Home Ownership from a Legal Perspective

Following is information on ownership, types of ownership and the types of property they pertain to, and information on charges that may be on title including covenants, easements and right of ways. If there is more than one owner, than a Shared Ownership relationship exists.

As strata (condos) are unique, please see the Strata Ownership page.

A woman and two children ride a chairlift on Mount Washington in the summer.

The Eagle chairlift at Mount Washington transports visitors to the top of the ski-hill, where families can partake in easy hikes.

A man standing in the Oyster River fly fishing.

Fly-fishing is a popular sport along the Oyster River

Home Ownership

Title:  Title refers to a document that outlines who the owner is and what they own (legal description of the land).
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Ownership:  One surprise for many people is that they don't actually "own" land they purchased, in the sense usually associated with the term "ownership."
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Freehold (or fee simple):  This is the most common type of ownership and it has the greatest level of rights, other than absolute ownership.
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Strata Title: In BC we refer to condos as strata. While very popular, strata homes are unique in terms of what you own and have rights to.
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Leasehold: This is when you purchase the right to occupy a property for a fixed term of time, sometimes referred to as prepaying the lease.
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Cooperative: There are two types of cooperatives when it comes to homes; both are run on a non-profit basis and the members collectively own the co-op.
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Shared Home Ownership

When people share ownership of a property with a spouse, family member, business partner, etc., there are two types of ownership which have some different considerations. The main differences are how the property is subsequently sold, or if one of the owners dies. Here is a brief definition of the two types of ownership.

Joint Tenancy is the most common type of shared ownership. The owners (which can be more than two), have an equal undivided interest in the land. Equal means equal shares (half for two owners, thirds for three owners, etc.). Undivided means they have rights to the whole property (not half or a third). Undivided also means that they cannot sell their share separately, all owners must be part of the sale.

When one of the owners dies the property is deemed to have been transferred to the other owner(s) just before death. In this manner the home is not part of the deceased owner's estate, therefore the share is not subject to probate fees and will not be part of the estate taxes.

Tenants in Common is where the owners each own a separate interest in a property, and not necessarily equal shares. For example, it could be a one third, two third split. One owner can sell their share without involving the other owner, and upon death the share becomes part of the deceased owner's estate. An example of when this might be used is where three siblings purchase a summer cottage to share. Each sibling may want their share to go to their children rather than the other siblings. Since one owner can sell their share without approval or knowledge of the other owner(s), purchasers will want to consider the relationship with other owners before entering into this type ownership. In this example, family members could find themselves sharing the family cottage with a stranger.  Of course a lawyer could provide a separate agreement 

A Word of Caution:  The law is often more complex than it appears. If you are thinking of adding your children to your title as joint tenancy to save on probate fees and taxes, or putting the home in one spouse's name to "hide" it from creditors, it is not that easy. Estate planning and other matters involving managing real estate assets should be discussed with a lawyer. You will learn about the four unities (title, interest, possession and time) that are required for joint tenancy as well as the difference between "legal" and "beneficial" ownership which may lead to unplanned consequences. Further, there may be tax implications and other factors to consider, such as putting a child on title of your home may expose the home to the child's creditors.

Rows of lettuce grown on a farm in the Comox Valley with snow covered mountains above them.

Tidy rows of lettuce grow in contrast to the snowcapped Beaufort Mountains in the background.

A woman enjoying an indoor spa treatment.

Enjoying a hydropath treatment in a Comox Valley spa resort.

Charges on Title

Covenants, easements and right of ways: These are agreements that restrict the use of the land, usually to the benefit of another property. For example, if a long lot is divided into two lots, an easement may be established to give the back lot the right to have a driveway over the front lot. A lot on a hill may have a covenant over the lower lots not to build or plant trees beyond a certain height to protect the views. Municipalities may have a right of way for water and sewer lines as might a utility company.

Municipal bylaws can cover similar restrictions such as floodplain, riparian restrictions and other uses found in some covenants or easements.

Mortgages: To prevent you from transferring title (selling your home) to someone without the bank's knowledge, the bank will register the mortgage on your title.  When they receive the funds from the sale they will remove the charge. The changing of the mortgage charges on title and receipt and distribution of funds is part of the conveyancing done by a lawyer or notary.

Building Scheme: Often a developer will register a building scheme on the lots of a new development. The purpose is to ensure homes of a similar size, style and workmanship are built to maintain the integrity of the new neighbourhood. They may control the time for construction, perhaps one year after starting, can have some restrictions such as no fence or accessory buildings in the front yard as well as other restrictions. Some expire after a period of time, but many do not. If the building scheme is in the name of a corporation, which no longer exists, then there is no one to enforce it.

Mineral Rights: Generally when you purchase land you do not purchases the rights to any minerals, gas or oil. Sometimes this is covered with a charge on title.

E & N Railway: This charge was filed in 1889 and affected lands adjacent to the railway belt on the Island. At that time lots were much larger and when lots are subdivided charges go with the new lots. So many lots have this charge that are not adjacent to the railway. This charge gave the company the right to log timber and mine in order to build the railway. While still in effect, the chance of the rights being exercised are remote.

Run with the land: Most charges are said to run with the land.  That means they are not removed when ownership is transferred.  In some cases there may be an easement, covenant or right of way that is on title of the subdivide lot but does not affect the lot. I once saw a 5 acre lot that had five charges that did not apply to the lot. If you have questions about charges, look to your lawyer or notary for definitive answers.

     About Gerry                                         Service and Integrity Above All

Information and Interpretation
Selling or buying real estate is a major financial endeavour with many factors to consider. While you have a wealth of information available to you on the internet, interpreting that information is another matter.

This is where I come in. Not only do I research and provide you the information you need, I take it to the next level and analyze and interpret that  information for you. I will tell you what I think, what we do is up to you.

As a client, your Realtor works for you, and this is a principle I hold dear.  I see my job as providing you with information, interpretation, services and guidance, not to push you on a course of action.

Unparalleled Service
I have a simple code, I don't sell, I service. I assume my clients are perfectly able to make their own decision once they have the information they need. I spend my time providing information, guiding people through the process, and making sure all the bases are covered, not in high pressure sales.

Over the years I have received very complementary feedback from clients. See Client Feedback.

Integrity, simply defined, is being honest and fair. This is further enhanced by one of a Realtor's prime duties, which is not to put anyone's interest above their clients, including their own.  This a duty I take very seriously. My personal outlook after over 30 years in business, is that whenever I experience high pressure sales I start to question the integrity of the person selling me.  Are they looking after my best interest or theirs?

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Blue illustration of Gerry Chwelos, Realtor, Pemberton Holmes.

Gerry Chwelos, REALTOR®


Tel: 250-8975465

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Copyright © Gerry Chwelos 2017