The Canadian constitution grants every citizen certain rights and freedoms. One of them is about property ownership. Anyone who owns a property in Canada enjoys multiple rights to it. It protects their property and allows them to do what they wish as long as it’s legal. However, there are many things involved, and a homeowner must know them to exercise their rights correctly. Legal and niche terms are difficult to understand for the average person, which is why the real estate lawyers of Nanda & Associate Lawyers explain what you need to know about homeowners’ rights in Canada.
Homeowner’s Rights in Canada
Homeowners’ rights in Canada are granted in the constitution, under which the Government protects the citizen’s rights to property. This protection entails safeguarding the property owners legally through Letters Patent from the Lieutenant Governor or the Governor General. Property ownership has some rules that govern the use of private property.
- It defines a boundary system which marks the homeowner’s property line and their neighbour’s property line.
- It sets limits on what you can do to your property to avoid harming your neighbour’s property line.
- It sets the regulations for building a house on your private property. These regulations have been around since the days of Anglo-Saxons and Common Law.
- It states that a homeowner must follow the BNA Act, which details paying property taxes and ensuring that a property is not a fire hazard.
- It describes a system for transferring property from one person to another through the Land Transfer Office. It defines an exchange as when a person pays a consideration for the privilege of ownership or they’re given rights to the property on a deed.
The Fee Simple Interest
The Fee Simple Interest is an extension of homeowners’ rights, which is of absolute control regarding property ownership. Under this, an owner can do what they want with their property. They can mortgage it where they can allow another party to place a lien until an amount of money is paid off in the form of a loan. They could also sell it right away or build upon it by renting improvements on the property or the vacant property itself. However, this is subject to the same rules mentioned above.
Moreover, a property owned under the Fee Simple Interest that is also encumbered needs to be identified in an appraisal report in one of the following ways:
- The property was valued under Fee Simple.
- The property was valued along with a right of way.
- The property was subject to riparian rights.
- The property was valued along with a Life Lease.
- The property was valued together with a tenant that occupies the land/apartment/home.
There are more identifications; however, the main aspect of the Fee Simple is that a person is given the right access to the property, which needs to be disclosed during an appraisal. The Fee Simple Interest is a complicated matter and often requires a real estate lawyer on top of an appraiser to estimate how the different interest values will affect the market value of the property.
The Bundle of Rights
Homeowners have certain rights when it comes to the property they own, often referred to as the “bundle of legal rights” by real estate lawyers. These rights are transferred to homeowners when they purchase a property or inherit it.
1. The Right of Possession
Canada gives its citizens the right to own property as it’s a signatory to the 1948 Universal Declaration of Human Rights. The declaration states that “everyone has a right to own property.” When a person purchases a property through cash, they receive the title immediately because the property has no financial lien or mortgage against it. If there is a mortgage against the property, the lender will have a lien and holds the title. When a person takes out a mortgage and defaults on loan or doesn’t uphold the other terms and agreements in the contract, the lender has a legal right to foreclose on the property.
2. The Right of Control
Homeowners have the right to control the property as they wish, but they must adhere to the restrictions under provincial and federal laws. For example, a homeowner who wants to install a pool in Ontario will need a legal permit. The right to control, in some cases, is also referred to as the right to manage the property.
3. The Right of Exclusion
Canada grants homeowners the right of exclusion. A homeowner can exclude anyone trespassing on their property and stop them from entering the home. Exceptions to this are law enforcement if they have the warrant to enter the premises.
Homeowners who use their property for commercial activities can exclude anyone unless their property is an enumerated ground under the applicable human rights code. Because of this, trespassing is classified as an offence, and a trespasser can incur up to a $10,000 fine.
In addition, per the Criminal Code, s.34-35, a property owner has the right to defend their property from trespassers as long as their defensive actions are considered reasonable by the law.
4. The Right to Derive Income
In Canada, homeowners have the right to derive income from their properties by renting them out. Still, there are some basics of renting out a property that they must follow in all provinces:
- They must have a legally acceptable lease: written or verbal. Written leases are the better option as they outline the details of the agreement and can be used in cases of dispute.
- They must ensure that the property they rent out meets municipal property standards. Refer to a real estate lawyer in your province to understand all the laws you should know about.
- They must maintain the home once the tenant moves in.
Other rules and regulations vary as per territory and province. For example, in British Columbia, homeowners can ask for ½ of a month’s rent in the security deposit under the Residential Tenancy Act.
5. The Right of Disposition
The right of disposition entails that homeowners can transfer ownership of their property to whomever they wish, in a will or otherwise. They have the option to sell it or give it away. However, if they owe money to the lender, they will have to pay the remaining amount they get from the sale of the property.
Breaking Down Rights to Property
Rights to property can also be broken down into the following:
1. Surface& Subsurface Rights
Surface rights are the rights to the surface of the land. This right is owned by the property owner. On the other hand, there are subsurface rights owned by the Provincial Government. Subsurface or mineral rights determine who is allowed to mine any minerals present under the surface of a property. These include oil, natural gas, etc. They include all organic and inorganic compounds except for gravel, sand, and subsurface water. Most mineral rights are owned by provincial and territorial governments except for in Nunavut. Any offshore mineral resource comes under the designation of the Federal Government.
2. Riparian Rights
Riparian rights are for surface water in Canada, are non-transferable, and can only be used on riparian lands. These rights don’t apply to groundwater. Domestic use is not limited, but the water must be returned to its source with similar quality and quantity if used for irrigation and manufacture. If you want to withdraw any surface or groundwater that is an excess of 50,000 litres for bottling or industrial use, you’ll need a permit in Ontario. Maritime water allocation is also partly under the system of riparian rights in Ontario.
3. Air Rights
Air rights are the legal right to use, control, or occupy a space above the land. It’s the space above the property and is generally included with the right to use the land. It can also be acquired from the property owner.
How Can We Help?
Owning a property doesn’t start with finding one you like and doesn’t end with signing a purchase agreement. If you want to protect it, you need to know the ins and outs of it as well. Only when you know your rights can you exercise and protect them. Let us help you with that! Nanda & Associate Lawyers has experienced real estate lawyers that help you navigate the complexities of real estate/property laws. Come and experience the legal counsel of our power of attorney lawyers, will and estate lawyers, etc. We also offer immigration-related services such as parent and grandparent sponsorship, spousal sponsorship, etc.
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Disclaimer: This article is only intended for educational purposes and shouldn’t be used as a substitute for legal advice.
