Canadian Property Law/Introduction

Introduction

In Canada there are two parallel legal regimes that apply to many areas of law. The most prevailent is the common law which is used in most provinces and territories to the exception of Quebec which is under the civil law system.

Meaning of property

Philosophically, "property" in law does not refer to a thing but to a relationship. The subject of property enjoys a "bundle of rights" over an object of property. The bundle of rights includes the right to use the object, the right to exclude others from using or enjoying the object, and the right to dispose of the object. An object in this sense need not be a physical thing. In the days of slavery, a slave was an object of property. In modern times, many abstract concepts (such as patents or copyrights) can be objects of property.

That having been said, the terms "property" and "object of property" are often used interchangeably in practice.

Common law

The common law practice of property is divided into two general type: Personal Property and Real Property. This is in practice almost identical to the distinction between movables and immovable land in civil code - see below. The distinction becomes extremely important when contracts or relationships in one place affect land in another. In those circumstances, the governing law that applies to the personal or movables is that of the contract or relationship. However that which applies to the land is that of the physical jurisdiction where the land is. This principle is "lex situs" or "law of the land". For instance, if someone dies without a will, the law in the location where the land is would apply. If they die with a will, its validity is assessed where the land is and its effects may be quite different than if the land was where they had lived or wrote the will.

Real vs. Personal Property

There are two categories of property in common law: Real property and Personal property. Real property is, essentially, the rights to land and the things that are attached to it. Personal property is, essentially, rights to any other possession.

Real property was, in English history, much more important than personal property. In the Middle Ages, when the economy relied almost exclusively on agriculture, land was the key to wealth. Therefore, the legal rules around real property developed into a much more complex state than personal property. Even though today, land is much less central to the economy, much Canadian real property law still obeys the complex English property rules of the Middle Ages. The terminology ("landlord", "title", "tenant", "right of entry and distress", "lex situs", "possession", etc.) is all directly descended from these rules with only refinements, not basic changes. See Canadian_Property_Law/Real_Property for the history, terminology and principles that apply.

Personal property, on the other hand, had relatively simple legal rules up until the 20th century, when personal property began to have a much greater value (things such as company shares, drug patents, and computer technology are all types of personal property). Therefore, the rules of personal property have become much more complex in recent decades, although they will seem much more modern than real property rules.

Civil law

Civil law property law derives mainly from the Civil Code of Quebec, and applies only to property in that province. Its inspiration comes from French civil law, but it varies in several important ways, and has gradually incorporated several important common law concepts. It has also from time to time influenced the evolution of common law in Canada, in at least two ways:

• The role of the surveyor, quite different in civil law, is that of a mediator hired by two persons after one invokes the right of "le bornage" to force the other to arbitrate their shared boundary - this has led Canadian courts to rely more on surveyor testimony than the common law says they should.
• The civil code principle of "interversion" crept into common law in Ontario as the "inconsistent use test" for a time but has now receded as it is generally understood as incompatible with common law in the stricter provinces. It has however been cited as a valid principle w.r.t. public or common land.

See Canadian_Property_Law/Real_Property for distinctions between common and civil code rules and roles regarding real property.

Similar to the "real" and "personal" division between types of property, civil law divides property into two types: movable and immovable. There is almost no distinction, except that some movables (like building supplies) are regarded as part of real property and not personal in the civil code. In practice there is only a single distinction between real "immovable" land & personal "movables", regardless of the system of law.

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