|This is an unofficial archived version of The Law of Property Act|
as enacted by SM 1987-88, c. 9 on July 17, 1987.
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R.S.M. 1987, c. L90
The Law of Property Act
|Table of Contents|
HER MAJESTY, by and with the advice and consent of the Legislative Assembly of Manitoba, enacts as follows:
On and from February 28, 1874, every alien shall be deemed to have had, and shall thereafter have the same capacity to take by gift, conveyance, descent, devise or otherwise, and to hold, possess, enjoy, claim, recover, convey, devise, impart and transmit real property in Manitoba as a natural born or naturalized subject of Her Majesty.
The real property in Manitoba of an alien dying intestate shall descend and be transmitted as if it had been the real property of a natural born or naturalized subject of Her Majesty.
With the approval of the Lieutenant Governor in Council, the government of a foreign country may own land for the purpose of a consulate or a residence for a member of its diplomatic or consular staff, and may mortgage, sell, convey or otherwise deal with the same, but, where the land is under The Real Property Act, the district registrar may require the approval of the court to the execution of any instrument that affects or deals with the land and that has been submitted for registration.
No words of limitation are necessary in any grant of Crown lands or in any conveyance of any land, in order to convey all or any title therein; but every grant, deed or instrument conveying land operates as an absolute conveyance of all such right and title as the Crown or grantor has therein at the time of its execution, unless a contrary intention is expressed in the conveyance; but nothing herein precludes any conveyance from operating by way of estoppel.
Section 4 was intended to extend, and that section shall be held to have extended, from and after July 1, 1885, and thereafter extends, to all land in the province, and to every estate and interest therein.
Every deed, unless an exception is specially made therein, shall be held and construed to include, and to have always included, all houses, outhouses, edifices, barns, stables, yards, gardens, orchards, commons, trees, woods, underwoods, mounds, fences, hedges, ditches, ways, waters, watercourses, lights, liberties, privileges, easements, profits, commodities, emoluments, hereditaments and appurtenances whatsoever to the lands therein comprised belonging or in anywise appertaining, or with the same demise, held, used, occupied or enjoyed, or taken or known as part or parcel thereof, and, if the deed purports to convey an estate in fee, also the reversion or reversions, remainder or remainders, yearly and other rents, issues and profits of the same lands, and of every part and parcel thereof, and all the estate, right, title, interest, inheritance, use, trust, property, profit, possession, claim and demand whatsoever, both at law and in equity, or by statute, of the grantor, in, to, out of or upon the same lands, and every part and parcel thereof, with their and every of their appurtenances.
Every covenant which, but for this section, would be annexed to and run with land and which restricts the sale, ownership, occupation or use of land because of the race, nationality, religion, colour, sex, age, marital status, family status, physical or mental handicap, ethnic or national origin, source of income or political belief of any person is void.
Nothing in subsection (1) prohibits a covenant which restricts the sale, ownership, occupation or use of land in a manner consistent with the maintenance of the land primarily or exclusively for elderly persons.
No appointment made in exercise of any power or authority, to appoint any property, real or personal, amongst several objects, is invalid or shall be impeached on the ground that an unsubstantial, illusory or nominal share only is thereby appointed to, or left unappointed to devolve upon, any one or more of the objects of the power, or upon the ground that any object of the power has been altogether excluded; but every such appointment is valid and effectual, notwithstanding that any one or more of the objects shall thereunder, or in default of the appointment, not take more than an unsubstantial, illusory or nominal share of the property subject to the power or take no share thereof.
Nothing in this section prejudices or affects any provision in any deed, will, or other instrument creating any such power, which declares the amount of the share or shares from which no object of the power shall be excluded, or that some one or more object or objects of the power shall not be excluded or gives any validity, force or effect to any appointment, other than the appointment would have had if a substantial share of the property affected by the power had been thereby appointed to, or left unappointed, to devolve upon any object of the power.
Except as provided in The Dower Act, no widow whose husband died on or after July 1, 1885, or hereafter dies, is entitled to dower in the land of her deceased husband; but she has the same right in that land as if it were personal property.
Subject to The Dower Act, no husband is entitled to a tenancy by the courtesy in his wife's estate; but a husband whose wife died on or after July 1, 1885, or hereafter dies, took and shall take such interest in the land of his wife as a wife has in the estate of her deceased husband.
Covenants for title in a deed of conveyance, deed of mortgage or deed of lease, whether pursuant to The Short Forms Act or otherwise, made since March 14, 1875, operate as an estoppel against the covenantor, and all persons claiming title under him.
An equitable interest for life without impeachment of waste does not confer upon the tenant for life any right to commit waste of the description known as equitable waste, unless an intention to confer such right expressly appears by the instrument creating the equitable interest.
Lessees making or suffering waste on the demised premises without licence of the lessors are liable for the full damage so occasioned.
There is no merger by operation of law only of any estate the beneficial interest in which would not be deemed to be merged or extinguished in equity.
Where, by any letters patent, conveyance, assurance, will or other instrument executed after July 7, 1883, land is granted, conveyed or devised to, or where any certificate of title under The Real Property Act stands in the name of, two or more persons, other than executors or trustees, in fee simple or for any other estate, legal or equitable or statutory, it shall be considered that such persons take or hold as tenants in common and not as joint tenants, unless an intention sufficiently appears on the face of the letters patent, conveyance, assurance, will, certificate of title or other instrument that they take or hold as joint tenants.
A body corporate is capable of acquiring and holding any real or personal property in joint tenancy in the same manner as if it were an individual; and, where a body corporate and an individual, or two or more bodies corporate, become entitled to any property under circumstances, or by virtue of any instrument, which would, if the body corporate had been an individual, have created a joint tenancy, they are entitled to the property as joint tenants; but the acquisition and holding of property by a body corporate in joint tenancy is subject to the like conditions and restrictions as attach to the acquisition and holding of property by a body corporate in severalty
Where a body corporate is joint tenant of any property, then on its dissolution the property devolves on the other joint tenant.
Freehold land or chattels real may be conveyed by a person to himself jointly with another person by the like means by which it they may be conveyed by him to another person.
In sections 19 to 26
"action" means a civil proceeding commenced by a statement of claim or in such other manner as is prescribed by the rules of the court; ("action")
"court" means the Court of Queen's Bench; ("tribunal")
"land" includes lands, tenements and hereditaments and all estates and interest therein. ("bien-fonds" )
All joint tenants, tenants in common, mortgagees and other creditors having any lien or charge on, and all persons interested in, to, or out of any land in Manitoba, may be compelled to make or suffer partition or sale of the land or any part thereof.
Where a person to whom subsection (1) applies is a married man or a married woman, an action for partition or sale of the land may be brought by or against him or her; and
(a) partition; or
(b) where in the opinion of the court, the land cannot reasonably be partitioned, sale thereof in lieu of partition;
may be ordered by the court without the consent of any party to the action, and without the consent of his or her spouse having been obtained as provided in The Dower Act.
Any person interested in land in Manitoba, or the guardian of the estate of an infant entitled to the immediate possession of any estate therein, may bring action for the partition of the land or for the sale thereof under the directions of the court if the sale is considered by the court to be more advantageous to the parties interested.
Where the land is held in joint tenancy or tenancy in common by reason of a devise or an intestacy, no action shall be commenced until one year after the decease of the testator or person dying intestate in whom the land was vested.
Where any person interested in the land has not been heard of for three years or upwards, and it is uncertain whether that person is living or dead, the court upon the application of any one interested in the land, and whether an action for the partition or sale of the land has been commenced or not, may appoint a guardian to take charge of the interest of that person and of those who, in the event of his being dead, are entitled to his share or interest in the land.
The guardian shall, in the action, represent the absent person and those who, should he be dead, are entitled to his share or interest in the land, and whether they or any of them are infants or otherwise under disability, and his acts in relation to that share or interest are binding on the absent person and all others claiming or entitled to claim under or through him, and are as valid as if done by him or them.
The court upon such proof of the absence of the person as affords reasonable ground for believing him to be dead, upon the application of the guardian, or any one interested in the estate represented by the guardian, may deal with the estate or interest of the person, or the proceeds thereof, and may order payment of the proceeds, or the income or produce thereof, to the person who, in the event of the absent person being dead, appears to be entitled thereto.
Where partition or sale is ordered, the court may order the execution of a conveyance, transfer or other document by all the proper parties thereto to give effect to the sale or partition of the land.
Where a party is an infant or a person of unsound mind or a mentally incompetent person, or is a person or a guardian mentioned in section 21, the court may order that the conveyance, transfer or other document be executed by the guardian, committee, or administrator.
In an action for partition or administration, or in an action in which a sale of land in lieu of partition is ordered, and in which the estate of any tenant for life is established, if the person entitled to the estate is a party, the court shall determine whether the estate ought to be exempted from the sale or whether it should be sold; and in making the determination regard shall be had to the interests of all the parties.
Where a sale is ordered including such an estate, all the estate and interest of the tenant passes thereby, and no conveyance or release to the purchaser is required from the tenant, and the purchaser holds the premises freed and discharged from all claims by virtue of the estate or interest of the tenant, whether it is to an undivided share or to the whole or any part of the premises sold.
The court may direct the payment of such sum in gross out of the purchase money to the person entitled to the estate for life, as may be deemed, upon the principles applicable to life annuities, a reasonable satisfaction for the estate; or may direct the payment to the person entitled of an annual sum or of the income or interest to be derived from the purchase money or any part thereof, as may seem just, and for that purpose may make such order for the investment or other disposition of the purchase money or any part thereof as may be necessary.
Where a married man or a married woman is a party to the action, the court shall, in case of sale, determine the value of any rights under The Dower Act of his or her spouse according to the principles applicable to deferred annuities and survivorships, and shall order the amount of that value to be paid out of the share of the purchase money to which the married man or the married woman is entitled, or shall order the payment to the spouse of the married man or the married woman out of the share of the purchase money to which the married man or the married woman is entitled, of an annual sum, or of such income or interest as is provided in section 23; and the payment shall be a bar to any right or claim of dower.
A partition or sale made by the court is as effectual for the apportioning or conveying away of the estate or interest of any infant, person of unsound mind, or mentally incompetent person, party to the action by which the sale or partition is made or declared, as of a person competent to act for himself.
On any sale under this Act, the court may, if it thinks fit, allow any of the parties interested in the land to bid at the sale, on such terms as to non-payment of deposit, or as to setting-off or accounting for the purchase money or any part thereof, instead of paying it, or as to any other matters, as to the court seems reasonable.
Where a person makes lasting improvements on land under the belief that the land is his own, he is or his assigns are entitled to a lien upon the land to the extent of the amount by which the value of the land is enhanced by the improvements, or is or are entitled, or may be required, to retain the land if the Court of Queen's Bench is of opinion or requires that that should be done, according as may, under all the circumstances of the case, be most just, making compensation for the land if retained, as the court may direct.
Where, upon the survey of a parcel of land being made, it is found that a building thereon encroaches upon adjoining land, the Court of Queen's Bench may, in its discretion,
(a) declare that the owner of the building has an easement upon the land so encroached upon during the life of the building upon making such compensation therefor as the court may determine; or
(b) vest title to the land so encroached upon in the owner of the building upon payment of the value thereof as determined by the court; or
(c) order the owner of the building to remove the encroachment.
No person acquires a right, by prescription, to the access and use of light to any building, structure or work.
In every case in which by chapter 74 of 4 William IV, intituled "An Act for Abolition of Fines and Recoveries and for the Substitution of More Simple Modes of Assurance", it was provided that a deed, assurance or other instrument should be enrolled in the High Court of Chancery, registration in the land titles office for the land titles district within which the land thereby affected or intended so to be is situated shall after July 7, 1883, be substituted for such enrolment; and in case of lands situated within different land titles districts, as to those parcels or tracts of lands, registration in the proper land titles offices respectively is necessary and sufficient in like manner as is or would be the enrolment under that Act.
It is not necessary, in order to the validity of any deed or assurance under that Act, executed by any married woman, that it shall be produced or acknowledged by her before any judge, master, commissioner, or other officer, or that she be examined apart from her husband or otherwise, or that her husband shall concur therein; but every such deed and assurance may be executed by a married woman in the same manner, and with the same effect, as if she were a feme sole, and no further or other proof of the execution shall be required to be given or made, nor is any other registration or filing of any proof necessary, than would be required or necessary if she were a feme sole.
All other provisions of that Act shall be deemed in force in the province so far as they can be made applicable thereto.
No estate in fee simple shall be changed into any limited fee or fee tail, but whatever form of words is used in any instrument, the land shall be and remain an estate in fee simple in the owner; and any limitation that would have created an estate tail shall transfer the estate in fee simple or absolute ownership that the transferor has in the land.
Every debt and any chose in action is assignable at law by any form of writing that contains apt words in that behalf, but subject to such conditions or restrictions in respect of the right of transfer as may appertain to the original debt or as may be connected with or be contained in the original contract; and the assignee thereof may bring an action thereon in his own name, as the party might to whom the debt was originally owing, or in whom the right of action originally arose; or he may proceed in respect thereof as though this Act had not been passed.
Every assignment of a debt or chose in action arising out of contract, and not assignable by delivery, is subject to any defence or set-off, in respect of the whole or any part of the debt or chose in action, existing at the time of the notice of assignment to the debtor or person sought to be made liable, in the same manner and to the same extent as the defence or set-off would be effectual in case there had been no assignment thereof; and every such defence or set-off applies as between the debtor and any assignee of the debt or chose in action.
Where an assignment is made in conformity with the provisions hereof, and notice thereof is given to the debtor or person liable in respect of the subject of the assignment, the assignee shall have, hold, and enjoy it, free from any claims, defences or equities, that may have arisen subsequent to the notice by any act of the assignor or otherwise.
In subsections (1), (2), and (3) the expression "assignee" means any person who on or after June 1, 1970 is entitled, by any first or any subsequent assignment or transfer or any derivative or other title, to a debt or chose in action, and possessing at the time the action or suit is brought the right to receive the subject matter or proceeds thereof and give an effectual discharge thereof.
Where the debtor, trustee, or other person liable in respect of a debt or chose in action has had notice that any assignment thereof is disputed by the assignor or any person claiming under him, or of any other opposing or conflicting claims of such debt or chose in action, he is entitled, if he thinks fit, to call upon the several persons making claim thereto to interplead concerning it.
The bonds or debentures of corporations made payable to bearer, or to any person named therein or bearer, may be transferred by delivery alone; and the transfer vests the property in the bonds or debentures in the transferee or in the holder thereof; and any such holder may bring any action or suit on or in respect of any such bonds or debentures in his own name.
Subsections (1) to (6) do not apply to bills of exchange or promissory notes, or to instruments that, apart from those subsections are negotiable, or in respect of which the property therein passes by mere delivery.
No order or assignment of any moneys due or accruing due or to be payable to any person or corporation by the Government of Manitoba is valid or binding upon the government, or as against any person or corporation garnishing the government, unless and until accepted in writing by the Minister of Finance; and the Minister of Finance shall not accept any such order or assignment unless it is in writing and filed with him.
In the case of an assignment of wages to be earned in the future, given in consideration of a present loan, advance or payment, unless it is accepted in writing by the employer, the assignment is not valid against the employer of the person making it.
Subsection (1) does not apply to an assignment of wages given to secure a past indebtedness for necessaries, or to secure an account for necessaries to be thereafter supplied, or partly for each of these purposes.
In the case of cohabiting spouses, no assignment made by either spouse of wages to be earned by that spouse in the future is valid unless the written consent of the other spouse to the making of the assignment is attached thereto or endorsed thereon.
The expression "cohabiting spouses" in subsection (3) includes a man and woman who, not being married to each other,
(a) have cohabited continuously for three years or more in a relationship in which one of them has been substantially dependent upon the other for support; or
(b) have cohabited for one year or more and have a dependent child born of their relationship.
Unless the amount of money lent or advanced thereon, or paid therefor, exceeds 95% of the amount of wages assigned, no assignment of wages to be earned in the future, given in consideration of a present loan, advance or payment of money is valid.
Unless otherwise ordered by a judge of the Court of Queen's Bench, any provision in a contract made on, from, or after the coming into force of this subsection that provides for the assignment by an employee of a greater portion of the wages of that employee than is liable to seizure or attachment under The Garnishment Act is invalid and of no effect in so far as the amount of exemption under The Garnishment Act is concerned; but this subsection shall not affect the validity of an assignment of the portion of the wages of an employee which is in excess of the exemption under The Garnishment Act or the validity of any other provisions in a contract.
In this section "assignment" or "assignment of" includes "order" or "order for", and "wages" includes " salary".
A vendor or purchaser of real or leasehold estate, or his representative, or any person claiming through or under him or to have a lien or charge on the land under a registered certificate of judgment, may, at any time and from time to time, apply by motion to the Court of Queen's Bench in respect of any requisition or objection, or any claim for compensation, or any other question arising out of or connected with the contract, including a question affecting the bona fides, existence, or validity, of the contract; and the court may make such declaration or order upon the application as appears just and refer any question to the master or a local master for inquiry and report, and shall order how and by whom all or any of the costs of and incidental to the application shall be borne and paid.
Where, upon such an application, it appears that a third person is or may be interested in the question raised, the court or judge may require notice to be given to the person so that the question may be determined so as to bind the third person.
The powers conferred upon the court by this section may be exercised by a judge or local judge in court or sitting in chambers.
Where used in this section, " vendor" includes the grantor of an option to purchase and "purchaser" includes the grantee of an option to purchase.
Every contract for the sale and purchase of land shall, unless otherwise stipulated, be deemed to provide that taxes, local improvement rates, insurance premiums, rents and interest shall be adjusted as of the date of closing.
Notwithstanding anything in any agreement for sale of land or in any mortgage of land whenever made or given, or in any agreement renewing or extending it, or in any agreement collateral thereto, or any other agreement, no erection, machinery, plant, building, improvement or other chattel erected, placed or put upon farm land sold or mortgaged shall, by reason only of a declaration, agreement or covenant in the agreement of sale or mortgage or in any agreement collateral thereto or any other agreement, become or be deemed to be a part of the realty.
Notwithstanding anything in any other Act or in any agreement for sale of land or in any mortgage of land made or given whenever, or in any agreement renewing, or extending it, in the event of damage to, or destruction of, buildings on the land by fire the purchaser or mortgagor may, after giving the notice required by subsection (2), apply to the Court of Queen's Bench for an order governing the application of any moneys received or receivable under any insurance policy, in respect of the damage or destruction; and upon the application the court may make an order directing the application of the moneys on the mortgage or agreement for sale or in or towards rebuilding, restoring, or repairing the buildings damaged or destroyed, or partly in the one way and partly in the other.
No application shall be made under subsection (1) unless within 60 days after the amount of the loss is adjusted and unless 10 days' notice of intention to make it has been given to the vendor or mortgagee.
The notice shall be given by registered mail, postage prepaid, and shall be deemed to have been given on the date upon which the envelope containing the notice is deposited with the postmaster.
Notwithstanding anything in any lease, agreement for sale, or mortgage of land, whenever entered into, made or given, or in any agreement renewing or extending it, where the lessor, vendor, or mortgagee insures the crops grown on the land against loss by hail, the cost of the insurance is not chargeable against the lessee, purchaser, or mortgagor unless with his written consent given in the year in which the insurance is effected: and any agreement, stipulation or covenant to the contrary is void.
Where a mortgage or chattel mortgage, whenever given, is held as security for more than one debt and moneys are paid by the mortgagor or are realized by the mortgagee under the terms of the mortgage, the moneys received or realized shall be applied immediately in or towards payment of one or more of the debts secured by the mortgage, and unless the mortgagor, in exercise of any right, has given directions as to the application of the moneys, the mortgagee shall immediately notify the mortgagor of the debt in or towards payment of which the moneys have been applied: and any agreement, stipulation, or covenant to the contrary is void.
Where the boundary line separating adjacent properties that are owned by different owners is so close to a dwelling house erected and maintained by one of the owners (herein referred to as the "aggrieved owner") that the aggrieved owner cannot carry out or effect any repairs or works to the side of his house that is adjacent to the property of the other owner, without entering upon the property of that owner and that owner refuses to grant permission to the aggrieved owner to enter for the purpose of carrying out or effecting those repairs or works, the aggrieved owner may make an application to a judge of the Court of Queen's Bench for an order granting the necessary permission.
Where a judge grants an order under subsection (1), the order shall state
(a) the duration for which the permission is granted;
(b) the purpose for which the permission is granted: and
(c) that the aggrieved owner pay the owner who refused permission, for any damage caused to the property of that owner by the aggrieved owner, in such amount as the court considers reasonable and equitable in the circumstances.
Where a solicitor produces or delivers a document that contains in the body thereof, or that has endorsed thereon or attached thereto, a receipt for consideration money or other consideration and the document has been executed or the endorsed or attached receipt has been signed by the person entitled to give a receipt for the consideration, the document is sufficient authority to the person liable to pay or give the consideration for his paying or giving the consideration to the solicitor without the solicitor producing any separate or other direction or authority in respect of the consideration from the person who executed or signed the document or receipt.
In this section "solicitor" means a person who is entitled to practise as a solicitor within the province.