slightly different rules. The rules for devises will be discussed separately where necessary in the following chapters
5. operation of law, such as dower or curtesy discussed in Life Estates (creates an estate at common law only).
6. evolution of another form of property in land, such as a remainder or a contingent remainder discussed in Future Interests
III) Types of Property in Land
The Crown holds ownership of all the land in Canada. In England the Queen holds ownership of all land. This concept of state ownership generally holds true in common law countries including the US, although the terminology may differ. Ownership is not an estate in land; estates in land are held of someone. Generally in Canada, they are held of the Queen. Note that these comments are not intended to apply to land in Quebec
The following are the main types of property in land. At this point you will not understand the categories but as the course progresses, this will provide a structure.
1. Ownership
2. Estates
a. Freehold (an estate of uncertain duration)
i. Life estates
ii. Estates in fee simple which are estates of inheritance (capable of being inherited)
iii. Estates in fee tail which are also estates of inheritance
b. Leasehold (an estate of certain duration)
3. Other
a. Estates in remainder (which are one of three types corresponding to the three types of freehold estates above and which will evolve into one of the three types of freehold estates above)
b. Contingent remainders (which are also one of three types corresponding to the three types of freehold estates above and which may evolve into estates in remainder or estates)
c. Other forms of property –easements, etc.