The Martian Speaks Again…


 

When Senator Joe McCarthy held the communist witch hunt hearings in the U.S. in the 1950s broadcaster Edward R. Murrow informed the public about the nonsense and that was the end of Joe McCarthy.

Walter Cronkite had an opinion on the Vietnam War, made it known to the public and that was the end of the fighting.

Does anyone remember Paul Harvey closing his broadcasts with “And now you know the rest of the story”?

Woodward, Bernstein and Nixon are names forever united in journalism history.

Investigative reporters made Mike Duffy a household name with their reporting on the disgraceful senate spending scandals.

Without media informing the people, would anyone know about the shameful, multi-million dollar gas plant closings by the Ontario Liberals?

 

A well informed public is the best, perhaps the only defense against a government that overreaches its authority, engages in shady dealings or otherwise screws the pooch.

Why then has no one in any local media followed the story of a councilor in South Bruce Peninsula challenging the election of the Deputy Mayor?

Tips to broadcasters produced nothing. Information provided to print media has resulted in one story that, while it did detail many of the previous legal challenges issued by this same councilor, only scratched the surface of the latest one.

 

Unless you happen to be one of the few “in the know”, have heard the rumors or read the heading of Item 4.3 of the Feb. 3rd council agenda dealing with –“(Invalidation of the 2014 Municipal Elections for the Office of Deputy Mayor)” you would have no idea of the whole truth of what’s going on even if you read the papers every day or faithfully listen to local radio.

 

In the day of the 24hr. news cycle, exploding social media, bloggers on every corner, how can people be virtually kept in the dark about something that affects their lives their pocketbooks and even more important their vote?

 

Is the 15 second soundbite, the 140 character tweet, the need to write the story to please the lawyer so you don’t get sued, to be the new standard in journalism and public information? Have seekers of truth, purveyors of the whole story, those past giants of the media been replaced with pale imitations in understaffed and poorly budgeted newsrooms whose job is to fill 92 or 106 seconds of airtime?

 

Walter, Paul and Edward R. must be spinning in their graves!

The Martian

My Favourite Martian Says:


and the truth shall set you free

Can anyone guess why Councillor Craig Gammie is on the outs with every other councilor at the table?

Is it the new beard he’s sporting that caused council to declare him an “island on his own”?

Is it possible he was called an “ass” and an “S.O.B” by others at the table because of his charm and wit?

Is it conceivable they got tired of him shouting “Point of Order” every time he didn’t understand the rules of procedure at the council table?

Is it because he seems to really like the sound of his own voice and council meetings now last from 1PM till past the 9:00PM curfew, sometimes as late as 11:PM?

All valid reasons but not the real one!

Seems Craig is up to his old ways less than two months after being sworn in as a councilor. On Tuesday the 27th of January he served a writ on the Town Clerk and has filed a legal action to set aside October’s election. (filed in Walkerton case #2-15)

     But wait! Not his election, not Janice Jackson’s election, not Ana or Mat’s election – he only wants Jay Kirkland thrown out! And why does he think a duly elected member of council should be removed?

Well, Craig seems to think he can read the minds of the voters who live in trailer parks and apparently believes: 1) they all voted for Jay and 2) their vote is illegal.

I can understand Craig believing he’s Kreskin The Great, but I don’t understand that he can’t believe his own eyes and ears when he sees and hears that Elections Canada and the Ministry of Municipal Affairs both agree that people who lease a trailer park space for a year count just as much as people who lease an apartment or house for a year.

I’m tempted to call him bi-polar, delusional or just plain nuts but not being a qualified psychiatrist I’ll pass on that and let you judge for yourself. While you’re thinking, ask yourself how much this will increase the Town’s legal bills and how that will help reach the 10% tax decrease Craig promised you when he asked for your vote.

Now a newspaper article claims Craig is going to withdraw the court action because someone advised him to. HUH! Don’t know who’s advising Craig but I bet it’s not Betty Hall. She’s out there telling everyone she’s going to be the new deputy mayor!

Sorry Betts – you lose again!

At the same meeting during a break Mayor Janice Jackson launched a tirade of foul language at the only member of the public who seems to have the time and will power to attend the marathon council sessions.

A question for Mayor Jackson: Is your version of open and transparent government achieved by yelling at the public “Are you out of your f***ing mind and “What were you f***ing thinking” in front of half a dozen witnesses? Could it be that if you yelled at Craig he might bring legal action against you too Miz Mayor?

With a couple of exceptions this council is a clown show!

The Martian

Just So As You Know


A True Story!!!

Crack a Diet Pop and Read This!!!

By March 2002, she had undergone several tissue and muscle biopsies and was on 24 various prescription medications. The doctors could not determine what was wrong with her. She was in so much pain, and so sick she just knew she was dying.

She put her house, bank accounts, life insurance, etc., in her oldest daughter’s name, and made sure that her younger children were to be taken care of.

She also wanted her last hooray, so she planned a trip to Florida (basically in a wheelchair) for March 22nd.

On March 19, I called her to ask how her most recent tests went, and she said they didn’t find anything on the test, but they believe she had MS.

I recalled an article a friend of mine e-mailed to me and I asked my sister if she drank diet soda? She told me that she did. As a matter of fact, she was getting ready to crack one open that moment.

I told her not to open it, and to stop drinking the diet soda! I e-mailed her an article my friend, a lawyer, had sent. My sister called me within 32 hours after our phone conversation and told me she had stopped drinking the diet soda AND she could walk! The muscle spasms went away. She said she didn’t feel 100% but, she sure felt a lot better.

She told me she was going to her doctor with this article and would call me when she got home.

Well, she called me, and said her doctor was amazed! He is going to call all of his MS patients to find out if they consumed artificial sweeteners of any kind. In a nutshell, she was being poisoned by the Aspartame in the diet soda.. and literally dying a slow and miserable death

When she got to Florida March 22, all she had to take was one pill, and that was a pill for the Aspartame poisoning! She is well on her way to a complete recovery. And she is walking! No wheelchair! This article saved her life. If it says ‘SUGAR FREE’ on the label; DO NOT EVEN THINK ABOUT IT!  I have spent several days lecturing at the WORLD ENVIRONMENTAL CONFERENCE on ‘ASPARTAME,’ marketed as ‘Nutra Sweet,’ ‘Equal,’ and ‘Spoonful. ‘In the keynote address by the EPA, it was announced that in the United States in 2001 there is an epidemic of multiple sclerosis and systemic lupus. It was difficult to determine exactly what toxin was causing this to be rampant. I stood up and said that I was there to lecture on exactly that subject.

I will explain why Aspartame is so dangerous: When the temperature of this sweetener exceeds 86 degrees F, the wood alcohol in ASPARTAME converts to formaldehyde and then to formic acid, which in turn causes metabolic acidosis. Formic acid is the poison found in the sting of fire ants. The methanol toxicity mimics, among other conditions, multiple sclerosis and systemic lupus.

Many people were being diagnosed in error. Although multiple sclerosis is not a death sentence, Methanol toxicity is!

Systemic lupus has become almost as rampant as multiple sclerosis, especially with Diet Coke and Diet Pepsi drinkers. The victim usually does not know that the Aspartame is the culprit. He or she continues it’s use; irritating the lupus to such a degree that it may become a life-threatening condition. We have seen patients with systemic lupus become asymptotic, once taken off diet sodas.

In cases of those diagnosed with Multiple Sclerosis, most of the symptoms disappear. We’ve seen many cases where vision loss returned and hearing loss improved markedly.

This also applies to cases of tinnitus and fibromyalgia. During a lecture, I said, ‘If you are using ASPARTAME (Nutra Sweet, Equal, Spoonful, etc) and you suffer from fibromyalgia symptoms, spasms, shooting, pains, numbness in your legs,
Cramps,
Vertigo,
Dizziness,
Headaches,
Tinnitus,
Joint pain,
Unexplainable depression, anxiety attacks, slurred speech, blurred vision, or memory loss you probably have ASPARTAME poisoning!’ People were jumping up during the lecture saying, ‘I have some of these symptoms. Is it reversible?’

Yes!
Yes!
Yes!
STOP drinking diet sodas and be alert for Aspartame on food labels! Many products are fortified with it! This is a serious problem. Dr. Espart (one of my speakers) remarked that so many people seem to be symptomatic for MS and during his recent visit to a hospice; a nurse stated that six of her friends, who were heavy Diet Coke addicts, had all been diagnosed with MS. This is beyond coincidence!

Diet soda is NOT a diet product! It is a chemically altered, multiple SODIUM (salt) and ASPARTAME containing product that actually makes you crave carbohydrates.

It is far more likely to make you GAIN weight!

These products also contain formaldehyde, which stores in the fat cells, particularly in the hips and thighs. Formaldehyde is an absolute toxin and is used primarily to preserve ’tissue specimens.’

Many products we use every day contain this chemical but we SHOULD NOT store it IN our body!

Dr. H. J. Roberts stated in his lectures that once free of the ‘diet products’ and with no significant increase in exercise; his patients lost an average of 19 pounds over a trial period. Aspartame is especially dangerous for diabetics. We found that some physicians, who believed that they had a patient with retinopathy, in fact, had symptoms caused by Aspartame. The Aspartame drives the blood sugar out of control. Thus diabetics may suffer acute memory loss due to the fact that aspartic acid and phenylalanine are NEUROTOXIC when taken without the other amino acids necessary for a good balance.

Treating diabetes is all about BALANCE.. Especially with diabetics, the Aspartame passes the blood/brain barrier and it then deteriorates the neurons of the brain; causing various levels of brain damage, Seizures, Depression, Manic depression, Panic attacks, Uncontrollable anger and rage. Consumption of Aspartame causes these same symptoms in non-diabetics as well. Documentation and observation also reveal that thousands of children diagnosed with ADD and ADHD have had complete turnarounds in their behavior when these chemicals have been removed from their diet.

So called ‘behavior modification prescription drugs’ (Ritalin and others) are no longer needed. Truth be told, they were never NEEDED in the first place!  Most of these children were being ‘poisoned’ on a daily basis with the very foods that were ‘better for them than sugar. ‘It is also suspected that the Aspartame in thousands of pallets of diet Coke and diet Pepsi consumed by men and women fighting in the Gulf War, may be partially to blame for the well-known Gulf War Syndrome.

Dr. Roberts warns that it can cause birth defects, i.e. mental retardation, if taken at the time of conception and during early pregnancy. Children are especially at risk for neurological disorders and should NEVER be given artificial sweeteners.

There are many different case histories to relate of children suffering grand mal seizures and other neurological disturbances talking about a plague of neurological diseases directly caused by the use of this deadly poison.’

Herein lies the problem: There were Congressional Hearings when Aspartame was included in 100 different products and strong objection was made concerning its use. Since this initial hearing, there have been two subsequent hearings, and still nothing has been done. The drug and chemical lobbies have very deep pockets.

Sadly, MONSANTO’S patent on Aspartame has EXPIRED! There are now over 5,000 products on the market that contain this deadly chemical and there will be thousands more introduced. Everybody wants a ‘piece of the Aspartame pie. ‘I assure you that MONSANTO, the creator of Aspartame, knows how deadly it is.

And isn’t it ironic that MONSANTO funds, among others, the American Diabetes Association, the American Dietetic Association and the Conference of the American College of Physicians?

This has been recently exposed in the New York Times. These [organizations] cannot criticize any additives or convey their link to MONSANTO because they take money from the food industry and are required to endorse their products. Senator Howard Metzenbaum wrote and presented a bill that would require label warnings on products containing Aspartame, especially regarding pregnant women, children and infants.

The bill would also institute independent studies on the known dangers and the problems existing in the general population regarding seizures, changes in brain chemistry, neurological changes and behavioural symptoms.  The bill was killed. It is known that the powerful drug and chemical lobbies are responsible for this, letting loose the hounds of disease and death on an unsuspecting and uninformed public. Well, you’re informed now!

Why Cananda Exists Today Our True Legal Roots


The Governor and Company of Adventurers of England Trading into Hudson’s Bay was incorporated on 2 May 1670, with a royal charter from King Charles II. The charter granted the company a monopoly over the region drained by all rivers and streams flowing into Hudson Bay in northern Canada. The area was called Rupert’s Land after Prince Rupert, the first governor of the company appointed by the King. This region, the drainage basin of Hudson Bay, constitutes 1.5 million square miles (3.9×10^6 km2), comprises over one-third the area of modern day Canada and stretches into the north central United States. The specific boundaries were unknown at the time. Rupert’s Land would eventually be Canada’s largest land purchase in the 1800s.

During the fall and winter, First Nations and trappers did the vast majority of the animal trapping and pelt preparation. They travelled by canoe and on foot, to the fort to sell their pelts

The early coastal factory model contrasted with the system of the French, who established an extensive system of inland posts and sent traders to live among the tribes of the region. In March 1686, the French sent a raiding party under the Chevalier des Troyes over 1,300 km (810 mi) to capture the company’s posts along James Bay. The French appointed Pierre Le Moyne d’Iberville, who had shown great heroism during the raids, as commander of the company’s captured posts. In 1687 an English attempt to resettle Fort Albany failed due to ruses and deceptions by d’Iberville. After 1688 England and France were officially at war. D’Iberville raided Fort Severn in 1690 but did not attempt to raid the well-defended local headquarters at York Factory. In 1693 the company recovered Fort Albany; d’Iberville captured York Factory in 1694, but the company recovered it the next year. In 1697, d’Iberville again commanded a French naval raid on York Factory. On the way to the fort, he defeated three ships of the Royal Navy in the Battle of Hudson’s Bay, the largest naval battle in the history of the North American Arctic. D’Iberville’s depleted French force captured York Factory by a ruse; they laid siege to the fort while pretending to be a much larger army, the French held all of the outposts except Fort Albany until 1713. (Fort Albany was again unsuccessfully attacked in 1709 by a small French and Indian force.) The economic consequences of the French possession to the company were significant; it did not pay any dividends for more than 20 years. See Anglo-French conflicts on Hudson Bay.

The war ended in 1713 with the signing of the Treaty of Utrecht. Among its many provisions, the Treaty required France to relinquish all claims to Hudson Bay, which again became a British possession The Kingdom of Great Britain had been established (following the union of Scotland and England in 1707). After the treaty, the company built Prince of Wales Fort, a stone star fort at the mouth of the nearby Churchill River. In 1782, during the American Revolutionary War, a French squadron under Jean-François de Galaup, comte de Lapérouse captured and demolished York Factory and Prince of Wales Fort.

A parallel may be drawn between the HBC’s control over Rupert’s Land with the trade monopoly and government functions enjoyed by the Honourable East India Company over India during roughly the same period. Viewed as a major competitor, the HBC invested £10,000 in the East India Company in 1732.

Hudson’s Bay Company’s first inland trading post was established by Samuel Hearne in 1774 in Cumberland House, Saskatchewan.

In 1779, the North West Company (NWC) was founded in Montreal as a seasonal partnership to provide more capital and to continue competing with the HBC. It became operative for the outfit of 1780 and was the first joint stock company in Canada and possibly North America. The agreement lasted one year. A second agreement established in 1780 had a three-year term. The company became a permanent entity in 1783. By 1784, the NWC had begun to have a serious impact on the HBC’s profits.

In 1821, the North West Company of Montreal and Hudson’s Bay Company were forcibly merged by intervention of the British government to put an end to often-violent competition. A total of 175 posts, 68 of them the HBC’s, were reduced to 52 for efficiency and because many were redundant as a result of the rivalry and were inherently unprofitable. Their combined territory was extended by a license to the North-Western Territory, which reached to the Arctic Ocean in the north and, with the creation of the Columbia Department in the Pacific Northwest, to the Pacific Ocean in the west. The NWC’s regional headquarters at Fort George (Fort Astoria) was relocated to Fort Vancouver, which became the HBC base of operations on the Pacific Slope.

Although the HBC maintained a monopoly on the fur trade during the early to mid-19th century there was competition from James Sinclair and Andrew McDermot (Dermott), independent traders in the Red River Colony. They shipped furs by the Red River Trails to Norman Kittsona buyer in the United States. In addition, Americans controlled the Maritime fur trade on the Northwest Coast until the 1830s.

Throughout the 1820s and 1830s, the HBC controlled nearly all trading operations in the Pacific Northwest, based at the company headquarters at Fort Vancouver on the Columbia River. Although claims to the region were by agreement in abeyance, commercial operating rights were nominally shared by the United States and Britain through the Anglo-American Convention of 1818, company policy, enforced via Chief Factor John McLoughlin of the company’s Columbia District, was to discourage U.S. settlement of the territory.

In 1869, after rejecting the American government offer of CA$10,000,000, the company approved the return of Rupert’s Land to Britain which in turn gave it to Canada and loaned the new country the £300,000 required to compensate HBC for its losses. The deal, known as The Deed of Surrender, came into force the following year. The resulting territory, now known as the Northwest Territories, was brought under Canadian jurisdiction under the terms of the Rupert’s Land Act 1868, enacted by the Parliament of the United Kingdom. The Deed enabled the admission of the fifth province, Manitoba, to the Confederation on 15 July 1870, the very same day that the deed itself came into force.

The Constitution Act, 1867(originally enacted as the British North America Act, 1867, and referred to as the BNA Act), is a major part of Canada’s Constitution. The Act created a federal dominion and defines much of the operation of the Government of Canada, including its federal structure, the House of Commons, the Senate, the justice system, and the taxation system. The British North America Acts, including this Act, were renamed in 1982 with the patriation of the Constitution (originally enacted by the British Parliament); however, it is still known by its original name in United Kingdom records. Amendments were also made at this time: section 92A was added, giving provinces greater control over non-renewable natural resources.

The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain’s acquisition of French territory in North America after the end of the French and Indian War/Seven Years’ War, in which it forbade all settlers from settling past a line drawn along the Appalachian Mountains. The purpose of the proclamation was to organize Great Britain’s new North American empire and to stabilize relations with Native North Americans through regulation of trade, settlement, and land purchases on the western frontier. The Royal Proclamation continues to be of legal importance to First Nations in Canada and is significant for the variation of indigenous status in the United States. It eventually ensured that British culture and laws were applied in Upper Canada after 1791, which was done to attract British settlers to the province. Its geographic location is similar to the Eastern Continental Divide’s path running northwards from Georgia to the Pennsylvania-New York State border, and north-eastwards past the drainage divide on the “St. Lawrence Divide” from there northwards through New England.

One of the biggest problems confronting the British Empire in 1763 was controlling land speculators in both Europe and the British colonies whose activities often led to frontier conflict. Some Native American peoples—primarily in the Great Lakes region—had a long and close relationship with France, and were dismayed to find that they were now under British sovereignty. Pontiac’s Rebellion (1763–66) was an unsuccessful effort by Native Americans to prevent Great Britain from occupying the land previously claimed by France. The Proclamation of 1763 had been in the works before Pontiac’s Rebellion, but the outbreak of the conflict hastened the process. British officials hoped the proclamation would reconcile Aboriginals to British rule and thus help to prevent future hostilities.

The proclamation created a boundary line (often called the proclamation line) between the British colonies on the Atlantic coast and American Indian lands (called the Indian Reserve) west of the Appalachian Mountains. The proclamation line was not intended to be a permanent boundary between white and Aboriginal lands, but rather a temporary boundary which could be extended further west in an orderly, lawful manner.  Its contour was defined by the headwaters that formed the watershed along the Appalachia—all land with rivers that flowed into the Atlantic was designated for the colonial entities while all the land with rivers that flowed into the Mississippi was reserved for the native Indian population. The proclamation outlawed private purchase of Native American land, which had often created problems in the past; instead, all future land purchases were to be made by Crown officials “at some public Meeting or Assembly of the said Indians”. Furthermore, British colonists were forbidden to move beyond the line and settle on native lands, and colonial officials were forbidden to grant grounds or lands without royal approval. The proclamation gave the Crown a monopoly on all future land purchases from American Indians.

The Royal Proclamation continued to govern the cession of Indigenous land in British North America, especially Upper Canada and Rupert’s Land. The proclamation forms the basis of land claims of Indigenous peoples in Canada – First Nations, Inuit, and Métis. The Royal Proclamation of 1763 is thus mentioned in section 25 of the Canadian Charter of Rights and Freedoms.

According to historian Colin Calloway, “[settler] scholars disagree on whether the proclamation recognized or undermined tribal sovereignty”.

The proclamation established the important precedent that the indigenous population had certain rights to the lands they occupied.

Some see the Royal Proclamation of 1763 as a “fundamental document” for First Nations land claims and self-government. It is “the first legal recognition by the British Crown of Aboriginal rights” and imposes a fiduciary duty of care on the Crown. The intent and promises made to the native in the Proclamation have been argued to be of a temporary nature, only meant to appease the Native peoples who were becoming increasingly resentful of “settler encroachments on their lands” and were capable of becoming a serious threat to British colonial settlement. An advice given by a merchant to the Board of Trade on August 30, 1764 expressed that:

“The Indians all know we cannot be a Match for them in the midst of an extensive woody Country…from whence I infer that if we are determined to possess Our Posts, Trade & ca securely, it cannot be done for a Century by any other means than that of purchasing the favour of the numerous Indian inhabitants.”

Some historians claim that “the British were trying to convince Native people that there was nothing to fear from the colonists, while at the same time trying to increase political and economic power relative to First Nations and other European powers.”However, the Royal Proclamation along with the subsequent Treaty of Niagara, provide for an argument that “discredits the claims of the Crown to exercise sovereignty over First Nations” and affirms Aboriginal “powers of self-determination in, among other things, allocating lands.” Further so, the Royal Proclamation outlined a policy in which to protect Aboriginal rights and in doing so, recognized these rights existed.

The Royal Proclamation of 1763 established the British definition of Indian Country. On these lands the Crown claimed sovereignty but it also decreed that Indian Country were to be considered the possession of the Aboriginal peoples who lived on these lands. Consequently, in order to transfer ownership of the land to the Crown through the surrendering of the land from the indigenous peoples, Great Britain began formalizing the Treaty of Fort Niagara with the First Nations on July 8, 1764, through this Treaty Council. In protest, the Ottawa of Detroit, the Wyandot of Sandusky, and the Lenape and Shawnee of the Ohio failed to come to the Treaty Council. This treaty created a new Covenant Chain between Britain and the First Nations of the western Great Lakes. During the War of 1812, Nations involved with this treaty allied themselves with the British, as the Nations believed the treaty bound them to the British cause.

Some historians argue that even though the boundary was pushed west in subsequent treaties, the British government refused to permit new colonial settlements for fear of instigating a war with Native Americans, which angered colonial land speculators. Others argue that the Royal Proclamation imposed a fiduciary duty of care on the Crown.

Suffice to say, the British via the Proclamation, conceded ownership of the land to the Native community in order to take it back one slice at time through treaties, purchases and agreements. It has been said that the British were the most honest thieves in the history of the world.

After the Seven Years’ War, a victorious Great Britain and a defeated France formalized the peace with the 1763 Treaty of Paris. Under the terms of the treaty, the Kingdom of France ceded New France to Britain, choosing instead to keep the islands of Guadeloupe and Martinique for their valuable sugar production. New France (Canada) was considered less valuable, as its only significant commercial product at the time was beaver pelts. The territory found along the St. Lawrence River, called Canada by the French, was renamed Quebec by the British, after its capital city. Non-military administration of the territories acquired by the British in the war was defined in the Royal Proclamation of 1763.

Under the terms of the peace treaty, Canadians who did not choose to leave became British subjects. In order for them to serve in public offices, they were required to swear an oath to the King that contained specific provisions rejecting the Catholic faith. Since many of the predominantly Roman Catholic Canadians were unwilling to take such an oath, this effectively prevented large numbers of French Canadians from participating in the local governments.

With unrest growing in the colonies to the south, which would one day grow into the American Revolution, the British were worried that the French Canadians might also support the growing rebellion. At that time, French Canadians formed the vast majority of the settler population of the province of Quebec (more than 99%) and there was little immigration from Great Britain. There was a need to compromise between the conflicting demands of the French-Canadian subjects and those of newly arrived British subjects. These efforts by the colonial governors eventually resulted in the enactment of the Quebec Act of 1774. The net result was that Quebec should be divided into two separate provinces and the laws involving property and civil rights  should be written to follow those laws of England ultimately accomplished with the Constitution Act of 1792.

The Quebec Act of 1774, formally known as the British North America (Quebec) Act 1774, was an act of the Parliament of Great Britain (citation 14 Geo. III c. 83) setting procedures of governance in the Province of Quebec.

The Act’s principal components were:

  • The province’s territory was expanded to take over part of the Indian Reserve, including much of what is now southern Ontario, Illinois, Indiana, Michigan, Ohio, Wisconsin, and parts of Minnesota.
  • Reference to the Protestant faith was removed from the oath of allegiance.
  • It guaranteed free practice of the Catholic faith.
  • It restored the use of the French civil law for matters of private law, except that in accordance with the English common law, it granted unlimited freedom of testation. It maintained English common law for matters of public law, including administrative appeals, court procedure, and criminal prosecution.
  • It restored the Catholic Church’s right to impose tithes.

The 1774 Act had wide-ranging effects, in Quebec itself, as well as in the Thirteen Colonies. In Quebec, English-speaking immigrants from Britain and the southern colonies objected to a variety of its provisions, which they saw as a removal of certain political freedoms. French Canadians varied in their reaction; the land-owning seigniors and ecclesiastics were generally happy with its provisions although the populace resented their loss of liberties.

In the Thirteen Colonies, the Quebec Act, which had been passed in the same session of Parliament as a number of other acts designed as punishment for the Boston Tea Party and other protests, was passed along with the other Intolerable Acts, also known as the Coercive Acts. The provisions of the Quebec Act were seen by the colonists as a new model for British colonial administration, which would strip the colonies of their elected assemblies. It seemed to void the land claims of the colonies by granting most of the Ohio Country to the province of Quebec. The Americans were especially angry that the Act established Catholicism as the state religion in Quebec. The Americans had fought hard in the French and Indian War, and now they were angry that the losers (the French in Quebec) were given all the rewards including western lands claimed by the 13 colonies.

The Quebec Act was never enforced outside the traditional boundaries of Quebec. Its main significance in the Thirteen Colonies was that it angered the Patriots, and dismayed the Loyalists who supported the Crown, and helped to accelerate the confrontation that became the American Revolution (Miller 1943). The Act is listed as one of the rebels’ grievances in the Declaration of Independence as one of the “Acts of pretended Legislation …

For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies”

The First Continental Congress petitioned Parliament to repeal the Intolerable Acts, which Parliament declined to do. Instead, in February 1775 Parliament passed the Conciliatory Resolution in an attempt to curry favor with the angry colonists. This was too little, too late, as the war broke out before news of its passage could reach the colonies.

In Quebec the 1774 Act was effectively superseded by the Constitutional Act of 1791, which partitioned Quebec into two new provinces, Upper and Lower Canada.

As time progressed the French and the English living in the Province of Quebec, were constantly at odds and threatened the overall success of development and growth. To counter this, the creation of the Constitution of 1792 established the Provinces of of Upper and Lower Canada.

The Constitution of 1792 was created to divide Canada into two separate provinces and introduced English Law pertaining to “property and civil rights” and attempted to resolve outstanding issues between the two races.

It also supported the already granted and patented property rights under section nine of the act:

“ IX. Provided always, that nothing in this act contained shall extend, or be construed to extend, to any lands that have been granted by his Majesty, or shall hereafter be granted by his Majesty, his heirs and successors to be holden free in common soccage.”

A Definition of free and common socage:

“ Freehold tenure is without any incidents or obligations for the benefit of the Crown. All lands granted by the Crown in fee simple are granted in free and common socage – freehold tenure.

A fee simple may be transferred without licence or fine and the new owner holds from the Crown in the same manner as the previous tenant held from the Crown.”

In 1839, the Imperial Parliament chose to re-unite Upper and Lower Canada into one province under the direction of Lord Durham, in an effort to resolve the differences between the English and the French residents. The differences ranged from control of revenue and supplies etc which resulted in rebellion.

The Union Act of 1840 appointed Lord Durham as Governor-General, who was mandated to find methods to amend the Constitution and create an environment of cooperation between the two factions.

Subsequent to the passing of the Union Act a Municipal was created in 1841.

The United Province of Canada, or Province of Canada, or the United Canadas was a British colony in North America from 1841 to 1867. Its formation reflected recommendations made by John Lambton, 1st Earl of Durham in the Report on the Affairs of British North America following the Rebellions of 1837–1838.

The Act of Union 1840, passed July 23, 1840, by the British Parliament and proclaimed by the Crown on February 10, 1841, merged the two Colonies by abolishing the Parliaments of Upper and Lower Canada and replacing them with a single one with two houses, a Legislative Council as the upper chamber and the Legislative Assembly as the lower chamber. In the aftermath of the Rebellions of 1837–1838, unification of the two Canadas was driven by two factors. Firstly, Upper Canada was near bankruptcy due to a lack of stable tax revenues, and needed the resources of the more populous Lower Canada to fund its internal transportation improvements. And secondly, unification was an attempt to swamp the French vote by giving each of the former provinces the same number of parliamentary seats, despite the larger population of Lower Canada. Although Durham’s report had called for both the Union of the Canadas and Responsible Government (i.e., an independent local legislature), only the first was implemented. The new government was to be led by an appointed Governor General accountable only to the British Crown and the King’s Ministers. Responsible Government was not to be achieved until the second LaFontaine-Baldwin ministry in 1849.

The Province of Canada ceased to exist at Canadian Confederation on July 1, 1867, when it was redivided into the Canadian provinces of Ontario and Quebec. From 1791 to 1841, the territory roughly corresponding to modern-day Southern Ontario in Canada belonged to the British colony of the Upper Canada, while Labrador and the southern portion of modern-day Quebec belonged to the colony of the Province of Lower Canada (until 1809, when Labrador was transferred to the Colony of Newfoundland). Upper Canada was primarily “Anglophone” (English-speaking), whereas Lower Canada was primarily “Francophone” (French-speaking).

However, in 1848 the Earl of Elgin, the then Governor General, appointed a Cabinet nominated by the majority party of the Legislative Assembly, the Baldwin-Lafontaine coalition that had won elections in January. Lord Elgin upheld the principles of responsible government by not repealing the Rebellion Losses Bill, which was highly unpopular with some English-speaking Loyalists who favored imperial over majority rule.

As Canada East and Canada West each held 42 seats in the Legislative Assembly, there was legislative deadlock between English (mainly from Canada West) and French (mainly from Canada East). Initially, the majority of the province was French, which demanded “rep-by-pop” (representation by population), which the Anglophones opposed.

The granting of responsible government to the colony is typically attributed to reforms in 1848 (principally the effective transfer of control over patronage from the Governor to the elected ministry). These reforms resulted in the appointment of the second Baldwin-Lafontaine government that quickly removed many of the disabilities on French-Canadian political participation in the colony.

Once the English population, rapidly growing through immigration, exceeded the French, the English demanded rep-by-pop. In the end, the legislative deadlock between English and French led to a movement for a federal union which resulted in the broader Canadian Confederation in 1867.

In my next chapter we will review the British North America Act, 1867 (BNA) and discover the effect of it and the BNA 1982 Act along with the evolving legislations and how they effect your property rights.

Part 4 More on Property Rights


The Charter of the Forest of 1217 is a charter originally sealed in England by the young King Henry III, acting under the regency of William Marshall, 1st Earl of Pembroke. A companion document to the Magna Carta, redressing some applications of the Anglo-Norman Forest Law that had been extended and abused by William Rufus, the charter re-established rights of access to the royal forest for free men that had been eroded by the Conqueror and his heirs. Many of its provisions were in force for centuries afterwards.

The Charter of the Forest was first issued on 6 November 1217 as a complementary charter to the Magna Carta from which it had evolved. It was reissued in 1225 with a number of minor changes to wording, and then was joined with Magna Carta in the Confirmation of Charters in 1297.

In contrast to Magna Carta, which dealt with the rights of barons, it provided some real rights, privileges and protections for the common man against the abuses of the encroaching aristocracy.

At a time when the royal forests were the most important potential source of fuel for cooking, heating and industries such as charcoal burning, and such hotly defended rights as pannage (pasture for their pigs), estover (collecting firewood), agistment (grazing), or turbary (cutting of turf for fuel), this charter was almost unique in providing a degree of economic protection for free men, who also used the forest to forage for food and to graze their animals.

The King was required to “disafforest” Royal Forest, which meant (rather than chopping trees down) a requirement to give up possession of forest land. This might or might not have trees: it could also be heathland. In doing so the land became available to commoners.

The Charter provided a right of common access to (royal) private lands. Only with the Acts of Union 1707 between England and Scotland were these rights equalled within the realm.

It also rolled back the area encompassed by the designation “forest” to that of Henry II’s time, essentially freeing up lands that had become more and more restricted as King Richard and King John designated greater and greater areas of land to become royal forest. Since “forest” in this context did not necessarily mean treed areas, but could include fields, moor or even farms and villages, it became an increasing hardship on the common people to try to farm, forage, and otherwise use the land they lived on. The Charter specifically states that “Henceforth every freeman, in his wood or on his land that he has in the forest, may with impunity make a mill, fish-preserve, pond, marl-pit, ditch, or arable in cultivated land outside coverts, provided that no injury is thereby given to any neighbour.”

Clause 10 repealed the death penalty for capturing venison (deer), though transgressors were still subject to fines or imprisonment for the offense; it also abolished mutilation as a lesser punishment. Special Verderers’ Courts were set up within the forests to enforce the laws of the Charter.

By Tudor times, most of the laws served mainly to protect the timber in royal forests. However, some clauses in the Laws of Forests remained in force until the 1970s, and the special courts still exist today in the New Forest and the Forest of Dean. In this respect, the Charter was the statute that remained longest in force in England (from 1217 to 1971), being finally superseded by the Wild Creatures and Forest Laws Act 1971.

In 1215, nearly one third of the land in England consisted of forest. Today, the word ‘forest’ describes a densely wooded area but the term meant something very different in the thirteenth century. Forests in King John’s time were lands where the King enjoyed a monopoly over all management and distribution of resources. Some of these lands were forests in the modern sense of the word including Sherwood Forest, associated with the legends of Robin Hood and his Merry Men, and the New Forest, which remains one of the largest tracts of woodland in England. Other thirteenth century ‘forests’ however, consisted of inhabited countryside with villages and farmland.

As the population of medieval England increased, “the law of the forest” became increasingly onerous to both the nobility and their peasant tenants who were unable to develop or expand their land without the King’s permission. Magna Carta, ‘The Great Charter’, addressed forest privileges in a series of clauses but England’s barons considered this issue to be so significant that they drew up a subsequent document that expanded on these provisions in 1217, during the minority rule of John’s son, Henry III. The Charter of the Forest is much less well known than the Magna Carta but it expanded on the latter’s provisions and provided the foundation for the modern concept of common stewardship of resources.

For King John and his privileged predecessors, the forest was both a hunting ground and a lucrative source of revenue. Hunting had been the sport of English Kings since Anglo-Saxon times but it was William the Conqueror and his descendants who enforced a royal monopoly over hunting large animals in the forest. Members of the nobility might receive a license to hunt ‘free warren’ such as foxes, otters, badgers and rabbits but only the King, members of his hunting parties or his foresters were entitled to hunt deer or wild boar.

Penalties for poaching the King’s game were severe. According to the Anglo-Saxon chronicle, “[King William I] made many deer-parks; and he established laws therewith; so that whosoever slew a hart, or a hind, should be deprived of his eyesight. As he forbade men to kill the harts, so also the boars; … His rich men bemoaned it, and the poor men shuddered at it.” Although two of William I’s sons, Richard of Normandy and King William II died in hunting accidents in the New Forest, successive Kings fiercely protected their exclusive right to hunt large game animals.

The chronicler William of Newburgh complained of William I’s youngest son, King Henry I, “He was, also, immoderately attached to beasts of chase, and, from his ardent love of hunting, used little discrimination in his public punishments between deer killers and murderers.” By the reign of King Richard the Lionhearted, the punishment for killing a deer was blinding and mutilation even though the King only spent a few months in England over the course of his reign and had little time for hunting between his military campaigns.

The Charter of the Forest acknowledged that deer remained the property of the King but abolished physical punishments for poaching. According to the tenth clause of the Charter, “No one shall henceforth lose life or limb because of our venison, but if anyone has been arrested and convicted of taking venison he shall be fined heavily if he has the means; and if he has not the means, he shall lie in our prison for a year and a day…”

Henry III showed little enthusiasm for hunting, but large game remained property of the Crown in law until the 1971 Wild Creatures and Forest Laws Act in the United Kingdom formally abolished, “any prerogative right of Her Majesty to wild creatures…together with any prerogative right to set aside land or water for the breeding, support or taking of wild creatures; and any franchises of forest, free chase, park or free warren.” The Charter of the Forest remains the statute in force for the longest time in England.

While the young Henry III’s barons were willing to accept that the monarch owned the deer and wild boar in the forest – provided that the penalties for poaching were lessened – they insisted that the King curtail his right to use his forest prerogatives to extract revenue from his subjects. The King’s Chief Forester and his deputies, who attended forest courts and made regular inspections of forest lands, were among the King’s most unpopular officials because of their ability to extract payments for land development or levy fines for violations of forest law.

The regulations governing the use of forest land before the promulgation of the Charter of the Forest were extensive and arbitrary. Permission from the Chief Forester was required before forest land could be cleared and cultivated, and the King received rent in perpetuity for these newly developed tracts. The right to pasture animals in the forest was strictly controlled and could be revoked at the King’s discretion. Farmers could only chop down trees for their own use if removal of a tree did not create waste, which was defined in the reign of Henry II as “If a man standing on the stump of an oak or other tree can see five other trees cut down around him.” If an individual offender could not be identified in the forest courts, the Chief Forester had the power to impose a fine on the entire community.

Forest court records from John’s reign provide examples of the offences and penalties for breaking “the law of the forest.” In 1209, Roger de Crammaville of Kent was fined twenty marks for owning dogs that did not meet forest regulations, which dictated that three claws of their forepaws be removed to ensure that they were unable to hunt game. That same year, the King ordered the destruction of unauthorized ditches and hedges on forest land. This decree was deeply unpopular because wild animals, including deer, were able to destroy crops in fields unprotected by hedges or ditches. In addition to collecting fines and other payments, John also used his forest prerogatives to settle personal scores. In 1200, the King expressed his displeasure with the Cistercian Order by forbidding the monks from pasturing their livestock in the forest until twelve abbots begged his forgiveness on their knees.

The boundaries of the forest changed frequently as monarchs designated additional lands as forest to increase their revenue. Both Richard and John also agreed to “disafforest” land upon the payment of a large sum from a community whose members agreed they would be better off without the restrictions imposed on forest dwellers. These agreements between individual communities and the monarch were precursors to the Charter of the Forest, which applied to the entire kingdom.

The Magna Carta began the process of transforming the forests into common land that served the needs of communities. According to the 1215 version of the Great Charter, “All evil customs relating to forests…are at once to be investigated in every county by twelve sworn knights of the county, and within forty days of their enquiry the evil customs are to be abolished completely and irrevocably.” This clause was eliminated from future reissues of Magna Carta as the Charter of the Forest expanded and developed the provisions concerning use of forest land.

The Charter of the Forest precisely defined the “evil customs” mentioned in the Great Charter, and presented an alternative vision for the management of common resources. In contrast to the arbitrary regulations and fines imposed for forest offences by John and his predecessors, the Charter stated that “Every free man may henceforth without being prosecuted make in his wood or in land he has in his forest, a mill, a preserve, a pond, a marl-pit or a ditch, or arable outside the covert in arable land, on condition that it does not harm any neighbour.” This clause both revoked John’s unpopular decrees and transferred authority over forest development from the King to the commons. Instead of answering to the King alone, forest dwellers had to consult with their communities, ensuring that any development did not disadvantage their neighbours.

The Charter of the Forest also ended the unpopular practice of Kings transforming new land into ‘forest’ stating that, “All woods made forest by King Richard our uncle or King John our father, up to the time of our first coronation shall be immediately disafforested.” Although surviving evidence suggests that John only created two new forests during his reign, the arbitrary and mercenary nature of these changes infuriated his subjects and they were eager to ensure that Henry III and his successors did not exercise the same prerogatives.

When Henry III came of age in 1227, the future of both Magna Carta and the Charter of the Forest became uncertain. According to a decree passed in 1218, no charter approved during the King’s minority remained valid during his majority without confirmation by the adult King. There was a real possibility that Henry III might refuse limits on his powers imposed by his barons while he was a child. The King ultimately agreed to uphold Magna Carta in exchange for a tax on the movable property of the clergy, and the Charter of the Forest for a tax on land. Henry III’s fifty-six year reign coincided with a period of prosperity for England as land development in rural areas matched the needs of communities instead of forest regulations imposed on them by the King. The lasting legacy of the Charter of the Forest is the precedent for community stewardship of shared resources that endures into the twenty-first century.

English land law draws on four main sources to determine property rights: the common law and equitable principles developed by the courts, a system of land registration, a continuing system for unregistered land, and the European Convention on Human Rights. First of all, the courts of common law and equity gave people with “property” rights various privileges over people who acquired mere “personal” rights. To acquire property over land (as with any other object of value), as opposed to a contract, for example, to use it, a buyer and seller simply needed to agree that property would be passed. The law then recognised a “property” right with various privileges over people with purely “personal” claims. The best form of property would involve exclusive possession, and it usually bound anyone who attempted to interfere with an owner’s use, particularly in cases of insolvency, if other people with interests in the land sold their stake to a third party, or in getting remedies to enforce one’s right. Before 1925, property rights in land (unlike, for example, a company’s shares) only had to be evidenced in paper title deeds. It was therefore believed that a system of land registration was desirable, so that people’s rights over land would be certain, and conveyancing would be simpler and cheaper. So, the second system of land began with the Land Registration Act 1925, and the rules were recast in the Land Registration Act 2002. Instead of paper title deeds determining people’s property rights in land, the entries in the registry were the source that determine people’s property rights. However, many property rights were never expected to be registered, particularly the social claims that people had on family homes, or short leases. Furthermore, not all land had to be registered. Only when formal transactions with land took place did registration become a compulsory. This meant that by 2013, 88 per cent of land or 126,000 square kilometres was registered with HM Land Registry. But a third system of land regulation remained for the 12 per cent of unregistered land. Though somewhat amended by legislation, this system for determining property rights and disputes remained much like the old common law and equity. Fourth, and particularly important since the Human Rights Act 1998 allowed people to plead claims directly in the UK courts without having to wait for an appeal to Strasbourg, property rights were affected by an autonomous set of human rights under the European Convention. Not simply the common law, or land registration, but also people’s right to a family life, privacy in one’s home, and peaceful enjoyment of possessions, could change the outcomes of property disputes.

Land law is also known as the law of real property. It relates to the acquisition, protection and conflicts of people’s rights, legal and equitable, in land. This means three main things. First, “property rights” (in Latin, a right in rem) are generally said to bind third parties, whereas personal rights (a right in personam) are exercisable only against the person who owes an obligation. English law acknowledges a fixed number, or numerous clauses of property rights, which create various privileges.

The main situations where this distinction matters are if a debtor to two or more creditors has gone insolvent (i.e. bankrupt), or if there is a dispute over possession of a specific thing. If a person or a business has gone insolvent, and has things in their possession which are the property of others’, then those people can usually take back their property free of anyone else’s claims. But if an insolvent person’s creditors are merely owed personal debts, they cannot take back their money freely: any losses have to be divided among all creditors. Often, creditors can contract for a proprietary right (known as a security interest) to secure repayment of debts. This gives the same result as having another proprietary right, so the secured creditor takes priority in the insolvency queue. Secured creditors, most usually, are banks and for most people the most familiar kind of security interest is a mortgage. In this way, property rights area always “stronger” than personal rights, even though they may be acquired by the same means: a contract.

Most of the time, property rights are also stronger than personal because English courts have been historically more willing to order specific performance as a remedy for interference with property rights. People with personal rights, such as to the performance of a contract, are presumptively entitled to money in compensation, unless damages would be an inadequate remedy. In its second main feature, English land law differs from civil law systems in the European Union, because it allows the separation of the “beneficial” ownership of property from legal title to property. If there is a “trust” of land, then trustees hold legal title, while the benefit, use and “equitable” title might belong to many other people. Legal title to real property can only be acquired in a limited number of formal ways, while equitable title can be recognised because of a person’s contribution, or the parties true intentions, or some other reason, if the law deems that it is fair and just (i.e. equitable) to recognise that someone else has a stake in the land.

The third main feature of the English law of real property is that “real” property (or “realty”) means land, and the things that goes with it, alone. This is classified as different from movables or other types of “personal” property (or “personality”). The distinction matters mainly to define the scope of the subject matter, because there are different registration requirements, taxes, and other regulations for land’s use.

The technical definition of “land” encompasses slightly more than in the word’s common use. Under the Law of Property Act 1925, section 205(1)(ix) says land means “land of any tenure, mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over, or derived from land…” This cumbersome definition indicates two general ideas. First, land includes physical things attached to it (e.g. buildings and “hereditaments”) and, second, intangible rights (like an easement, a right of way). Perhaps in aspiration of appearing scientific, lawyers have become accustomed to describing property in land as being “four dimensional”.

The two dimensional area of land surface, bounded by a fence, is complemented by rights over all buildings and “fixtures”. This becomes most relevant in disputes after a contract to sell land, when a buyer alleges a thing was included in a sale, but a contract was silent on the specifics. In Holland v Hodgson Blackburn J held that looms installed in a factory formed part of the land. Objects resting on the ground and “attached” only by gravity will not normally be part of the land, although it could be that the parties “intended” something different, or rather what the parties’ reasonable expectations were. Easily removable things, like carpets and curtains, or houseboats, will not be land, but less easily removed things, like taps and plugs are  In the third dimension, as section 205(1)(ix) points out, mines and sub-surface things, belong to the surface owner, and up to a general limit of 500 feet, the landowner will have a right to the atmosphere above his land as well. Public policy sets the limit in both cases, so since the 16th century Case of Mines the Crown has a claim to valuable minerals or natural resources that are discovered, as well as valuable treasure. And in the other direction, aircraft or satellites that are sufficiently high are not considered to trespass, or infringe an owner’s right to peaceful enjoyment.] The fourth dimension of land to an English property lawyer, is time.

Since 1925 English law recognises two “estates” in land, or kinds of ownership interest: the “fee simple”, which is a right to use for an unlimited time, and a “lease”, which is an interest for a fixed period of time. In all situations, however, use of the land is constrained by agreements or binding rights with neighbours, and the requirements of the local council and government.

King Edward III signed the Act for the Limitation of Forests in 1641. There were, during this era, accounts of the Crown Forests being extended arbitrarily.

King Edward II, to protect the private property of the people, enacted that the boundaries of the forests must be determined and marked, so as not to infringe or abrogate the ” land/property” rights of the people.

To establish what was the forests of the King and what was not. This was created to be successive titles of private property owners and the surveys that accompanies same. The boundaries were registered in title lists.

The Nullum Tempus Act of 1769, introduced by Sir George Savile, brought forward and still in force today in Canada, the concept and law that provided for a 60 -year limitation of the  prerogative and 60-year adverse possession from the Crown.

Having scratch the surface of property rights so far, lets go forward and direct our focus on Canada.

Property Rights in United Socialist Republic of Ontario


“As soon as the land of any country has all become private property, the landlords, like all other men, love to reap where they never sowed, and demand a rent even for its natural produce. The wood of the forest, the grass of the field, and all the natural fruits of the earth, which, when land was in common, cost the labourer only the trouble of gathering them, come, even to him, to have an additional price fixed upon them. He must then pay for the licence to gather them; and must give up to the landlord a portion of what his labour either collects or produces. This portion, or, what comes to the same thing, the price of this portion, constitutes the rent of land ….”
Adam Smith, The Wealth of Nations (1776)
The law of Canada and the U.S. finds it roots in British Common Law. To understand the principals of our laws you must know where it came from. The footings of this document start with the Magna Carta and then move forward in time.
Since the writing of law is an evolutional process, as laws are adopted they must first be reconciled with what has already been written failing which you have laws countering laws.
As is the case today we have three tiers of government all writing laws but the point in fact is that no one appears to be reading them or cross referencing them. Conflict has become the accepted norm. Once in place a law is subject to case law that may or may not be subject to Political influence. Not the intention of the originators of our legal system.
English land law is the law of real property in England and Wales. Because of its heavy historical and social significance, land is a major part of the wider English property law. Ownership of land has its roots in the feudal system established by William the Conqueror after 1066, and with a gradually diminishing aristocratic presence, now sees a large number of owners playing in an active market for real estate.
The modern law’s sources derive from the old courts of common law and equity which includes legislation such as the Law of Property Act 1925, the Settled Land Act 1925, the Land Charges Act 1972, the Trusts of Land and Appointment of Trustees Act 1996 and the Land Registration Act 2002, and the European Convention on Human Rights. At its core, English land law involves the acquisition, content and priority of rights and obligations among people with interests in land. Having a property right in land, as opposed to a contractual or some other personal right, matters because it creates privileges over other people’s claims, particularly if the land is sold on, the possessor goes insolvent, or when claiming various remedies, like specific performance, in court.
The traditional content of English land law relates to property rights that derive from common law, equity and the registration system. Ordinarily, ownership of land is acquired by a contract of sale, and to complete a purchase, the buyer must formally register her interest with the Land Registry. Similar systems run in Scotland and Northern Ireland. Around 18 per cent of land in England and Wales remains unregistered, so property disputes are still determined by principles developed by the courts. Human rights, like the right to a family life and home under ECHR article 8 and the right to peaceful enjoyment of possessions, under article 1 of the First Protocol, apply for everyone.
Aside from sale contracts, people may acquire interests in land through contributions to a home’s purchase price, or to family life, if the courts can find evidence of a common intention that this should happen. The law acknowledges a “resulting” or “constructive trust” over the property, and in recognition of people’s social interests in their homes, as with a lease under 7 years length, these do not need to be registered. Third, people can acquire land through proprietary estoppel. If someone is given an assurance that they will receive property, and they rely on this to their detriment, a court may acknowledge it. Fourth, adverse possession allows people who possess land, without formal objection by the owner for at least 12 years, to take registered title. Multiple people can be interested in land, and it can be used in multiple ways. There could be a single freeholder, or people can own land jointly. The law closely regulates the circumstances under which each may sever or sell their share. Leases, and to some degree licenses, allocate the use of land to new owners for a period of time. Mortgages and other forms of security interest are usually used to give moneylenders the right to seize property in the event that the debtor does not repay a loan. Easements and covenants involve rights and duties between neighbours, for instance with an agreement that a neighbour will not build on a piece of land, or to grant a right of way.
The start of an English law of real property, however, came after the Norman Invasion of 1066, when a common law was built throughout England. The new King, William the Conqueror, started standardising England’s feudal rules, and compiled a reference for all land and its value in the Domesday Book of 1086. This was used to determine taxes, and the feudal dues that were to be paid. Feudalism meant that all land was held by the Monarch. Estates in land were granted to lords, who in turn parcelled out property to tenants. Tenants and lords had obligations of work, military service, and payment of taxation to those up the chain, and ultimately to the Crown. Most of the peasantry were bonded to their masters. Serfs, cottars or slaves, who may have composed as much as 88 per cent of the population in 1086, were bound by law to work on the land. They could not leave without permission of their Lords. But also, even those who were classed as free men were factually limited in their freedom, by the limited chances to acquire property.
The Magna Carta 1215 guaranteed rights of representation to the barons, but contained very little for “commoners”. However, a number of clauses were extracted and expanded into the Charter of the Forest 1217, which did allow people access to common land, where people could hunt and fish for food. Over the centuries, the law expanded on the extent of common ownership, but generally the trend was toward removing land from people. The Commons Act 1236 allowed the Lord of a Manor to enclose any manorial land that had previously been common, and the Statute of Westminster 1285 formalised the system of entail so that land would only pass to the heirs of a landlord. The Statute Quia Emptores Terrarum 1290 allowed alienation of land only by substitution of the title holder, halting creation of further sub-tenants. The civil liberties of the Magna Carta of 1215, and its reissue in 1297, were only meant for barons and lords, while the vast majority of people were poor, subjugated and dispossessed.
The courts of common law (the Court of Common Pleas and the Court of the King’s Bench) took a strict approach to the rules of title to land, and how many people could have legal interests in land. However, the King had the power to hear petitions and overturn cases of common law. He delegated the hearing of petitions to his Lord Chancellor, whose office grew into a court. During the crusades, landowners who went to fight would transfer title to a person they trusted so that feudal services could be performed and received. But some who survived had returned only to find that the people they entrusted were refusing to transfer title back.
Unlike the common law judges, the Chancellor held the cestui que use, the owner in equity, could be a different person, if this is what good conscience dictated. This recognition of a split in English law, between legal and equitable owner, between someone who controlled title and another for whose benefit the land would be used, was the beginning of trust law. It was similarly useful among Franciscan friars, who would transfer title of land to others as they were precluded from holding property by their vows of poverty. Uses or trusts were also employed to avoid the payment of feudal dues. If a person died, the law stated a landlord was entitled to money before the land passed to heir, and the whole property under the doctrine of escheat if there were no heirs. Transferring title to a group of people for common use could ensure this never happened, because if one person died he could be replaced, and it was unlikely for all to die at the same time. King Henry VIII saw that this deprived the Crown of revenue, and so in the Statute of Uses 1535 he attempted to prohibit them, stipulating all land belonged in fact to the cestui que use. However, when Henry VIII was gone, the Court of Chancery held that it had no application where land was leased. Moreover, the primacy of equity over the common law was reasserted, supported by King James I in 1615, in the Earl of Oxford’s case. The institution of the use continued, as new sources of revenue from the mercantile exploits in the New World decreased the Crown’s reliance on feudal dues. By the early 1700s, the use had formalised into a trust: where land was settled to be held by a trustee, for the benefit of another, the Courts of Chancery recognised the beneficiary as the true owner in equity.
As national and global trade expanded, the power of a new monied class of business men was growing, and the economic and political importance of land was diminishing with it. The moral philosopher and father of economics, Adam Smith, reflected these changes as he argued in The Wealth of Nations that landowners position allowed them to extract rents from others in return for very little.
In the 19th century, a growing liberal movement for reform produced three major results. First, there was increasing pressure to dismantle the privileges of the landed aristocracy. The most direct reform was to gradually abolition the “strict settlement”, through the Settled Land Acts of 1882-1925. An owner of land could direct that property on his death would only pass down the line of his relations, thus preventing it being sold to anyone on the market. This also included the view that all land should be put on a register, so as to ease its ability to be marketed.
The Land Transfer Act 1875 introduced a voluntary system, but it was not taken up. After the 1906 general election the new Chancellor of the Exchequer, David Lloyd George, in his People’s Budget of 1909 introduced a tax on land to force it onto the market. This provoked a constitutional crisis, as the hereditary House of Lords vetoed it, forcing fresh elections. But the Liberal government was returned and it abolished the Lords right of veto in the Parliament Act 1911. By then, land registration reforms were a minor political issue and only really opposed by solicitors who earned sizeable conveyancing fees.
Eventually, the Land Registration Act 1925 required any dealing with property triggered compulsory registration. Second, the Court of Chancery, though it may have mitigated the petty strictnesses of the common law of property, was seen as cumbersome and arcane. It was subjected to ridicule in books like Charles Dickens’ Bleak House and his fictional case of Jarndyce v Jarndyce, a Chancery matter that nobody understood and dragged on for years and years. Largely this was because there were only two judges administering equitable principles, so from 1873 to 1875, the common law and equity courts were merged into one hierarchy.
Under the Supreme Court of Judicature Act 1875, equitable principles would prevail in case of conflict. Third, in most counties and boroughs, the ability to vote for Members of Parliament had been tied to possession of property in land. From the Great Reform Act 1832, to the Reform Act 1867, and the Representation of the People Act 1918, the connection between property and the vote was gradually reduced and then abolished.
Together with the Parliament Act 1911, a more democratic constitution had emerged, though it was only in 1928 that the voting age for men and women became equal and only in 1948 that the double votes and extra constituencies for students of the Universities of Oxford, Cambridge and London were removed. By the end of the First World War, the power of the old landed aristocracy had largely been broken.
Over the twentieth century, land law became increasingly social in character. First, from the Housing Act 1919 and the post war government’s policy of building “homes fit for heroes” more and more houses were built, and maintained, by local governments. In private accommodation, new rights were enacted for tenants against their landlords, with some security of tenure and rent regulation, a break on unfettered “freedom of contract”. The policy was halted by the Housing Act 1980, which sought to privatise properties by introducing a “right to buy” one’s council home. At the same time, rights for tenants, and constraints on rental increases were reduced, albeit that tenants did retain some minima of rights, for example under the Landlord and Tenant Act 1985 and the Protection from Eviction Act 1977. Second, property was increasingly used as a source of finance for business, and similarly became source of profit for banks, mortgage lenders and real estate investment trusts. This fact drove changes in the market for mortgage regulation, while the growing financial interest in land tended to conflict with family life.
As the UK came closer to gender equality, women as much as men contributed to the purchase of homes, as well as contributing to raising families and children. In 1970, in Pettitt v Pettitt, Lord Diplock remarked that “the wider employment of married women in industry, commerce and the professions and the emergence of a property-owning, particularly a real-property-mortgaged-to-a-building-society-owning, democracy” had compelled courts to acknowledge contributions to the home and family life as potentially generating proprietary interests. However, if banks sought to repossess homes from people who had defaulted on mortgage repayments, the courts were faced with a choice of whether to prefer those economic interests over social values.
The membership of the United Kingdom in the European Convention on Human Rights meant that article 8, on the right to a private and family life, could change the freedom of banks or landlords to evict people, particularly where children’s stability and upbringing were at stake, though by the early twenty-first century the case law had remained cautious. Third, land use in general was subject to a comprehensive regulatory framework. The old common laws between neighbours, of easements, covenants, nuisance and trespass were largely eclipsed by locally and democratically determined planning laws, environmental regulation, and a framework for use of agricultural resources.
English land law draws on four main sources to determine property rights: the common law and equitable principles developed by the courts, a system of land registration, a continuing system for unregistered land, and the European Convention on Human Rights.
First of all, the courts of common law and equity gave people with “property” rights various privileges over people who acquired mere “personal” rights. To acquire property over land (as with any other object of value), as opposed to a contract, for example, to use it, a buyer and seller simply needed to agree that property would be passed. The law then recognised a “property” right with various privileges over people with purely “personal” claims.
The best form of property would involve exclusive possession, and it usually bound anyone who attempted to interfere with an owner’s use, particularly in cases of insolvency, if other people with interests in the land sold their stake to a third party, or in getting remedies to enforce one’s right.
Before 1925, property rights in land (unlike, for example, a company’s shares) only had to be evidenced in paper title deeds. It was therefore believed that a system of land registration was desirable, so that people’s rights over land would be certain, and conveyancing would be simpler and cheaper.
The second system of land began with the Land Registration Act 1925, and the rules were recast in the Land Registration Act 2002. Instead of paper title deeds determining people’s property rights in land, the entries in the registry were the source that determine people’s property rights. However, many property rights were never expected to be registered, particularly the social claims that people had on family homes, or short leases. Furthermore, not all land had to be registered. Only when formal transactions with land took place did registration become a compulsory. This meant that by 2013, 88 per cent of land or 126,000 square kilometres was registered with Land Registry. But a third system of land regulation remained for the 12 per cent of unregistered land. Though somewhat amended by legislation, this system for determining property rights and disputes remained much like the old common law and equity. Fourth, and particularly important since the Human Rights Act 1998 allowed people to plead claims directly in the UK courts without having to wait for an appeal to Strasbourg, property rights were affected by an autonomous set of human rights under the European Convention. Not simply the common law, or land registration, but also people’s right to a family life, privacy in one’s home, and peaceful enjoyment of possessions, could change the outcomes of property disputes.
Land law is also known as the law of real property. It relates to the acquisition, protection and conflicts of people’s rights, legal and equitable, in land. This means three main things. First, “property rights” (in Latin, a right in rem) are generally said to bind third parties, whereas personal rights (a right in personam) are exercisable only against the person who owes an obligation.
English law acknowledges a fixed number, or numerous clauses of property rights, which create various privileges. The main situations where this distinction matters are if a debtor to two or more creditors has gone insolvent (i.e. bankrupt), or if there is a dispute over possession of a specific thing.
If a person or a business has gone insolvent, and has things in their possession which are the property of others’, then those people can usually take back their property free of anyone else’s claims. But if an insolvent person’s creditors are merely owed personal debts, they cannot take back their money freely: any losses have to be divided among all creditors. Often, creditors can contract for a proprietary right (known as a security interest) to secure repayment of debts. This gives the same result as having another proprietary right, so the secured creditor takes priority in the insolvency queue.
Secured creditors, most usually, are banks and for most people the most familiar kind of security interest is a mortgage. In this way, property rights area always “stronger” than personal rights, even though they may be acquired by the same means: a contract.
Most of the time, property rights are also stronger than personal because English courts have been historically more willing to order specific performance as a remedy for interference with property rights. People with personal rights, such as to the performance of a contract, are presumptively entitled to money in compensation, unless damages would be an inadequate remedy. In its second main feature, English land law differs from civil law systems in the European Union, because it allows the separation of the “beneficial” ownership of property from legal title to property. If there is a “trust” of land, then trustees hold legal title, while the benefit, use and “equitable” title might belong to many other people. Legal title to real property can only be acquired in a limited number of formal ways, while equitable title can be recognised because of a person’s contribution, or the parties true intentions, or some other reason, if the law deems that it is fair and just (i.e. equitable) to recognise that someone else has a stake in the land.
The third main feature of the English law of real property is that “real” property (or “realty”) means land, and the things that goes with it, alone. This is classified as different from movables or other types of “personal” property (or “personalty”). The distinction matters mainly to define the scope of the subject matter, because there are different registration requirements, taxes, and other regulations for land’s use.
The technical definition of “land” encompasses slightly more than in the word’s common use. Under the Law of Property Act 1925, section 205(1)(ix) says land means “land of any tenure, mines and minerals, whether or not held apart from the surface, buildings or parts of buildings (whether the division is horizontal, vertical or made in any other way) and other hereditaments; also a manor, advowson, and a rent and other incorporeal hereditaments, and an easement, right, privilege or benefit in, over, or derived from land…” This cumbersome definition indicates two general ideas. First, land includes physical things attached to it (e.g. buildings and “hereditaments”) and, second, intangible rights (like an easement, a right of way). Perhaps in aspiration of appearing scientific, lawyers have become accustomed to describing property in land as being “four dimensional”.
The two dimensional area of land surface, bounded by a fence, is complemented by rights over all buildings and “fixtures”. This becomes most relevant in disputes after a contract to sell land, when a buyer alleges a thing was included in a sale, but a contract was silent on the specifics.
In Holland v Hodgson Blackburn J held that looms installed in a factory formed part of the land. Objects resting on the ground and “attached” only by gravity will not normally be part of the land, although it could be that the parties “intended” something different, or rather what the parties’ reasonable expectations were. Easily removable things, like carpets and curtains, or houseboats, will not be land, but less easily removed things, like taps and plugs are.
In the third dimension, as section 205(1)(ix) points out, mines and sub-surface things, belong to the surface owner, and up to a general limit of 500 feet, the landowner will have a right to the atmosphere above his land as well. Public policy sets the limit in both cases, so since the 16th century Case of Mines the Crown has a claim to valuable minerals or natural resources that are discovered, as well as valuable treasure. And in the other direction, aircraft or satellites that are sufficiently high are not considered to trespass, or infringe an owner’s right to peaceful enjoyment.
The fourth dimension of land to an English property lawyer, is time. Since 1925 English law recognises two “estates” in land, or kinds of ownership interest: the “fee simple”, which is a right to use for an unlimited time, and a “lease”, which is an interest for a fixed period of time. In all situations, however, use of the land is constrained by agreements or binding rights with neighbours, and the requirements of the local council and government.
Because land can serve multiple uses, for many people, and because its fixed nature means that its owner may not always be visible, a system of registration came to be seen as essential at the start of the 20th Century. From the Land Registry Act 1862 which created a body where people could voluntarily register, a succession of government reports and piecemeal reform finally culminated in a unified, compulsory registration system with the Land Registration Act 1925. Its proponents argued that a registration system would increase land’s marketability, and make its transfer as fluid as the registration system of company shares.
Theodore Ruoff, Chief Registrar from 1963, said the main three functions the register served was (1) to mirror ownership interests in land (2) to curtain off minor, or equitable interests that could be bypassed (or “overreached”) in the land conveyance business, and (3) to provide insurance through Registrar funds to anyone who lost property as a result of register defects. The ideal goal was thus to ensure that a comprehensive set of people whose interests had priority in a given real estate would be reflected on the register. With the Land Registration Act 2002, which recast the old law, the Registry has focused on “e-conveyancing”. Under sections 91 to 95, electronic registration counts as deeds, and aims to replace the paper filing for the 21st century.
However, reflecting the social use of land, the priority system of land registration and the Register’s record of all interests in land has made significant exceptions for informal methods of acquiring rights, and especially equitable interests, in land.
Under the Land Registration Act 2002 sections 27 to 30, an interest in land that is registered (for instance, freehold ownership, a long lease, or a mortgage) will take priority to all other interests that come later, or are not entered on the register. The first registered interest in time prevails. Yet under LRA 2002 Schedule 3, a series of exceptions, or “overriding interests” are listed. Under Schedule 3, paragraph 1, any lease that is less than seven years need not be registered, and will still bind other parties.
The reason is to strike a balance between an owner who may well keep hold of land for a long period, and a person who may be renting as a home. Most socially significant, under Schedule 3, paragraph 2 (formerly Land Registration Act 1925 s 70(1)(g)), the interest of a person who is in “actual occupation” need not be entered on the register, but will still bind later registered interests. This rule was said to be necessary to prevent the social right to a home being “lost in the welter of registration”. It is most used in favour of people, typically a spouse in a family home whose name is not on the title deeds, who have not registered an interest because the law has recognised they have acquired a right – not through a formal, or express contract, or gift – but by their contributions, or their reliance on another person’s assurances. If such a person is in “actual occupation”, then their informally acquired interest (usually through “constructive trust”, which recognises their contributions of money or work toward family life) will bind parties who acquire interests later on.
In a leading case, Williams & Glyn’s Bank v Boland, Mr Boland had had trouble repaying his bank for a loan he used on his building company. The loan was secured on his Beddington house, where he lived with Mrs Boland. However, Mrs Boland had not consented to the mortgage agreement. She was not registered on the home’s title deeds, but she had made significant financial contributions to the home. Despite Templeman J at first instance saying Mrs Boland only occupied the house through her husband, the Court of Appeal, and the House of Lords both agreed that Mrs Boland actually did occupy her home, and that her interest bound the bank. Later cases have shown the test for actual occupation must be purposively, and liberally determined, according to the claimant’s social circumstance. So in Chhokar v Chhokar a lady who had been beaten and attacked by her estranged husband’s friends to scare her from her Southall home, and who was at the time of her home being registered in hospital having Mr Chhokar’s child, was still in actual occupation. This meant that because she had contributed to the home’s purchase price, she was entitled to stay. Her interest bound, and took priority to, later registered interests.
Under LRA 2002 Schedule 3, paragraph 2, only if a person is asked about their interest, and they say nothing, or if it is not obvious on a reasonably careful inspection, would a person in actual occupation lose to a registered party. It has also been held that someone who occupies a house and has an interest in the home might have impliedly consented to taking subject to another party’s later interest. In both Bristol & West Building Society v Henning and Abbey National Building Society v Cann a couple purchased a home with the assistance of a loan from a building society, which was secured by mortgage on the property. In both cases the court held that because the buyers could not have got the house without the loan, there had been tacit consent by all to the bank taking priority, and no gap in time before registration when the spouse could have been said to be in prior actual occupancy.
Originally to facilitate transfers of land, the Law of Property Act 1925 sections 2 and 27 make provision so that people with equitable interests in land may not assert them against purchasers of the land if there are two trustees. If a person has an equitable interest in a property, the law allows this interest to be detached from the property, or “overreached” and reattached to money given in exchange for land, so long as the exchange took place by at least two trustees. This was, however, applied not for the purpose of trading property by professional trustees, but against homeowners in City of London Building Society v Flegg. Here two parents, Mr and Mrs Flegg, had given their home to their children, who in turn mortgaged the property and defaulted on the loan. The House of Lords held that because the words of the statute were fulfilled, and the purchase money for the interest in the property (i.e. the loan that the children squandered) had been paid to two trustees, the Fleggs had to give up possession. Lastly, it is possible to lose an interest in land, even if registered, through adverse possession by another person after 12 years under the Limitation Act 1980 sections 15 to 17.
Public property is property, which is dedicated to the use of the public. It is a subset of state property. The term may be used either to describe the use to which the property is put, or to describe the character of its ownership (owned collectively by the population of a state). This is in contrast to private property, owned by an individual person or artificial entities that represent the financial interests of persons, such as corporations. State ownership, also called public ownership, government ownership or state property, are property interests that are vested in the state, rather than an individual or communities.
In the modern representative democracy, “public property” is said to be owned by the people as a commons or held in trust by the government for common benefit. In many Commonwealth realms, such property is said to be owned by the Crown. Examples include Crown land, Crown copyright, and Crown Dependencies.
In the Canada, The Public Debt and Property are under the exclusive Legislative Authority of the Parliament of Canada rather than Queen or local authority, according to the Constitution Acts, 1867 and 1982, article 91.
Municipalisation is the transfer of corporations or other assets to municipal ownership. The transfer may be from private ownership (usually by purchase) or from other levels of government. It is the opposite of privatization and is different from nationalization.
In the U.S., municipalisation often refers to incorporation of an entire county into its municipalities, leaving no unincorporated areas. This generally ends de facto the county’s own home rule, which in most states allows it to act as the municipal service provider in those unincorporated areas. The county is left offering only those services mandated of it by the state constitution, which are generally only extensions of state government like courts and sheriff departments. As with utilities, the county’s assets usually end up being distributed among the cities, though this is less likely if the process is gradual rather than all at once.
Although the formal steps of a contract, conveyance and registration will allow people to acquire legal interests in land, over the course of the twentieth century Parliament, and the courts, slowly recognised that many people have legitimate claims to property, even without following formalities, and even without gaining the consent of a property owner. The institution of a trust has come to play a major role, particularly in family homes, because according to the Law of Property Act 1925 section 53, while declarations of express trusts require signed writing to take effect, resulting and constructive trusts do not. A “resulting” trust is typically recognised when a person has given property to a person without the intention to benefit that person, so the property jumps back to the person it came from. “Constructive” trusts have been recognised by English courts in about eight unrelated circumstances, whenever it is said it would be “unconscionable” that the courts did not recognise properly belonged to the claimant. In the context of family homes, these two types of trust allowed judges to recognise, from around 1970, a spouse’s proprietary right in a home because of the contribution (broadly speaking) to home life. Parliament had enacted the same reform already as a part of family law. In the Matrimonial Proceedings and Property Act 1970 section 37, “where a husband or wife contributes in money or money’s worth” to improve property, a court could recognise an equitable right in it, but also vary the amount to the extent it was deemed just. And under the Matrimonial Causes Act 1973 section 24, a court was empowered in divorce proceedings to vary the property rights of the parties, especially for the benefit of children, to the extent that was just. In the Civil Partnership Act 2004 sections 65 to 72 and Schedules 5-7 achieved the same for civil partners.
However, for cohabiting couples, with or without children, who are not married or civil partners, only the common law was available to make a claim, and it has been slow to reach a position achieved for married couples under statute. In Gissing v Gissing, a case before the passage of the family law statutes, a married couple had lived, worked and had a child together from 1935 to 1961 when the relationship broke down on his adultery.
Mr Gissing had paid mortgage instalments and the property was in his name, although Mrs Gissing had made some home improvements. Lord Denning MR in the Court of Appeal held that because they had continued life as a joint venture, even though she had made no quantifiable money contribution, nevertheless Mrs Gissing would have a half share in the property under a constructive trust.
The House of Lords reversed this decision, arguing that no “common intention” could be found, as was said to be needed, for her to share in the home’s equity. Despite this, some cases creatively allowed for a constructive trust on the basis of “common intention” if unusual conduct was arguably evidence of wanting to share the home. In Eves v Eves, the Court of Appeal (with Lord Denning MR) held that a lady who broke up a patio with a 14 lb sledgehammer must have been intended to share in the home’s equity. In Grant v Edwards,[87] the Court of Appeal allowed a claim by Ms Grant who was explicitly told by her partner, Mr Edwards, that she could not be included on the house title deeds because it could affect her chances of a divorce proceedings. This was, said the court, apparently evidence that (if Ms Grant had had no divorce proceedings) the couple must have intended to share the house together. However, then in Lloyds Bank plc v Rossetthe House of Lords halted development again. Lord Bridge held that only if (1) a spouse made direct contributions to a home’s purchase price, or (2) a spouse had actually reached some agreement, however uncertain, that a claim for an equitable interest would succeed. This meant that Mrs Rosset, who was not on the title deeds, had made no financial contributions, but who had done much decorating work, could not claim an equitable interest in the home where she lived. This meant that the bank was entitled to repossess the home, following a default on Mr Rosset’s mortgage loan, free from her interest in actual occupation. Nevertheless, if a court did acknowledge a spouse’s contribution to the home, it could “inflate” the interest to whatever size possible (as under the 1970 and 1973 Acts). So in Midland Bank plc v Cooke the Court of Appeal held that although a joint gift of £1100 to Mr and Mrs Cooke only represented 6% of the home’s value, Mrs Cooke’s interest could be raised to one half. This meant that Midland Bank was entitled only to half the equity value of the home after Mr Cooke defaulted on a loan with them.
The most recent set of cases appear, however, to have moved further. In Stack v Dowden a couple with four children who lived together for 18 years had registered a house in both their names. However, Ms Dowden had contributed more money. She claimed that the presumption of equal ownership should be displaced and that she should therefore have a share that was greater than half, and the House of Lords agreed that she owned 65% of the beneficial interest. Although not concerning the same point, Lord Walker noted that the law since Lord Bridge’s decision in Lloyds Bank plc v Rosset “has moved on”, regarding the question of what matters in quantifying people’s shares in a home. The majority also remarked that in family situations, constructive trusts provided more utility where the court had greater flexibility to quantify people’s interests free from tangible financial contributions, and that resulting trusts were more appropriate to commercial relationships, where the quantification of a person’s interest would more match financial contributions. Furthermore in Kernott v Jones, Ms Jones and Mr Kernott had had two children and were both on the registered title. However, from 1993 to 2008, Mr Kernott had moved out, and Ms Jones was raising the children, paying the mortgage and the house expenses. In TLATA 1996 section 14 proceedings, Court of Appeal upheld his claim for 50% of the property, arguing that with absolutely no evidence of any intention otherwise, it could not be the courts’ role to “impute” the intentions of the parties. The Supreme Court reversed this, finding that Ms Jones did indeed own 90% of the home’s equity, and this could readily be inferred from all the circumstances. In the Privy Council, in Abbott v Abbott Baroness Hale more squarely affirmed that the “parties’ whole course of conduct in relation to the property must be taken into account in determining their shared intentions as to its ownership.” However, it still remains unclear to what extent (and why) the law on cohabiting couples, after four decades, remains different from that for married couples under the 1970 and 1973 Acts.
Proprietary estoppel is the third principle mechanism to acquire rights over property, seen particularly in the case of land. Unlike a contract or gift, which depend on consent, or resulting and constructive trusts that depend primarily on the fact of contribution, a proprietary estoppel arises when a person has been given a clear assurance, it was reasonable of them to rely on the assurance, and they have acted to their detriment. This threefold pattern of proprietary estoppel (clear assurance, reasonable reliance and substantial detriment) makes it consistent with its partner in the law of obligations, “promissory estoppel”. Although English law has not yet recognised promissory estoppel as giving rise to a cause of action, (as has been done under the American Restatement (Second) of Contracts §90) in Cobbe v Yeoman’s Row Management Ltd Lord Scott remarked that proprietary estoppel should be seen as a sub-species of promissory estoppel. In all cases it allows people who act on others’ assurances about legal rights, even without them attaining express agreement. For example, in Dillwyn v Llwellyn, a son was held to have acquired a house from his father because he was given a written notice that he would, despite never having completed a deed for conveyance, after the son spent time and money improving the property. And in Crabb v Arun DC a farmer acquired the right to a path over the council’s land, because they had assured him that if he sold off one portion an access point would remain. In all cases, the minimum pattern of an assurance, reliance and some form of detriment is present.
Proprietary estoppel case law has, however, divided on the question of what kind of assurance and what kind of reliance must be present. In Cobbe v Yeoman’s Row Management Ltd, a property developer claimed an interest in a group of Knightsbridge flats after his expense in obtaining council planning permission. Mr Cobbe had made an oral agreement with the flat owner, Mrs Lisle-Mainwaring, to get the flats at £12m, but once permission was obtained, the owner broke her oral promise. Even so, in the House of Lords Mr Cobbe failed in his claim for anything more than the expense (£150,000) of getting the planning, because in this commercial context it was clear that formal deeds were needed for completion of any deal. By contrast, in Thorner v Majors, David (a second cousin) worked on Peter’s farm for 30 years and believed he would inherit it. This probably was intended but after Peter fell out with other relatives, he destroyed his will, leaving David with nothing. Even though no specific assurance, and only some vague conduct indicating an assurance, was present, the House of Lords held that David had a good proprietary estoppel claim. Lord Hoffmann remarked that if a reasonable person could understand, however oblique and allusive, that an assurance was given, a legal right would accrue. The tendency of the cases is therefore to recognise claims more in the domestic context, which less formal assurances are common, and less so in the commercial context, where formality is normal.
A difficult issue, however, in awarding a remedy for estoppel is that unlike a contract it is not always apparent that a claimant should receive the full measure of what they had expected. By contrast, the factual pattern of estoppels, which often appear something very close to a contract, often seem to warrant more than an award for damages to compensate claimants for the amount of detriment, or loss, as in a tort case. In Jennings v Rice, Robert Walker LJ, tackled the issue by emphasising that the purpose of the court’s jurisdiction was to avoid an unconscionable result, and to ensure that a remedy was based on proportionality. Here, Mr Jennings had worked as a gardener for a Mrs Royle since the 1970s, but the administrator of her estate had no will. Mr Jennings had been told he “would be alright” and more so that “this will all be yours one day”. The Court of Appeal resolved, however, that not the full estate, worth £1.285m, but only £200,000 would be awarded in view of the actual detriment incurred by Mr Jennings and the uncertainty of what his assurances really meant. In relation to third parties, the remedy for proprietary estoppel has been confirmed to bind others by the Land Registration Act 2002 section 116.
The most contentious method of acquiring property, albeit one that has played a huge role in the history of English land, is adverse possession. Historically, if someone possessed land for long enough, it was thought that this in itself justified acquisition of a good title. This meant that while English land was continually conquered, pillaged, and stolen by various factions, lords or barons throughout the middle ages, those who could show they possessed land long enough would not have their title questioned. A more modern function has been that land which is disused or neglected by an owner may be converted into another’s property if continual use is made. Squatting in England has been a way for land to be efficiently utilised, particularly in periods of economic decline. Before the Land Registration Act 2002, if a person had possessed land for 12 years, then at common law, the previous owner’s right of action to eject the “adverse possessor” would expire. The common legal justification was that under the Limitation Act 1980, just like a cause of action in contract or tort had to be used within a time limit, so did an action to recover land. This promoted the finality of litigation and the certainty of claims. Time would start running when someone took exclusive possession of land, or part of it, and intended to possess it adversely to the interests of the current owner. Provided the common law requirements of “possession” that was “adverse” were fulfilled, after 12 years, the owner would cease to be able to assert a claim. However, in the LRA 2002 adverse possession of registered land became much harder. The rules for unregistered land remained as before. But under the LRA 2002 Schedule 6, paragraphs 1 to 5, after 10 years the adverse possessor was entitled to apply to the registrar to become the new registered owner. The registrar would then contact the registered title holder and notify them of the application. If no proceedings were launched for two years to eject the adverse possessor, only then would the registrar transfer title. Before, a land owner could simply lose title without being aware of it or notified. This was the rule because it indicated the owner had never paid sufficient attention to how the land was in fact being used, and therefore the former owner did not deserve to keep it. Before 2002, time was seen to cure everything. The rule’s function was to ensure land was used efficiently. The darker side, was that this idea was also very convenient for an age when land was often taken by force, and when doctrines like terra nullius were espoused by imperialists as justifications for colonisation in British Empire.
Before the considerable hurdle of giving a registered owner notice was introduced, the particular requirements of adverse possession were reasonably straight forward. First, under Schedule 1, paragraphs 1 and 8 of the Limitation Act 1980, the time when adverse possession began was when “possession” was taken. This had to be more than something temporary or transitory, such as simply storing goods on a land for a brief period.[128] But “possession” did not require actual occupation. So in Powell v McFarlane, it was held to be “possession” when Mr Powell, from age 14, let his cows roam into Mr McFarlane’s land. The second requirement, however, was that there needed to be an intention to possess the land. Mr Powell lost his claim because simply letting his cows roam was an equivocal act: it was only later that there was evidence he intended to take possession, for instance by erecting signs on the land and parking a lorry. But this had not happened long enough for the 12 year time limit on McFarlane’s claim to have expired. Third, possession is not considered “adverse” if the person is there with the owner’s consent. For example, in BP Properties Ltd v Buckler, Dillon LJ held that Mrs Buckler could not claim adverse possession over land owned by BP because BP had told her she could stay rent free for life. Fourth, under the Limitation Act 1980 sections 29 and 30, the adverse possessor must not have acknowledged the title of the owner in any express way, or the clock starts running again. However, the courts have interpreted this requirement flexibly. In JA Pye (Oxford) Ltd v Graham, Mr and Mrs Graham had been let a part of Mr Pye’s land, and then the lease had expired. Mr Pye refused to renew a lease, on the basis that this might disturb getting planning permission. In fact the land remained unused, Mr Pye did nothing, while the Grahams continued to retain a key to the property and used it as part of their farm. At the end of the limitation period, they claimed the land was theirs. They had in fact offered to buy a licence from Mr Pye, but the House of Lords held that this did not amount to an acknowledgement of title that would deprive them of a claim. Having lost in the UK courts, Mr Pye took the case to the European Court of Human Rights, arguing that his business should receive £10 million in compensation because it was a breach of his right under ECHR Protocol 1, article 1 to “peaceful enjoyment of possessions”. The Court rejected this, holding that it was within a member state’s margin of appreciation to determine the relevant property rules. Otherwise, a significant limit on the principle in the case of leases is that adverse possession actions will only succeed against the leaseholder, and not the freeholder once the lease has expired. However the main limitation remains that the 2002 legislation appears to have emasculated the principle of adverse possession, because the Registrar now effectively informs owners of the steps to be taken to stop adverse possession in its tracks.
While the typical content of “land law” texts in England or the United Kingdom concerns the content, creation and protection of interests in property in land, the practical and social significance of land extends to the way it is used. Historically, land was the most important source of social wealth. Over the 19th century its role in preserving wealth was to a large extent eclipsed by corporations and the managed fund, however land remains vital for housing, economic development, for agriculture and extraction of natural resources, and as its part of the environment.
The acquisition of private rights aside, public regulation of land use has sought to mediate the competing interests among competing stakeholders. In housing, the need of people to have a home is balanced between the interests of landlords in seeking rents for profit, and governments in building and maintaining homes. Housing has remained a residual source of private investment income, which grew in the run up to the subprime mortgage crisis and after, while taxation of property remains a significant source of income for HM Treasury. Particularly since 1909, new national planning strategies were used to improve the quality of building, and distribute urban development in a way that reflected local priorities. Environmental protection policies limit the ways that land can be used, and the effects its use can have upon local communities. Finally, agriculture and resource extraction played a smaller part in the UK’s economy than before but, along with a common strategy around the European Union, these industries benefit from a system of subsidies and market regulations intended to make land use sustainable.
The right to property is one of the most controversial human rights, both in terms of its existence and interpretation. The controversy about the definition of the right meant that it was not included in the International Covenant on Civil and Political Rights or the International Covenant on Economic, Social and Cultural Rights Controversy centers upon who is deemed to have property rights protected (eg human beings or also corporations), the type of property which is protected (property used for the purpose of consumption or production), and the reasons for which property can be restricted (for instance, for regulations, taxation or nationalization in the public interest). In all human rights instruments, either implicit or express restrictions exist on the extent to which property is protected. Article 17 of the Universal Declaration of Human Rights (UDHR) enshrines the right to property as follows:
“(1) Everyone has the right to own property alone as well as in association with others.
(2) No one shall be arbitrarily deprived of his property
The right to private property was a crucial demand in early quests for political freedom and equality, and against feudal control of property. Property can serve as the basis for the entitlements that ensure the realization of the right to an adequate standard of living and it was only property owners which were initially granted civil and political rights, such as the right to vote. Because not everybody is a property owner, the right to work was enshrined to allow everybody to attain an adequate standard of living.
Today discrimination on the basis of property ownership is recognized as a serious threat to the equal enjoyment of human rights by all and non-discrimination clauses in international human rights instruments frequently include property as a ground on the basis of which discrimination is prohibited (see the right to equality before the law). The protection of private property may come into conflict with economic, social and cultural rights and civil and political rights, such as the right to freedom of expression. To mitigate this, the right to property is commonly limited to protect the public interest. In addition many states maintain systems of communal and collective ownership. Property rights have frequently been regarded as preventing the realization of human rights for all, through for example slavery and the exploitation of others.
The majority of all lands in Canada are held by governments in the name of the monarch and are called Crown Lands. About 89% of Canada’s land area (8,886,356 km²) is Crown Land, which may either be federal (41%) or provincial (48%); the remaining 11% is privately owned. Most federal Crown land is in the Canadian territories (Northwest Territories, Nunavut and Yukon), and is administered on behalf of Aboriginal Affairs and Northern Development Canada; only 4% of land in the provinces is federally controlled, largely in the form of National Parks, Indian reserves, or Canadian Forces bases. In contrast, provinces hold much of their territory as provincial Crown Land, which may be held as Provincial Parks or wilderness.
The largest class of landowners are the provincial governments, who hold all unclaimed land in their jurisdiction in the name of the Crown (Crown Lands). Over 90% of the sprawling boreal forest of Canada is provincial Crown land. Provincial lands account for 60% of the area of the province of Alberta, 94% of the land in British Columbia, 95% of Newfoundland and Labrador, and 48% of New Brunswick.
The largest single landowner in Canada by far, and by extension one of the world’s largest, is the federal government. The bulk of the federal government’s lands are in the vast northern territories where Crown Lands are vested in the federal, rather than territorial, government. In addition the federal government owns national parks, First Nations reserves and national defence installations.
Until the Natural Resources Acts of 1930 the prairie provinces of Alberta, Saskatchewan, and Manitoba, and to a limited extent British Columbia, did not control Crown Lands or subsoil rights within their boundaries, which instead rested with the federal government. This deprived them of the benefits of royalties from mining, oil and gas, or forestry (stumpage) within their boundaries. This was a major source of Western alienation at the time.
In Canadian law all lands are subject to the Crown, and this has been true since Britain acquired much of Eastern Canada from France by the Treaty of Paris (1763). However, the British and Canadian authorities recognized that indigenous peoples already on the lands had a prior claim, Aboriginal title, which was not extinguished by the arrival of the Europeans. This is in direct contrast to the situation in Australia where the continent was declared Terra nullius, or vacant land, and was seized from Aboriginal peoples without compensation. In consequence, all of Canada, save a section of southern Quebec exempted by the Royal Proclamation of 1763, is subject to Aboriginal title. Native groups historically negotiated treaties in which they traded tenure to the land for annuities and certain legal exemptions and privileges. Most of Western Canada was secured in this way by the government via the Numbered Treaties of 1871 to 1921, though not all groups signed treaties. In particular, in most of British Columbia Aboriginal title has never been transferred to the Crown. Native groups, either those that never signed treaties or those that are dissatisfied with the execution of treaties can lodge Aboriginal land claims against the government.
The Crown also gave tenure to much of Canada to a private company, the Hudson’s Bay Company which from 1670 to 1870 had a legal and economic monopoly on all land in the Rupert’s Land territory (identical to the drainage basin of Hudson Bay), and later the Columbia District and the North-Western Territory (now British Columbia, the Yukon, the Northwest Territories, and Nunavut) were added to the HBC’s lands, making it one of the largest private landowners in world history. In 1868 the Imperial Parliament passed the Rupert’s Land Act that saw most of this land ownership transferred to the Dominion of Canada.
After Canada acquired the HBC’s land in 1870, it used the land as an economic tool to promote development. Under the Dominion Lands Act system of 1871, huge areas were given to the Canadian Pacific Railway to fund its transcontinental line, other areas were reserved for school boards to be sold to fund education, and the rest was distributed to settlers for agriculture. Settlers paid a $10 fee and agreed to make some improvements within a specified time for 180 acres (73 ha) of land. This was at a time of extreme land shortage in many agricultural areas of Europe, and aided in the rapid settlement of Western Canada. In areas where ranching was preferred to field agriculture (e.g. southern Alberta), large areas were leased to cattle barons at a nominal rate, allowing the development of an industrial-scale beef export industry centred on the city of Calgary.
Lands given out in the early years of the Dominion Lands Act included rights to the subsoil, including all minerals, oil, or natural gas found below the property. Later grants (after circa 1900) did not include subsoil rights. As a result, in the leading petroleum producing province of Alberta, 81% of the subsurface mineral rights are owned by the provincial Crown. The remaining 19% are owned by the federal Crown, individuals, or corporations.
What has not been addressed is the Letters Patent and the significance of same. The next Chapter will delve into that and address the rights thereto and the effects there of, as well as the over stepping of the current Provincial administration.