Property Rights and Land Tenure

In our Western society, when something is sought-after or in limited supply then it is considered property.^[1]  And if something is valuable enough to be considered property then it follows that a system of rights would be required to administer its use.  It is in this sense that we speak of “property rights.”  Stated more precisely, the term “property” refers to a bundle of rights that governs the use of things.^[2]  These things can be an idea, such as intellectual property, or an object, such as personal property.  Property also refers to the bundle of rights governing the use of land.  And since land is both sought-after and in limited supply, we need a system of rights to administer its use.  Hence, land use planning, which seeks to co-ordinate a variety of rights to land in an efficient and equitable manner.

The right to the land is not restricted to ownership, at least in the way that we generally use the term.  As Flanagan et al. state, “At first glance, property rights seem to apply to lands or things that are owned, but it is more precise to say that they apply to human conduct.  They set out the prerogatives of owners that non-owners must respect, under threat of retaliation from owners or enforcement by a third party such as government.”^[3]  Generally speaking, a bundle of property rights may be organised into three categories:

• Use Rights, such as the right to occupy, derive income from, or extract natural resources from land;
• Control Rights, including the right to be protected from trespass, nuisance or expropriation; and
• Disposition Rights, such as the right to sell, lease, subdivide or bequeath lands.

Canadian systems of property rights are derived from the traditions of English Common Law, under which title all land is ultimately owned by the Crown and all land is held directly or indirectly by some kind of tenure from the Crown.

Tenure, which can be granted individually or collectively, refers to the legal regime in which interests in the Crown’s land are held and may exist in the form of a permit, lease, licence, grant, or some other legal regime which details “how” Crown land is to be held.

A related concept, the doctrine of estates, refers to “how long” land is held for.  For example, a land holder may enjoy a life estate, in which interest in a property is granted for the duration of her/his existence, and after which, legal title reverts back to the Crown.  However, the most common form of estate granted is an estate in fee simple in which a land holder may exercise the fullest range of property rights,^[4] and transfer ownership of the fee simple estate hereditarily (or otherwise) in perpetuity.

Therefore, property ownership does not refer to the land itself, but describes the extent to which a land holder, be it an individual or collective, may enjoy the full range of property rights currently afforded under Canadian law — her or his “level of interest” in the land.