Property In Land: Terms and Definitions
Andrews v. Partington: A class of beneficiaries that is uncertain in number will close as soon as a member is entitled to call for his share. All those born before this time will be included in the class and all those born afterwards will be excluded.
Court of Chancery: The courts of equity before the Judicature Act 1875.
Constitution Act 1792: Provided a starting point for the law with respect to property in land in Ontario. The Act introduced to Ontario the law of property as it existed in England 15 October 1792.
Common Law Remainder Rules:
Condition Precedent: A condition precedent is part of the words of limitation in a grant or devise and is an event that may or may not happen. The described event must happen in order that the future interest in land evolves into an estate in land.
Condition Subsequent: A contingent event attached to the words of limitation in a grant or devise. The form of property in land may terminate after the happening of the contingent event. The happening of the contingent event gives the grantor a right of re-entry. If this right is exercised the form of property terminates. If the contingent event that is said to be the condition subsequent fails [see; uncertainty; restraint upon alienation] edit only the condition subsequent from the grant or devise.
Contingent Remainder: A remainder will be contingent if either it is not, as of the time of the grant or devise, possible to identify the holder of the remainder or there is a condition precedent in the words of limitation.
Covenant: Words in a grant or devise that stipulate how the land is to be used or may be used.
Deed: A thing, usually a document. The document, said to be a deed, contains a grant. The document must be sealed and delivered.
Determining event: An event that may or may not happen that is part of the words of limitation is a determining event. Upon the happening of the event, the form of property determines. There are restrictions on the type of events that will succeed as a determining event. [see: uncertainty; restraints upon alienation] If the determining event fails, edit from the grant all of the attempted words of limitation.
Devise: A term in a will. The term looks like a grant, but different rules apply.
Devisee: A person who acquires a form of property in land as a result of a devise.
Easements: A form of property in land. The holder of an easement in a piece of land defeats an estate holder in the same piece of land if the issue is use of the land in a manner prescribed in the easement. The easement protects the easement holder's use against the other estate holder. An easement holder may also be able to restrict the other estate holders use of the land.
Estate: A particular form of property in land. Keep in mind that ALL ESTATES ARE PRESENT ESTATES.
Estates Administration Act (Ont) s.2(1): This section of the Act has the effect of making every remainder contained in a devise an equitable remainder.
Fee Simple: A particular form of estate in land. Fee indicates that this form of property in land can be inherited. Simple indicates that it may be inherited by any type of heir.
Fee Tail: Not a common law form of property. Created by the Statute De Donis Conditionaldias 1285. This form of property can only be inherited by a particular type of heir. For example, a fee-tail female could only be inherited by female heirs, while a fee-tail male could only be inherited by male descendants. The future creation of this form of property was abolished by s. 4 of the Conveyancing and Law of Property Act.
Equity: A different set of legal rules developed by a different set of judges. The starting point in equity is the common law court. The loser at common law may appeal to the courts of equity. Two results can follow. First, the decision could be the same as the common law courts. Second, there could be different rules that apply in equity to the facts of a particular case. The ruling is in the form of strong suggestion. The loser in equity still has the right to exercise his common law rights but will face severe consequences. Viewed in this context there is no conflict. Any common law winner is at liberty not to exercise their common law remedy.
Freehold Estates: An estate in land where the duration in uncertain.
Future Interest: A form of property in land that might evolve into an estate at some time in the future.
Grant: A series of words contained in a deed that concerns the transfer of property in land. The series of words include words of purchase, words of limitation, and other words.
Grantor: A person granting another person a form of property in land.
Grantee: A person acquiring a form of property in land as a result of a grant.
Joint Tenants: Each person holds the same form of property in the land. Where the property is held jointly it cannot be granted, devised or inherited.
Judicature Act: Combined the common law and equity. The rules are still separate, but can be applied by the same person.
Land: A three dimensional piece of planet earth that is surrounded by artificial lines drawn on the surface of planet earth that separates it from other sections of earth. The molecular structure of the land is not relevant. For example, the land may be a liquid or a solid.
Leasehold Estates: An estate in land of a certain duration or of a duration that is capable of being made certain.
Licence: Not a form of property in land. A licence is permission to do what would otherwise be trespass.
Life Estate: This form of property in land terminates upon the death of some person. By statute an heir may now acquire a life estate by devise.
Life In Being: A person alive as of the time of the grant or devise. For the purposes of perpetuities, life begins at conception.
Person: For the purposes of holding forms of property in land person includes human beings and corporations.
Profit A' Prendre: A form of property in land. The holder of this form of property is at liberty to detach portions of the land and take possession of them. The holder of this form of property may also hunt or fish on the land.
Percolating Water: Water which seeps through the ground beneath the surface of the earth without any definite channel. Percolating water does not form a part of the body or flow of any water course.
Purefoy v. Rodger: The rule in this case applies to common law remainders created by the Statute of Uses. If the remainder will comply with the common law remainder rules the remainder is not destroyed. If the remainder will not comply with the common law remainder rules the remainder will not be destroyed. If it is uncertain whether the remainder will or will not comply with the common law remainder rules the remainder is not saved by the rule. The rule also applies to common law remainders contained in devises. All analysis is done as of the time of the grant.
Remainder: A form of property in land that may become an estate in land at some time in the future.
Reversion: A remainder that is held by the grantor.
Restraints Upon Alienation: A grantor or devisors attempt to inhibit the transfer of property, primarily through the use of a condition subsequent or determining event in the grant or devise. If the grantor or devisor attempts to prohibit the transfer of property this attempt will fail. If the grantor or devisor attempts to restrict the transfer of property it might succeed, it depends on the degree of the restraint upon alienation.
Riparian Water: Water lying in a lake or pond, or water flowing in a river, stream or other watercourse.
Rule Against Perpetuities: Destroys some contingent remainders. The rule will destroy any contingent remainder that could possibly stop being contingent outside the perpetuity period. The perpetuity period is a life in being plus twenty one years. The rule is applied as of the time of the creation of the contingent interest.
Rule in Shelly's case: An attempt to create a freehold estate in A and a remainder to the heirs of A will be thwarted.
Trustee: An equitable obligation. Where A holds a form of property at common law and B holds the same form of property in equity, A is a trustee for B.
Seal: A thing attached to the document that is said to be a deed. The seal is affixed with the intention of formalizing some process.
Statute Quia Emptores 1290: Provided that a person who holds an estate in land and finds a person that he would like to be a holder of an estate in that land, the only option was to grant the estate to that person in its entirety. Brought an end to the chain of persons holding a form of property in a piece of land. Therefore, in Ontario, there are only two links in the chain; the Queen and the estate holder.
Tenants in Common: Each person holds an undivided share of the property. This can apply to any form of property in land.
Uncertainty: In the case of an attempted determining event or a condition subsequent, if the determining event of the condition subsequent is not clearly defined it will fail as either a determining event or a condition subsequent.
Tenement: see land.
Words of Limitation: Describes the property in land being transferred.
Words of Purchase: Describes to whom the property in land is being transferred.