CANADA Law and Practice Contributed by: Rachel V Hutton, Michael L Dyck, Mario Paura and Miguel Manzano, Stikeman Elliott LLP
Social or Affordable Housing In Quebec, all municipalities, intermunicipal boards and transit authorities were recently given powers that used to be only available to the City of Montreal to acquire properties, notably for the purposes of social or affordable housing. After some heavy backlash from developers, the City of Montreal has recently softened the social/affordable housing obligations for new projects. Protection of Agricultural Lands in Quebec Having seen a global rise in the purchase of agricultur - al lands by conglomerates and foreign investors, the Quebec government has implemented legislation to an already strict regime which will render it even more difficult for investment funds or non-Quebec residents to acquire agricultural lands. Moreover, it will become extremely difficult to obtain authorisations from gov - ernmental authorities to use agricultural lands for pur - poses other than agriculture. Property rights fall within the jurisdiction of the prov - inces or territories, and differ across the country. Each jurisdiction has statutes that govern the acquisition, ownership, use, financing and development of real estate. In common-law jurisdictions, a freehold estate in real property is a right or interest that exists for an indefinite duration. Conversely, leasehold estates have a fixed duration. A fee-simple estate is the most common freehold estate in Canada and is consid - ered absolute ownership of real property. A leasehold estate is not absolute but confers an exclusive right of 2. Sale and Purchase 2.1 Categories of Property Rights possession during the lease term to the tenant. Other non-possessory rights in land include: • easements and rights-of-way to use a portion of land for a specified purpose; and • restrictive covenants restricting the use of land. Licences to use land are contractual, do not create an interest in land and generally do not grant exclusive possession.
In Quebec, real estate is generally governed by the Civil Code of Quebec, which distinguishes between personal rights and real rights. 2.2 Laws Applicable to Transfer of Title Transfers of title are governed by provincial and terri - torial statute. Certain jurisdictions (Alberta, Manitoba, Prince Edward Island, Quebec and Saskatchewan) restrict the ownership of farmland, rural recreational land or land in non-urban centres by non-residents. In Quebec, non-residents who are restricted from acquiring farmland include residents of other Cana - dian provinces or countries (in the case of individuals) and those whose directors and ultimate shareholders are not domiciled in Quebec (in the case of corporate entities). See also 2.11 Legal Restrictions on Foreign Investors regarding the federal Prohibition on the Pur - chase of Residential Property by Non-Canadians Act. 2.3 Effecting Lawful and Proper Transfer of Title In common-law jurisdictions, registered (legal) title is typically transferred to the buyer upon registration of a deed or transfer in the relevant land registry office. In Quebec, ownership is transferred as soon as there is a “meeting of the minds”, but the sale may not be opposable against third parties until a deed is regis - tered at the land registry office. Land Registration Systems There are two types of land registration systems in Canada: • the registry system – a public record of instruments affecting land; and • the Torrens (land title) system – which is govern - ment-operated and effectively guarantees title, subject to certain exceptions. Each province and territory uses either one or a com - bination of these systems. However, most common- law jurisdictions have converted or are converting to the more modern Torrens system. Registration of Instruments Requirements for registration of instruments affecting land differ across the various provinces and territo - ries, and may include procedural, format and content
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