LAW OF REAL

PROPERTY

Peter Bowal
Haskayne School of Business
University of Calgary
 THE WORLD OF PROPERTY
Movability is defining criterion

land versus chattels

 ALL PROPERTY

Personal
Real
- purchase and sale

- registration of interests
Tangible Intangible
- co-ownership
- gifts - trusts
- estates and interests - intellectual property
- builders liens - matrimonial property
- trademarks
- easements (rights of way) - bailment - copyrights
- leases - patents
- mortgage - finders and wild animals
- industrial designs
- minerals and water rights - purchase and sale of chattels
- other legal rights
- public control - interests in the property of
- property taxes others (PPSA) - confidential information
- zoning and planning
- subdivision
- land use and development
- expropriation
- environmental and pollution regulation
- heritage designation
- building codes

- regulation of real estate sales profession

- adverse possession and prescription

CONSTITUTIONAL JURISDICTION

Constitution Act, 1867

some federal public lands (eg. parks)
section 92(13): property and civil rights
provincial jurisdiction
law is both statutory and common law
 SPECIAL NATURE OF LAND

common law principles and terminology very old

Canada adopted much of old English land law
historically seen as a source of wealth and power
also: Canadian nation building (eg. West)
essential to human and social welfare:
shelter
growing of food
 SPECIAL NATURE OF LAND

all land is unique (view, location, address)

indestructible and permanent
non-depreciable
immovable (location, location, location)
includes buildings
 SPECIAL NATURE OF LAND

need to preserve for future generations

significant continuing public interest
PUBLIC INTEREST IN LAND
regional and urban planning (zoning)
development on private property
expropriation
escheats (to the state)
pollution control
minerals
heritage sites
property taxes
adverse possession
 DEFINITION OF LAND
surface, plus stationary buildings, fixtures, airspace,
sub-surface

also non-physical interests

and estates
may be possessory or non-possessory
mortgages, leases, easements, liens
transactions must be in writing

land is referred to as a bundle of rights

 ESTATES IN LAND
freehold/fee simple
life estate
leasehold
condominium
 CHATTELS VS. FIXTURES
personal property vs. real property
when chattels become fixed (annexed) to a
building, they become part of the realty
important to know when selling or buying land
Stack v. Eaton (Ontario, 1902)
attached by more than chattels own weight?
causes damage to remove?
specially / purpose built for this land?
 CO-OWNERSHIP OF LAND
undivided interests
two possible methods:
Joint Tenancy
unity of time and estate, equal interests
right of survivorship

Tenancy in Common
can sell interest

Order for Partition and Sale

 INTERESTS IN LAND
ownership interests in land
bought and sold by written contract
defined by relationship to the land
land is infinitely divisible into interests
interests registrable in public registry
first to register has highest priority
 SYSTEM OF RECORDING
INTERESTS

publicly funded and accessible

in Alberta: called the Land Titles (or
Torrens) registration system
land registry system elsewhere in Canada
SYSTEM OF RECORDING INTERESTS

Certificate of Title
registered owner of what estate
legal descriptions versus municipal addresses
subject to what interests and encumbrances?
first to register has priority
much useful information on copy of Certificate
how to obtain?
 MORTGAGES
a contract transferring an interest in land from the
mortgagor to the mortgagee
legally considered both contract and land
down payment vs. principal amount of mortgage
 MORTGAGE OPTIONS
assumption of the existing mortgage(s)
assumption statement
advantages
disadvantages
apply for a new mortgage
how much is being borrowed?
conventional mortgage (up to 75% of purchase price)
high ratio mortgage (up to 100% of purchase price)
for owner-occupied residences only
must be CMHC-insured
ARRANGING A NEW MORTGAGE
Real Property Report
compliance certificate
mortgage options
term of the mortgage = contract period of loan
open or closed
rights of pre-payment
payout statement (similar to assumption statement)
interest rates: fixed versus variable
 MORTGAGES

amortization period
for calculating rate of pay down
blended payments: interest, principal, taxes
first, second, third, etc. mortgages
discharge of mortgage
 MORTGAGE REMEDIES
mortgagors equity in the property
remedies for nonpayment (from contract):
equity of redemption
suing on the covenant to pay
foreclosure
judicial sale
deficiencies
 LEASES
also called tenancies
commercial leases business to business
residential: governed by legislation
numerous tenant protections
tenancy need to be in writing?
non-discrimination
delivery of written lease
QUESTIONS OR
COMMENTS?