Why Patents Can’t be Changed by Joan Olech

It has come to my attention that many landowners do not understand why Letters Patent for land granted cannot be altered, amended, ignored, or destroyed. First and foremost, a grant of land being the original grant from the Crown, is the prerogative of the Sovereign. If it was to be changed, the Sovereign, as the grantor, would have to be the one to make the change. And with respect to the particular grants, I’ll be speaking about an act called Nullum Tempus which barred the Sovereign for making any changes after the passing of 60 years. But let’s go a step further.

I will try to explain with reference to the Imperial Letters Patent for land granted prior to Confederation in what is now the Province of Ontario. I will only speak to these particular patents as they are the only patents I have studied in depth, and although I certainly have not seen all patents of the era, I believe certain themes were apparent and thus certain assumptions can be drawn based on the documented intent and instruction of the Sovereign(s). So if your patent is granted by King George III, King George IV, King William IV or Queen Victoria, this may be useful information.

I have to proceed by using a number of generalizations. Many, if not most of the patented lands granted prior to Confederation in the Province of Upper Canada or the Province of Canada were for large parcels of what continued to be called wasteland right up to the reign of Queen Victoria. As I said in a previous article, an intent was to inhabit the province with English speaking protestants who would remain loyal to the Crown. The early grants during the reign of King George III were typically free grants that came with the condition of clearing 10 acres and building a suitable residence. On completion of the conditions, the grantee could swear an oath confirming the same, and letters patent would be issued in his name, followed by the words heirs and assigns forever.

If the original grant was for 200 acres as was not unusual, the patentee often divided off a parcel and sold it to another, essentially an heir or assign. This was typical as a type of land division or severance, allowing the patentee to sell part of his land, earning himself money for necessities and allowing others who may not have qualified for free grants to become a landowner. The transfer of all or part of the land was done by creation of a deed, whereby the original patentee became the grantor of the parcel so severed and the person who acquired the separated parcel was the grantee. To be clear, the patent remained unchanged, as a matter of record. Transfers of all or part of the land subsequent to the original grant of land was accomplished by deed.

Deeds were wonderful as they referenced the original grant of land from the Crown and then described the current land parcel being conveyed, amongst other things. The conversion to the land titles system from the registry system seems to have eliminated the need for truly descriptive deeds. An in depth look into that major change will be addressed more fully in a future article. For now though, I’ll just continue as if further severances may have been accomplished by either the original grantee or subsequent heirs or assigns who became owners of part(s) of the originally granted lands. And this should explain why, in no uncertain terms, why original land patents cannot be amended or annulled.

Imagine the following scenario: the original grant of land in say 1813 to John Smith was for 200 acres. Upon patenting, Smith severed a 100 acre parcel and sold it to Tom Brown. Over the following years, both 100 acre parcels were further divided and sold off to others and now, in 2023, there are 26 owners of the land patented in 1813 to John Smith. For one of the current owners to attempt to change the original grant from the Crown, not only would the Sovereign need to be consulted, all of the current 26 owners would have to have their original grant amended. In other words, the patent may not apply to you alone, but to some or many and you don’t get to make changes that affect others.

If you understand what I’ve tried to explain here, you may also have questions about how current regulation can be applied, often varying from parcel to parcel in the same original grant of land by our legislators and municipal leaders. Where one parcel may be acceptable for a school to be built, the neighboring parcel may be restricted to limited agricultural use.

Upper Canada Land Titles and Patent Research Initiative is a not for profit with a challenge currently before the courts. We need to understand what, if any, are the limitations of jurisdiction particularly as regards municipal and regional government. Our court challenge is underway and we are in the process of an appeal. The expense of getting our questions answered in the courts is extraordinary, and we ask that if you are able to contribute, you make your cheque payable to “Upper Canada Land Titles and Patent Research Initiative” and mail to Erika Furney, 118 Colbeck Dr, Welland L3C 7B2.