Sun
Q: A friend tells me that homeowners in B.C. don’t own the land on which their properties are situated. Title gives various rights and responsibilities but we only hold the land at the pleasure of the Queen. Is this correct and is it something to be concerned about?
– Paul Shawcross, North Vancouver
Lawyer Scott Smythe of McCarthy Tetrault, a commercial real estate specialist who is also chair of the real property (Vancouver) section of the Canadian Bar Association, answers:
Technically, no one owns land absolutely except for the Crown. In practice, however, B.C.’s “Torrens” land title system virtually guarantees absolute ownership to landowners in B.C., subject to certain statutory exceptions.
A landowner owns an interest or “estate” in land commonly known as the “fee simple.” Ownership of a fee simple estate represents the maximum legal ownership (i.e., the largest bundle of rights) available to a person in our legal system.
The owner of a fee simple estate has the right to use and occupy the land, and is entitled to transfer it to third parties without restriction. A fee simple estate may also be transferred by will to future generations and, therefore, is potentially infinite in duration.
A “title” to a fee simple estate is registered in the B.C. land title system under which the owner of the fee simple holds “indefeasible” title to land (i.e., title that cannot be forfeited or taken away), subject only to certain statutory exceptions, such as rights reserved to the Crown in the original Crown grant of the land (generally mineral rights) or the right of the Crown to “expropriate” land (i.e., take title to a person’s land, with compensation, where necessary for public purposes such as transit lines).
While a B.C. landowner’s fee simple estate cannot be disturbed or taken away other than in very limited circumstances, if the landowner dies without a will and with no next-of-kin, the interest in the land would go back or “escheat” to the Crown.
© The Vancouver Sun 2005