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Property Law - Class Notes
The class notes of Property Law with Prof. Laura Dehaibi on summer 2021.
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DTN 723 – Property LawUnit 4: Fundamentals of Real Property
Introduction: History of Land Law and the Doctrine of Tenures
Mossman, pp 202-216
1. Interests in Land
Real Property Law creates various interests in land, also known as: Proprietary interests
Possessory interests (freeholds; leaseholds)
o The person that holds the interest in land has or will have possession
o The idea of ownership in civil law is not as defined in common law – the
owner is a person who has an interest in land in fee simple. What you own
at common law with a fee simple is not the land itself but an interest in
land which comes with a set of privileges.
Non-possessory interests (servitudes)
o A non-possessory interest allows access to land or privilege over it
without actual possession – e.g., a right of way.
This is opposed to a licence to use which is granted and could be
revoked by the owner at will.
Present/Future interests
Shared/Concurrent interests
o E.g., co-ownership
2. Doctrine of tenures: Feudal Roots of Common Law Property
1066 Norman Conquest: The King is the only Owner of Land
The Crown in a tenurial system is the paramount lord who holds the radical title
to land
Everyone else is a “tenant” of the Crown
o This explains why old concepts of common law derives from old French.
The word “tenure” comes the Latin word “tenere”: to hold, “tenir”.
o To this day, we use the expression “landlord” to describe the owner in fee
simple of a leased property.
In medieval times: pyramidal structures
People were entitled to land through tenures. At common law, only one entity owns the
land – the Crown. The Crown owns the radical title in land. The tenants have interests in
land, not ownership. People held rights from the Crown. The tenurial system was
pyramidal.
The system of tenure aimed at making sure everyone could benefit from the land at
varying degrees, doing so by dividing the land.
Quia Emptores Statute (1290): The End of Subinfeudation
1
, In principle, in a feudal system, land can be infinitely subdivided
The Statute put an end to that possibility by holding the practice of substitution
Quia Emptores recognizes land as an alienable asset: ability to sell and alienate land
without consent from the lord. Land that is owned can be transferred and sold.
This process of substitution is still in place in real estate transfers. What is sold is not the
land itself but the interest in it.
3. Effects of a tenurial system
Relativity of Title
Tenurial ownership vs. allodial ownership
o Tenurial: relative title derived from the radical title held by the Crown
o Allodial: absolute dominion
Titles in common law are relative, they derive from the Crown’s will. The lord and the
tenant have interest in land. There is no single type of estate that is absolute in common
law.
Reciprocity of rights and obligations
Free Tenures
o Tenures in chivalry
o Spiritual tenures
o Tenures in free and common socage (1660 Statute of Tenures)
This tenure came with an obligation of providing agricultural
services to the lord.
This may explain why property is seen as a relationship.
Unfree Tenures
Associated with lower classes – this tenure came with more obligations than
rights to it. Unfree tenants were barely better than slaves in some instances.
Eventually, the various obligations and services were turned into money payments.
In 1660, all tenures were converted in tenures by free socage through the Statute of
Tenures, which dramatically changed property law by allowing increased marketability
of real instate. The statute also simplified the services of tenants down to the payment of
taxes, which confirms the fungible value of land since taxes are calculated based on the
financial value of land.
4. Seisin
Seisin: Determining who is in possession on land
Therefore, who owned duty to their lord (responsible to pay taxes), the person is
seised of an interest in land, this refers to the person with title or the legal
possession
2
,Provided an early form of registry
More based on oral tradition
Enabled conveyancing of land
Feoffment with livery of seisin
o The former tenant would literally give a piece of the land to the new
owner to confirm the transfer to the new tenant. This completed the
transfer of land.
“Conveyance” is an instrument that transfers property from one person to another.
(Barron's Canadian Law Dictionary)
5. Doctrine of Tenures in Canada
Reception of System of Tenures in Canada
The Crown holds the radical title on all lands in the Colonies
o This had an important impact on Indigenous peoples.
All land grants in British North America made in free and common socage
o Made it easy to exchange in the real estate market. The various hieratical
system of the tenurial regime does not have practical effects in Canada –
the categories such as spiritual tenures were never in place.
Legal Contacts: Common law/Civil Law/Indigenous Law
The contact between common law and Indigenous land rights led to the idea of a
sui generis interest in land for Indigenous peoples, not a tenurial right over land
since it was rather established on immemorial possession.
6. Tenurial system in the 21st Century
Mostly obsolete, but…
No more feudal dues associated with ownership, etc.
Some concepts remain (e.g., Escheat)
The feudal system still has practical effects today.
Escheat: When the holder of a fee simple dies without heirs (blood relatives or
written will), the land returns to the Crown. This shows the idea that property is
relative. Even though a fee simple is as absolute a right a right can be, it can still
return to the state.
o Escheat is “A type of reversion wherein property reverts to the state as the
ultimate proprietor of land” (Barron's Canadian Law Dictionary)
Another impact of the tenurial system is on the definition of Indigenous title as a
sui generis title derived from the Crown’s honor.
In Canada, there is no idea of absolute right to property. Property is not a constitutional
right.
3
, Revisiting the idea of stewardship of land in the context of indigenous land rights
Stewardship: An owner in a tenurial system does not hold property only for his
own self-interest but also has duties towards the community. Hence the existence
of a mutuality of obligations, which created a social network of some sort.
The idea of stewardship of land is very present in Indigenous traditions and is
expressed by the idea that we are here to serve land rather than the land existing to
serve us. As such, we have a duty to protect the land.
The idea of stewardship at common law was lost through time and has be replaced
with the conception of property as power. Stewardship is particularly relevant in
the context of private property in a capitalist market. It needs to be remembered
that the concept of private ownership is relatively new, mostly associated with the
industrial revolution which effectively set in place modern capitalist economy.
Modernly, there is a rising discourse that we should own a duty of care to the
land. Therefore, the idea of stewardship is not completely lost and still can have a
utility nowadays.
7. What about Equity?
Equity = acting fairly, justly
Equity is a set of rules separate from common law, which corrects its inequitable
effects. Does the application of a common law rule lead to unnecessary harsh
results?
For example, in real estate transactions, the moment a contract is made for the
purchase of land, that the land is transferred, the future owner as an equitable
interest in the land, does not have legal rights, but if the seller fails to comply with
the contract, the buyer can seek damages.
Origin: Crown’s Residual Power over the Administration of Justice
Courts have the power to make rules, but the Crown still has a say on how the law
applies.
Some Principles:
Equity acts in personam
Equity follows the law
o Equity is a supplement to common law. It is meant to improve it, not
supplant it.
Equity considers the substance, not the form
o The Chancery was historically more flexible (on evidence) and sensitive.
Consequence: Legal Rights vs. Equitable Rights
In cases of conflict, the rules of equity prevail
“There is nothing which so generally strikes the imagination, and engages the affections
of mankind, as the right of property; or that sole and despotic dominion which one man
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