Ontario Real Estate Source
By Brian Madigan LL.B.
There were two sub-categories that applied to real property.
There were:
1) corporeal hereditaments, and
2) incorporeal hereditaments.
So, that was certainly something of a mouthful, and doesn’t lead itself to a quick explanation. Let’s break it apart. Hereditaments refers to the right to inherit property. If there is property, either real or personal that may be passed along to the next generation, then it may be termed as an “hereditament”. That is, it may be “inherited” or “taken by heirs”.
Obviously, there are two classifications, ones that are corporeal, and those that are incorporeal.
In the context of real property, only those rights which are capable of being held in possession are corporeal. Those that are not, are incorporeal. Clearly, to understand the fine distinction we will have to refer to some examples.
Land is something may be inherited. It is also something which one may “hold in possession”. It is real, it is tangible. It is therefore “corporeal”.
An easement over the same land may be inherited. However, it cannot be held in possession. It is a right. It is an entitlement. It is not tangible. It exists as a “thought’. Consequently, an easement is an “incorporeal” hereditament.
The corporeal and incorporeal terms are derived from the latin word “corpus” meaning body.
An example of an corporeal property which is not capable of being transferred in law might be the “water in a creek or stream”, even though that water passes by, and through a creek or stream which is situate on the land. It cannot be conveyed in a deed or devolved in a Will.
The classifications do not seem particularly important today, but these fine distinctions played a significant role in the evolution of real property law. It’s difficult to understand the concepts behind fixtures and chattels without an appreciation of the historical development of real property law.
Brian Madigan LL.B., Broker is an author and commentator on real estate matters, if you are interested in residential or commercial properties in Mississauga, Toronto or the GTA, you may contact him through Royal LePage Innovators Realty, Brokerage 905-796-8888
www.OntarioRealEstateSource.com
