Fee simple ... NOT!

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Canadian Real-Estate Law Fee simple ... NOT! Fee simple estates and life estates.

As was discussed in The Old English Landholding System, the common law holds land ownership under the guise of a legal fiction. Since the Norman Conquest in England, all land ownership could only come from the sovereign. Technically, nobody but the king (i.e. now our government) ever owned land outright as it was merely "loaned" by the king. Others are only allowed to hold "estates" in the land. Even in Canada, this held true. As soon as the British began to explore and occupy North America, the sovereign, or his or her representatives, would give land grants to persons. Much of Canada was developed in this way as settlers were promised land grants from the Canadian government in exchange for clearing and inhabiting the land. In theory, therefore, land titles should be searchable all the way back to the King or government's initial ownership.

All property in the commonwealth, as well that in the interior as that bordering on tide waters, is derived directly or indirectly from the government, and held subject to those general regulations which are necessary to the common good and general welfare." (Commonwealth v. Alger, an 1851 Massachusetts case.)

The different kinds of tenure are as follows:

Fee simple

This estate of land tenure is the most extensive and allows the tenant to sell or to convey by will or transfer to the tenant's heir upon death intestate. In modern law, almost all land is held in fee simple. This is as close as one can get to absolute ownership in common law. Legal fiction, indeed, because the owner in fee simple can do what he or she pleases with the land including sale to another and the ability to pass it on to next-of-kin ad infinitum (this latter characteristic distinguishes the fee simple estate from the life estate as we shall explore below). Perhaps the word "legal fiction" is not entirely accurate; some provincial governments have reserved, to themselves, mineral rights in land granted as we shall see in Duhaime's Canadian Real-Estate Law: Air, Water and Subsurface Rights.

fee simple dittyAt some point in the history of real-estate law, the English courts decided that only very specific words could be used to convey, by will, a fee simple estate in land: the words to the "grantee and his heirs." For reasons which are best understood by reference to the reverence the law held the land lords of medieval England, this picky requirement resulted in many a fee simple resulting back to the aristocracy on the basis of this legal technicality. If the words "to Bob forever" or "to Bob in fee simple" were used, the law would interpret this as meaning that a life estate only was intended, after which the land lay without a legal owner, reverting back to the lord!

The difference, it seems, surrounds the fact that "to Bob and his heirs" were considered words of purchase. The words "to his heirs" were called words of limitation because they were intended to set the duration of Bob's estate.

Luckily, legislation in most Canadian provinces has done away with this silly requirement and says that "in a conveyance, it is not necessary, in the limitation of an estate in fee simple, to use the words "heirs."" In fact, now, the law assumes that land is conveyed as a fee simple unless a contrary intention appears by the will or the conveyance (see, for example, Re Airey summarized in Canadian Real-Estate Case Law).

Another exception to the requirement of "to Bob and his heirs" was the esoteric Rule in Shelley's Case,' of which an American judge once said:

"The Rule in Shelley's Case, the Don Quixote of the law which, like the last knight errant of chivalry, has long survived every cause that gave it birth and now wanders aimlessly through the law reports, still vigorous, but equally useless and dangerous." (Stamper v. Stamper, 1897 N.C. 251)

Based on a real legal case (Shelley's Case, summarized in Canadian Real-Estate Law: Case Law), the rule rejects any intimation of a life estate in a will which says that a piece of land goes to "Bob for life, remainder to Bob's heirs." In these cases, the rule of law known as "the rule in Shelley's case" applies and Bob takes in fee simple, with no remaining interest being created as would be the case in a life estate (life estate discussed below).

For example, in Re Tuck (1905) Ontario Law Reports 309, the words "I give ... to my son ... for and during his natural life, and his lawful heirs after him, subject, nevertheless, to the provisions and conditions herein contained ... namely, he ... shall have no power to sell, nor any right to dispose of the above real estate ... but shall transmit to his lawful heirs, unimpaired" were held to convey a fee simple estate to the son by application of the rule in Shelley's Case.

In Atkinson v. Purdy (1908) Nova Scotia Reports 274, the same result ensued for a will using the words "to have, and to hold ... for and during her natural life, and after her decease to go to and be enjoyed by her heirs."

Note that the rule is incompatible with the Torrens System of land title registration so it does not apply in some Canadian provinces including Alberta and British Columbia.

One distinction to be made, as was reviewed in Re Rynard (summarized in Canadian Real-Estate Law: Case Law), is where words or intentions manifest in the will show a different meaning to the words "heirs" (i.e. other than the whole line of heirs), the rule can be set aside and a life estate can be found.

Fee tail

This estate is all but extinct, having been abolished in most Canadian provinces.

It was an estate based on the ancient English "oldest male son" inheritance system.

The fee tail estate meant that the tenure could only be transferred to a lineal descendant. If there were no lineal descendants upon the death of the tenant, the land reverted back to the lord.

Life estate

Granted only for the life of the tenant, this estate reverts back to the grantor, or to some other person if the grant is by will, at the death of the person to whom it is given, or for the duration of the life of a third party. Lawyers refer to this latter type using French words: "pur autre vie." Similarly, an estate granted for the life of the beneficiary is called "pur sa vie."

Life estates can be created by operation of the law as well such as is the case of western province homestead legislation which can create a life-estate in the surviving non-owner spouse after the death of the spouse-owner (see Canadian Matrimonial Property - A Primer for more information on homestead legislation).

The beneficiary of a life estate is called a life tenant. In many ways, the life tenant's legal relationship with the party who is to enjoy the fee simple at the end of the life estate, is similar to that existing between income and capital beneficiaries of a trust, as is discussed in the Canadian Trust Chamber and in Re Chupryk in Canadian Real-Estate Case Law.

The life tenant is entitled to exclusive possession and enjoyment of the property including any income, although his or her tenure is limited to the duration of the designated person's life.

Restrictions on the life tenant are covered by what lawyers call the "doctrine of waste." In the absence of a contract or rules in the will to the contrary, the common law considers any permanent or lasting change to the land or buildings, by a life tenant, as waste. If the waste is "ameliorating" (permanent change which improves the land), a court will only rarely entertain a legal action for compensation. If the waste is "permissive" (permanent damage from failure to repair or preserve), the life tenant is not necessarily responsible since the common law says that unless the conveyance document (eg. the will which created the life estate) says otherwise, the life tenant is under no obligation to maintain the land or structures on it.

"Voluntary waste" (permanent change that reduces the value of the land or property) is a bit more challenging for the courts. Examples are mining operations, over-cultivation or the destruction of buildings. Courts have been lenient with life tenants who have cleared land for the purpose of cultivation, or who have cut some trees if the wood is used to make repairs. The law also recognizes and will force compensation for "equitable waste" which is defined as reckless or wanton damage to the property.

As a general rule, the life tenant will be responsible for current, routine or maintenance expenses such as property taxes or interest payments on any mortgage. It should also be noted that many conveyances to life tenants contain clauses that exonerate the life tenant for any liability for waste. This is perfectly allowable. Also, several Canadian provinces have enacted "settled estates" legislation which gives the life tenant far greater powers and freedom then they had under the common law. For an example of cases where life estates were discussed, see Re Waters and Re Chupryk, both summarized in Canadian Real-Estate Case Law.

Life estates, whether pur sa vie or pur autre vie, can be sold or given inter vivos. Pur autre vie life estates can be passed on by the life tenant's will under legislative provisions in place in most provinces (for example, in British Columbia, see the Estates Administration Act).

Published: Friday, October 20, 2006
Last updated: Wednesday, October 13, 2010
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