Chapter 1: Property as rights, not thing
Title Proof and registration
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- Chapter 6 - Easements
Title Proof and registration
Registration of Deed or Registry System: Exists in UK and parts of Canada. Provides a public register of deeds and other “instruments” (documents which record transfer of rights) affecting the land. Fraud and mistakes do happen (ex. Vendor sells something to which he actually did not have legal title to sell). Title Registration, Land Titles, or Torrens System: A certificate is registered by the government, which is then guaranteed by the government. This becomes “the truth.” Indefeasibility of title: as if on each registration the government issues a new clean title with is said to draw a curtain on all past dealings. There is in theory a state sponsored insurance fund that people can claim if a earlier unregistered claim has been defeated by registration, or if a previously wrongly ousted owner is ousted by new registration (Fraud will still re-instate the original owner, which is an exception to the system). Applies in Ontario, and now also NB and NS. BC Statute of Frauds (1960): s. 2(1) Agreements concerning interest in land are enforceable by action only in writing. (2) All creations, assignments, surrender of interests must be in writing. (3) The above does not apply to lease of an interest in land for three years or less. S. 3. Trust property assignments/surrender must be held in writing. Real Property Act (Manitoba): All instruments to pass interest in land under a the new system must be registered. Land Titles Act (Ontario) 1990: The first person to register under the Act is registered fee simple with all rights and interests, and free from all previous rights and interests except: (1) encumbrances, (2) liabilities (3) if the registered owner is not entitled for the owner’s benefit to the land, then any unregistered estates, rights, interests, or equities to which a person is entitled. Land Title Act (BC): 20(1) Unregistered instrument does not pass estate unless: 20(1) except as against the person making it is registered in compliance with this Act. (2) everyone person benefitted and every person claiming through or under a person benefited, whether by descent, purchase or otherwise, the right (a) to apply to have the instrument registered, and (b) in incidental or auxiliary proceedings to registration, to use the name of all parties to the instrument (whether or not a party has since died or become legally incapacitated) (3) Subsection (1) does not apply to lease for a term exceeding 3 years.
Chapter 6 - EasementsIntro/Re-cap: How Cartography has shaped our understanding of land. Easements admit troubled uses and shapes of land, that doesn’t conform to the modern rectangle. Easements sit at the boundary of contract and property. Runs with the land and burdens the owner May be paid for initially, may result in a diminution of the value of land. Relationship to full-blooded owner – when the easement is such a burden to the true owner that the easement is held to not exist. Culturally determined? How Relationship to adverse possession – both parties are recognizing that the serviant land owner is not trying to gain ownership, just has a right of use, not trying to exclude the owners, Introduction
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