Tenure and Estates on Property: (Re)Making Canada | An Open Legal Coursebook

A Brief Overview of Feudal Land Tenure

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Adapted from Jeremy Sheff, “Estates and Future Interests” in Stephen Clowney, James Grimmelmann, Michael Grynberg, Jeremy Sheff, and Rebecca Tushnet, eds., Open Source Property: A Free Casebook, https://opensourceproperty.org (2015).

All land under the dominion of the English crown is held “mediately or immediately, of the king”—that is, the crown has “radical title” to all land under its political dominion. William the Conqueror declared that all land in England was literally the king’s property; everyone else had to settle for the privilege of holding it for him—the privilege of tenure (from the Norman French word “tenir”—to hold). Tenurial rights were intensely personal in early feudal society: the right to hold land was a privilege granted by the crown in exchange for an oath of allegiance and a promise of military service by the tenant—the oath of homage. The word homage derives from the French word homme—literally “man”—precisely because the ceremony surrounding the oath created not only the right of tenure, but a political and military relationship between “lord and man."¹ In exchange for the tenant’s loyal support, or fealty, the lord warranted the tenant’s right to hold a plot of land, called a fief, or fee.

Basic Estates and Future Interests

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We will begin by examining two possessory estates—the fee simple absolute and the life estate—and two future interests … —the reversion and the remainder.

The Fee Simple Absolute #

The fee simple absolute is the most complete interest in land that the law will recognize. When we say that “O owns Greenacre without any further qualification, what we actually mean is that O owns a presently possessory fee simple absolute in Greenacre. The key distinguishing characteristic of the fee simple absolute is that it has no inherent end—it is an estate of indefinite duration. It is descendible, devisable, and alienable inter vivos; so it can be transferred to a new owner, but it cannot be destroyed. At most, it can be carved up into lesser estates and interests for a while, and we will spend most of the rest of this chapter understanding how that happens.

Re Walker

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Middleton J.A. — #

An appeal from the judgment of Mr. Justice Riddell pronounced on the 27th September, 1924, declaring that the estate of the late Ellen Fitze Walker does not include any part of the estate of the late John Walker undisposed of by her at the time of her death.

John Walker died on the 27th March, 1903, and first made his will, bearing date the 17th November, 1902, which was in due course admitted to probate, his widow being his sole executrix. At the time of his death his estate amounted to approximately $16,000. By his will he provided as follows:

Conveyancing Act

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13 Except where a contrary intention appears by the conveyance,

(a) where words of limitation are not used, the conveyance conveys the whole property right that the party conveying had power to dispose of by the conveyance, including, in the case of real property, the fee simple;

Wills Act

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27 Where any real property is devised to any person without any words of limitation, such devise shall be construed to pass the fee simple or the whole estate or interest which the testator had the power to dispose of by will in such real property, unless a contrary intention appears by the will.

Stuartburn (Municipality) v Kiansky

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Wright J. — #

This is an application by the Rural Municipality of Stuartburn (”the Municipality”) for a declaration that its Reeve, the respondent David Theodore Kiansky (”Kiansky”) is disqualified from holding office.

The Municipality alleges Kiansky does not meet the election requirements as set forth in The Municipal Act, S.M. 1996, c. 58 - Chap. M225 and The Local Authorities Election Act, R.S.M. 1987, c. L180 (”the LAE Act”).

Waste

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Bundle of Sticks

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When trying to explain the common law’s particular (and sometimes idiosyncratic) understanding of “ownership”, lawyers and judges frequently invoke the “bundle of sticks” metapho–as in, “ownership is like a bundle of sticks”–the “sticks” being the various property rights that make up the ownership “bundle”.

The idea behind the metaphor is that ownership is not really a homogeneous collection of rights that one either holds (ownership) or does not hold (no ownership). Instead, ownership is a malleable legal concept, difficult to pin down to any particular arrangement or bundle. One landowner might have an unrestricted right to use their land in any way they like, while another might have certain use rights taken out of their ownership bundle—say, by a restrictive covenant that binds and runs with the land. We would likely call both an “owner”, even though they hold different sets of legal entitlements in practice.

Overview of Qualified Transfers

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Blackburn v McCallum

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Davies J. — #

The question raised for our decision in this case is whether a general prohibition on alienation attached to a devise in fee of lands which prohibition would, if unlimited, be bad by the rules of Common Law, is made good by being limited as to time. I am of opinion that it is not. The will of Donald Chisholm after devising his farm of 100 acres to his two sons William and Hugh in fee and equally dividing it between them, contained the following provision:

Restraints on Alienation

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Introduction #

Having now studied the roles of possession and exclusion in common law property, this week we move on to examine the context of exit–that is, how it is that owners extract themselves from property relations. Central to this context is the right to alienate property and the power of owners to place restrictions on alienability. Recall that we have already encountered alienation and restraints on alienation in the context of Aboriginal title going back to the Royal Proclamation in 1763. As we learn this week, the extent to which landowners can and should be able transfer their property rights to others and to place limits on alienation has long raised some pervasive controversies in common law property.

Canada Trust Co v Ontario (Human Rights Commission)

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Robins J.A. — #

The principal question in this appeal is whether the terms of a scholarship trust established in 1923 by the late Reuben Wells Leonard are now contrary to public policy.

[…]

The Facts #

A. The Trust Document #

By Indenture dated December 28, 1923, (the “Indenture” or “trust document”) Reuben Wells Leonard (the “settlor”) created a trust to be known as “The Leonard Foundation” (the “trust” or the “scholarship trust” or the “Foundation”). He directed that the income from the property transferred and assigned by him to the trust (the “trust property” or “trust fund”) be used for the purpose of educational scholarships, to be called “The Leonard Scholarships”. The Canada Trust Company has been appointed successor trustee of the Foundation.

McCorkill v McCorkill (Estate)

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Harry McCorkill died in 2004, leaving his entire estate valued at over $200,000 as an unconditional gift to the National Alliance, a neo-Nazi group based in the United States. McCorkill’s sister challenged the bequest as contrary to public policy.

Grant J. — #

[…]

Applicant’s Grounds #

In her amended Notice of Application, Ms. McCorkill sets out the following as the grounds of her application:

g. The payment or transfer of the residue of the estate to the National Alliance is against public policy and in contradiction with Canada’s own laws, undertakings and commitments in that: