In Real Estate Law, Wills & Estates

Modern society relies on property ownership. This ownership grants legal rights and responsibilities over tangible and intangible assets. The structure of social relationships, economic stability, and wealth creation depend on understanding its legalities.

When it comes to the ins and outs of ownership, searching for reliable “property lawyers near me” is necessary. Their advice helps you avoid legal issues, protect their interests, and streamline transactions.

This article provides a comprehensive guide to property ownership for individuals and entities. Knowing your rights, responsibilities, and legal aspects is essential to successfully navigating the complexities of property ownership and management.

Understanding the Fundamentals of Property Ownership

Canadian law defines property as legal rights over resources and assets, including real and personal property. Most property law and owner rights and responsibilities are based on this classification.

Real Property vs. Personal Property

Real Property

  • Real property, or real estate, includes land and permanent structures, trees, and minerals. 
  • Canadian provincial laws govern real property ownership. 
  • Real property rights include surface, air, and subsurface rights, each with regulations and restrictions.

Personal Properties

  • Personal property includes all non-real property. 
  • Vehicles, furniture, electronics, and intangible assets like stocks, bonds, and intellectual property.
  • Canadian provincial laws govern personal property but are more uniform than real property laws.

Tangible and Intangible Property

  1. Tangible Properties

Tangible properties include machinery, jewellery, and vehicles. Depending on the jurisdiction, tangible personal property in Canada is subject to sales and property taxes.

  1. Intangible Properties

Patents, trademarks, copyrights, and financial instruments are examples of intangible property. The Canadian Intellectual Property Office (CIPO) oversees intangible property often governed by federal laws.

Different Forms of Ownership

Type Description Key Features Common Uses
Sole Ownership One person owns the property. Complete control by the owner. Right to sell, lease, or bequeath Personal homes and property
Joint Tenancy Two or more people own the property equally.  Right of survivorship transfers ownership to survivors Married couples
Tenancy in Common Two or more people own the property in equal or unequal shares, with no automatic right to inherit. No right of survivorship. Owners can sell, transfer, or bequeath their shares separately Business partnerships, family groups 
Community Property Marital property jointly owned by both spouses, regardless of the title.  Division based on equitable distribution in non-community property jurisdictions Marital property in British Columbia and Quebec

Owners’ Rights to Their Property

Canada grants many essential rights important to properly administrating properties, both legally and practically.

Right to Possess and Use the Property

Ownership involves the right to use and possess properties. The residential or business owner can use their properties as they please, subject to legal restrictions. This includes living on, cultivating, or developing real property for residential, commercial, or industrial use. Also, this right includes using and enjoying personal properties like cars, furniture, and equipment.

The Ability to Change Ownership

Selling or giving away properties is everyone’s right. There are multiple ways to accomplish this:

  1. Selling. The owner can sell real estate properties, transferring all rights and responsibilities to the buyer. Canada uses written contracts and provincial land registry systems for real estate transactions.
  2. Gifting. Properties can be gifted through inter vivos or wills. However, gifted properties may affect capital gains tax.
  3. Bequeathing. Properties can be left in wills. Probate and estate taxes apply to property transfers (or any real estate transactions) under the will.

Exclusionary Right

Real estate owners can exclude others to prevent unauthorized use or entry. Trespass laws protect this right by punishing unauthorized entry and use. In residential and commercial settings, this right ensures privacy and security.

Restriction of Freedoms

Although property ownership grants significant rights, these rights are limited by the law society.

Zoning Laws and Land Use Regulations

  • Municipal governments regulate land development and use with zoning and land use laws. 
  • These regulations divide municipalities into residential, commercial, and industrial zones and specify real estate uses. 
  • Zoning laws can limit building types, density, and other land use to ensure orderly growth and public safety.

Eminent Domain and Government Takings

  • Canadian expropriation, or eminent domain, allows the government to take private properties for public use with compensation. 
  • Federal and provincial laws require property taking for public purposes like infrastructure development, urban renewal, or environmental conservation. 
  • Owners of expropriated property (commercial or residential real estate) are entitled to fair market value compensation, but disputes can arise.

Environmental Regulations and Easements

  • Clients must follow federal and provincial environmental regulations. 
  • These regulations may require environmental assessments, use restrictions, and site cleanup. 
  • Easements allow others to use an owner’s real estate for utility lines, public pathways, or conservation. 
  • Agreements or laws compensate owners for easements, which limit their real estate use.

Legal Obligations of Property Owners

Regular Maintenance and Repairs

Prompt maintenance is essential for residential and commercial owners to maintain their properties’ value and functionality. Includes routine tasks like:

  • Checking and fixing roofs, gutters, and downspouts to prevent water damage.
  • Maintaining HVAC systems for efficiency.
  • Maintaining plumbing and electrical systems to prevent leaks and hazards.
  • Landscape maintenance for curb appeal and erosion prevention.

Maintaining Safety and Habitability

Safe and habitable properties are a landlord’s responsibility to tenants. This involves:

  • Installing smoke and CO detectors per building codes.
  • Fixing foundation and wiring issues quickly.
  • Supplying water, heat, and electricity.
  • Pest control and sanitation prevent infestations and health risks.

Safety and habitability violations can lead to lawsuits, fines, and value loss.

Fiscal Duties

For legal and financial stability, clients must manage the following financial obligations: 

  1. Paying Property Taxes. Non-payment of taxes can result in penalties, interest, and even property sales to recover taxes.
  2. Insurance Requirements. Protecting against fire, theft, and natural disasters requires insurance.  Protect your properties with adequate insurance.

Legal Framework of Property Ownership

Acquisition of Property

Different legal processes and considerations are required to own properties in Canada.

Legal Acquisition  Details
Purchasing Real estate agents, lawyers, and private lenders usually facilitate purchase agreements. These agreements specify the price, terms, and closing date.
Inheriting If no will exists, properties can be inherited through intestacy. The decedent’s heirs inherit their properties subject to probate and estate taxes.
Receiving as a Gift A will or inter vivos gift can transfer real estate property. Gifted properties need legal documentation to transfer ownership.

Transferring Ownership and Recording Deeds

A legal transfer of ownership is known as a title transfer. In real estate law, this procedure entails:

  1. Executing a Deed. This legal document transfers ownership from the grantor (seller or donor) to the grantee. The deed requires legal requirements, legal fees (property transfer tax), and party signatures.
  2. Recording the Deed. Recording deeds with the land registry or county clerk’s office establishes legal ownership and publicizes the transfer. 

Types of Deeds

  • Warranty Deed. Warranty deeds guarantee that the seller has a clear title and the right to sell the real estate, giving the buyer the most protection. The seller also covers title defects.
  • Quitclaim Deed. A quitclaim deed transfers the grantor’s property interest without title warranties. It is often used for non-sale transactions like family real estate transactions and title clearing.
  • Special Warranty Deed. A special warranty deed guarantees the seller has no property encumbrances for their ownership. However, it does not guarantee the title’s history before the selling takes place.

Owners Gain Legal Protection

Property Rights under the Constitution

These are fundamental rights under the Canadian Charter of Rights and Freedoms. The Charter’s Section 7 guarantees life, liberty, and security, including real estate seizure protection.

Protection against Unlawful Seizure

Due process and judicial review protect property owners from unlawful seizure. Eminent domain or expropriation must serve a public purpose and compensate property owners.

Navigate Property Ownership With Professional Real Estate Lawyers

Property owners can manage their assets and contribute to society by understanding their rights, responsibilities, and legalities of residential and commercial real estate law. Due to the complexity of property ownership, the necessary paperwork, and the legal framework, a real estate lawyer Surrey is recommended. 

With sufficient knowledge of real estate law, a real estate lawyer can help owners comply with real estate law regulations, resolve disputes, and protect their interests. Sidhu Legal offers legal services to effectively protect and manage your residential real estate or commercial real estate. With comprehensive real estate law services, our law firm assists in ensuring legal compliance and resolving disputes and real estate litigation.

Frequently Asked Questions

What are some typical forms of disagreements over real estate?

Property disputes arise from easements, boundary disagreements, and contract breaches.

  • Boundary Conflicts. Adverse possession, boundary, and encroachment altercations.
  • Easement Disagreements. Right-of-way or utility access easement disputes.
  • Contractual Arguments. Breach of purchase contract, lease, or construction contracts.

How does the Strata Property Act work?

The Strata Property Act of British Columbia regulates condo and townhouse ownership and management. BC’s Strata Council regulates property maintenance, common areas, and decision-making. Imagine it as a real estate deal with other owners and your real estate agent for shared property living and maintenance. It manages common development properties like landscaped areas, driveways, parking, and commercial leasing like common storage.

What are the most effective legal options for resolving conflicts over property ownership? 

  1. Mediation. Involves a neutral third party helping disputants reach a compromise. Residential and commercial real estate lawyers can help you get the best settlement possible.
  2. Arbitrations. An arbitrator hears both sides’ evidence and makes a binding decision after the whole process of arbitration.
  3. Litigation. Courts decide conflicts through litigation, where parties present their case to a judge or jury. This may require contacting a law firm or an extremely professional property lawyer for legal representation.
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