"A law is valuable not because it is law, but because there is right in it." - H. W. Beecher

If you've bought a house but financed the purchase by getting a mortgage from a bank, who really owns the property-you or the bank? If you own the property and a stream flows through it, do you have the right to dam up the stream-thereby denying the farmer who lives next to you water he needs for his cattle? If you own a home and want to sell it, do you have to use the services of a real estate agent? A lawyer? A surveyor?

You'll look at questions like these in Section 2. When you've finished the section, you should be able to describe the basic rights of a property owner, explain the processes involved in buying and selling property, and identify some of the basic legal aspects of building a home.

Lesson 1: Owning Land

As a student, chances are you'll be renting a place to live before you ever think seriously of owning your own home. Nevertheless, you may hope someday to become a landowner. It's possible that you're planning to become a farmer or rancher, in which case you could end up owning a great deal of land indeed. In this lesson, you'll be looking at just what it means to own land in Alberta.

Interests in Land

Property, as you learned in Section 1, is legally of two types-personal and real. Real property includes land and the structures attached to it-trees, buildings, wells, and so on.

It may surprise you to learn that in Canada, no one really owns real property at all. It all belongs to the Crown-in other words, to the country itself, personified by the king or queen. Parcels of this land are then granted to individuals, whom we usually speak of as the owners of that land. Technically, however, these people have what are better called interests in the land-the right to do things like live on it, use it, sell it, and pass it on to heirs. If a person, who owns land in Canada, dies with no heirs, his or her lands revert back to the Crown.

Estates

Interests in land come in several different varieties. The two main ones-the ones we ordinarily speak of as ownership-are called estates. There are two principal types of estates:

1. Fee simple estates: Fee simple estates are what most people who claim they own land actually have. Someone with a fee simple estate has title to the land involved. Title gives that person the right to live on the property, build on it, rent it out, sell it, give it away, and pass it on to his or her heirs. If your family owns their home, what they likely have is a fee simple estate.

2. Life estates: Life estates are far less common. A life estate is usually created when a person with a fee simple estate dies and in his or her will grants a life estate in the land to someone else-usually a spouse. A person with a life estate has the right to do many things a person with a fee simple estate can do; but, when he or she dies, title passes to someone else named in the will.

So, let's say Mr. Turnbull has title to some land. In his will, he leaves a life estate in the land to his wife; but, when she dies, the will gives the land to Mr. Turnbull's daughter in fee simple. Mrs. Turnbull can use the land until she dies but then it goes to the daughter. That means that Mrs. Turnbull cannot sell it or give it away, at least not without consent of the daughter, who has what's called called a future interest in the land.

Other Kinds of Interests

Though estates are the most common kinds of interest in land, people can have other sorts of interests. Two of them you may be aware of, even if the legal names sound unfamiliar, are

1. Easements: An easement gives someone who doesn't have title to a piece of land the legal right to use the land in a specific way. The most common type of easement is a right of way. Someone, for example, may have a legal right to cross a neighbour's land to get to a nearby lake or river. Other types of easements may involve the right to bury cable across a property or even the right to allow the branches of a large tree to extend over the property line.

2. Restrictive covenants: Restrictive covenants are a way someone without title to land can, in part, control how the land is used. Normally, they're created when someone with title to a piece of land sells it or gives it away. That person may be able to stipulate that the land not be used in a specific way by future owners. A farmer selling a small parcel of land to be converted into an acreage, for instance, may put a restrictive covenant in the sale agreement stipulating that the land not be used for commercial purposes. That way the farmer can rest assured that he-or she-won't wake up one morning to find a go-kart race track being set up next door.

Protection for Spouses

In Alberta, laws exist to protect the interest of married people in their homes. The two principal statutes of this sort are

1. The Dower Act : The Dower Act gives each spouse the right to prevent the other from selling the matrimonial home or disposing of it in any way (such as giving it away or bequeathing it in a will) without his or her consent. This is true even if the property is registered exclusively in the name of the other spouse. Each spouse, therefore, has the right to remain in the home after the death of the other. This statute was first passed to ensure that wives and widows would continue to have a place to live in even if their husbands tried to otherwise dispose of their homes. It harks back to a time when it was usual for all of a family's real property to be registered in the husband's name; but it still has legal force today.

2. The Matrimonial Property Act : The Matrimonial Property Act comes into play when a marriage is ending in divorce. In deciding which spouse gets what, judges can use provisions in the Act to allow one spouse to get exclusive possession of the home and remain in it for a number of years, even if it's legally in the name of the other.