Memorial Day is not our holiday, but it can serve as a great reminder for Canadians. This annual commemoration provides compelling context for appreciation of rights we too often take for granted. In this column, which examines "Decisions & Communities," it's property rights we want to spotlight.
Since real estate is a provincial and territorial concern, definitions of "real property" and "real estate" vary across the country and between governments. Each statute, organization and use has its own definition:
- For instance, Ontario's Law Society of Upper Canada considers "real estate law" to involve matters "relating to real property interests including, but not limited to real estate and other related property conveyances, title and related searches, leases, easements, condominiums, cooperatives and other forms of co-ownerships, mortgages and mortgage enforcement, zoning and land use planning, real estate development and financing, real estate remedies and litigation and determination of real property rights."
- According to The Real Property Glossary of the Treasury Board of Canada, real property "means any right, interest or benefit in land, which includes mines, minerals and improvements on, above or below the surface of the land."
Property rights are not entrenched in the Charter of Rights and Freedoms, which is Part 1 of the Constitution Act, 1982 although political discussion continues. This means that the right to own private property in Canada is not guaranteed. Property rights like the rights of possession, use and ownership transfer arise from legislation and common law or case law. In Quebec, the Civil Code of Quebec sets out property rights.
The Charter does include related rights, many of which are so much part of how we live and use our real estate that it would not be Canada without them. In the words of The Charter:
Mobility Rights: Every citizen of Canada has the right to enter, remain in and leave Canada. Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right
- to move to and take up residence in any province; and
- to pursue the gaining of a livelihood in any province.
Legal Rights: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Equality Rights: Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
When you hold the highest quality and quantity of property rights, the owner is said to hold the property in fee simple or freehold. These rights relate to the "bundle of rights" which include the right to sell, lease, use, enter and to refrain from using. Government regulations like zoning bylaws, taxation such as capital gains and other regulations limit rights and place restrictions on ownership. For instance, in a previous column ( House Building Foundation Support Structure Structural Beams Framing Poured Concrete ), mining rights were explored as a limitation on ownership.
Take on debt against your property by arranging a mortgage and you'll give up some rights and take on responsibilities as part of the negotiation. For instance, borrowers promise to keep the buildings in good repair, but then some of them proceed to tear their house to pieces in a renovation that technically breeches the mortgage contract. Lender permission is required to ensure precarious situations do not arise, but how many homeowners contact the mortgage holder when they have the complexities of removing walls, building additions and replacing bathroom on their minds?
Some rights of ownership, like the tax-free principal residence created by the federal Income Tax Act have significant impact on personal net worth. Yet, this privilege may suddenly be revoked in a federal budget leaving the same type of stunned disbelief as did the end of income trusts.
How much attention are you paying to the erosion of property rights? Too often, it's only when a law or regulation prevents a property owner from using their land the way they want that rights are even considered. Haven't you heard an owner ask, "Haven't I the right to sell to whom I please?" Isn't the owner shocked to learn they cannot discriminate when selling any more than a landlord can when searching for a tenant? If you're not sure why, reread the Equality Rights section above.