The main focus of property law is rights. The rights connected to property can be visualized as a pie, with each piece signifying a separate property right. Use, sale, publication, replication, performance, exhibition, translation, and dissemination are a few examples of these rights. English law serves as the foundation for Canadian real estate law. All land rights belonged to the government when Canada was founded. The government gradually gave some of its rights—but not all—to different parties. Below is a discussion of the rights that have been ceded to private parties. However, the government still holds the utmost authority over all real estate. The government would only use expropriation to enforce such a right. The government may take land through an expropriation for public use, but it must then provide just compensation. Most of the stake in mining and minerals was still held by the government, which then granted permission to private businesses to extract them in exchange for a price.
The Fee Right
What most people consider to be ownership, but which is actually referred to in law as a right, estate, or interest in fee simple or as a freehold interest, is the largest right that is imaginable. Having a right in fee simple means that the owner can do nearly anything with the land, subject to any regulatory constraints, such as planning laws, environmental statutes, and matrimonial property rights. This includes mortgaging, renting, leasing, or selling. The new owner acquires the fee simple right if the current owner sells it. Multiple parties may simultaneously hold the fee simple right, i.e., they have the right concurrently and automatically inherit the interest of the deceased joint tenant if one of them passes away. Tenancy in common is an alternative where each right holder owns a specific share of the right and, in the event of a death, the interest is passed on to the tenant in common’s heirs.
Minerals, Mines, Gas, and Oil
The government has generally excluded the rights to minerals, oil and gas, and air from fee simple real estate rights. Although a fee simple right is used to cover all of the land and, from the planet’s center to outer space, current Canadian law generally excludes mineral, oil and gas, and air rights from the definition of a fee simple right. The federal government and provincialize governments each have a portion of the rights to minerals, oil, and gas. To enable the grantee (the party awarded the right) to extract the minerals, oil, and gas, governments frequently provide these rights through licenses for a price. The only interaction between the owner of a fee simple and the owner of a subsurface right to mine, extract, or use oil and gas is that the owner of the subsurface right must have access to the fee simple owner’s property through the surface in order to do so. In order to gain access to the surface holder’s land and enable subsurface access, the holder of subsurface rights must first apply for and be granted a surface lease.
Property Boundaries
All real estate is bound by lines. The majority of boundaries are established through a survey that is documented on an in-depth map or plan. Plans are stored at offices where mineral rights are recorded as well as land registries or land titles offices. Each piece of property has adjacent properties as well and is eligible for lateral assistance. When a property has lateral support, the land and structures on it always have the same level of support or more than they did when they were first constructed or acquired. Therefore, a neighbour cannot undermine that support by digging in a way that endangers the nearby property. It is typical for the neighbours to enter into an agreement to ensure support before and after construction, maybe even involving the use of anchors, when lateral support is going to be disturbed (for example, by digging the basement for a new house that is close to the edge of the land). Special rights apply if a property is adjacent to water or if water flows through it. Water use privileges are granted by riparian rights on or adjacent to real estate. The bed beneath the water up to the average high-water mark, or in some provinces, a specific height above the high-water level, is owned by either the federal or provincial government if the water is tidal or navigable.The water and the bed beneath it are owned by one rights holder when the water is wholly on that person’s land or are shared by two owners when the water is a border if the water is neither tidal nor navigable. The neighbouring rights holder is allowed to use a fair portion of navigable or tidal rivers as well as water that serves as a boundary.
Air Rights
An acceptable level above the physical property is considered the upper limit of air rights. Air rights are mostly used to stop neighbours from building structures that, for example, prohibit all sunlight from reaching a neighbouring property. When a landowner intends to violate a neighbor’s air rights, both parties typically engage into an agreement. In the process of creating air space parcels, air rights are equally crucial. An artificial layer of land above the surface is referred to as an air space parcel. For various elevations on the same property, different certificates of title or registry entries are created using air space parcels. For instance, these titles would allow one party to possess fee simple rights to a building’s first floor and another party to possess fee simple rights to the second floor.
Run with the Land
Some real property rights are said to “run with the land,” which refers to the fact that they are enforceable between multiple parties in addition to the original two. Instead, even when the property is sold to a new owner who purchases the fee simple right, rights that run with the land continue to have an impact on the land. In actuality, the new owner purchases the property subject to any inherited rights. Contrarily, interests that do not run with the land are merely agreements made between two parties; they are only enforceable between the parties and do not bind subsequent owners.
Real Property Rights: Registration
The Torrens system, which is managed by the government and generates and maintains certificates of title at land titles offices for every property, is used in the western provinces to register land rights. In a Torrens system, the certificate of title lists all other rights held in a property, such as leases and mortgages, and identifies the current owner of the fee simple right. Anyone reviewing the certificate of title can rely on it to be current because the certificate of title outlines any rights discharges.
A registry office only keeps a register of rights or interests relating to land in parts of Ontario and the majority of the eastern provinces, which employ a more straightforward registry system. A person under such a system would have to look through the historical records to find out about other interests in a property. This method does not provide a person to easily search a title to a specific piece of property and find the interests that are registered against that property, unlike a Torrens system. All of the land interests are simply listed chronologically in the registration. At the registry office or on the certificate of title, only rights about real estate are listed.