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INTEREST IN LAND - Life estates - Rights of life tenant

Friday, March 12, 2021 @ 6:15 AM  


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Appeal by Fownes from a decision dismissing her claim for partition. The parties inherited a joint life interest in a large tract of largely undeveloped land. The survivor was to get the fee simple in it all. The parties applied to determine, as a question of law, whether the appellant could partition the property. The application judge found that the contingent remainder was not amenable to partition. The appellant argued that a proper interpretation of the Partition Act contemplated division of the ownership present in this case. She argued that as a co-tenant of a life interest, she had the standing to seek partition of both the life and remainder interests.

HELD: Appeal dismissed. The parties had a tenancy in common of the life interest. Neither party had a vested estate in the remainder whether in interest or possession. Partition was unavailable in Nova Scotia against an expectancy, which was not an interest in land. The right of survivorship in the will did not create an interest in land until one of the life tenants died. The parties had no vested future interest, only an expectancy. Partition assumed a division of concurrent possessory interests and was not available between consecutive interests which did not share a present interest in need of division. Policy arguments could not transcend the imperative statutory language.

Fownes (Litigation guardian of) v. Ernst, [2021] N.S.J. No. 15, Nova Scotia Court of Appeal, M.J. Wood C.J.N.S. and P. Bryson and C.A. Bourgeois JJ.A., January 14, 2021. Digest No. TLD-March82021009