Glossary of Canadian Property Law Terms

Fee Simple

Fee simple is the largest estate in land recognised by Canadian common law, conferring upon the holder the fullest bundle of rights of ownership: the right to possess, use, enjoy, lease, mortgage, sell, and devise the land by will. A fee simple estate is alienable (transferable inter vivos), descendible (capable of inheritance), and of potentially infinite duration, subject only to the ultimate radical title of the Crown. The holder holds the land “to him and his heirs” — though the words of limitation are no longer required under modern conveyancing statutes. The fee simple is not absolute ownership in the strict sense; it is an estate held of the Crown, and the Crown retains the underlying title. In practice, however, the fee simple is the closest approximation to full private ownership available in Canadian law. All lesser estates and interests in land are carved out of the fee simple.

Life Estate

A life estate is an interest in land that entitles the holder to possess, use, and enjoy the property for the duration of the holder’s life (or the life of another — a pur autre vie life estate). The life tenant is entitled to the ordinary fruits and profits of the land but must not commit waste — that is, the life tenant must preserve the property for the benefit of the remainder interest (the person who takes ownership after the life estate ends). Waste is classified as voluntary (deliberate acts that diminish the property’s value), permissive (neglect resulting in decay), and ameliorative (changes that enhance value but alter the character of the property). Life estates arise by express grant (e.g., a will leaving a home to a surviving spouse for life, with the remainder to children), by operation of law (dower and curtesy, now largely abolished), or by constructive trust in family property disputes. Upon the death of the life tenant, the estate passes automatically to the remainderman.

Leasehold Estate

A leasehold estate is a possessory interest in land for a determinate period, created by a lease between a landlord (lessor) and a tenant (lessee). The tenant holds exclusive possession for the term, subject to the landlord’s reversion (the right to retake possession when the lease ends). Canadian landlord-tenant law is governed by provincial legislation (e.g., Ontario’s Residential Tenancies Act, 2006, SO 2006, c 17, and the Commercial Tenancies Act, RSO 1990, c L.7). The leasehold estate is both a property interest (the tenant has a chose in possession) and a contract (the parties have mutual covenants). Essential terms include the parties, premises, term (with certainty of duration), and rent. A tenancy may be a fixed term (for a set period) or periodic (e.g., month-to-month). The tenant’s obligation to pay rent is independent of the landlord’s obligation to repair in commercial leases, whereas residential tenancies impose implied statutory warranties of habitability.

Joint Tenancy

Joint tenancy is a form of concurrent ownership in which two or more persons hold land together, each owning the whole of the estate jointly. The defining feature is the right of survivorship (jus accrescendi): upon the death of one joint tenant, that tenant’s interest extinguishes and the surviving joint tenant(s) continue to hold the whole. A joint tenancy exists only where the four unities are present: unity of possession (each holds the same right to possess the whole), unity of interest (each holds the same type and duration of estate), unity of title (all acquire title by the same instrument or act), and unity of time (each vests at the same time). The four unities may be severed by any act that destroys one of them — typically by alienation (one joint tenant transferring their interest to a third party, converting the interest into a tenancy in common) or by operation of law (e.g., bankruptcy). A joint tenancy is presumed in transfers to spouses, while the common law presumption in favour of joint tenancy has been modified by statute in several provinces.

Tenancy in Common

Tenancy in common is a form of concurrent ownership where two or more persons hold distinct, undivided shares in land. Unlike joint tenancy, there is no right of survivorship: upon the death of a tenant in common, their share passes to their estate or devisees, not to the surviving co-tenants. The parties may hold unequal shares, and their interests may arise at different times and through different instruments. A tenancy in common requires only unity of possession — the right of each co-tenant to possess the whole property. A presumption in favour of tenancy in common arises where land is conveyed to persons who are not spouses, or where the four unities of joint tenancy are not present. A joint tenancy may be converted into a tenancy in common by severance (unilateral act of transfer by one joint tenant to a third party or to themselves, or by mutual agreement). The right to partition (physical division) or sale (forced sale and division of proceeds) is available to any co-tenant under provincial partition legislation.

Torrens System

The Torrens System is a system of title registration under which the register itself constitutes the title to land, rather than merely recording evidence of ownership. Originating in South Australia under Sir Robert Torrens in 1858, the system was adopted across Canada, with variations in each province. Under the Torrens system, the register is conclusive: a registered owner holds title indefeasible (free from all encumbrances not noted on the register), subject only to limited statutory exceptions (e.g., prior interests in actual occupation, rights of way arising by prescription, and short-term leases). The key principles are the mirror principle (the register reflects all interests affecting the land), the curtain principle (previous title documents need not be examined), and the indemnity principle (the state compensates those who lose an interest through a defect in the register). Provincial variations include Ontario’s Land Titles Act, RSO 1990, c L.5, and British Columbia’s Land Title Act, RSBC 1996, c 250. Torrens replaced or operates alongside the older Registry System in most provinces.

Registry System

The Registry System is a system of deeds registration under which instruments affecting land (deeds, mortgages, liens) are recorded in a public register, but the register is not conclusive as to title. A prospective purchaser must search the chain of title (the history of deeds and encumbrances) to verify the seller’s ownership and identify any competing interests. The Registry System operates on notice: registration gives notice to the world of the instrument’s existence, and priority is generally governed by the first in time principle (qui prior est tempore, potior est jure — he who is first in time is stronger in right). Ontario’s Registry Act, RSO 1990, c R.20, governs the registry system in designated land divisions. The system is gradually being phased out in favour of the Torrens system (land titles) in many provinces through systematic conversion and computerisation. Unlike Torrens, the Registry System does not guarantee title; it is a notice-filing system that preserves the common law rules of priority.

Adverse Possession

Adverse Possession (commonly known as squatter’s rights) is a doctrine under which a person who openly, continuously, and exclusively possesses land without the true owner’s permission for the statutory limitation period may acquire title to that land. The limitation period in Canada varies by province (typically 10 years). The occupier must establish actual possession (physical control inconsistent with the owner’s rights), exclusive possession, open and notorious possession (sufficient to put a reasonable owner on notice), continuous possession for the entire limitation period, and adverse possession (possession without the owner’s consent). Critically, adverse possession is unavailable against land registered under the Torrens system in most provinces (e.g., Ontario’s Land Titles Act, s 51). In Torrens jurisdictions, the principle of indefeasibility protects the registered owner’s title, subject only to limited exceptions. Adverse possession remains available against land under the Registry System and against unregistered Crown land, subject to the Crown’s immunity from limitation periods.

Easement

An easement is a right annexed to one parcel of land (the dominant tenement) to use or restrict the use of another parcel (the servient tenement) for a defined purpose. The essential characteristics of an easement, established in Re Ellenborough Park, [1956] Ch 131 (CA), are: (1) there must be a dominant and servient tenement (two distinct parcels); (2) the easement must accommodate the dominant tenement (benefit the land, not merely the owner personally); (3) the dominant and servient owners must be different persons (though this is not required under the Law of Property Act in some provinces); and (4) the right must be capable of forming the subject-matter of a grant (certain, definite, and within the nature of a right rather than exclusive possession). Common easements include rights of way (access), rights to light, rights to drainage or utilities, and rights of support. An easement may be created by express grant (deed), reservation, implication (way of necessity or Wheeldon v Burrows-type implied grant), or prescription (long use, largely unavailable in Torrens jurisdictions). Easements are binding on subsequent purchasers of the servient land if properly registered.

Restrictive Covenant

A restrictive covenant is a promise by one landowner (the covenantor) not to use their land in a specified manner, made for the benefit of neighbouring land (the covenantee’s dominant tenement). To be enforceable in equity against subsequent purchasers, the covenant must satisfy the conditions in Tulk v Moxhay (1848), 41 ER 1143: (1) it must be negative in substance (requiring forbearance, not positive action); (2) it must benefit the dominant land (not merely the covenantee personally); (3) the dominant and servient tenements must be identifiable; and (4) the burden of the covenant must have been intended to run with the land. Restrictive covenants commonly restrict building height, land use (residential only), or commercial activity. Canadian courts construe restrictive covenants strictly, resolving ambiguities in favour of free use of land. A covenant may be discharged or modified by application to a statutory tribunal (e.g., the Ontario Superior Court under the Land Titles Act or the Registry Act, or the British Columbia Supreme Court under the Property Law Act, RSBC 1996, c 377) if it has become obsolete, impedes reasonable use of the land, or no longer benefits the dominant tenement.

Mortgage

A mortgage is a charge on land given by a mortgagor (borrower) to a mortgagee (lender) as security for the repayment of a loan. Under the Torrens system, a mortgage does not convey title but creates a charge on the registered title. The mortgagor retains the right to possession and to redeem the property by paying the debt in full (the equity of redemption). The mortgagee’s remedy upon default is to apply for foreclosure (extinguishing the mortgagor’s equity of redemption) or power of sale (selling the land and recovering the debt from the proceeds). Canadian courts maintain the equitable character of the mortgage transaction: any attempt to “clog” the equity of redemption (impede the mortgagor’s right to redeem) is void. Provincial legislation (e.g., Ontario’s Mortgages Act, RSO 1990, c M.40) governs the enforcement process, including notice requirements and the mortgagor’s right to late payment and reinstatement. Under the Torrens system, the registered mortgage has priority over unregistered interests, with priority determined by the order of registration.

Lien

A lien is a legal right to retain possession of or to claim a charge against property as security for a debt or obligation. Possessory liens (common law and statutory) permit a creditor to retain goods until payment; non-possessory liens are charges on property, typically created by statute. The most significant in Canadian property law is the construction (or builders’) lien, governed by provincial legislation such as Ontario’s Construction Act, RSO 1990, c C.30. A construction lien gives contractors, subcontractors, and suppliers a charge against the owner’s land for the value of work or materials supplied. The lien must be registered within a prescribed period (usually 60 days from the date the contract is completed or abandoned). The owner is protected by the holdback requirement — a statutory amount (typically 10% of the value of improvements) that the owner must retain from payments to the contractor to satisfy potential lien claims. A lien is discharged upon payment or security being posted.

Caveat

A caveat is a notice registered on title warning that the caveator claims an interest in the land. Under the Torrens system, a caveat operates as a freeze on the title: it prevents further dealing with the land until the caveat is removed or the interest is determined. The caveat is a procedural mechanism to protect unregistered interests — such as a purchaser’s interest under an agreement of purchase and sale, a beneficiary’s interest under a trust, or an equitable mortgage — pending registration of the interest or determination of competing claims. A person claiming a proprietary interest may lodge a caveat with the land titles office. The registered owner may apply to have a caveat removed if the caveator cannot establish a prima facie interest (Re Schoneberger (1970), 13 DLR (3d) 48 (BCCA)). A caveat that is lodged without reasonable cause may give rise to a claim for damages for wrongful caveat. The caveat system is central to the Torrens priority regime, protecting unregistered interests in a system that recognises only registered interests as conferring title.

Aboriginal Title

Aboriginal title is a sui generis right in land that arises from the prior occupation of what is now Canada by Indigenous peoples before the assertion of Crown sovereignty. It is a legal right sui generis (of its own kind) — neither a fee simple estate nor a mere personal right. The Supreme Court of Canada defined the content of Aboriginal title in Delgamuukw v British Columbia, [1997] 3 SCR 1010: Aboriginal title encompasses the right to exclusive use and occupation of the land for a variety of purposes, not limited to traditional Indigenous practices. However, the title is alienable only to the Crown (the “Crown’s right of pre-emption”) and is subject to an inherent limitation: the land cannot be used in a manner that is irreconcilable with the nature of the group’s attachment to the land. To establish Aboriginal title, an Indigenous group must prove sufficient pre-sovereignty occupation, that the occupation was continuous (or was effectively maintained), and that the occupation was exclusive. The constitutional protection of Aboriginal title under s 35 of the Constitution Act, 1982 was confirmed in Tsilhqot’in Nation v British Columbia, 2014 SCC 44, which also held that government incursions on Aboriginal title require compelling and substantial justification and must be consistent with the Crown’s duty to consult and accommodate.

Crown Land

Crown land is land held by the Crown (the federal or provincial government) in right of the sovereign. Approximately 89% of Canada’s land mass is Crown land, with the majority held by the provinces and territories. Under the Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, the provinces hold ownership of public lands within their borders (s 109), while the federal Crown holds lands in territories, national parks, military bases, and reserves. Crown land may be granted (transferred to private ownership by letters patent), leased, or licensed for various uses, including resource extraction, agriculture, recreation, and right-of-way purposes. The Crown holds radical title to all land, and private ownership is limited to estates carved out of the Crown’s underlying title. The management of Crown land is governed by provincial Public Lands Acts and Land Acts, which provide for disposition, reservation, and revocation of interests. The Crown is not bound by limitation periods and may recover possession of Crown land at any time.

Expropriation

Expropriation is the compulsory taking of private property by the state for a public purpose, with compensation. The power to expropriate is statutory: no government body may take private land without express legislative authority. The governing legislation in Ontario is the Expropriations Act, RSO 1990, c E.26, and equivalent acts exist in every province. The statute requires the expropriating authority to follow prescribed procedures, including notice to the landowner, registration of the expropriation plan on title, and payment of compensation. Compensation is assessed based on the market value of the land, disturbance damages (costs of relocation, loss of business goodwill), and injurious affection (damage to the remaining land caused by the partial taking or the expropriating works). The date of valuation is typically the date the expropriating authority takes possession. The landowner is entitled to reinstatement (the cost of re-establishing operations elsewhere) in appropriate cases. The Charter does not expressly protect property rights, but expropriation without compensation may violate the rule of law and is subject to rigorous statutory interpretation — courts require clear and unambiguous language before finding that the legislature intended to authorise uncompensated takings.