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Defining more than 300 concepts of private property law for each of Canada’s official languages and for each of the legal systems of Civil law and Common law. Permanent link to this Catalogue record: publications.gc.ca/pub?id=9.671649&sl=0
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Nov 15, 2021 · Marchi (Marchi), 2021 SCC 41, is the Supreme Court of Canada’s latest update on the law of government liability in negligence. The Court held that municipalities can be sued for negligent snow-clearing.
Subsection 3 (1) describes two classes of real property transactions that are not authorized or regulated by the FRPRegs. Paragraph 3 (1) (a) clarifies that the FRPRegs do not apply to expropriations.
- Table of Contents
- 1. Federal Real Property Act
- 1. Federal Real Property Act(continued)
- 2. Federal Real Property Regulations
- 3. General Questions on the Federal Real Property Act and Regulations
•1. Federal Real Property Act
•1.1 Overview
•2. Federal Real Property Regulations
•2.1 Overview
•3. General Questions on the Federal Real Property Act and Regulations
•3.1 Scope of the Act and Regulations
1.1 Overview
The Federal Real Property Act, brought into force on September 15, 1992, was designed to be the primary statutory authority for the real property conveyance practices of the federal government. More specifically, the Act: repealed the Public Lands Grants Act and amended the Public Works Act, the Financial Administration Act, and the Surplus Crown Assets Act, thereby consolidating the government's generic real property legislation into one Act; simplified and modernized the government's real property management and conveyance practices; does not affect the authority to deal with real property governed by special program legislation such as the National Parks Act, the Indian Act, or the Territorial Lands Act; and permits the use of conveyancing practices commonly used within the private sector, thus making it easier to deal with the federal government.
Background
In 1985, the Task Force on Program Review recommended reforms to the management of federal real property. Cabinet subsequently adopted these recommendations and assigned responsibility to the Treasury Board for their implementation. One of these reforms was simplifying and modernizing federal real property management. A critical part of this management reform included modernizing present conveyancing methods to make them more timely and efficient. In 1985 Treasury Board responded to the Cabinet decision by creating a new "unit," the Bureau of Real Property Management (now the Bureau of Real Property and Materiel), to provide a central coordinating focus for federal real property management. The Federal Real Property Act was the culmination of several years work by the Bureau of Real Property and Materiel, the Department of Justice and all custodian departments to consolidate and coordinate federal real property management and practices and to review the instruments used in the federal conveyancing practice. The Act, brought into force on September 15, 1992, is intended to be the primary statutory authority for the real property practices of the federal government. Before, three main statutes - the Public Lands Grants Act, thePublic Works Act, and the Surplus Crown Assets Act - generically governed federal real property transactions. These Acts had not facilitated the use of modern real property management practices and techniques. The Public Lands Grants Act and the Public Works Act had changed little since their enactments in the late 1800s and the Surplus Crown Assets Act was suited more to disposing of non-real property assets. In addition, the Acts contained inconsistent practices and processes. They overlapped each other, creating confusion about the authorities to be used in federal real property conveyancing. Through reconciling the Acts and refining practices and processes, the Federal Real Property Act was intended to bring federal real property management and practices into the present in a consistent and effective manner.
Contents of the Act
The main elements of the Act are as follows: the Act repealed the Public Lands Grants Act; however, some provisions of that Act were re-enacted in the new legislation; two sections of the Public Works Act were repealed, with their contents being revised and incorporated in the Federal Real Property Act; the Surplus Crown Assets Act was amended to apply only to personal property assets (i.e., property other than real property); the government can now grant federal real property through modern conveyancing instruments, such as deeds, in addition to the traditional letters patent, significantly reducing the time and management of conveyances; the concept of "administration" was introduced into federal real property terminology to be consistently used to describe the authority and responsibilities for management and use of federal real property by ministers (departments) or by agent Crown corporations; the Act enabled the transfer of administration of federal Crown lands between agent Crown corporations and ministers (departments); the Act clarified the authority to grant title to federal real property to a Crown corporation administering the land; the Act clarified the roles of the Governor in Council, Treasury Board and the Department of Justice in federal real property to ensure consistency in the treatment of various types of transactions; the Act allowed the federal Crown to grant lands to itself, which facilitates the registration of previously ungranted federal real property in some provincial land registry systems; and the Act clarified the permissibility of charging market rates in leasing and licencing federal real property.
Section 17 - Territorial Lands
Territorial lands 17. (1) Notwithstanding section 3 of the Territorial Lands Act, sections 13 to 16 and 19 of that Act apply in respect of all federal real property in the Yukon Territory and the Northwest Territories. Administration of reserved property 17. (2) Where any federal real property in the Yukon Territory or in the Northwest Territories is granted in fee simple under this Act, the Minister of Indian Affairs and Northern Development has the administration of such property and rights as are reserved from the grant by virtue of subsection (1). Idem 17. (3) Where an interest other than the fee simple in any federal real property in the Yukon Territory or the Northwest Territories that is under the administration of a Minister is granted under this Act, that Minister retains the administration of such property and rights as are reserved from the grant by virtue of subsection (1). Notes Subsection 17(1) can make all sales, leases, or other dispositions of federal real property in the Yukon or the Northwest Territories made pursuant to this Act contain the same restrictions and reservations to the Crown as those contained in sections 13 through 16 and section 19 of the Territorial Lands Act. This section has been amended to include a reference to Nunavut. However, this amendment will not come into force until April 1, 1999, or an earlier date if ordered by the Governor in Council. [The amendment is included below.] Why make the same reservations to the Crown mandatory in the territories when the Crown can grant real property with different reservations throughout the rest of Canada? The Territorial Lands Act was intended to be the primary vehicle by which to grant federal real property in the territories, and the mineral and other reservations were meant to apply to all grants made under that Act. Whereas Her Majesty always has the power to grant property with reservations specific to the property being granted, the differences which existed prior to the FRPA in the reservations on property granted in the territories is not due to any differences specific to the property being granted, but only because the property was administered by different ministers and was therefore granted under different Acts. Section 17 of the FRPA ensures that a uniform set of reservations is made in every Crown grant in the territories, while preserving the right to make any further reservations that could be relevant to the specific property being granted. Subsection 17(2) states that the Minister of Indian Affairs and Northern Development shall administer the rights reserved by the application of subsection 17(1) in those cases where all the Crown's interest is being conveyed (a fee simple conveyance). This is for consistency with the Territorial Lands Act, under which the Minister of Indian Affairs and Northern Development administers the rights reserved under that Act. Section 17 - Territorial Lands Subsection 17(3) states that in those cases where less than all the Crown's interest is being conveyed, such as in a lease, the minister administering the property can administer the rights reserved by the application of subsection 17(1). Why do subsections 17(2) and (3) differentiate between fee simple and non-fee simple grants of federal real property in the territories? In fee simple grants of federal real property in the territories, by virtue of subsection 17(1) of this Act, the only interests that the federal Crown retains in the property are those reserved by sections 13 through 16 and 19 of the Territorial Lands Act. Under that Act, the Minister of Indian Affairs and Northern Development administers these reserved interests. For continuity, it was decided to retain that administration as any other minister who conveyed the property in fee simple would have no further interest in the property. In cases of a less than fee simple conveyance, such as a lease, the minister administering the property would still retain an interest in the property (aside from the rights reserved by virtue of subsection 17(1)). Therefore, it makes sense for that minister to administer all the Crown's interests in that property, including the interests reserved in sections 13 through 16 and 19 of the Territorial Lands Act. The Nunavut amendment (S.C. 1993, c. 28, Sch. III, s. 58) reads as follows: "Territorial lands 17. (1) Notwithstanding section 3 of the Territorial Lands Act, sections 13 to 16 and 19 of that Act apply in respect of all federal real property in the Yukon Territory, the Northwest Territories and Nunavut. Administration of reserved property 17. (2) Where any federal real property in the Yukon Territory, the Northwest Territories or Nunavut is granted in fee simple under this Act, the Minister of Indian Affairs and Northern Development has the administration of such property and rights as are reserved from the grant by virtue of subsection (1). Idem 17. (3) Where an interest other than the fee simple in any federal real property in the Yukon Territory, the Northwest Territories or Nunavut that is under the administration of a Minister is granted under this Act, that Minister retains the administration of such property and rights as are reserved from the grant by virtue of subsection (1)." Related General Questions 3.1.14 What did the FRPA change in regard to real property in the Yukon and Northwest Territories? 3.3.6 What is fee simple? Source New.
Section 18 - Administration
Subsection 1 - Acquisitions and Administration Administration by Minister 18. (1) Federal real property purchased, leased or otherwise acquired for the purposes of a Minister's department, including any such property acquired by way of a transfer of administration and control from Her Majesty in any right other than Canada, is under the administration of that Minister for the purposes of that department. Notes Subsection 18(1) states that real property acquired by any means for the purposes of a minister's department is administered by that minister. This is consistent with Treasury Board policy relating to acquisitions. The purpose of this section is to confirm the direct link between the minister and the department for whose purposes the property was acquired. For example, the link for property used by the National Archives would be between the National Archives, a department as that term is defined under the FRPA, and the appropriate minister for the Archives, regardless of any other departments in that minister's portfolio. Related General Questions 3.4.1 What is "administration" of federal real property? 3.4.4 What are the main responsibilities of a minister in relation to the real property he or she administers? 3.4.6 Why are transfers of administration made? 3.4.3 What is the difference between "administration" and "administration and control?" Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(2)(g): regulations on transfers of administration - s. 17(2): administration of reserved interests in fee simple grants - s. 17(3): administration of reserved interests in non-fee simple grants - s. 18(2): ministerial administration - s. 18(3): continuity of administration - s. 18(4): consequences of administration - s. 18(5): administration of departmental property TBRP - chap. 1-2: administration FRPRegs - s. 6: transfer of administration or administrative responsibility Section 18 - Administration Subsection 2 - Ministerial Administration Idem 18. (2) Where a Minister has, in relation to a department, by or under any Act or any order of the Governor in Council, the "administration", "management", "administration and control", "control, management and administration", "management, charge and direction" or another similarly expressed power in relation to any federal real property, such property is under the administration of that Minister for the purposes of that department. Notes This subsection states that a minister who, pursuant to a federal Act or an Order in Council, has the - administration, - administration and control, - control, management and administration, - management, charge and direction, or - any similarly expressed power over any federal real property, administers that property. The subsection makes it clear that the word "administration" did not have to be used in the federal Act or Order in Council. Related General Questions 3.4.5 Did the coming into force of the FRPA affect the administration held by a minister? 3.4.2 Why was the change made to "administration?" Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(2)(g): regulations on transfers of administration - s. 17(2): administration of reserved interests in fee simple grants - s. 17(3): administration of reserved interests in non-fee simple grants - s. 18(1): acquisitions and administration - s. 18(3): continuity of administration - s. 18(4): consequences of administration - s. 18(5): administration of departmental property - s. 18(6): administration by corporation FRPRegs - s. 6: transfer of administration or administrative responsibility Section 18 - Administration Subsection 3 - Continuity of Administration Continuity of administration 18. (3) Federal real property that is under the administration of a Minister for the purposes of a department remains under the administration of that Minister for the purposes of that department until a change of administration is effected pursuant to section 16 or on the authority or direction of the Governor in Council. Notes Subsection 18(3) states that a minister shall administer federal Crown lands until a change of administration is made in accordance with this Act or on the authority of the Governor in Council. Related General Questions 3.4.5 Did the coming into force of the FRPA affect the administration held by a minister? 3.4.6 Why are transfers of administration made? Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(2)(g): regulations on transfers of administration - s. 17(2): administration of reserved interests in fee simple grants - s. 17(3): administration of reserved interests in non-fee simple grants - s. 18(1): acquisitions and administration - s. 18(2): Ministerial administration - s. 18(4): consequences of administration - s. 18(5): administration of departmental property - s. 18(6): administration by corporation FRPRegs - s. 6: transfer of administration or administrative responsibility Section 18 - Administration Subsection 4 - Consequences of Administration by Ministers Consequences of administration 18. (4) Where any federal real property is under the administration of a Minister for the purposes of a department, the Minister has the right to the use of that property for the purposes of that department, subject to any conditions or restrictions imposed by or under this or any other Act or any order of the Governor in Council, but is not entitled by reason only of the administration of the property to dispose of it or to retain the proceeds of its use or disposition. Notes Subsection 18(4) describes the legal effect of a minister administering federal real property. Under the subsection, the minister can use the particular federal Crown lands for the purposes of one of his or her departments. The right to use the property is subject to any applicable conditions or restrictions. Subsection 18(4) makes it clear that simply because a minister administers a property does not necessarily mean that he or she has the right to dispose of the property or to retain the proceeds of its use or disposition. In practice, the FRPRegs (s.4) give ministers the authority to dispose of the property that they administer. In addition, Treasury Board policy discusses circumstances when retaining proceeds may be possible. Does this mean a minister doesn't have the right to acquire or dispose of real property? No. The section states that a minister administering federal real property has the right to use the property for the purposes of his or her department. The minister may also have the right to dispose of or acquire federal real property. However, the right to dispose of or acquire must come from either another section of the FRPA, or from another Act of Parliament. Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 5: grants of federal real property - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(2)(g): regulations on transfers of administration - s. 17(2): administration of reserved interests in fee simple grants - s. 17(3): administration of reserved interests in non-fee simple grants - s. 18(1): acquisitions and administration - s. 18(2): Ministerial administration - s. 18(3): continuity of administration - s. 18(5): administration of departmental property TBRP - chap. 1-4: revenue FRPRegs - s. 6: transfer of administration or administrative responsibility Section 18 - Administration Subsection 5 - Administration of Departmental Property For greater certainty 18. (5) For greater certainty, a Minister may have the administration of federal real property for the purposes of any department of which that Minister is the Minister. Notes This subsection clarifies that a minister may administer federal real property for the purposes of any of the his or her departments. This subsection makes it clear that a minister may administer federal real property for any department for which he or she is the appropriate minister, regardless of whether the department is - a department named in Schedule I to the FAA, such as the Department of Transport; - a division or branch of the Public Service named in Schedule I.1 to the FAA, such as the National Archives of Canada; or - a departmental corporation, such as the National Research Council of Canada. The subsection also clarifies that although a minister may be the appropriate minister for several departments, a particular piece of federal real property may only be under the administration of the minister for the purposes of one of those departments. This reiterates the purpose of subsection 18(1). The administration of a piece of federal real property for the purposes of one department would have to be transferred if it were to be used for the purposes of another department, regardless of whether the same minister were the appropriate minister for the two departments. This makes it clear that the managerial responsibility for the property rests with a minister for the purposes of a particular department. Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 2(1): definition of "department" - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(2)(g): regulations on transfers of administration - s. 17(2): administration of reserved interests in fee simple grants - s. 17(3): administration of reserved interests in non-fee simple grants - s. 18(1): acquisitions and administration - s. 18(2): Ministerial administration - s. 18(3): continuity of administration - s. 18(4): consequences of administration FRPRegs - s. 6: transfer of administration or transfer of administrative responsibility Section 18 - Administration Subsection 6 - Administration by Corporation Administration by corporation 18. (6) Where, by or under any Act of Parliament or any order of the Governor in Council, a corporation has the right to the use of any federal real property the title to which is vested in Her Majesty, by the use of any expression mentioned in subsection (2) or any similar expression, and no Minister has the administration of the property, the corporation has, for the purposes of paragraphs 16(1)(g) and (h) and (2)(g), the administration of that property. Notes This subsection states that a corporation that, pursuant to a federal Act or an Order in Council, has the - administration, - administration and control, - control, management and administration, - management, charge and direction, or - any similarly expressed power over any federal real property, which is not administered by a minister, administers that property for the purposes of paragraphs 16(1)(j) and (l) and (2)(g) of this Act. Those paragraphs deal with transfers of administration and with grants of federal real property under the administration of a corporation. The subsection makes it clear that the word "administration" did not have to be used in the federal Act or Order in Council. The section applies to any real property that the corporation administers, the title of which is in Her Majesty's name, and that no minister administers. Related General Questions 3.7.2. Did the coming into force of the FRPA affect the administration held by a Crown corporation? 3.7.3 Did this mean that a Crown corporation that had managed, charged and directed real property would suddenly lose its power to dispose of the property and retain the proceeds from the disposal because it would only have "administration" of the property? Source New. Related Sections in the FRPA, FRPRegs and TBRP FRPA - s. 2(1): definition of "administration" - s. 16(1)(g): GIC authorization of transfers of administration - s. 16(1)(h): GIC authorization of grants of property administered by a corporation - s. 16(2)(g): regulations on transfers of administration FRPRegs - s. 6: transfer of administration and transfer of administrative responsibility
Section 19 - Defence Lands
Defence lands vested in Her Majesty 19. (1) Such of the real property mentioned in the schedule to the Ordinance and Admiralty Lands Act, chapter 115 of the Revised Statutes of Canada, 1927, as was on June 1, 1950 vested in Her Majesty, by whatever mode of conveyance it was acquired or taken and whether in fee, for life, for years or otherwise, and all the appurtenances thereof, unless disposed of since that date, continues absolutely vested in Her Majesty for the purposes of Canada in the same manner and to the same extent as on June 1, 1950. Alienation of defence lands 19. (2) Until the Governor in Council otherwise provides, federal real property that is declared by the Governor in Council to be necessary for the defence of Canada shall not be sold, alienated or otherwise disposed of, but the Governor in Council may authorize the lease or other use of such property as the Governor in Council thinks best for the advantage of Canada. Deeming (3) Lands that on June 1, 1950 were lands in class one under the Ordinance and Admiralty Lands Act, chapter 115 of the Revised Statutes of Canada, 1927, shall be deemed to have been declared by the Governor in Council to be necessary for the defence of Canada. Notes Subsection 19(1) states that the lands listed in the schedule to the Ordinance and Admiralty Lands Act as of June 1, 1950 continue to be federal Crown lands. This is essentially unchanged from previous legislation. However, it does clarify that the section only applies to real property which has not been disposed of by the government subsequent to June 1, 1950. Section 19 was intended to ensure continuity of title for the lands mentioned in the Ordinance and Admiralty Lands Act. This continuity of title ensures that these lands, considered by the Governor in Council to be necessary for the defence of Canada, remain federal Crown property. What was the Ordinance and Admiralty Lands Act? The Act set out restrictions on the disposal of public lands which were considered by the Governor in Council to be necessary to defend Canada. This Act was repealed in 1950. What kind of lands are mentioned in the Schedule to the Ordinance and Admiralty Lands Act? Military reserves located in Ontario, Quebec, and in the Maritimes. Section 19 - Defence Lands Why is the date of June 1, 1950 important in section 19? This was the date that the Ordinance and Admiralty Lands Act was repealed by the Public Lands Grants Act, 1950. The predecessor of section 19 first appeared in this 1950 revision of the Public Lands Grants Act. Subsections 19(2) and (3) are essentially unchanged from the previous legislation. Subsection 19(2) prohibits disposing of federal real property declared by the Governor in Council to be "necessary for the defence of Canada." However, the subsection specifically allows the Governor in Council the option to lease or otherwise use the property as the Governor in Council "thinks best for the advantage of Canada." One difference from the previous legislation is that the subsection now explicitly provides that the Governor in Council may take real property out of this classification. Subsection 19(3) states that class one lands under the Ordinance and Admiralty Lands Act on June 1, 1950 are deemed to be lands declared by the Governor in Council to be "necessary for the defence of Canada." What kind of lands were class one lands under the Ordinance and Admiralty Lands Act? Class one lands under that Act were lands that had to be retained by the government to defend Canada. Source Subsection 19(1) is a modification of section 7 of the Public Lands Grants Act, which read: " 7. Such of the lands mentioned in the schedule to the Ordinance and Admiralty Lands Act, chapter 115 of the Revised Statutes of Canada, 1927, as on June 1, 1950 were vested in Her Majesty in right of Canada, by whatever mode of conveyance they were acquired or taken, whether in fee, for life, for years or otherwise, and all the appurtenances thereof, are and continue absolutely vested in Her Majesty for the purposes of Canada in the same manner and to the same extent as on June 1, 1950." Subsections 19(2) and (3) are modifications of subsections 8(1) and 8(2), respectively, of the Public Lands Grants Act, which read: " 8. (1) Public Lands that are declared by the Governor in Council to be necessary for the defence of Canada shall not be sold, alienated or otherwise disposed of but may be leased or otherwise used as the Governor in Council thinks best for the advantage of Canada. (2) Until the Governor in Council otherwise provides, lands that on June 1, 1950 were lands in class one under the Ordinance and Admiralty Lands Act are deemed to have been declared by the Governor in Council to be necessary for the defence of Canada."
2.1 Overview
The Federal Real Property Regulations came into force on September 15, 1992 along with the Federal Real Property Act. The power to enact the Regulations comes from two different sources in the FRPA: the general authorities for regulations relating to real property transactions on the recommendation of the Treasury Board. These authorities are contained in subsection 16(2) of the Act. All of the FRPRegs, with the exception of sections 9 and 11, are based on these authorities; and the authority for regulations on the joint recommendation of the Treasury Board and the Department of Justice. These regulations relate to the referral of transactions to Justice and the document depository and are under subsection 15(2) of the Act. The portions of the FRPRegs that deal with these topics are sections 9 and 11. Like the Act, the Regulations were developed jointly by the Department of Justice, with the Property Law Section as the lead branch, and the Treasury Board Secretariat, with the Bureau of Real Property and Materiel as the lead branch. The Order in Council authorizing the FRPRegs listed the following regulations which were revoked on its promulgation: Government Land Purchase Regulations; Public Lands Leasing and Licensing Regulations; Public Lands Sale Regulations (Transport); and Public Works Leasing Regulations. Various other regulations that had been authorized under the Public Lands Grants Act remained in force by virtue of paragraph 44(g) of the Interpretation Act. A list of these regulations, as of December 31, 1994, is contained in Appendix A of this section. These regulations either relate to natural resources (minerals and petroleum) on federal lands or to specific authorities that departments wanted to retain. It should be noted that there was an intention to revisit these regulations after an appropriate time to see if any more were no longer needed. The Federal Real Property Regulations achieve four main purposes: give ministers legal authority to enter into transactions related to acquiring, disposing, optioning, licensing, transferring administration and transferring administration and control of real property. For most of these transactions, this was the first time legal authority was given directly to ministers without involving the Treasury Board or the Governor in Council; give ministers the legal authority to make certain payments related to acquiring real property and imposes certain controls, primarily related to title certification, on the full or partial payment of the purchase price. These provisions are basically updates of ones formerly contained in the Government Land Purchase Regulations, although there are some new aspects to these, such as the ability to make partial payments before title certification and some new provisions relating to foreign acquisitions; set out the types of disposal instruments that must be settled and approved by Justice as to form and legal content. This is essentially a carry-over of Justice's previous role, taking into account the new types of instruments allowed to be used under the Federal Real Property Act and the direct ministerial authority to enter into dispositions pursuant to the Regulations; and describe the particulars of the document depository. The depository was intended to supplement existing government depositories for real property transaction instruments, again taking into account the new types of instruments allowed to be used under the Federal Real Property Act and the direct ministerial authority to enter dispositions and transfers pursuant to the Regulations. As can be seen, the primary innovation of the FRPRegs was the ability for ministers to enter directly into transactions. An amendment to the Government Contracts Regulations was made concurrently with the coming into force of the Federal Real Property Regulations. This amendment removed leases, and fit-up contracts that were part of a transaction authorized under the FRPA, from the scope of the Government Contracts Regulations. This was done to ensure these contracts were governed by the real property regime (the Federal Real Property Act, Regulations, and Treasury Board real property policies). Construction, fit-up and service contracts outside these transactions remain covered by the contracting regulations and policies. 2.2 List of Regulations under the Federal Real Property Act The Canada Gazette, Part II lists the regulations under the Federal Real Property Act. All of these regulations, with the exception of the Federal Real Property Regulations, were enacted under the Public Lands Grants Act. These regulations were affected by the repeal of the Public Lands Grants Act only to the extent that they were inconsistent with the provisions of the FRPA. There have been no indications that any of the prior regulations still in force conflict with the FRPA or the FRPRegs. These prior regulations remain in force and are deemed to have been made under the FRPA until such time as they are repealed or new regulations are made in their place. Paragraph 44(g) of the Interpretation Act ensures this continuity in all cases where a statute is repealed and a new Act enacted in its place.
Section 1 - Short Title
REGULATIONS RELATING TO FEDERAL REAL PROPERTY Short Title Short Title 1. These regulations may be cited as the Federal Real Property Regulations. Notes This section names the FRPRegs. The name "Federal Real Property Regulations" should be used when referring to the FRPRegs. Related General Questions None. Authority FRPA 16(2). Source New. Related Sections in the FRPA, the FRPRegulations and TB Real Property Policy None.
Section 2 - Interpretation
"acquisition" Interpretation 2. In these Regulations, "acquisition" means an acquisition by Her Majesty of real property, including by lease, gift, devise, acceptance of a surrender of a lease of federal real property, or acceptance of a relinquishment of an easement on federal real property, but not including an acceptance of a transfer of administration and an acceptance of a transfer of administration and control; (acquisition) Notes This section provides the definition for the word "acquisition" in the regulations. "Acquisition" has to be defined in the FRPRegs because it is used various times in the FRPRegs and the word, although used in the FRPA, was not defined in the Act. Defining the word in the FRPRegs rather than in the FRPA also leaves open the remote possibility that if a type of acquisition is not captured by the FRPRegs' definition, it would still be possible to make the acquisition using the Governor in Council authority under paragraph 16(1)(b) of the FRPA. Although the definition in the FRPRegs was intended to cover all types of acquisitions, there is always the potential for a differing judicial interpretation. The definition makes it clear that "acquisition" applies not only to purchases of real property by the government, but also to any other type of acquisition, including: a lease by the government of non-federal property (leasing-in); a gift to the government; a bequest to the government in a will; an acceptance by the government of a tenant's surrendering a lease of government property; and an acceptance of a person's relinquishing an easement over federal property. The definition of "acquisition" does not include acceptances of transfers of administration from other government departments or agent Crown corporations nor does it include acceptances of transfers of administration and control from the provinces. There are two basic reasons why these were not included in the definition: they are not acquisitions in the legal sense, as they are internal actions between two Crown entities. For this reason, Justice requested that they be treated separately; and various provisions in the FRPRegs, such as those relating to payments, do not apply to transfers of administration and transfers of administration and control but are intended to apply to all other additions to the federal inventory. Section 2 - Interpretation "acquisition" Note: The Real Property volume of the Treasury Board Manual defines "acquisition" to include transfers of administration and transfers of administration and control even though they are not acquisitions in the legal sense as they are internal actions between two Crown entities. This was done purposely so that as a general rule all additions to a department's inventory would be treated similarly. The policies in the volume make specific references to exceptions to this general rule. Transactions involving licences are also not included in the definition of "acquisition." They were excluded, again at the request of Justice, because licences, in both common and civil law, are personal contracts and do not act as transfers of interests in real property. There are separate provisions for licences in the FRPA as well. Note: A lease in civil law is normally not an interest in real property. However, a lease in common law transfers an interest in real property. As there were no policy reasons to distinguish between federal leases in the common law provinces and federal leases in Quebec, all federal leases are treated the same for the purposes of the FRPA and the FRPRegs. Related General Questions None. Authority FRPA 16(2)(b). Source New. Related Sections in the FRPA, the FRPRegulations and TB Real Property Policy TBRP Glossary: definition of "acquisition" Section 2 - Interpretation "Act" "Act" means the Federal Real Property Act ; (Loi) Notes This clarifies that the FRPA is referred to as the "Act" in the FRPRegs. This reference is only made in sections 9 and 11 of the FRPRegs. Related General Questions None. Authority FRPA 16(2) - general power to make regulations. Source New. Related Sections in the FRPA, the FRPRegulations and TB Real Property Policy FRPA s. 1: short title Section 2 - Interpretation "Disposition" "disposition" means a disposition by Her Majesty of federal real property, including by lease, gift, surrender of a lease in which Her Majesty is the tenant, or relinquishment of an easement where Her Majesty is the holder of the easement, but not including a transfer of administration and a transfer of administration and control. (aliénation) Notes This section provides the definition for the word "disposition" in the FRPRegs. "Disposition" has to be defined in the FRPRegs as it is used various times in the FRPRegs and the word, although used in the FRPA, was not defined in the Act. Defining the word in the FRPRegs rather than the FRPA also leaves open the possibility that if a type of disposition is not captured by the FRPRegs' definition, it would still be possible to make the disposition using the Governor in Council authority under paragraph 16(1)(a) of the FRPA. Although the definition in the FRPRegs was intended to cover all types of dispositions, there is always the potential for a differing judicial interpretation. The definition makes it clear that "disposition" applies not only to sales of real property by the government, but also to any other type of disposition, including: a lease given by the government of federal property (leasing-out); a gift from the government; a surrender by the government of a lease where the government is the tenant; and a relinquishment by the government of an easement it has over non-federal property. The definition of "disposition" does not include transfers of administration to other government departments or agent Crown corporations nor does it include transfers of administration and control to the provinces. There are two basic reasons why these were not included in the definition: they are not dispositions in the legal sense, as they are internal actions between two Crown entities. For this reason, Justice requested that they be treated separately; and the provision in the Regulations related to settling and approving dispositions does not apply to transfers of administration and transfers of administration and control. Note: The Real Property volume of the Treasury Board Manual defines "disposition" to include transfers of administration and transfers of administration and control even though they are not dispositions in the legal sense as they are internal actions between two Crown entities. This was done purposely so that as a general rule all deletions from a department's inventory would be treated similarly. The policies in the volume specifically refer to exceptions to this general rule. Section 2 - Interpretation "Disposition" Transactions involving licences are also not included in the definition of "disposition." They were excluded, again at the request of Justice, because they are not legally real property conveyances. Licences, in both common and civil law, are personal contracts and do not act as transfers of interests in real property. There are separate provisions for licences in the FRPA as well. Note: A lease in civil law is normally not an interest in real property. However, a lease in common law transfers an interest in real property conveyances. As there were no policy reasons to distinguish between federal leases in the common law provinces and federal leases in Quebec, all federal leases are treated the same for the purposes of the FRPA and the FRPRegs. Related General Questions None. Authority FRPA 16(2)(a) - regulations on dispositions Source New. Related Sections in the FRPA, the FRPRegulations and TB Real Property Policy TBRP Glossary: definition of "disposition"
3.1 Scope of the Act and Regulations
3.1.1 Why should there be authority for interdepartmental delegation of authority? This type of delegation allows the government's real property dealings to be managed efficiently. There may be occasions where a minister wishes to delegate the requisite power or authority in relation to a real property transaction to someone outside his or her department. For example, an official in a regional office of the Department of Public Works and Government Services could be delegated the authority to act on behalf of another minister's department; or a head of mission could act in foreign transactions. There may be occasions where a minister wishes to delegate the requisite power or authority in relation to a real property transaction to another minister. For example, the Minister of Public Works and Government Services could be delegated the authority to act on behalf of another minister's department; or External Affairs could act in foreign transactions. 3.1.2 Does the FRPA affect the federal Crown rights of acquiring and disposing under other Acts of Parliament, such as the National Parks Act, etc.? No. The rights of acquiring and disposing of real property as defined under other Acts of Parliament are unaffected by the FRPA. The FRPA was designed not to affect the application of existing legislation to federal Crown lands such as national parks, Indian lands, or territorial lands. The rights of Crown corporations as defined under their own Acts or the FAA to acquire and dispose of real property are also not affected by the FRPA. 3.1.3 How does the FRPA affect Indian lands? The FRPA was intended to be neutral vis-à-vis Indian lands. The FRPA was designed not to affect the application of pre-existing legislation to federal Crown lands such as Indian lands. The authority of the Minister of Indian Affairs and Northern Development to deal with and dispose of reserve lands continues to be governed by the Indian Act. 3.1.4 Why did the FRPA change the requirement that federal real property has to be either "surplus" or "not required for public purposes" before it can be sold or transferred? The FRPA removed the restriction from the Public Lands Grants Act, thePublic Works Act, and the Surplus Crown Assets Act which limited disposal to real property which was either "surplus" or "not required for public purposes." The words "not required for public purposes" were first used in connection with disposing of federal real property in the late 1800s. This restriction created difficulties for the Crown to complete real property transactions. For example, the preceding condition that real property be "not required for public purposes" was an obstacle in making grants of federal real property to agent Crown corporations, whose purposes are federal public. It would not have been possible to use the disposal authority in the previous legislation to authorize a disposition of real property owned by the federal Crown to the National Museums of Canada, given that the previous legislation required the property be "not required for public purposes" and that the National Museums of Canada would use the property for public purposes. Another example would be a situation in which the Crown owns a 20-storey office building, but over time only needs one floor for government program purposes. Good real property management practices would suggest that the building be sold and the needed floor space rented from the new owners, thereby eliminating the overhead involved in managing the entire building. In addition, Treasury Board policy requires that real property not required for program purposes be sold. However, it could be argued under previous law that this could not be done because a portion of the building would still have been required for public purposes. 3.1.5 What protection is there to ensure that real property required for public purposes is not disposed of? The federal real property regime is based on the premise that real property is to be held for the purposes of the government's programs. Therefore, under Treasury Board policy, a minister's disposal of real property is limited to those cases where: - the property is no longer needed for the purposes of the minister's department; or - the disposition itself furthers the programs of the minister's department. Likewise, the policy provides that a minister may only acquire real property when it is required for the purposes of the minister's department. 3.1.6 Did the FRPA change the procedures for disposing of surplus lands? Under section 42 of the FRPA, the Surplus Crown Assets Act and the procedures for disposing of surplus property under that Act no longer apply to real property. The procedures for disposing of lands no longer required by a department for its programs, like all other procedures relating to acquiring and disposing of public lands, were examined in developing the FRPRegs and Treasury Board policy in connection with the FRPA. In the interests of consistency the Minister of Public Works and Government Services, whose department has much expertise in disposing of surplus property, continues to have the major role in these disposals. 3.1.7 How did the requirement limiting disposal of federal real property to that "not required for public purposes" create difficulties in lease-leaseback agreements? The requirement that federal real property be "not required for public purposes" led to a serious problem a few years ago in relation to the government's desire to enter into a variety of leasing transactions. Crown lease-leaseback transactions normally entail the Crown providing developers with a long-term ground lease (e.g., 35 years) whereby the tenant would covenant that it would construct a building to the Crown's specifications and upon completion would sublease the building to the Crown for almost the same period of time as the ground lease (minus a few days). The lease normally would also contain an option to purchase in favour of the Crown. An example of such a lease-leaseback transaction is the 240 Sparks Street complex in Ottawa. The concern was raised that given that the Crown was obtaining a long-term sublease of the very property it had leased by way of the ground lease, this was indicative that the property was in fact still required for public purposes. It was therefore argued that there was no authority to enter into such a lease-leaseback agreement. Consequently in 1985, the Public Lands Grants Act and the Public Works Act were amended to provide clear legislative authority for the Crown to enter into these transactions. Given the broad wording of paragraph 16(1)(a) of the FRPA, there is no longer a requirement for the 1985 amendments and these sections were repealed in the FRPA. 3.1.8 Why was the authorization to acquire and dispose of property placed in the FRPA? This brought the authority to acquire real property under the same Act as the authority to dispose and promoted consistency in real property management. It made sense to include in one statute the federal authorities pertaining to both acquiring and disposing of real property by the federal Crown, including the power to make orders and regulations for these purposes. Prior to the FRPA, the primary general disposing authority was under thePublic Lands Grants Act and the leasing of real property was governed by the Government Contracts Regulations under the FAA, while acquisitions were governed by the Government Land Purchase Regulations made under the FAA. When it was enacted, the FRPA became the primary general authority for both disposing of and acquiring federal real property. 3.1.9 Why would the Crown want to finance a purchase of real property? To help sell the property. For example, financing the purchase could help maintain a satisfactory sale price or even make it easy to sell the real property in a slow market. 3.1.10 Why would the Crown want to take a security to guarantee a part of the payment for real property? A security is necessary to protect the interests of the Crown in the money owed to it. 3.1.11 Did the FRPA cause the rent or utility charges to tenants on public lands to increase? No. The Act clarified the authority for what had been the existing practice for many years. The FRPA makes it clear that, where appropriate, market rates can be charged for government services relating to federal real property. Charging rent to tenants of federal real property is based on the market rate approach, with any exceptions based on policy considerations. This approach ensures that the government acts consistently, fairly, and equitably in the best interest of all taxpayers within the context of good financial management practices. It should also be noted that the FRPA provision does not affect property for which specific provisions for setting rental rates are already provided under specific program legislation, such as the National Parks Act or the Fishing and Recreational Harbours Act. In relation to utility charges, these are primarily being made on a cost basis, and this has not changed. 3.1.12 Does this contradict section 19 of the Financial Administration Act? No. Section 19 is intended to regulate charges for services provided by the Crown to the public. The Federal Real Property Act provisions are intended to regulate charging for rent and services provided as a matter of contract between the Crown and third parties. 3.1.13 What are the specific powers and authorities of the Treasury Board under the FRPA? The Federal Real Property Act underscores the central role of the Treasury Board in managing federal real property. The Act provides the Treasury Board with the powers and authorities to ensure the efficient and effective management of federal public lands. Some of the specific powers and authorities of the Treasury Board under the FRPA are: - the authorities given to the Governor in Council under subsection 16(1) of the Act may only be exercised on the recommendation of the Treasury Board; - through the operation of subsections 15(2) and 16(2), any regulations made under the FRPA must be on the recommendation of the Treasury Board, either on its own (in the case of regulations under subsection 16(2)) or jointly with the Department of Justice (in the case of regulations under subsection 15(2)). (The provisions in 16(1) and 16(2) are a change from the Public Lands Grants Act, under which a minister such as the Minister of Public Works and Government Services and the Minister of Indian Affairs and Northern Development could seek Governor in Council authority for a specific disposition or could propose regulations regarding dispositions. Under the FRPA, the Treasury Board's recommendation must be sought to gain access to the Governor in Council authorities under subsections 16(1) and (2).); and - subsection 16(4) of the Act permits the Treasury Board to make financial or other managerial limitations to authorities granted to ministers in relation to real property transactions. These policy limits allow the Treasury Board to tailor its policy directives to ministers in a manner that recognizes the managerial expertise of their departments. 3.1.14 What did the FRPA change in regard to real property in the Yukon and Northwest Territories? The Federal Real Property Act does not provide authority for the granting of federal lands in the Yukon and Northwest Territories that are governed by the Territorial Lands Act. The Territorial Lands Act applies to lands in the Yukon and Northwest Territories under the administration of the Minister of Indian Affairs and Northern Development and, in certain circumstances, the Territorial Commissioners. Under the Territorial Lands Act, certain mineral and other rights are reserved to the Crown when a grant of territorial lands is made under the Act. However, other federal ministers administer federal lands in the territories, the lands having been acquired by purchase from private parties or by transfer of administration from Indian Affairs and Northern Development. These federal lands are not governed by the Territorial Lands Act. Instead, dispositions of these lands had been governed by the Public Lands Grants Act or the Surplus Crown Assets Act, which did not require the reservation of the Crown rights set out in the Territorial Lands Act. ( The dispositions of these lands are now governed by the FRPA.) Because of this it is possible for two neighbours, each having purchased a parcel of land from the federal Crown, to have acquired significantly different rights in their land. This inequity was eliminated by section 17 of the FRPA. This section requires all grants of federal real property in the Yukon and Northwest Territories made under the FRPA to be subject to the same reservations to the Crown of mineral and other rights as set out in the Territorial Lands Act. Thus, all grantees of federal lands in the two territories are treated in the same fashion. Subsections 17(2) and (3) of the FRPA also clarify which federal minister has the administration of the reserved rights.
3.2 Crown Grants
3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA? There are six classes of documents that can be used to grant federal Crown lands under the Federal Real Property Act: - a grant by letters patent referred to in paragraph 5(1)(a) of the Act; - an instrument of grant as described in paragraph 5(1)(b); - a provincial conveyancing instrument under paragraph 5(2); - a conveyancing instrument used in a foreign jurisdiction under subsection 5(3); - a lease within Canada under subsection 5(4); and - a plan used to grant real property under section 7. Prior to the coming into force of the FRPA, most federal real property grants were made by letters patent. The FRPA did not alter the legal effect or the procedures concerning letters patent. What the Act did was provide for alternative documents that could be used instead of letters patent. These alternative documents, the instruments of grant, provincial and foreign instruments, and plans may be used to grant federal real property, but do not have the complex processes and the time delay involved in issuing letters patent. This also provides the federal government with the ability to convey real property using the same means as are used in the private sector, thus supporting the public policy objective of the government dealing with the public in customary terms. 3.2.2 What is a notification? A notification is a document issued pursuant to the Territorial Lands Act by the Minister of Indian Affairs and Northern Development or a Territorial Commissioner directing that a certificate of title be issued by the Registrar of Land Titles in respect of lands in the Yukon and Northwest Territories. The person named in the certificate of title is the registered owner of the lands. A notification has the same force and effect as a grant of territorial land made by letters patent. Under the FRPA, a Crown grant is defined to include a notification. 3.2.3 What are letters patent under the Great Seal? Letters patent have been defined as "writing of the sovereign, sealed with the Great Seal, whereby a person or company is entitled to do acts or enjoy privileges which could not be done or enjoyed without such authority." There is a common law rule dating back several centuries that land owned by the Crown can only be conveyed by way of letters patent unless there is statutory authority to do otherwise. There does exist some federal legislation authorizing the disposition of Crown lands by way of instruments other than letters patent. For example, under subsection 96(1) of the National Housing Act, C.M.H.C. is authorized to execute deeds or grants of easements, etc., in relation to certain Crown lands. Other examples are notifications under the Territorial Lands Act and leases. However, prior to the FRPA, letters patent were the main legal instrument by which Crown lands or interests therein are granted to individuals or corporations, although there were complex processes and time delays involved in issuing letters patent. 3.2.4 How are letters patent issued? The Seals Act and the Format Document Regulations regulate the procedures for issuing and sealing letters patent (after the requisite authority for selling or disposing is obtained). These procedures are quite complex and normally involve at least three departments. The process usually takes from four to six weeks from the date of the initial request. This period is in addition to the time required to negotiate the transaction, prepare its documentation and obtain the necessary Order in Council or other required authority. 3.2.5 Were letters patent eliminated under the Act? If not, why not eliminate letters patent altogether? Why is an alternative instrument needed for letters patent? Is there a difference in legal effect between "instruments of grant" and grants made by letters patent? No, the option to issue letters patent remains open. Letters patent are the traditional instruments by which the federal or provincial Crown have granted title to land or any estate or interest in land. The government decided to retain the ability to use letters patent in appropriate cases, such as where a purchaser of public lands specifically requests the use of letters patent. In addition, letters patents are still required for a more esoteric legal reason. The new category of grants under the FRPA, the instruments of grant, is given under the Act the same legal force and effect as letters patent. Over the years court cases have dealt with the legal force and effect of letters patent. Therefore, we need to keep letters patent at least to have this jurisprudence continue to apply to the instruments of grant. An alternative instrument to letters patent is needed because: - Letters patent are not used in conveyancing practice in the private sector. As a matter of public policy the government should deal with the public in terms that the public is accustomed to use. - Letters patent, by their nature, involve complex processes and time delays. The procedures for issuing letters patent are regulated by the Seals Act and the Formal Document Regulations. Under the FRPA, both the "instruments of grant" and letters patent are of equal effect (refer to subsection 5(7)). 3.2.6. Does using provincial instruments result in adopting provincial law? This subsection may entail adopting the laws in force in a province which governs such instruments and their effects. However, the legal interests of the federal government are protected by requiring the Minister of Justice to approve any instrument used. 3.2.7 What are some examples of provincial conveyancing documents that could be used for Crown grants under the Act? Examples of such documents include: - a deed; - a transfer form; - a deed of sale in Quebec; and - a lease drawn in accordance with a provincial Short Form of Leases Act. 3.2.8 Why isn't the approval of the Minister of Justice required for Crown grants using foreign instruments? In a transaction outside Canada the advice of a lawyer in the jurisdiction in question would be obtained in preparing the conveyancing documents, and therefore it is not necessary for the Minister of Justice to approve the Crown grant. Requiring that the Minister of Justice approve the foreign instruments to be used in a Crown grant for lands outside Canada could create a considerable delay in closing the transaction. 3.2.9 Why must the instruments of grant and the provincial instruments be signed by both the Minister administering the real property and the Minister of Justice? Regulations under the Seals Act require the Minister of Justice to sign all grants of federal land issued under the Great Seal, i.e., letters patent. This ensures that the legal interests of Her Majesty are protected in dispositions of federal real property. The instruments of grant and the provincial instruments are not issued under the Great Seal and it is intended that they would not be governed by the regulations under the Seals Act. Therefore, the Minister of Justice's signature is required to make sure that Her Majesty's legal interests would be protected in the same way for letters patent and the new classes of Crown grants. 3.2.10 What are "words of limitation?" "Words of limitation" is a legal expression for the words used in a deed or otherwise to grant a particular estate or interest in real property. It is the right of a person conveying real property to limit the interest being conveyed in the real property as he or she sees fit. Words of limitation simply define the interest transferred in the deed. Ironically, the presence of words of limitation in a deed may result in conveying a greater interest in the real property than that which would have been conveyed otherwise. For example, at common law if a deed conveying real property contained only the name of the person receiving the land and did not contain "words of limitation" defining the interest conveyed, the deed was considered to only transfer a life estate. In other words, the person only received the right to use the lands during his or her lifetime and at his or her death the lands would go back to the former landowner. However, if the deed contained the name of the person and the words of limitation "and his/her heirs," the deed was considered to have transferred the property absolutely and without any conditions. The common law has been altered by statute in most Canadian provinces. The modern presumption is for all deeds to be absolute transfers unless clearly stated otherwise. 3.2.11 Why would the federal government want the right to grant real property to itself? The primary reason is to resolve some technical problems with certain land registration systems that preclude the registration of some federal public lands. Prior to the FRPA, the federal Crown was unable to grant land to itself. This technically barred ungranted federal lands from being included in provincial land registries which require a Crown grant for a first registration. Some provinces that operate under a Torrens system have this requirement, e.g., British Columbia. Section 10 of the FRPA removed that barrier and allowed registration in those provinces. This section also provides a useful tool in structuring land transactions. For example, the Crown may want to have an easement over federal lands that it wishes to sell. Section 10 will allow the federal Crown to grant the easement to itself prior to the sale of the lands. This transaction would be more complicated if the Crown did not have the right to grant the easement to itself. 3.2.12 Why are there different rules for foreign transactions? The disposition of federal real property outside of Canada is complicated by certain legal principles and the interaction between them. The local (foreign) law generally governs the acquisition and disposal of land but the local (foreign) laws vary as to the extent to which the Canadian federal Crown is subject to these laws. There are problems surrounding the use of letters patent in disposing of federal real property outside of Canada. A complicating factor is that the local (foreign) law affects the form and content of the letters patent. Subsection 5(3) of the FRPA recognizes that there are different practices used in foreign real property transactions. The subsection allows the disposal documents to be tailor-made in light of the circumstances of the particular case, including the local foreign law. It should be noted that a head of mission may be delegated authority for transactions abroad.
3.3 Real Property Conveyances
3.3.1 What are servitudes and easements? Servitudes relate to real property in the Province of Quebec. They are derived from Roman civil law and closely correspond to easements in common law. A servitude is a charge against a property for the benefit of another property (a real servitude) or a person (a personal servitude). Both real and personal servitudes are interests in real property. A personal servitude could be a person's right of access over another's property. An example of a real servitude would be a right of view for a building over another property. An easement is a right of the owner of one parcel of land to use the land of another for a specified purpose. At common law, the easement must be for the benefit of another property (note property, not person). Easements are used in the common law provinces. 3.3.2 What is the difference between a lease and a licence? At common law, a lease is an agreement whereby a landlord transfers part of his or her interest in real property to another person. Unlike a lease, a licence at common law does not create any right or interest in the land itself and does not imply or confer a right to exclusive possession of the lands. In civil law, the lease of an immovable is a contract by which the lessor agrees to grant the lessee the enjoyment of the immovable during a certain time period for a consideration (the rent). It usually creates a "personal" right rather than a "real" right (an interest in land), except in the case of an emphyteutic lease or a lease with surface rights. A licence relating to land is, at common law, a personal privilege or permission with respect to some use of lands. In civil law, an occupation licence [permis d'occupation] is defined as an authorization given to a person to occupy land temporarily. It may be cancelled by the licensor at any time without notice, formality or compensation unless otherwise stipulated in the contract between the parties. Under the FRPA a lease is included in the definition of an "interest." A licence is defined in the Act as including all the rights of use or occupation of real property that are not caught in the definition of "interest." 3.3.3 What is a surrender of a lease? A surrender of a lease is an agreement terminating the lease. A surrender of lease could be advantageous to a tenant where the tenant's requirements have changed and result in the leased premises becoming unsuitable. In such a case, the tenant may well wish to pay the landlord a sum of money to release him or her from the balance of the term of the lease. Alternatively, it may be to the landlord's benefit to pay the tenant to vacate the building to enable the landlord to renovate or sell the building or enter into a lease with another tenant. 3.3.4 What is a relinquishment of a licence? A relinquishment of a licence is the termination of the right to use real property given by the licence. Such a right may be relinquished in several ways, including: - agreement between the licensor and the licensee; or - unilateral action by the licensor (in certain licences). 3.3.5 What did the FRPA change in the governmental processes relating to surrenders of leases and relinquishments of licences? In addition to the Order in Council route under paragraphs 16(1)(f), paragraph 16(2)(d) provides for making regulations authorizing the granting or acceptance of surrenders. Previous regulations that authorized a minister to enter into a lease as a landlord or tenant did not provide for the giving or accepting of surrenders by the Crown. Under previous law, an Order in Council was required for the federal Crown, as tenant, to surrender a lease or for the federal Crown, as landlord, to accept a surrender of lease. The Order in Council was required because in either case a federal proprietary interest is given up or relinquished (the leasehold interest in the case of the Crown as tenant; the rent in the case of the Crown as landlord). The result is that while ministers were given fairly broad authority to enter into leases, they were precluded from terminating those same leases unless they obtained the authorization of the Governor in Council. Ministers were also prevented from making certain amendments to leases which in the eyes of the law amount to an implied surrender. For example, additional land could not be added to a lease nor could the term of the lease be extended. A surrender of a lease or a relinquishment of a licence had been treated like forgiving a debt, which under the FAA requires an Order in Council. However, this disregards the differences between the two. There are many instances in which it is in Her Majesty's interest to surrender a lease or relinquish a licence or to accept a surrender of a lease or a relinquishment of a licence. In summary, the FRPA did away with the need in all cases for Order in Council authority by providing for both Order in Council authority and authority under regulations. 3.3.6 What is fee simple? At common law, an estate in fee simple in a parcel of land is one transferred absolutely to a person and his or her heirs, forever, without any conditions. This is the highest estate in land that can be held by a person in a common law province. The civil law equivalent of a fee simple estate is the concept of "ownership," which is the right of enjoying and disposing of an immovable in the most absolute manner. The only restriction is that no use be made of the immovable that is prohibited by law or regulation. An estate in fee simple is freely transferable by deed, will or otherwise.
All real property transactions must be conducted in an open and fair manner that recognizes the need for the public to be given a reasonable opportunity to acquire property from, and dispose of property to, the government.
Federal real property managers and staff require a concise presentation of the various considerations, ranging from principles and logic to practical advice, that matter greatly for delivering real property services. This guide aims to meet that requirement.
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Sep 30, 2024 · This subpart establishes policies and procedures for the reporting, reutilization, and disposal of contractor inventory excess to contracts and of property that forms the basis of a claim against the Government (e.g., termination inventory under fixed-price contracts).
