Guide to the Federal Real Property Act and Federal Real Property Regulation

1. Federal Real Property Act

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repealed the Public Lands Grants Act and amended the Public Works Act, the Financial Administration Act, and the Surplus Crown Assets Act, thereby consolidating the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.

Overview of the Act

Sections 1-3 These sections contain the title of the Act, definitions for wording in the Act, and a power of delegation of authority.

Section 4 This section contains a general prohibition on the powers of disposing of federal real property.

Sections 5-11 These sections contain provisions relating to conveyancing, leasing and licensing federal real property and the execution and legal effect of the instruments used.

Sections 12-14 These sections contain restrictions on the rights that can be acquired on federal real property by means other than Crown grants.

Section 15 This section sets out the role of the Minister of Justice in the federal real property practice and provides for the making of certain regulations.

Section 16 This section contains:

the authorities given to the Governor in Council in relation to federal real property [16(1)];
the subject areas in which regulations can be made [16(2)];
authority for interministerial delegation of authority [16(3)]
the authority given to Treasury Board to establish policy restrictions or limits on real property transactions authorized pursuant to regulations [16(4-5)];
clarification of how rent and licence fees charged for public lands may be calculated [16(6)]; and
authority for acquiring a share in a condo, co-op or similar corporation [16(7)].

Section 17 This section contains special conditions relating to disposing of federal Crown lands in the Yukon or Northwest Territories.

Section 18 This section describes the legal effect of a minister administering federal Crown lands.

Section 19 This section deals with Defence lands.

Section 20 This section deals with the effect of a Crown grant to a deceased person.

Sections 21-22 These sections deal with correcting defective Crown grants and resolving inconsistent transactions.

Sections 23-49 These sections contain the incidental amendments to other Acts necessitated by the provisions of the Federal Real Property Act.

Section 50 This section repeals the Public Lands Grants Act.

Section 51 This section states that the Act would not come into force until a date fixed by Order in Council. (The Act came into force on September 15, 1992.)

Section 1 - Short Title

An Act respecting the acquisition, administration and disposition of real property by the Government of Canada.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

Short Title

1. This act may be cited as the Federal Real Property Act.

Notes

The section gives the short title of the Act as the Federal Real Property Act (FRPA). This is the name that should be used when referring to the Act.

Section 2 - Interpretation and Definitions

"administration"

Interpretation and Definitions

2. In this Act

This subsection provides definitions for words which are used in this Act.

"administration" «gestion»: means administration within the meaning of section 18;

Notes

This defines the word "administration" for the purposes of this Act as having the meaning given in section 18.

Note: "Administration" is difficult to define as it is a state of being, like ownership, rather than an activity. Section 18 doesn't define "administration" per se. The section describes how administration may be obtained and transferred and what a minister's rights are in relation to the property he or she administers.

Related General Questions

3.4.1 What is "administration" of federal real property?

3.4.2 Why was the change made to "administration?"

3.4.3 What is the difference between "administration" and "administration and control?"

3.4.4 What are a minister's main responsibilities in relation to the real property he or she administers?

3.4.5 Did the coming into force of the FRPA affect a minister's administration?

3.4.6 Why are transfers of administration made?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(1)(j): GIC transfers of administration
s. 16(2)(g): regulations on transfers of administration
s. 18: administration

FRPRegs

s. 6: transfers of administration

TBRP

Chapter 1-2: administration

Section 2 - Interpretation and Definitions

"agent corporation" «société mandataire»: means an agent corporation as defined in section 83 of the Financial Administration Act(FAA);

Notes

The definition of "agent corporation" is the same as that in the FAA. Under that Act, an "agent corporation" is a Crown corporation declared by or pursuant to an Act of Parliament, other than the FAA, to be an agent of the Crown. Not all Crown corporations are agent corporations.

Related General Questions

3.7.1 What is the difference between Crown corporations, agent corporations, and departmental corporations?

Source

New. Subsection 83(1) of the FAA defines "agent corporation" as follows:

" "agent corporation" means a Crown corporation that is expressly declared by or pursuant to any other Act of Parliament to be an agent of the Crown."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(1)(j): GIC authorization of transfers of administration
s. 16(1)(l): GIC authorization of grants of property administered by a corporation
s. 16(2)(g): regulations on transfers of administration
s. 18(6): administration by corporation
s. 28: Financial Administration Act, section 99

Section 2 - Interpretation and Definitions

"Crown grant" «concession de l'État»: means any of the instruments referred to in section 5, a plan referred to in section 7, a notification within the meaning of the Territorial Lands Act or any other instrument by which federal real property may be granted;

Notes

"Crown grant" is defined as:

a grant by letters patent under the Great Seal as referred to in paragraph 5(1)(a) of this Act;
an instrument of grant under paragraph 5(1)(b);
a provincial conveyancing instrument under subsection 5(2);
a conveyancing instrument used in a foreign jurisdiction under subsection 5(3);
a lease under subsection 5(4);
a plan used to grant real property under section 7;
a notification under the Territorial Lands Act; and
any other document by which federal real property may be granted.

The definition extended the previous definition of "grant" under the Public Lands Grants Act. The previous definition limited Crown grants to those conveying a fee simple or equivalent estate in real property.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

3.2.2 What is a notification?

Source

Modification of definition of "grant" in section 2 of the Public Lands Grants Act, which read:

" "grant" means letters patent under the Great Seal, a notification and any other instrument by which public lands may be granted in fee simple or for an equivalent estate."

Section 2 - Interpretation and Definitions

"department" «ministère»

means

(a) department named in Schedule I to the Financial Administration Act,

(b) division or branch of the Public Service of Canada named in Schedule I.1 to that Act,

(b.1) commission under the Inquiries Act designated as a department for the purposes of the Financial Administration Act, and

Notes

"Department" is defined as:

any government department listed in the FAA;
any government branch or division named in Schedule I.1 to the FAA;
a commission appointed under the Inquiries Act designated to be a department under the FAA; and
any departmental corporation listed in the FAA.

The FAA definition for "department" clarified that all government bodies considered to be departments under that Act were to be treated equally under the FRPA. This eliminated the question previously raised as to whether a minister could legally administer federal real property on behalf of such government bodies as the National Archives. This definition was amended in 1992 to conform to an amendment made in the FAA definition of "department." Schedule I.1 of the FAA consists of government branches and divisions such as the Public Service Commission and the RCMP.

Related General Questions

3.7.1 What is the difference between Crown corporations, agent corporations, and departmental corporations?

Source

Modification of the definition of "department" contained in section 2 of the FAA which, at the time of passage of the FRPA, read as:

" "department" means

(a) any of the departments named in Schedule I,

(b) any other division or branch of the public service of Canada, including a commission appointed under the Inquiries Act, designated by the Governor in Council as a department for the purposes of this Act,

(c) the staffs of the Senate, the House of Commons and the Library of Parliament, and

(d) any departmental corporation."

Section 2 - Interpretation and Definitions

"federal real property" «immeuble fédéral»: means real property belonging to Her Majesty, and includes any real property of which Her Majesty has the power to dispose;

Notes

"Federal real property" is defined as real property belonging to the Crown. This also includes any real property of which the Crown has the power to dispose. This tracks the previous definition of "public lands." Although there are no apparent examples of lands that do not belong to the Crown but for which the Crown has the power to dispose, it was thought prudent to retain that phrase to preserve the status quo for any such properties that may exist.

Source

Modification of the definition of "public lands" contained in section 2 of the Public Lands Grants Act, which read:

" "public lands" means lands belonging to Her Majesty in right of Canada and includes lands of which the Government of Canada has power to dispose."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "real property"

Section 2 - Interpretation and Definitions

"head of mission" «chef de mission»: "head of mission" in relation to real property in a country outside Canada, means a person described in subsection 13(1) of the Department of External Affairs Act who represents Canada in that country;

Notes

This adopts the definition of "head of mission" used in the Act governing the Department of External Affairs. A "head of mission" is

an ambassador,
a high commissioner,
a Canadian consul-general, or
any other person designated by the Governor in Council as a head of mission.

The FRPA uses "head of mission" to allow ministers to delegate authority to heads of mission in cases of transactions involving real property in foreign countries.

Source

New. Subsection 13(1) of the Department of External Affairs Act read as follows:

" 13. (1) In this section, "head of mission" means

(a) an ambassador, high commissioner or consul-general of Canada; or

(b) any other person appointed to represent Canada in another country or a portion of another country or at an international organization or diplomatic conference and designated head of mission by the Governor in Council."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 3: authorization of officials

Section 2 - Interpretation and Definitions

"Her Majesty" «Sa Majesté»

means Her Majesty in right of Canada;

Notes

"Her Majesty" is defined as the federal Crown.

Source

New.

"interest"
«droits réels»: "interest", in relation to land, means a lease, easement, servitude or any other estate, right, title or interest in or to the land, and includes the rights of a lessee therein;

Notes

"Interest," in relation to land, is defined to take in all interests in real property, including leases and easements. As a lease in civil law is not normally an interest in land, and it was intended that these leases be covered by the definition of "interest" for the purposes of the FRPA, the definition of "interest" specifically includes a reference to the rights of a lessee.

Related General Questions

3.3.1 What are servitudes and easements?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "federal real property"
s. 2(1): definition of "real property"

Section 2 - Interpretation and Definitions

"licence" «permis»: means any right of use or occupation of real property other than an interest in land;

Notes

"Licence" is defined as including all rights relating to the use or occupation of real property that are not covered under the definition of "real property" in this Act. This ensures that the Act applies to any rights of use or occupation of real property which would not be an interest in real property as that term is deferred in the FRPA.

Related General Questions

3.3.2 What is the difference between a lease and a licence?

3.4.7 In the FRPA and the FRPRegs, why was the wording "administrative responsibility" applied to licences rather than "administration?"

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "interest"
s. 2(1): definition of "real property"

Section 2 - Interpretation and Definitions

"Minister" «ministre»: "Minister", in relation to a department, means the Minister who, under the Financial Administration Act, is the appropriate Minister with respect to that department;

Notes

The definition is intended to clarify which minister is responsible for a department, a branch or division of the federal Public Service, or a departmental corporation.

"Minister," in relation to a department, is defined as the appropriate minister within the meaning of the FAA. For the purposes of the FRPA, the appropriate minister is:

for a department listed in the FAA, the minister presiding over the department;
for a branch or division of the federal Public Service listed in Schedule I.1 of the FAA, the minister set out in that schedule;
for a commission under the Inquiries Act or for a departmental corporation listed in the FAA, the minister designated by the Governor in Council as the appropriate minister.

Source

New. The definition of "appropriate minister" in section 2 of the FAA read at the time of the passage of the FRPA as follows:

" "appropriate Minister" means,

(a) with respect to a department mentioned in paragraph (a) of the definition "department", the Minister presiding over the department,

(b) with respect to any other department, the Minister designated by the Governor in Council as the appropriate Minister,"

The departments mentioned in paragraph (a) of the definition of "department" in section 2 of the FAA were:

"any of the departments named in Schedule I," [which are all of the standard federal departments, such as National Defence, Transport, etc.].

The FAA definition has subsequently been amended.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "department"

Section 2 - Interpretation and Definitions

"real property" «immeubles»: means land whether within or outside Canada, including mines and minerals, and buildings, structures, improvements and other fixtures on, above or below the surface of the land, and includes an interest therein.

Notes

"Real property" is defined as land, mines, minerals, buildings, and fixtures on, above or below the surface, and any interest therein, both in Canada and abroad. The definition includes both legal interests in land, such as estates, and physical interests in land, such as mines and minerals.

Source

Modification of definition of "land" in section 2 of the Public Lands Grants Act, which read:

" "land" includes mines, minerals, easements, servitudes and all other interests in real property."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "federal real property"
s. 2(1): definition of "interest"

Section 3 - Delegation and Authorization

Delegation and Authorization

Authorization of officials

3. Any Minister may authorize in writing an officer of the Minister's department or of any other department, or any head of mission, to exercise on behalf of that Minister any power given by or under this Act to that Minister, including the power to sign an instrument.

Notes

This section provides for departmental and interdepartmental delegation of ministerial powers, functions and authority under the FRPA. It states that any power, function or authority, including the right to sign any document, given under this Act to a minister, may be delegated to an officer in the same or a different department or to a head of mission. There must be written authorization from the minister for the delegation to be effective. This followed the existing practice.

This section, and subsection 16(3), were intended to allow for managerial flexibility in applying the Act and its Regulations. These sections were inserted to clarify authority for the common practice of delegation within or between departments. They were also felt to be needed because the FRPA repealed the authority for the Minister of Public Works to dispose of real property declared surplus under the Surplus Crown Assets Act. The policy intention behind this section, and subsection 16(3), was to make it at least as easy, if not easier, to delegate powers to an agent, usually PWGSC, as it was prior to the FRPA.

During the drafting of the FRPA, there was some discussion on combining section 3 and subsection 16(3), as they both dealt with delegation of authority. This was not done because:

subsection 16(3) had to stay in section 16 because it specifically refers to transactions under that section; and
it was felt important for "optics" to have a delegation provision at the front of the Act.

Related General Questions

1. Why should there be authority for interdepartmental delegation of authority?

Source

New, based in principle on an extension of section 6 of the Public Lands Grants Act, which pertained solely to leases and read:

" 6. All leases of public lands issued by special authority of the Governor in Council or pursuant to any regulation of the Governor in Council may be executed on behalf of Her Majesty by the Minister having the management, charge and direction of those lands or by some person thereunto authorized by the Minister."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "head of mission"
s. 16(3): delegation between Ministers

Section 4 - Dispositions and Licences

Dispositions and Licences

Prohibition

4. Subject to any other Act, no sale, lease or other disposition of federal real property shall be made and no licence shall be given in respect of federal real property except in accordance with this Act.

Notes

Section 4 restricts the powers of persons to dispose of federal real property to those powers conferred by this Act or another Act of Parliament.

This section clarified that the FRPA was intended to be the generic residual authority for real property dispositions by the government. Although it was also intended that the FRPA be the generic residual authority for acquisitions, they were not specifically included in section 4. This omission was intentional, and based on two reasons:

the predecessor section in the Public Lands Grants Act did not address acquisitions; and
it was thought prudent not to create new grounds for declaring a federal acquisition invalid.

A reference in the predecessor section to Governor in Council authorization was omitted. This was done because subsection 16(1) of the FRPA provides authority for GIC authorized transactions. The only real change with the FRPA was that GIC transactions would have to be carried out on the recommendation of the Treasury Board. Previously, any minister could recommend GIC transactions. This change was made to confirm the Treasury Board's central role in managing government real property transactions. Of course, another federal Act may override this. Various other Acts do not require the Treasury Board's recommendation in relation to specified disposals of real property.

Related General Questions

3.1.2 Does the FRPA affect the federal Crown rights of acquisition and disposition under other Acts of Parliament, such as the National Parks Act, etc.?

3.1.3 How does this Act affect Indian lands?

Source

Section 4 is a modification of section 61 of the FAA, which read:

" 61. Subject to any other Act of Parliament, no transfer, lease or loan of public property shall be made by any person except on the direction of the Governor in Council or in accordance with regulations of the Governor in Council made on the recommendation of the Treasury Board."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(1): authorities for acquisition and disposition of real property
s. 16(2): regulations on acquisition and disposition of real property
s. 27: amendment of section 61 of the FAA

Section 5 - Grants of Federal Real Property

Subsection 1 - Letters Patent and Instruments of Grant

5. (1) Federal real property may be granted

(a) by letters patent under the Great Seal; or

(b) by an instrument of grant, in a form satisfactory to the Minister of Justice, stating that it has the same force and effect as if it were letters patent.

Notes

This subsection describes some of the instruments that may be used to grant federal real property. Paragraph 5(1)(a) states that under the FRPA letters patent can still be used in all cases to grant federal real property.

Paragraph 5(1)(b) provides for a new document, an "instrument of grant," which may be used instead of letters patent to grant federal real property. The "instrument of grant" is an alternative instrument which has the legal effect of letters patent and may be used to grant real property or any interest therein but does not have the complex processes and time delays associated with letters patent.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

3.2.3 What are letters patent under the Great Seal?

3.2.4 How are letters patent issued?

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?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "Crown grant"
s. 5(5): signature of Minister
s. 5(6): countersignature of Minister of Justice
s. 5(7): effect of instrument of grant
s. 16(1)(a): authority for dispositions of federal real property
s. 16(1)(h): authority for grants to Crown corporations
s. 16(1)(i): authority for grants to Her Majesty
s. 16(2)(a): regulations on dispositions of federal real property

Section 5 - Grants of Federal Real Property

Subsection 2 - Provincial Instruments

Instruments under provincial law

5. (2) Federal real property within Canada may, at the discretion of the Minister of Justice, be granted by any instrument by which, under the laws in force in the province in which the property is situated, real property may be transferred by a private person.

Notes

Subsection 5(2) was intended to further modernize and simplify federal Crown conveyancing. The subsection allows for an alternative way to grant federal Crown lands based on current instruments used in the private sector. Under this subsection, conveyancing instruments that can be used by private persons under provincial laws are permitted to be used for federal Crown grants. (Examples of such instruments include deeds, commercial leases or leases drawn in accordance with a provincial Short Form of Leases Act.) The use of provincial instruments would likely result in adopting provincial law, as that law would govern the instruments and their effect. Therefore, to protect the legal interests of the federal government, the use of such instruments is permitted only at the discretion of the Minister of Justice.

It was thought at the time of designing the FRPA that the s. 5(2) provincial instruments would be used most frequently, with the s. 5(1)(b) instruments of grant being the fall-back instrument, and letters patent being used as a last resort. Since the FRPA came into force the practice appears to be following that pattern.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "Crown grant"
s. 5(2): leases
s. 5(5): signature of Minister
s. 5(6): countersignature of Minister of Justice
s. 16(1)(a): authority for dispositions of federal real property
s. 16(1)(h): authority for grants to Crown corporations
s. 16(1)(i): authority for grants to Her Majesty
s. 16(2)(a): regulations on dispositions of federal real property

Section 5 - Grants of Federal Real Property

Subsection 3 - Foreign Instruments

Instruments under foreign law

5. (3) Federal real property in a jurisdiction outside Canada may be granted by any instrument by which, under the laws in force in that jurisdiction, real property may be transferred.

Notes

Subsection 5(3) allows federal real property in foreign jurisdictions to be granted through the use of instruments ordinarily used to transfer real property under the laws in force in those jurisdictions. This subsection recognizes that there are different practices used in foreign real property transactions.

This subsection was intended to resolve a legal complication in federal real property conveyancing. 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 acquiring and disposing of land but the local (foreign) law vary as to the extent to which the Canadian federal Crown is subject to these laws. Prior to the FRPA, there were 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 will affect the form and content of the letters patent. Subsection 5(3) 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. It should be noted that a head of mission may be delegated authority for transactions abroad.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

3.2.8 Why isn't the approval of the Minister of Justice required for Crown grants using foreign instruments?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "Crown grant"
s. 5(5): signature of Minister
s. 16(1)(a): authority for dispositions of federal real property
s. 16(1)(h): authority for grants to Crown corporations
s. 16(1)(i): authority for grants to Her Majesty
s. 16(2)(a): regulations on dispositions of federal real property

Section 5 - Grants of Federal Real Property

Subsection 4 - Leases

Leases

5. (4) A leasehold estate in federal real property within Canada may also be granted by a lease that is not an instrument referred to in subsection (1), whether or not it is an instrument by which real property in a province may be transferred by a private person.

Notes

This subsection allows leases of federal real property to be in a form other than that used for leases in the province where the property is located. This allows for the possibility of having one or more lease forms to be used in various provinces to convey leasehold interests in federal real property. It also allows leases to be tailor-made for federal property, regardless of provincial usages.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "Crown grant"
s. 2(1): definition of "interest"
s. 5(2): provincial instruments
s. 5(5): signature of Minister
s. 16(1)(a): authority for dispositions of federal real property
s. 16(1)(h): authority for grants to Crown corporations
s. 16(1)(i): authority for grants to Her Majesty
s. 16(2)(a): regulations on disposition of federal real property

Section 5 - Grants of Federal Real Property

Subsections 5 and 6 - Signing of Instruments

Execution of instruments

5. (5) An instrument referred to in this section granting federal real property, other than letters patent, shall be signed by the Minister having the administration of the property.

Idem

(6) An instrument referred to in paragraph (1)(b), or an instrument referred to in subsection (2) other than an instrument granting a leasehold estate, shall be countersigned by the Minister of Justice.

Notes

Subsection 5(5) states that the minister administering federal real property shall sign any instrument, other than letters patent, used to grant such property. This, (in addition to the restriction in section 99(6) of the FAA), confirms the inability of Crown corporations to use FRPA instruments to grant lands they administer, because there is no minister that administers the property.

Subsection 5(6) provides that the Minister of Justice shall countersign

all instruments of grant of federal real property within or outside of Canada, and
all provincial instruments used to grant federal real property within Canada.

This extended the pre-FRPA practice relating to letters patent to the new Crown grants allowed under the FRPA.

Leases do not have to be countersigned by the Minister of Justice.

Does subsection 5(5) give an administering minister the right to dispose? No. Subsection 5(5) only describes who must sign the instruments used for disposals, including leases, of federal real property. The right of a minister to dispose of federal real property must come from another statutory basis, such as subsections 16(1) or (2) of this Act, (e.g., section 4 of the FRPRegs) another statute, or the authority of the Governor in Council.

Related General Questions

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?

Source

Subsection 5(5) is a modification of section 6 of the Public Lands Grants Act, which read:

Subsection 5(6) is new.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 3: authorization of officials
s. 16(1)(a): authority for dispositions of federal real property
s. 16(1)(h): authority for grants to Crown corporations
s. 16(1)(i): authority for grants to Her Majesty
s. 16(2)(a): regulations on disposition of federal real property
s. 16(3): exercise of powers

Section 5 - Grants of Federal Real Property

Subsection 7 - Effect of Instruments of Grant

5. (7) An instrument referred to in paragraph (1)(b) has the same force and effect as if the instrument were letters patent under the Great Seal.

Notes

This subsection clarifies that there is no difference in the legal effect of a grant made by an "instrument of grant" and a grant made by letters patent. Under this Act both are equally effective in transferring federal real property.

This section was intended to assure purchasers that the "instrument of grant" was not inferior to or did not grant a lesser title than letters patent.

The need to have this section to assure purchasers was also one of the reasons it was necessary to preserve letters patent. If letters patent had been eliminated by the FRPA, then a section stating that "instruments of grant" had the same legal effect as letters patent would be meaningless, because letters patent would have ceased to have legal effect.

Source

New.

Section 6 - Execution of Licences

Execution of licences

6. A licence in respect of federal real property shall be signed by the Minister having the administration of the property.

Notes

Section 6 states that a licence must be signed by the minister administering the property. This parallels the signing requirement for leases.

Source

New. Extension of section 6 of the Public Lands Grants Act, which read:

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 3: authorization of officials
s. 16(1)(c): authority for licences of federal real property
s. 16(2)(c): regulations on licences of federal real property
s. 16(3): exercise of powers

Section 7 - Plans

7. (1) Where under the laws of Canada or a province a plan may operate as an instrument granting, dedicating, transferring or conveying real property for a road, utility, park or other public purpose, the use of such a plan in relation to any federal real property may be authorized by the same authority that may authorize the grant, dedication, transfer or conveyance of that property.

Execution

(2) Any plan referred to in subsection (1) relating to any federal real property shall be signed by the minister having the administration of the property and countersigned by the Minister of Justice.

Notes

Subsection 7(1) gives the federal Crown the right to use plans to grant, dedicate, or convey federal real property for highway, utility, park or other purposes where this use of plans is permitted under federal or provincial law.

Under subsection 7(2) the plan must be signed by the minister administering the real property and countersigned by the Minister of Justice.

Section 7 was intended to allow for greater flexibility and convenience in federal conveyancing. Because federal Crown lands are not subject to most provincial laws, prior to the FRPA the federal Crown could not use plans to grant, dedicate, or convey federal real property for highway, utility or park purposes even in those provinces whose legislation enabled plans to be used for this purpose. Section 7 gives the federal Crown the ability to use plans in this manner where allowed by federal or provincial law.

Related General Questions

3.2.1 What kinds of documents can be used to issue Crown grants of federal lands under the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "Crown grant"

Section 8 - Delivery

Delivery required

8. (1) Subject to a contrary intention expressed in any instrument, the rule of law that a grant of federal real property by letters patent requires no delivery to take effect is hereby abrogated.

Time of taking

effect

(2) Every grant of federal real property by letters patent or by an instrument referred to in paragraph 5(1)(b) shall take effect in accordance with the provisions thereof or, if there is no provision for its taking effect, shall take effect,

(a) where the letters patent are or the instrument is delivered on terms or subject to conditions, on their satisfaction or removal; and

(b) in any other case, on delivery of the letters patent or the instrument.

Notes

Subsection 8(1) abolishes, in general, the rule of law that a grant by letters patent of federal real property conveys the real property regardless of whether the grant instrument is ever delivered to the person being granted that property. Subsection 8(1) can be overridden by express language in the actual instrument used for the Crown grant.

Subsection 8(2) states the new general rule for the time at which federal real property is conveyed by a grant by letters patent or instrument of grant, which is:

that point in time as set out in the terms of the instrument; or
if there are no terms in the instrument on the effective time of the conveyance,

upon the satisfaction or removal of any terms or conditions of delivery specified in the instrument; and
upon delivery if there are no terms or conditions of delivery specified in the instrument.

Section 8 brings Crown grants by letters patent in line with private sector conveyancing documents. This makes letters patent more amenable to efficient and convenient conveyancing practices. In the private sector, conveyancing documentation is often signed and sealed many days or weeks prior to completing the transaction. Title does not pass until the document is "delivered" when the transaction closes.

Unlike private sector deeds and transfers, letters patent prior to the FRPA were effective once they were signed and sealed. In other words, title passed as soon as the letters patent were completed. Because letters patent were effective once they were issued and did not require delivery, the Crown required full payment of the purchase price prior to issuing letters patent. Because of the length of time it took prior to the coming into force of FRPA to obtain letters patent, this prepayment requirement could have created a hardship for the purchaser, particularly individuals who may have had to arrange interim financing before receiving the letters patent.

Section 8 - Delivery

Section 8, therefore, changed the law so that a Crown grant by letters patent becomes effective on delivery rather than on its execution, unless the grant indicates otherwise. However, the section has no effect on the time required to issue letters patent.

In subsection 8(2) why is it stated that the grant shall take effect in accordance with the terms of the granting instrument? This was inserted to accommodate dispositions in the Province of Quebec or in special circumstances. In Quebec, under the Civil Code there is no legal concept of "delivery" in relation to conveyances. Therefore, to make the grant only effective upon delivery would be a legal impossibility in Quebec.

Under the FRPA, is it necessary to prove that the Crown grant has been delivered for it to take effect? Under the FRPA, a Crown grant by letters patent or instrument of grant, like any deed to real property, must be delivered before it is effective. (Note that this rule does not apply if a contrary intention is found in the document). Delivery usually entails a transfer of possession of the deed from the person conveying the land to the person receiving it. However, the person conveying the lands can state that the deed is binding to constitute delivery. Disputes over delivery of deeds in the private sector are rare, and should be even rarer in conveyances by letters patent.

Source

New.

Section 9 - Words of Limitation

9. Where under the laws of a province an instrument transferring real property without words of limitation operates as an absolute transfer of all the transferor's interest in the real property, a grant of federal real property in that province by letters patent or by an instrument referred to in paragraph 5(1)(b) operates as a conveyance of a fee simple or equivalent estate in the property although no words of limitation are used in the instrument, if Her Majesty has power to grant such an estate in the property and no contrary intention is expressed in the instrument.

Notes

Section 9 permits a grant of federal real property by letters patent or instrument of grant to operate as an absolute conveyance (fee simple or equivalent) of all of the Crown's interest in the property even when this is not specifically stated in the conveyancing instrument.

Section 9 is only operative when:

the laws of the province in which the Crown lands are located provide that words of limitation are not required in instruments conveying lands in the province;
Her Majesty has the power to grant a fee simple or equivalent estate in the property; and
the Crown grant by letters patent or instrument of grant does not express an intention to convey a lesser interest in the property.

This is essentially unchanged from previous legislation.

Section 9 clarifies what is being conveyed in a grant of federal real property by letters patent or instrument of grant. It permits such a grant of federal real property to operate as an absolute conveyance of all of the Crown's interest in the property even when this is not specifically stated in the conveyancing instrument. It also clarifies that such a Crown grant can be a "fee simple" conveyance. Without section 9, specific words called "words of limitation" would have to be inserted in each such federal Crown grant to convey all the Crown's interest in the real property (fee simple).

Related General Questions

3.2.10 What are "words of limitation?"

Source

Modification of section 3 of the Public Lands Grants Act, which read:

" 3. Where under the laws of a province an instrument transferring land without words of limitation operates as an absolute transfer of all such right and title as the transferor has therein, a grant of public lands in that province, if Her Majesty has power to convey such an estate therein, and if no contrary or different intention is expressed in the grant, operates as a conveyance of an estate in fee simple or an equivalent estate in those lands, although no words of limitation are used in the grant."

Section 10 - Grants to Her Majesty

10. Her Majesty may grant federal real property to Herself.

Notes

Section 10 allows the federal Crown to grant federal real property to itself. Such grants must be authorized by the Governor in Council pursuant to paragraph 16(1)(i) of the FRPA.

Related General Questions

3.2.11 Why would the federal government want the right to be able to grant real property to itself?

Source

New.

Related Sections in FRPA, FRPRegs and TBRP

FRPA

s. 16(1)(i): authority for grants to Her Majesty

Section 11 - Administration and Control

Transfers of administration and control

11. (1) An instrument transferring administration and control of federal real property to Her Majesty in any right other than Canada pursuant to regulations made under paragraph 16(2)(e) shall be signed by the Minister having the administration of the property and countersigned by the Minister of Justice.

Idem

(2) A grant, vesting order or other conveyancing instrument in favour of Her Majesty in respect of any real property belonging to Her Majesty in any right other than Canada results, on its acceptance, in Her Majesty having administration and control of the property.

Notes

Subsection 11(1) states that a transfer of administration and control of federal real property from the federal government to

a provincial government, or
a foreign country in which Her Majesty holds the title to land

made under the regulations to this Act must be signed by the minister administering the real property and countersigned by the Minister of Justice. Thus it is treated, for signing purposes, like most dispositions under the FRPA.

Subsection 11(2) provides that a grant, transfer, or vesting order from a province, once accepted, results in a transfer of administration and control from the provincial to the federal Crown. This also applies to transfers from Her Majesty in right of any other Commonwealth country. This subsection was intended to clarify and confirm what is being transferred.

Related General Questions

3.4.3 What is the difference between "administration" and "administration and control?"

3.5.1 How did the FRPA affect transfers of administration and control between the federal and provincial Crowns?

3.5.2 Why must transfers of administration and control be satisfactory to and be countersigned by the Minister of Justice?

3.5.3 How and under what authority did the federal government accept transfers of administration and control prior to the FRPA?

3.5.4 What is a vesting order?

Source

New.

Section 11 - Administration and Control

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(1)(e): authority for transfers of administration and control from the federal government
s. 16(1)(f): authority for accepting transfers of administration and control to the federal government
s. 16(2)(e): regulations on transfers of administration and control from the federal government
s. 16(2)(f): regulations on for accepting transfers of administration and control to the federal government

FRPRegs

s. 5: ministerial authority for transfers and accepting transfers of administration and control

Section 12 - Restrictive Covenants

12. A person who holds a lease of any real property from Her Majesty or an interest derived from such a lease, or who has a right to use or occupy any federal real property, may not, without the consent of the Governor in Council, grant or agree to any covenant restricting or controlling the use of the property except in favour of

(a) Her Majesty;

(b) any person through whom that interest or right was derived; or

(c) in the case of a person holding such a lease or interest, any subtenant or licensee of that person.

Notes

Section 12 prohibits a tenant or other person using or occupying federal real property from placing any restrictions on the use of the real property through, for example, restrictive covenants, without Governor in Council approval.

This provision is intended to deter, for example, a person who is leasing federal real property from attempting to restrict the use of the property in a way inconsistent with the lease from the Crown.

The section does allow the tenant or licensee to give such a covenant to:

the Crown, as in the case where the tenant agreed in the lease to use the property only for a specific purpose;
the person who sublet the property to the tenant or licensee, as in the case where a tenant of the Crown leased part of the property to a subtenant and that subtenant agrees with the tenant to use that part of the property only for a specific purpose; and
a subtenant or licensee of the tenant, as in shopping centre leases, where a tenant may agree with a subtenant not to sublet any other space in the centre to a person carrying on the same type of business as the subtenant.

Section 12 provides additional protection for federal interests when federal real property is leased to tenants. An individual or a corporate entity could possibly attempt to control federal real property by obtaining a restrictive covenant from a tenant of the federal Crown. Such a covenant could be in conflict with the purposes and provisions of the original lease from the government. This situation has arisen in the past and the removal of the covenant by the government was complex and time-consuming. This section prohibits giving such a restrictive covenant without Governor in Council approval to prevent further occurrences of this situation.

Source

New.

Section 13 - Acquisition under Provincial Act

13. Except as expressly authorized by or under an Act of Parliament, no person acquires any federal real property by virtue of a provincial Act.

Notes

Section 13 restricts the rights to acquire or take federal real property to those authorized by federal law. This ensures that no one can acquire federal property solely on the basis of any provincial legislation.

This reflects the constitutional legal position that the right to dispose of federal real property is a matter within the exclusive legal jurisdiction of the federal government.

Section 13 clarifies that provincial laws do not govern federal real property. It ensures that a person cannot acquire federal real property on the basis of any provincial legislation, unless specifically authorized by Parliament.

For example, section 13 was intended to protect the government's interests in superficies agreements on federal real property in Quebec. Under section 1116 of Quebec's new Civil Code, the equivalent of the right of private expropriation by a superficiary who has been permitted to construct on property and by another person applies if certain conditions are met. Section 13 forestalls the argument that a superficiary of federal real property in Quebec could have a right to acquire ownership of that property under the provisions of the Civil Code. Federal law should govern the acquiring and disposing of federal real property.

Is this an attempt by the federal government to limit the powers of a province to determine the rights of its citizens vis-à-vis real property? No. Section 13 only deals with federal real property and has nothing to do with provincially or privately held property in the provinces.

Source

New.

Section 14 - No Title by Prescription

14. No person acquires any federal real property by prescription.

Notes

Section 14 states that adverse possession, or "squatters' rights," does not apply to federal real property. This provision is essentially unchanged from the previous legislation.

This section was first enacted in 1950 to bring federal real property in line with provincial real property in several provinces, where title by prescription had been abolished under provincial land titles legislation. There are also other reasons why the section is beneficial. As a matter of policy, federal real property is to be used for the benefit of the people of Canada. Therefore, one person should not be able to gain an interest in federal real property at the expense of all other Canadians without the Crown's knowledge and approval. Also, as a practical matter, the nature of much federal real property would make policing of "squatters" both impractical and expensive.

Title by prescription on federal real property may still be possible if the chain of possession started on or before June 1, 1890 and the prescriptive title was acquired before June 1, 1950. This is because before enacting this section in 1950, a person needed a 60-year period of adverse possession to obtain title by adverse possession against the federal Crown.

Source

Modification of section 5 of the Public Lands Grants Act, which read:

" 5. No right, title or interest in or to public lands is acquired by any person by prescription."

Section 15 - Minister of Justice

Subsection 1 - Powers of Minister

Powers of Minister of Justice

15. (1) The Minister of Justice may, for purposes of the acquisition or disposition of, or any dealing with, any real property, on behalf of Her Majesty,

(a) determine the type of instrument to be used therefor and settle and approve the form and legal content of any Crown grant or other instrument;

(b) effect the delivery of any instrument, including the delivery of an instrument on terms or subject to conditions satisfactory to the Minister of Justice, whether or not the satisfaction or removal of the terms or conditions will result in the delivery becoming absolute;

(c) give and accept such solicitors' undertakings as are in the opinion of the Minister of Justice necessary for or incidental to the completion of a real property transaction, including solicitors' undertakings respecting the delivery of any instrument and the payment of any purchase price or other moneys.

Notes

Subsection 15(1) sets out the authority of the Minister of Justice to act as solicitor in federal Crown real property transactions. This authority includes the authority to:

determine the type of instrument to be used in a government real property transaction;
settle (i.e., finalize) and approve the form and legal content of federal Crown grants and other instruments;
make "delivery" of documents; and
give and accept undertakings relating to completing a real property transaction.

Section 15 was intended to clarify the role of the Minister of Justice in federal real property. Under the legislation and regulations prior to the FRPA, the Minister of Justice had an inconsistent role in real property management. Justice was greatly involved in certain types of transactions, such as grants by letters patent, and less involved in other transactions, such as leases. This situation needed to be changed, especially since complex types of real property transactions involving long-term leases require greater Justice involvement. The FRPA reconciled these inconsistencies.

Why was it necessary to provide the Minister of Justice with the powers referred to in subsection 15(1) of the FRPA? Subsection 15(1) clarified the authority of Justice solicitors to deliver documents on terms or subject to conditions and to give and accept undertakings. Private sector lawyers routinely exercise these powers on behalf of their clients in real property transactions.

Section 15 - Minister of Justice

Subsection 1 - Powers of Minister

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 5(1)(b): instruments of grant
s. 5(3): provincial instruments
s. 5(6): countersignature of grants
s. 7(2): countersignature of plans
s. 11(1): countersignature of transfers of administration and control
s. 15(2): regulations
s. 21: correction of defective grants

FRPRegs

s. 9(3) setting and approving the form and legal content of a Crown grant

Section 15 - Minister of Justice

Subsection 2 - Regulations

(2) The Governor in Council may, on the recommendation of the Minister of Justice and the Treasury Board, make regulations respecting

(a) the referral of specified classes of transactions concerning real property within or outside Canada to the Minister of Justice for settlement and approval of the form and legal content of instruments or for other purposes; and

(b) the establishment and operation of a depository for the deposit of copies of instruments relating to federal real property other than instruments issued under the Great Seal.

Notes

Subsection 15(2) provides the authority for regulations to be made concerning:

identifying classes of federal real property transactions for which the documents must be approved by the Minister of Justice; and
establishing and operating a depository of federal Crown grants and conveyances.

These regulations are contained in sections 9 and 11, respectively, of the FRPRegs.

Related General Questions

3.6.1 What kinds of transactions are referred to the Minister of Justice?

3.6.2 Is the document depository necessary?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPRegs

s. 9: referral of dispositions to the Minister of Justice
s. 11: document depository

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

16. (1) Notwithstanding any regulations made under subsection (2), the Governor in Council may, on the recommendation of the Treasury Board, in accordance with such terms and subject to such conditions and restrictions as the Governor in Council considers advisable,

Notes

This subsection provides the authorities for grants, acquisitions, governmental transfers and other authorities. The Treasury Board recommends authorizations that are subject to any terms and conditions imposed by the Governor in Council. The subsection 16(1) authorities are independent of any authorities given through regulations under subsection 16(2).

The authorities given under the subsection relate to:

(a) disposing and leasing federal real property;

(b) acquiring and leasing real property;

(d) surrendering leases and relinquishing licences;

(e)(f) transfering administration and control to and from provinces and other governments;

(g) transfering administration;

(h) granting federal real property to a corporation already administering the property;

(i) granting federal real property to the federal Crown;

(j) dedicating federal real property for roads, etc.; and

(k) taking and discharging mortgages and other security.

Subsection 16(1) provides the authorities exercisable by the Governor in Council in relation to acquiring and disposing of real property. This allows the Governor in Council to approve real property transactions by Order in Council. The subsection 16(1) authorities are independent of any authorities given through regulations under subsection 16(2).

"Notwithstanding any regulations made under subsection (2)" was included to ensure that the GIC could authorize a transaction that is not or could not be authorized under the FRPRegs. Without this "notwithstanding" clause, it could be argued that any regulations made under 16(2) would occupy its field for transactions covered, and effectively remove the right of the Governor in Council to directly authorize them under s. 16(1). This would have in practice eliminated the intention of subsections 16(1) and (2), which was to have two parallel and alternative means of conducting transactions - ministerally conducted under 16(2) and GIC conducted under 16(1).

Policy Requirement 3 of Chapter 1-12 of the Real Property Volume of the Treasury Board Manual sets out restrictions placed on Treasury Board recommendations of transactions under subsection 16(1). The Treasury Board will grant recommendations:

if the transactions would have been possible under the FRPRegs, but a minister feels that the Governor in Council's authorization is more appropriate; or
if the transactions are not covered by the FRPRegs, such as a sale where the government takes back a mortgage for part of the purchase price.

Why should these authorities be exercised on the recommendation of the Treasury Board? To ensure that the government manages real property transactions consistently and efficiently. Eliminating the previous split responsibility between the Governor in Council and the Treasury Board in regulating and approving real property transactions is intended to help do this.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2): regulations

TBRP

chap. 1-12: GIC transactions under s. 16(1) of the FRPA

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(a) - Disposition of Federal Real Property

(a) authorize the sale, lease or other disposition of any federal real property for which sale, lease or disposition there is no provision in or under any other Act;

Notes

This paragraph provides general residual authority for the sale, lease or other disposition of federal real property.

Related General Questions

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 they can be sold or transferred?

3.1.5 What protection is there to ensure that real property required for public purposes is not disposed of?

3.1.6 Did the FRPA change the procedures for disposing of surplus lands?

3.1.7 How did the requirement limiting the disposal of federal real property to that "not required for public purposes" create difficulties in lease-leaseback agreements?

Source

Modification of paragraph 4(1)(a) of the Public Lands Grants Act, which read:

" 4. (1) The Governor in Council may

(a) authorize the sale, lease or other disposition of any public lands that are not required for public purposes and for the sale, lease or other disposition of which there is no other provision in the law"

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 4: prohibition on dispositions of federal real property
s. 16(2)(a): regulations on the disposition of real property

FRPRegs

s. 4(1): authority for ministerial dispositions

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(b) - Acquisition of Real Property

(b) authorize the purchase, lease or other acquisition of any real property on behalf of Her Majesty;

Notes

This paragraph provides general authority for purchasing, leasing or acquiring real property.

Related General Questions

3.1.8 Why was the authorization to acquire and dispose of property placed in the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2)(b): regulations on acquisitions

FRPRegs

s. 4(1): authority for ministerial acquisitions

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(c) - Licences

(c) authorize the giving or acquisition on behalf of Her Majesty of any licence or the transfer between Ministers of administrative responsibility in relation to any licence acquired by Her Majesty;

Notes

This paragraph provides authority for:

giving licences with respect to federal real property;
acquiring licences relating to non-federal real property; and
transfering administrative responsibility for a licence from one minister to another.

Related General Questions

3.3.2 What is the difference between a lease and a licence?

3.4.7 Why was the wording "administrative responsibility" applied to licences rather than "administration" in the FRPA and the FRPRegs?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2)(c): regulations on licences

FRPRegs

s. 4(2): authority for ministerial actions relating to licences

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(d) - Surrenders of Leases and Relinquishments of Licences

(d) authorize, on behalf of Her Majesty, a surrender of any lease of which Her Majesty is the tenant or the relinquishment of any licence of which Her Majesty is the licensee, or the acceptance of the surrender of any lease of which Her Majesty is the landlord or the acceptance of the relinquishment of any licence of which Her Majesty is the licensor;

Notes

This paragraph authorizes the federal Crown to surrender leases or relinquish licences where the federal Crown is a tenant or licensee, respectively.

This paragraph also authorizes the acceptance of surrenders of leases and relinquishments of licences of federal real property.

Related General Questions

3.3.3 What is a surrender of a lease?

3.3.4 What is a relinquishment of a licence?

3.3.5 What did the FRPA change in the governmental processes relating to surrenders of leases and relinquishments of licences?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2: definition of licence
s. 16(2)(d): regulations on surrenders of leases and relinquishments of licences

FRPRegs

s. 2: definition of "acquisition"
- definition of "disposition"
4(2): authority for ministerial actions relating to licences

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(e) - Transfers of Administration and Control to Other Governments

(e) transfer to Her Majesty in any right other than Canada administration and control of the entire or any lesser interest of Her Majesty in any federal real property, either in perpetuity or for any lesser term;

Notes

This paragraph provides authority for the Governor in Council to transfer the administration and control of federal real property to a province. The transfer can also be made to another British Commonwealth country.

Please note that only transfers to provinces are authorized under the FRPRegs. Transfers to another British Commonwealth country would have to be done with Governor in Council authority under subsection 16(1).

What would be a transfer of a "lesser interest?" The words "lesser interest" in this paragraph relate to an interest less than the entire interest of the federal Crown in the property. An example of a transfer of a lesser interest in federal Crown property (to which the federal Crown has clear and absolute title) would be granting an easement over the lands to a province.

Related General Questions

3.4.3 What is the difference between "administration" and "administration and control"?

3.5.1 How did the FRPA affect transfers of administration and control between the federal and provincial Crowns?

Source

Modification of Subsection 4(2) of the Public Lands Grants Act, which read:

" 4. (2) The Governor in Council may by order transfer to Her Majesty in any right other than Canada the administration and control of the entire or any lesser interest of Her Majesty in right of Canada in any public lands not required for public purposes, either forever or for any lesser term, and subject to any conditions, restrictions or limitations that the Governor in Council considers advisable"

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2)(e): regulations on transfers of administration and control to other governments

FRPRegs

s. 5(1): authority for ministerial transfers of administration and control to provinces

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(f) - Transfers of Administration and Control from Other Governments

(f) accept, on behalf of Her Majesty, the transfer of administration and control of real property from Her Majesty in any right other than Canada, including any such transfer made by grant, vesting order or other conveyancing instrument;

Notes

This paragraph provides the statutory authority for the federal government to accept transfers of administration and control of provincial Crown property, which had prior to the FRPA been accepted through the Royal Prerogative. This authority includes any transfers made by a grant, vesting order or other conveyancing instrument.

The paragraph could also apply to accepting transfers of administration and control from other Commonwealth countries. Only acceptances of transfers from provinces are allowed under the FRPRegs. Acceptances of transfers from another British Commonwealth country would have to be done with Governor in Council authority under subsection 16(1).

This paragraph allows the federal Crown to accept a transfer of provincial Crown property regardless of the instrument by which the province desires to transfer the property. If the transfer is accepted by the federal Crown, it amounts to a transfer of administration and control of real property. The paragraph removes any question of whether the federal Crown's right to accept a transfer of provincial Crown property is limited to certain types of instruments used for the transfer.

Related General Questions

3.5.3 How and under what authority did the federal government accept transfers of administration and control prior to the FRPA?

3.5.4 What is a vesting order?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2)(f): regulations on the acceptances of transfers of administration and control from other governments

FRPRegs

s. 5(2): authority for ministerial acceptances of transfers of administration and control from provinces

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(g) - Transfers of Administration

(g) notwithstanding any other Act, transfer the administration of any federal real property from one Minister to another, from a Minister to an agent corporation or from an agent corporation to a Minister;

Notes

This paragraph provides the authority to transfer the administration of any federal real property to a minister or an agent corporation.

Any such transfer may be made notwithstanding the provisions of any other Act of Parliament. This "notwithstanding" clause was inserted to clarify that transfers of administration may be made pursuant to the FRPA to and from any department or agent corporation. Many statutes relating to departments or agent corporations do not specifically mention the concept of administration of real property. Inserting the "notwithstanding" clause was intended to deter questioning of legal authority relating to transfers of administration. Please note that the "notwithstanding" clause is not found in paragraph 16(2)(g).

Why aren't transfers of administration to non-agent Crown corporations covered in this paragraph? Non-agent Crown corporations are not acting as agents of the Crown and are therefore treated like any other non-governmental person, thus what would normally take place is a transfer of title rather than a transfer of administration.

Related General Questions

3.4.6 Why are transfers of administration made?

3.4.3 What is the difference between "administration" and "administration and control?"

Source

Modification of section 36 of the Public Works Act, which read:

" 36. (1) The Governor in Council may transfer the management, charge and direction of any public work, or any power, duty or function with respect to any work or class of works, whether public or private, that is assigned to or vested by statute in any minister or department, to any other minister or department, and from the date appointed for that purpose by the Governor in Council, that power, duty or function shall be transferred to and vested in that other minister or department, and the provisions of this Act, in so far as they are applicable, apply to any work or property the maintenance, repair, control or management of which is transferred under this section.

(2) Any transfer referred to in subsection (1) may be made although the subject-matter thereof has previously been transferred from one department to another under the authority of this section."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "administration"
s. 16(2)(g): regulations on transfers of administration
s. 18: administration

FRPRegs

s. 6: authority for ministerial transfers of administration

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(h) - Grants to Corporations

(h) authorize a grant of any federal real property, the title to which is vested in Her Majesty, to a corporation that has the administration of the property or to any person designated by that corporation.

Notes

This paragraph provides and clarifies the authority to grant federal real property to a corporation administering the property or to its nominee. This makes it possible for a Crown corporation, that only has the authority to dispose of or lease real property held in the corporation's name, to be granted the real property and thus be able to lease or otherwise dispose of it.

It also provides authority for the granting of the property to a person designated by the corporation. The intention here was to provide an alternative to what was the practice of having a two-step process in such transactions. For example, if a corporation administering a property wanted to sell that property to a purchaser, the corporation would first get letters patent from the Crown to the corporation and then the corporation would give a deed to the purchaser. Paragraph 16(1)(h) allows letters patent to be issued to a person designated by the corporation.

The word "corporation," rather than "Crown corporation" or "agent Crown corporation" was used because there are entities, such as harbour commissions which are neither a Crown corporation nor an agent Crown corporation, that administer federal property.

Please note that a minister could not dispose of these properties as they are not under the minister's administration.

What kinds of corporations are eligible to be granted federal real property under paragraph 16(1)(h)? Under this paragraph, any corporation that administers federal real property is eligible to be granted that property. This is subject, of course, to the Crown, and not the corporation, having title to the real property.

Who is the "any person" indicated in paragraph 16(1)(h) on grants of federal real property to Crown corporations? These words were added to this paragraph to allow for a grant to be made directly to a third party if a corporation administering real property wishes to have that property transferred to the third party.

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 2(1): definition of "administration"
s. 9: grants to Her Majesty
s. 18: administration

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(i) - Grants to the Federal Crown

(i) authorize the grant by Her Majesty of any federal real property to Herself;

Notes

This paragraph authorizes the granting of federal real property to the federal Crown.

The provision was intended 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 (e.g., British Columbia) that operate under a Torrens system require a grant.

Section 10 of the Federal Real Property Act removed that barrier and allows registration in those provinces.

Related General Questions

1. Why would the federal government want the right to be able to grant real property to itself?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 10: grants to Her Majesty

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(j) - Dedications of Federal Real Property

(j) dedicate or authorize the dedication, for so long as the dedication or authorization remains unrevoked, of any federal real property for a road, park or other public purpose, either in perpetuity or for any lesser term; or

Notes

This paragraph provides the authority for dedicating federal real property for public purposes, such as a road or park. The paragraph leaves open the possibility that the dedication can be revoked at a later date.

Paragraph 16(1)(j) provides additional flexibility in federal conveyancing by authorizing the Governor in Council to use additional means to dedicate federal real property as a road, park, or other public purpose. This allows the Governor in Council to use plans, pursuant to section 7 of the FRPA, to dedicate public property, a convenient practice in some provinces.

There is no provision for ministerial dedications under the FRPRegs.

How were these dedications done prior to the FRPA? Dedications were not done previously, although the same thing was accomplished by way of a grant of real property which is conditional upon the property being used for a specified public purpose. Before the FRPA, the federal Crown usually used these "conditional" grants to convey federal real property to municipalities for highway purposes.

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 7: plans

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 1 - Powers of Governor in Council

(k) - Mortgages or other Security

(k) authorize the acceptance or the release or discharge, in whole or in part, on behalf of Her Majesty, of any security, by way of mortgage or otherwise, in connection with any transaction authorized under this Act.

Notes

This paragraph provides authority for taking and discharging a mortgage or other security in connection with any transaction under this Act. Note that the FRPRegs do not allow this to be done in sales under the Regulations. Therefore, Governor in Council authority under this paragraph would be needed.

Why is this paragraph needed? It is not always possible or advantageous to dispose of federal real property if the whole of the purchase price is to be paid by the purchaser on closing. Recently, there have been an increasing number of occasions where, because of the amount of the purchase price, the marketability of the property, and other considerations, it is either necessary or advantageous to the disposition that the transaction be structured to provide for the payment of (and security for the payment of) the purchase price after the transaction closes. In these cases the Crown must take security and be able to discharge such a security. The paragraph clarifies the authority to take such security and accept payments over time on account of the purchase price of real property disposed of by the Crown.

Related General Questions

3.1.9 Why would the Crown want to finance a purchase of real property?

3.1.10 Why would the Crown want to take a security to guarantee a part of the payment for real property?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(2)(h): regulations on mortgages and other securities

FRPRegs

s. 3(1)(b): non-application

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

Regulations

16. (2) The Governor in Council may, on the recommendation of the Treasury Board, make regulations

Notes

This subsection provides the Governor in Council with the authority to make regulations under this Act. Any regulations made must be recommended by the Treasury Board.

Regulations under the FRPA may be in the following areas:

(a) disposing and leasing federal real property;

(b) acquiring and leasing real property;

(d) surrendering leases and relinquishing licences;

(e) transfering administration and control to other governments;

(f) transfering administration and control from other governments;

(g) transfering administration;

(h) taking and discharging of mortgages and other securities;

(i) providing and charging for utilities and other services on or from federal property;

(j) fees for copies of documents; and

(k) interest on purchase money or rent on federal real property.

Subsection 16(2) provides the authorities exercisable by the Governor in Council to make regulations relating to acquiring and disposing of real property by the federal government. The subsection 16(2) authorities are independent of any authorities given to the Governor in Council under subsection 16(1).

Why should the regulations be made on the recommendation of the Treasury Board? To ensure that the government manages real property transactions consistently and efficiently. Eliminating the previous split responsibility between the Governor in Council and the Treasury Board in regulating and approving real property transactions is intended to help do this.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 15(2): regulations
s. 16(1): GIC Authorities

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(a) - Disposition of Federal Real Property

(a) respecting the sale, lease or other disposition of federal real property for which sale, lease or disposition there is no provision in or under any other Act;

Notes

This paragraph provides the residual authority to make regulations respecting the sale, lease or other disposition of federal real property.

Related General Questions

3.1.8 Why was the authorization to acquire and dispose of property placed in the FRPA?

Source

Modification of paragraphs 4(1)(a) and (b) of the Public Lands Grants Act, which read:

" 4. (1) The Governor in Council may

(b) make regulations authorizing the Minister having the management, charge and direction of any such public lands to sell, lease or otherwise dispose of them, subject to such limitations and conditions as the Governor in Council may prescribe;"

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

s. 16(1)(a): GIC authorization of dispositions

FRPRegs

s. 4(1): authority for ministerial dispositions

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(b) - Acquisition of Real Property

(b) respecting the purchase, lease or other acquisition of real property on behalf of Her Majesty;

Notes

This paragraph provides the general authority for regulations relating to acquiring or leasing real property.

Related General Questions

3.1.8 Why was the authorization to acquire and dispose of property placed in the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 16(1)(b): GIC authorization of acquisitions

FRPRegs

- s. 4(1): authority for ministerial acquisitions

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(c) - Licences

(c) respecting the giving and acquisition of licences on behalf of Her Majesty and the transfer between Ministers of administrative responsibility in relation to licences acquired by Her Majesty;

Notes

This paragraph provides the authority for regulations relating to issuing licences with respect to federal real property, acquiring licences on non-federal real property, assigning licences, and transfering administrative responsibility for a licence between ministers.

Related General Questions

3.3.2 What is the difference between a lease and a licence?

3.4.7 In the FRPA and the FRPRegs, why was the wording "administrative responsibility" and not "administration" applied to licences?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. (c): GIC authorization of licences

FRPRegs

- s. 4(2): authority for ministerial actions relating to licences

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(d) - Surrenders of Leases and Relinquishments of Licences

(d) respecting the surrender of leases of which Her Majesty is the tenant and the relinquishment of licences of which Her Majesty is the licensee, and the acceptance of surrenders of leases of which Her Majesty is the landlord and the acceptance of relinquishments of licences of which Her Majesty is the licensor;

Notes

This paragraph provides authority for regulations relating to

- surrendering leases and relinquishing licences, and

- accepting surrenders of leases and relinquishments of licences.

Related General Questions

3.3.3 What is a surrender of a lease?

3.3.4 What is a relinquishment of a licence?

3.3.5 What did the FRPA change in the governmental processes relating to surrenders of leases and relinquishments of licences?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 16(1)(d): GIC authorization of surrenders and relinquishments and acceptances of surrenders of leases and relinquishments of licences.

FRPRegs

- s. 2: definition of "acquisition"

- ???: definition of "disposition"

- s. 4(2): authority for ministerial actions relating to licences

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(e) - Transfers of Administration and Control to Other Governments

(e) respecting the transfer to Her Majesty in any right other than Canada, by instrument satisfactory to the Minister of Justice, of administration and control of the entire or any lesser interest of Her Majesty in federal real property, either in perpetuity or for any lesser term;

Notes

This paragraph provides the authority for regulations respecting transfers of administration and control of federal real property to

- a province, or

- another British Commonwealth country.

Under subsection 11(1) of the Act such transfers must be signed by the minister administering the property and countersigned by the Minister of Justice.

Please note that the FRPRegs authorize transfers to provinces only. Transfers to another British Commonwealth country require Governor in Council authority under subsection 16(1).

Related General Questions

3.5.2. Why must transfers of administration and control be satisfactory to and countersigned by the Minister of Justice?

3.4.3 What is the difference between "administration" and "administration and control?"

3.5.1 How did the FRPA affect transfers of administration and control between the federal and provincial Crowns?

3.5.5 What would be a transfer of a "lesser interest?"

Source

Modification of subsection 4(2) of the Public Lands Grants Act, which read:

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 11(1): signing of transfers of administration and control

- s. 16(1)(e): GIC authorization of transfers of administration and control to other governments

FRPRegs

- s. 5(1): authority for ministerial transfers of administration and control to provinces

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(f) - Transfers of Administration and Control from Other Governments

(f) respecting the acceptance, on behalf of Her Majesty, of transfers of administration and control satisfactory to the Minister of Justice of real property from Her Majesty in any right other than Canada, including such transfers made by grant, vesting order or other conveyancing instrument;

Notes

This paragraph provides the authority for regulations respecting the acceptance of transfers of administration and control from

- a provincial Crown, or

- another British Commonwealth country.

Such transfers must be satisfactory to the Minister of Justice.

The FRPRegs allow acceptances of transfers from provinces only. Acceptances of transfers from another British Commonwealth country require Governor in Council authority under subsection 16(1).

Related General Questions

3.5.3. How and under what authority did the federal government accept transfers of administration and control prior to the FRPA?

3.5.2 Why must the Minister of Justice be satisfied with and countersign transfers of administration and control?

3.5.4 What is a vesting order?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 11(2): effect of transfers from other governments

- s. 16(1)(f): GIC acceptance of transfers of administration and control from other governments

FRPRegs

- s. 5(2): authority for ministerial acceptances of transfers of administration and control from provinces

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(g) - Transfers of Administration

(g) respecting the transfer of the administration of federal real property by one Minister to another, by a Minister to an agent corporation or by an agent corporation to a Minister;

Notes

This paragraph provides the authority for regulations respecting transfers of administration between ministers and between a minister and an agent corporation.

Why aren't transfers of administration to non-agent Crown corporations covered in this paragraph? Non-agent Crown corporations do not act as agents of the Crown and are therefore treated like any other non-governmental person.

Related General Questions

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)(j): GIC transfers of administration

- s. 18: administration

FRPRegs

- s. 6: authority for ministerial transfers of administration

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(h) - Mortgages or Other Security

(h) respecting the acceptance or the release or discharge, in whole or in part, on behalf of Her Majesty, of any security, by way of mortgage or otherwise, in connection with transactions authorized under regulations made pursuant to this subsection;

Notes

This paragraph provides the authority for regulations respecting the taking and discharging of mortgages or other security documents in connection with any transaction authorized pursuant to this subsection. Note that the FRPRegs do not allow this in sales under the regulations. Therefore, Governor in Council authority under paragraph 16(1)(k) would be needed.

Why is this paragraph needed? It is not always possible or advantageous to dispose of federal real property if the whole of the purchase price is to be paid by the purchaser on closing. Recently, there have been an increasing number of occasions where, because of the amount of the purchase price, the marketability of the property, and other considerations, it is either necessary or advantageous to the disposition that the transaction be structured to provide for the payment of (and security for the payment of) the purchase price after the transaction closes. In these cases there is a need for the Crown to take security and to be able to discharge such a security. The paragraph clarifies the authority to take such security and accept payments over time on account of the purchase price of real property disposed of by the Crown.

Related General Questions

3.1.9 Why would the Crown want to finance a purchase of real property?

3.1.10 Why would the Crown want to take a security to guarantee a part of the payment for real property?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 16(1)(k): GIC authorization of mortgages or other security

FRPRegs

- s. 3(1)(b): non-application

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(i) - Utility and Service Charges

(i) authorizing the provision of utilities and other services on or from federal real property and the imposition of fees, charges and rates for those services;

Notes

This paragraph provides the authority for regulations relating to the charging for utilities or other services on federal real property.

This paragraph was included in the FRPA to clarify the legal authority for the existing practice.

Related General Questions

3.1.11 Did the FRPA cause the rent or utility charges to tenants on public lands to increase?

3.1.12 Does this contradict section 19 of the FAA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPRegs

- s. 4(3): authority for ministerial provision of services and charging of fees

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(j) - Fees

(j) imposing fees for the provision of copies of maps, plans, field notes, documents, papers and other records pertaining to federal real property, for the preparation of documents evidencing a sale, lease or other disposition of federal real property and for the deposit in a department of documents relating to federal real property; and

Notes

This paragraph authorizes the Governor in Council to prescribe a tariff of fees for documents pertaining to federal real property. This is essentially unchanged from previous legislation.

There are no such regulations to date in the FRPRegs. The provision was carried over from the previous legislation in case regulations were needed in the future.

Source

Modification of paragraph 4(1)(c) of the Public Lands Grants Act, which read:

" 4. (1) The Governor in Council may

(c) prescribe a tariff of fees for copies of maps, plans, field notes, documents, papers and other records pertaining to public lands, for the preparation of documents evidencing a sale, lease or other disposition of public lands and for the registration in any government department of any documents pertaining to public lands; and"

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 2 - Regulations

(k) - Interest

(k) establishing a formula for determining the rate of interest to be paid with respect to the purchase money, rent or other consideration for any federal real property sold, leased, licensed or otherwise dealt with under this Act.

Notes

This paragraph provides authority for establishing a formula for determining the interest rate to be paid for or on account of:

- the purchase money; or

- the rent or other consideration

of any federal real property sold, leased, licensed or otherwise dealt with under the FRPA.

This modifies the previous legislation, which required a fixed interest rate.

There are no such regulations to date in the FRPRegs. The provision was carried over from the previous legislation in case regulations were needed in the future.

Why was a change made from a fixed interest rate? The change was made to provide flexibility to reflect current practices. A fixed interest rate would require parliamentary approval to be changed.

What formula would be used and how would it work? Although the interest rate formula has not yet been determined, it is anticipated that such a formula would be based on a standard base, such as the Bank of Canada rate, and include a reasonable surcharge.

Source

Modification of paragraph 4(1)(d) of the Public Lands Grants Act, which read:

"(d) fix the rate of interest to be paid for or on account of the purchase money or rent of any public lands sold or leased under this Act."

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 3 - Ministerial Delegation

Exercise of powers

16. (3) A Minister may authorize in writing any other Minister to exercise on his behalf any power in relation to any transaction that has been or may be authorized under subsection (1) or under regulations made pursuant to subsection 16(2).

Notes

Subsection 16(3) states that a minister may be authorized, in writing, to exercise any powers given to another minister in relation to a transaction under this Act.

This section, and subsection 16(3), were intended to allow for managerial flexibility in applying the Act and its Regulations. These sections were inserted to clarify authority for delegating within or between departments. They were also felt to be needed because the FRPA repealed the authority for the Minister of Public Works to dispose of real property declared surplus under the Surplus Crown Assets Act. The policy intention behind this subsection, and section 3, was to make it at least as easy, if not easier, to delegate powers to an agent, usually PWGSC, as it was prior to the FRPA.

During the drafting of the FRPA combining section 3 and subsection 16(3) was discussed, as they both dealt with delegating authority. This was not done, however, for two main reasons:

- subsection 16(3) had to stay in section 16 because it specifically refers to transactions under that section; and

- it was felt important for "optics" to have a delegation provision at the front of the Act.

Related General Questions

3.1.1 Why should there be authority for interdepartmental delegation of authority?

Source

New, based in principle on an extension of section 6 of the Public Lands Grants Act, which pertained solely to leases and read:

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 3: Delegation and authorization

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 4 - Treasury Board Limits and Restrictions

Limits and restrictions

16. (4) The Treasury Board may, generally or with respect to any Minister, establish financial or other limits, restrictions or requirements respecting any transaction or class of transactions authorized under regulations made pursuant to subsection (2).

Notes

This subsection provides authority to the Treasury Board to establish financial and other limits, restrictions and requirements for any transactions or classes of transactions authorized pursuant to the FRPRegs. The limits or restrictions can be general or specifically directed at a department. Financial limits are contained in chapter 1-12 of the Real Property volume of the Treasury Board Manual. That volume as well as other volumes of the Manual contain other restrictions and requirements.

Please note the discussion in s. 16(5) relating to the legal effect of these limits or restrictions. The Treasury Board limits do not affect the legal validity of transactions or the legal authority to conduct them.

Related General Questions

3.1.13 What are the specific powers and authorities of Treasury Board under the FRPA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 16(5): legal effect of TB and FAA s. 41 limits/restrictions

TBRP

- chap. 1-12: authority levels

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 5 - Legal Effect of TB and s. 41 FAA Limits/Restrictions

Saving

16. (5) No limit, restriction or requirement established under subsection (4) and no regulation or direction made under section 41 of the Financial Administration Act derogates from the authority of a Minister under this Act to enter into a transaction or affects the validity of a transaction entered into pursuant to such authority.

Notes

Subsection 16(5) states that

- no transaction under the FRPA is invalid, and

- no minister is without legal authority to enter into a transaction authorized under the Act

only because

- a limit, restriction or requirement established by the Treasury Board under subsection 16(4) has been contravened.

- a regulation or direction under section 41 of the FAA has been contravened.

What is the purpose of subsection 16(5)? Under subsection 16(4) of the FRPA, the Treasury Board can establish financial or any other limits or restrictions relating to any transaction authorized under the Regulations. These limits and restrictions, contained in Treasury Board policy rather than the FRPA or in regulations, are one means by which Treasury Board exercises its mandate of managing federal real property. Ministers must seek Treasury Board approval for transactions that exceed the authority limits and restrictions. The limits and restrictions may vary from minister to minister, depending on differences in departmental expertise in real property conveyancing. Because these limits and conditions are established for the internal management of federal real property transactions, they do not affect the validity or authority for the transactions. Subsection 16(5) of the Act specifically states that no transaction under the Act will be invalid solely because the Treasury Board policy limits or conditions were not followed. In addition, section 41 of the FAA authorizes the Governor in Council to make regulations and directions concerning the government entering into contracts. The FRPA is meant to be the general authority for the real property transactions by the federal government. Therefore, the authorities contained in or under the FRPA will also not be affected by any regulations or directions under section 41 of the FAA.

Source

Subsection 16(5) is new and is an adaptation of the common law "indoor management rule."

Related Sections in the FRPA, FRPRegs and TBRP

FRPA

- s. 16(1): authorities for acquisition and disposition of real property

- s. 16(2): regulations on acquisition and disposition of real property

- s. 16(4): Treasury Board limits and restrictions

TBRP

- s. chap. 1-12: authority levels

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 6 - Rent and Consideration

Consideration

16. (6) Notwithstanding the Financial Administration Act, where a lease of federal real property or a licence in respect of federal real property is authorized under this Act, the amount of the rent or other consideration charged for the lease or licence may, subject to the order or regulations by which it is authorized, be less than, equal to or more than the costs borne by Her Majesty in relation to the property.

Notes

This subsection states that the amount of rent or consideration paid for federal real property can be below, equal to, or greater than the costs borne by the Crown in relation to the property. Such costs could be those incurred in providing the federal real property or the use thereof. This rule is subject to any terms or conditions authorized under this Act for the lease or licence.

Subsection 16(6) was intended to clarify the law. For many years, the government has used market-based rentals as the common method of charging when granting leases or licences of federally owned property. This subsection clarified the authority for this long-established practice. However, subsection 16(6) does not limit the government's flexibility to decide not to charge market rents or to exclude charging certain classes of users when warranted on policy grounds.

However, government policy stipulates that all disposals, including licences, should be at market value.

In addition, subsection 16(6) does not affect property for which special provisions for setting rental rates are already provided under legislation such as the National Parks Act, the Territorial Lands Act, and the Fishing and Recreational Harbours Act.

Several recent statutes have contained provisions relating to departments charging fees for the use of facilities. Subsection 16(6) only overrides the FAA on the relation of rent and licence fees to cost.

Why does the subsection allow the charging of rent or licence fees above or below the cost to the government? The general rule to be followed in charging rent or licences is that the market rate should be charged. Allowing the charging of rent or licence fees above cost will make it possible to follow this general rule when market rates are significantly higher than cost. On the other hand, there may be occasions when below-cost and/or below-market charges are warranted to promote a government program.

Related General Questions

3.1.12 Does this contradict section 19 of the FAA?

Source

New.

Related Sections in the FRPA, FRPRegs and TBRP

TBRP

- chap. 1-4: revenue

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Subsection 7 - Condominiums and Co-ops

16. (7) Where a purchase, lease or other acquisition of real property in a condominium project, co-operative project or similar project is authorized under this Act, that authorization also constitutes the authority for the acquisition of a share, membership interest or ownership interest in the relevant condominium corporation, co-operative corporation or similar corporation, to the extent that the acquisition of the share, membership interest or ownership interest is required by, or effected by, the law of the jurisdiction in which the project is situated. (1994, c.26, c.31)

Notes

This subsection, added to the FRPA in 1994 as part of a miscellaneous statute amendment bill, resolves a technical legal problem that could arise when the government is acquiring property in a condominium, co-operative or similar project, whether in Canada or elsewhere.

The laws relating to condominiums and co-operatives are not uniform worldwide. (For example, each province in Canada has its own unique condominium statute.) However, many of these laws, both Canadian and foreign, provide that an acquisition of a condominium or similar property be accompanied by the acquisition of a share or interest in the corporation governing the condominium or similar project.

The problem for the federal government is that paragraph 90(1)b of the FAA prohibits anyone from acquiring for the government shares or interests in a corporation without parliamentary approval. But an unintended result was that, without subsection 16(7), specific parliamentary approval would be necessary to buy a condominium or co-operative unit in many jurisdictions. This would have created substantial problems for departments, such as the Department of Foreign Affairs and International Trade, because condominiums are in some locations the most practical form of federal accommodation.

Please note that this provision only applies when the law in the jurisdiction:

- requires that a share or interest be acquired when purchasing or leasing the unit; or

- the share or interest is automatically acquired by operation of law when purchasing or leasing the unit.

If neither of these conditions apply, parliamentary approval would still be required to acquire a share or interest in a condominium or similar corporation.

Source

New.

Date modified:: 1996-10-11

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Guide to the Federal Real Property Act and Federal Real Property Regulation

1. Federal Real Property Act

1.1 Overview

Background

Contents of the Act

Overview of the Act

Section 1 - Short Title

Section 2 - Interpretation and Definitions

Section 3 - Delegation and Authorization

Section 4 - Dispositions and Licences

Section 5 - Grants of Federal Real Property

Section 5 - Grants of Federal Real Property

Section 6 - Execution of Licences

Section 7 - Plans

Section 8 - Delivery

Section 9 - Words of Limitation

Section 10 - Grants to Her Majesty

Section 11 - Administration and Control

Section 11 - Administration and Control

Section 12 - Restrictive Covenants

Section 13 - Acquisition under Provincial Act

Section 14 - No Title by Prescription

Section 15 - Minister of Justice

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Related Sections in the FRPA, FRPRegs and TBRP

Source

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Guide to the Federal Real Property Act and Federal Real Property Regulation

1. Federal Real Property Act

1.1 Overview

Background

Contents of the Act

Overview of the Act

Section 1 - Short Title

Section 2 - Interpretation and Definitions

Section 3 - Delegation and Authorization

Section 4 - Dispositions and Licences

Section 5 - Grants of Federal Real Property

Section 5 - Grants of Federal Real Property

Section 6 - Execution of Licences

Section 7 - Plans

Section 8 - Delivery

Section 9 - Words of Limitation

Section 10 - Grants to Her Majesty

Section 11 - Administration and Control

Section 11 - Administration and Control

Section 12 - Restrictive Covenants

Section 13 - Acquisition under Provincial Act

Section 14 - No Title by Prescription

Section 15 - Minister of Justice

Section 16 - Authorities for Dispositions, Acquisitions and Administrative Transfers

Related Sections in the FRPA, FRPRegs and TBRP

Source