9. Canadian Property Law
As previously discussed, real property includes land and certain things that are attached to or associated with it. It also includes undeveloped land, like a field, and it includes buildings, such as houses and office buildings. Real property also includes things associated with the land, like subsurface rights (rights to minerals and things found beneath the surface).
Methods of Acquiring Real Property
Real property may be acquired by purchase, inheritance, gift, or through adverse possession. Having ownership of real property means that the owner has the right to possess the property, as well as the right to exclude others, within the boundaries of the law. If someone substantially interferes with the use and enjoyment of real property, the owner may bring a nuisance claim. Similarly, the owner may bring a trespass claim against those who enter the land without consent or permission. The different methods of acquiring real property will be expanded on below.
Landowners may convey or sell part or all of their land interests. Different types of deeds convey different types of interests. A quitclaim deed, for instance, conveys whatever interests in title that the grantor has in the property to the party to whom the quitclaim is given. That means if the grantor has no interests in the real property, a conveyance by quitclaim will not grant any interests in the property. By comparison, a warranty deed conveys title, and the seller gives a warranty against defects in title as well as encumbrances. Buyers typically demand a warranty deed when they purchase property because the seller assumes the risk of the title not being clear.
After title is transferred by the deed, the deed is recorded in the county where the property is located. Recording a deed is important because it places others on notice about who owns the property. Provinces have different rules about who is considered the legitimate owner when a conflict in ownership claim exists. A bona fide purchaser is a purchaser who takes title in good faith, with no knowledge of competing claims to title.
Another common way in which real property may be obtained is through inheritance. Real property may be bequeathed through a will when someone passes away. Generally speaking, people have the right to dispose of their property as they wish when they die, providing that their will or other transfer instrument meets their province’s requirements for validity. However, if someone dies without living relatives and without a will, the government becomes the owner of the property.
Real property may also be acquired through a gift. A gift is valid when:
- The person giving property intends to make the gift,
- The person delivers the deed to the recipient and
- The recipient must take possession of the gift.
If one of these elements is not met, then the title will not be conveyed.
A less common way to acquire real property is through the doctrine of adverse possession. Adverse possession is when someone who is not the owner of real property has claimed the real property as their own. If land sits idle at the owner’s hands but someone else puts it to use, then the law may favor the user’s claim to the land over that of the actual owner. Adverse possession claims often occur around property lines, where one party has routinely used another’s property because a fence has been misplaced.