Can You Sell Your Property?

Can You Sell Your Property?

By Brian Madigan LL.B.

(Ontario Real Estate Source)

Sure you can, but you couldn't always. So, thanks to three pieces of legislation; that matter got resolved.

The feudal system worked as long as it was simple and well-organized. But, it soon became incredibly complicated and relatively disorganized.

Deeds to land were so difficult to comprehend that you had to be a Philadelphia lawyer to figure them out. Only one problem, there was no Philadelphia!

Properties were divided and divided again, and again. Each time there was a division, a new set of rules (rules upon rules) was imposed. And, when an incident (read obligation) could not be performed, the lord wanted money instead. The tenant took the position that it was simply redundant and he need not perform anything. Consider the lord having a provision that the tenant would teach his children how to ride a horse. That's fine, but once the two children know how to ride is the tenant done? And what if the lord had no children? The lord would say I still want money, and the tenant would say bring your 30 year old son over here, who rides a horse better than I and I'll still teach him whatever I know.

This type of problem filled the common law courts in the 12th century and finally found some resolution in the Magna Carta of 1215. There were several Magna Cartas, but let's just deal with the first one in 1215. There was a restriction imposed on conversion of tenurial services and obligations to aids (money, in lieu).

In the 13th century the feudal system became too complex. It could no longer be managed from the top. Although it was a simple vertical integration, with each lower level, there was a story to be told. Everyone's property was different from everyone else's. There was just too much of a story to be told with each property. Who owed what to whom? Without a proper record, without a registry office and without a proper government agency, the answers were not clear, and would take years and years to litigate and resolve.

The division of property arose through subinfeudation. Divide, divide and divide again. Substitution had fallen into disuse.

Hence, there was needed a quick and dirty solution. That was the Statute Quia Emptores Terrarum. Basically, it said "enough was enough". No more subdivisions of land. What was there, could stay put, but further subinfeudation was prohibited. The problem essentially was escheats and forfeitures. If they didn't take place, the Crown could never get its property back. The Crown wanted the property to be returned so that it could be transferred to someone else for a fee. This was a substantial revenue generator.

The process was speeded up somewhat in the period of the Black Death in the 14th century. The Crown got back some of the properties but there was no one to take them over. Eventually, the feudal pyramid collapsed and the lands returned to the Crown. The new system was still tenurial, but tenants held directly from the Crown. There was no middleman. The new system just had levels 1 and 2. However, there were of course, still some old feudal properties.

So, there were new rules related to real property in England. If property was conveyed in fee simple, then no tenurial incidents, obligations or services could apply. That deal was done, for once and for all. The rule was that the fee simple conveyance was considered to be substitution and not subinfeudation.

If the Crown conveyed to A, subject to tenurial obligations and A conveyed in fee simple to B, then B stepped into A's shoes. A was gone once and for all. B's land lord was the Crown. A did not get the chance to make any new rules by reason of the transfer, as had been the case with subinfeudation.

What was gained? The right to freely sell and alienate property! The consent of the Crown or prior lord was no longer required. So, effectively this was actually the right to own, possess and enjoy real property.

The Statute of Quia Emptores originally passed in 1290, was passed again with some modifications in 1327.

Life seemed to move slowly, and there were still vestiges of the feudal system by the 17th century. It was time to bring the legislation into compliance with accepted norms and contemporary practice.

So, they decided to remove all the crazy and old fashioned rules of tenurial service, incidents and obligations. What's all this business about "knight service" when there are no knights?

The Statute of Tenures in 1660 abolished all the old rules and changed any of the previous obligations into "socage". That meant produce or food from the land or money in lieu. It was an accepted form of taxation.

Following the passage of this statute, feudalism in England had come to an end. A new age had begun in which society changed from an agrarian based economy to a capital based economy. Capital was the new economic force. Capital would transform society. Capital would provide freedom of movement. Science and invention were to be fostered. Progress was to be encouraged.

As for real property, although it evolved over the years, it is still a tenurial system in Canada today. The Crown holds title to the land. It conveys the land as if it were the land lord in feudal times, subject to certain obligations. But, those obligations are now all converted to money (taxation). The first owner from the Crown holds title in fee simple and may convey to someone else in fee simple without seeking permission or consent from the Crown. That is substitution. Subinfeudation is not allowed and never became the law in Canada.

There are still some other tenurial incidents and obligations that exist in Canada. Consider the doctrine of estates and the law of escheat and forfeiture. That exists today, and its origins go back to feudalism and 1066.

Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com