November 18, 2015
Perhaps now you have big plans to cut down all of the timber on the property. Most people simply assume that they can harvest the timber on their property and either use it themselves or sell it for profit. These people may be surprised to learn that sometimes it is not that simple. Setting aside any discussion of Indian land rights for the moment, Ontario law provides that all lands are initially vested in the Crown. The instrument by which it leaves Crown ownership and first goes into private ownership is called the Crown Patent. The Crown Patent is the starting point for private property ownership in Ontario.
When the Crown issues these Patents, it typically does so with certain restrictions in place. These restrictions are called Crown reservations. A Crown reservation is a clause in the Patent that retains or reserves to the Crown some right or interest in the land described by the Patent. The reservation may vary from one Crown Patent to the next. However, the Crown Patent continues to bind the lands throughout the chain of subsequent private ownership.
A reservation retains only a limited right of use or ownership of the lands to which it applies (such as a reservation of mining rights; a reservation of a right-of-way; a reservation of pine trees or all trees; or a reservation as to access to shore lands.) For example if the Crown has reserved pine trees in the Crown Patent, the owner of the land cannot harvest these trees without both Crown consent and paying a fee commonly known as “stumpage”. This reservation will even bind the owner from harvesting the pine trees even if the owner himself has planted the trees.
Over the years, many Crown reservations have been voided by statute. For example, all timber reservations, made under Crown Patents granted for agricultural purposes, summer resort locations or any Patent dated before April 1, 1869 have been voided by the Public Lands Act. When a reservation is voided by statute the reservation stays on the title of the lands but has no binding authority. Crown Patent restrictions are an encumbrance on title, which may affect the value of the land and the ability to develop it to a varying degree depending on the nature of the restrictions.
WHAT CAN BE DONE?
Even though a Crown restriction may be void by statute both the Crown Patent and records in the Land Registry Office will continue to show these restrictions on title. For this reason, a person with an interest in property may wish confirmation registered on title that the restriction is void. For a fee, the Ministry of Natural Resources will issue a voidance certificate for those provisions that are present in the current Public Lands Act. A copy of the application can be found at any of the Ministry of Natural Resource’s offices. Once the applicant receives his certificate and registers it on title, it will confirm that the Crown reservation in the original Patent does not bind the property.