Settled Estates Act

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Sections74

• 1Definitions

  1 (1) In this Act, “court” means the Superior Court of Justice; (“tribunal”) “income” includes rents and profits; (“revenu”) “land” includes incorporeal hereditaments and an undivided share in land; (“bien-fonds”) “possession” includes receipt of income; (“possession”) “settled estate” means land and all estates or interests in land that are the subject of a settlement; (“domaine grevé de droits successifs”) “settlement” means a statute, deed, agreement, will or other instrument, or any number of such instruments, under or by virtue of which land or any estate or interest in land stands limited to or in trust for any persons by way of succession, including any such instruments affecting the estates of any one or more of such persons exclusively. (“acte de disposition”) R.S.O. 1990, c. S.7, s. 1 (1); 2006, c. 19, Sched. C, s. 1 (1). Estates in remainder or reversion not disposed of by set…

• 1.
• 2Power to authorize leases of settled estates

  2 (1) The court, if it considers it proper and consistent with a due regard for the interests of all persons entitled under the settlement, and subject to the provisions and restrictions of this Act, may authorize leases of any settled estate or of any rights or privileges over or affecting any settled estate, for any purpose whatsoever, the following conditions being observed: When lease to take effect 1. Every such lease shall be made to take effect in possession at or within one year after the making thereof, and shall be for such term of years as the court shall direct, where the court is satisfied that it is beneficial to the inheritance to grant a lease. Best rent to be reserved Exception 2. On every such lease shall be reserved the best rent or reservation in the nature of rent, either uniform or not, that can be reasonably obtained, to be made payable half-yearly or more often, a…

• 2.
• 3Special covenants

  3 Subject and in addition to the conditions hereinbefore mentioned every such lease shall contain such covenants, conditions and stipulations as the court considers expedient with reference to the special circumstances of the demise. R.S.O. 1990, c. S.7, s. 3.

• 3.
• 4Leases of parts of settled estates

  4 The power to authorize leases conferred by this Act authorizes leases either of the whole or any part of the settled estate, and may be exercised from time to time. R.S.O. 1990, c. S.7, s. 4.

• 4.
• 5Surrender and renewal

  5 A lease, whether granted in pursuance of this Act or otherwise, may be surrendered either for the purpose of obtaining a renewal of it or not, and the power to authorize leases conferred by this Act shall authorize a new lease of the whole or any part of the hereditaments comprised in any surrendered lease. R.S.O. 1990, c. S.7, s. 5.

• 5.
• 6Preliminary contracts

  6 The power to authorize leases conferred by this Act extends to authorize preliminary contracts to grant such leases, and any of the terms of such contracts may be varied in the leases. R.S.O. 1990, c. S.7, s. 6.

• 6.
• 7Mode in which leases may be authorized

  7 The power to authorize leases conferred by this Act may be exercised by the court either by approving of a particular lease or by ordering that the power of leasing in conformity with this Act shall be vested in trustees in the manner hereinafter mentioned. R.S.O. 1990, c. S.7, s. 7.

• 7.
• 8What evidence to be produced on an application to authorize leases

  8 Where application is made to the court either to approve of a particular lease or to vest any power of leasing in trustees, the court shall require the applicant to produce such evidence as it considers sufficient to enable it to ascertain the nature, value and circumstances of the estate and the terms and conditions on which leases thereof ought to be authorized. R.S.O. 1990, c. S.7, s. 8.

• 8.
• 9Direction as to who shall be lessor

  9 Where a particular lease or contract for a lease has been approved by the court, the court shall direct what person shall execute the same as lessor, and the lease or contract executed by such person shall take effect in all respects as if the person had been at the time of the execution thereof absolutely entitled to the whole estate or interest that is bound by the settlement, and had immediately afterwards settled the same according to the settlement, and so as to operate if necessary by way of revocation and appointment of the use or otherwise as the court directs. R.S.O. 1990, c. S.7, s. 9.

• 9.
• 10When powers of leasing may be vested in trustees

  10 Where the court considers it expedient that any general power of leasing any settled estate conformable with this Act should be vested in trustees it may, by order, vest any such power accordingly either in the existing trustees of the settlement or in any other person or persons, and the power, when exercised by such trustees, shall take effect in all respects as if the power so vested in them had been originally contained in the settlement, and so as to operate if necessary by way of revocation and appointment of the use or otherwise as the court directs, and in every such case the court may impose any conditions as to consents or otherwise on the exercise of the power and may also authorize the insertion of provisions in any such order for the appointment of new trustees from time to time for the purpose of exercising the power of leasing. R.S.O. 1990, c. S.7, s. 10.

• 10.
• 11Conditions that leases be settled by the court

  11 In any order under this Act for vesting any power of leasing in any trustees or other person or persons no conditions shall be inserted requiring that the lease thereby authorized shall be submitted to or be settled by the court or be made conformable with a model lease, unless the person applying for the order desires to have any such condition inserted or it appears to the court that there is some special reason for the insertion of such a condition. R.S.O. 1990, c. S.7, s. 11.

• 11.
• 12Striking out such conditions

  12 (1) In any order, whether under this Act or under any other Act, in which any such condition has been inserted, any person interested may apply to the court to alter the order by striking out the condition, and the court may alter the order accordingly, and the order so altered has the same validity as if it had originally been made in its altered state. R.S.O. 1990, c. S.7, s. 12 (1). Idem (2) The court may decline to act under this section in any case in which it appears to the court that for any special reason such a condition is necessary or expedient. R.S.O. 1990, c. S.7, s. 12 (2).

• 12.
• 13Powers of court:

  13 (1) The court, if it considers it proper and consistent with a due regard for the interests of all parties entitled under the settlement, and subject to the provisions and restrictions in this Act, may, to authorize mortgages for purpose of repairs, etc. (a) from time to time authorize a mortgage of the whole or any part of any settled estate for the purpose of raising money to repair, rebuild or alter any existing building upon the estate, or otherwise to build upon or improve the same, or for the purpose of raising money to pay off and discharge wholly or in part any encumbrance thereon; to authorize sales of settled estates and of timber (b) from time to time authorize a sale of the whole or any part of any settled estate or of any easement, right or privilege, of any kind, over or in relation to the same, or of any timber not being ornamental timber growing on the settled estate; …

• 13.
• 14Rental as consideration for land sold for building

  14 Where land is sold for building purposes, the court may allow the whole or any part of the consideration to be a rent issuing out of the land, which may be secured and settled in such manner as the court approves. R.S.O. 1990, c. S.7, s. 14.

• 14.
• 15What may be reserved

  15 On any sale of land, any earth, coal, stone or mineral may be excepted and any rights or privileges may be reserved, and the purchaser may be required to enter into any covenants or submit to any restrictions that the court considers advisable. R.S.O. 1990, c. S.7, s. 15.

• 15.
• 16Dedications for streets, etc.

  16 (1) The court, if it considers it proper and consistent with a due regard for the interests of all persons entitled under the settlement and subject to the provisions and restrictions of this Act, may from time to time direct that any part of any settled estate be laid out for streets, roads, paths, squares, gardens, or other open spaces, or for sewers, drains or watercourses, either to be dedicated to the public or not, and may direct that the parts so laid out shall, subject to this Act, remain vested in the trustees of the settlement or be conveyed to or vested in any other trustees upon such trusts for securing the continued appropriation thereof to such purposes in all respects and with such provisions for the appointment of new trustees when required as the court considers advisable. R.S.O. 1990, c. S.7, s. 16 (1). How provision made for laying out streets, etc. (2) Where any pa…

• 16.
• 17Directions as to execution of deeds

  17 On every sale, mortgage or dedication made under the authority of this Act, the court may direct what person shall execute the deed of conveyance or mortgage, and the deed or mortgage executed by such person shall take effect as if the settlement had contained a power enabling such person to effect the sale, mortgage or dedication, and so as to operate if necessary by way of revocation and appointment of the use or otherwise as the court directs. R.S.O. 1990, c. S.7, s. 17.

• 17.
• 18Who may apply for exercise of powers

  18 (1) Any of the persons authorized by section 32 to make a demise of a settled estate, and any person entitled to the possession or to the receipt of the rents and profits of a settled estate for any greater estate than the estate mentioned in that section and the assigns of any such person may apply to the court to exercise the powers conferred by this Act. R.S.O. 1990, c. S.7, s. 18 (1). Where jointly entitled (2) Where two or more persons are entitled as tenants in common, joint tenants or coparceners, any or either of them may make the application. R.S.O. 1990, c. S.7, s. 18 (2).

• 18.
• 19Consent to application

  19 (1) Subject to this section, every application to the court under this Act shall be made with the concurrence or consent of all those in existence having any estate or beneficial interest under the settlement and of all trustees having any estate or interest on behalf of any unborn child. R.S.O. 1990, c. S.7, s. 19 (1). Notice to persons who do not consent or concur (2) Where the concurrence or consent of any person mentioned in subsection (1) has not been obtained, notice shall be given to such person in such manner as the court directs, requiring the person to notify within a time to be specified in the notice whether the person assents to or dissents from the application or submits the person’s rights or interests, or so far as they may be affected by the application, to be dealt with by the court, and every notice shall specify to whom and in what manner the notification is to be …

• 19.
• 20Notice to trustees, etc.

  20 Notice of any application under this Act shall be served on all trustees who are seized or possessed of any estate in trust for any person whose consent to or concurrence in the application is hereby required, and on any other persons who in the opinion of the court ought to be so served, unless the court dispenses with such notice. R.S.O. 1990, c. S.7, s. 20.

• 20.
• 21When notice of application to be given in the newspapers

  21 Notice of any application, if the court so directs but not otherwise, shall be published in such newspapers as the court directs, and any person, whether interested in the estate or not, may be heard in opposition to or in support of the application, and the court may permit such person to appear and be heard in opposition to or in support of the application on such terms as to costs or otherwise and in such manner as it thinks fit. R.S.O. 1990, c. S.7, s. 21.

• 21.
• 22Where a similar application has been rejected by the Legislature

  22 The court shall not grant an application where the applicant, or any person entitled, has previously applied to the Legislature for a private Act to effect the same or a similar object, and such application has been rejected on its merits, or reported against by the judges to whom the Bill was referred. R.S.O. 1990, c. S.7, s. 22.

• 22.
• 23Application of money arising from sales, etc.

  23 All money to be received on any sale effected under the authority of this Act, or to be set aside out of the rent or payments reserved on any lease of earth, coal, stone or mineral may, if the court thinks fit, be paid to any trustees of whom it shall approve, otherwise the same shall be paid into court, and such money shall be applied as the court from time to time directs to one or more of the following purposes: 1. The payment of any costs that the court orders to be paid. 2. The discharge of any encumbrance affecting the land in respect of which the money was paid, or affecting any other land subject to the same uses or trusts. 3. The purchase of other land to be settled in the same manner as the land in respect of which the money was paid. 4. The payment of the expenses connected with any buildings, repairs, rebuilding, alterations or improvements authorized to be made upon the s…

• 23.
• 24Application of money in certain cases without application to court

  24 The application of the money, if the court so directs, may be made by the trustees to whom the court has authorized the money to be paid, without any application to the court, or upon an order of the court upon the petition of the person who would be entitled to the possession or the receipt of the rents and profits of the land if the money had been invested in the purchase of land. R.S.O. 1990, c. S.7, s. 24.

• 24.
• 25Payment of interest

  25 Until the money can be so applied, the interest accruing thereon shall be paid as the court directs to the person who would have been entitled to the rents and profits of the land if the money had been invested in the purchase of land. R.S.O. 1990, c. S.7, s. 25.

• 25.
• 26Application of money in respect of leases or reversions

  26 Where any purchase money paid into court or to trustees under this Act has been paid in respect of a lease for a life or lives or years, or for a life or lives and years, or of any estate in land less than the whole fee simple thereof, or of any reversion dependent on any such lease or estate, the court may, on the petition of any person interested in the money, order that the interest that accrues thereon be paid in such manner as the court considers will give to the parties interested in the money the same benefit therefrom as they might lawfully have had from the lease, estate or reversion in respect of which the money has been paid, or as near thereto as may be. R.S.O. 1990, c. S.7, s. 26.

• 26.
• 27Court may exercise powers repeatedly

  27 (1) The court may exercise any of the powers conferred on it by this Act whether the court has already exercised any of such powers in respect of the same property or not, but no such powers shall be exercised if any express declaration that they shall not be exercised is contained in the settlement. R.S.O. 1990, c. S.7, s. 27 (1). Despite express powers (2) The circumstance that the settlement contains powers to effect similar purposes does not preclude the court from exercising any of the powers conferred by this Act if it thinks that the powers contained in the settlement ought to be extended. R.S.O. 1990, c. S.7, s. 27 (2).

• 27.
• 28Extent of powers

  28 Nothing in this Act empowers the court to authorize any lease, mortgage, sale or other act beyond the extent to which, in the opinion of the court, the same might have been authorized in and by the settlement by the settlor. R.S.O. 1990, c. S.7, s. 28.

• 28.
• 29Validity of acts

  29 After the completion of any lease, mortgage or sale, or other act under the authority of the court and purporting to be in pursuance of this Act, the same is not invalidated on the ground that the court was not empowered to authorize the same. R.S.O. 1990, c. S.7, s. 29.

• 29.
• 30Orders of court conclusive

  30 (1) An order of the court under jurisdiction conferred by this Act is not, as against a lessee, mortgagee or purchaser, invalidated on the ground of want of jurisdiction or of want of any concurrence, consent, notice or service, whether the lessee, mortgagee or purchaser had or had not notice of any such want. R.S.O. 1990, c. S.7, s. 30 (1). Scope of section (2) This section has effect with respect to any lease, mortgage, sale or other act under the authority of the court and purporting to be in pursuance of this Act, or to be in pursuance of any former Act, despite any exception in any former Act. R.S.O. 1990, c. S.7, s. 30 (2).

• 30.
• 31Costs

  31 The court may order that any costs or expenses of any persons of and incident to any application under this Act shall be a charge on the land that is the subject of the application, or on any other land included in the same settlement and subject to the same limitations, or may direct the same to be paid out of the corpus or income of any fund realized by the sale, mortgage or lease of such estate under this Act, and the court may also direct that the costs and expenses, to be assessed and paid as the court directs, shall be raised by a sale or mortgage of a sufficient part of such land or out of the rents or profits thereof. R.S.O. 1990, c. S.7, s. 31.

• 31.
• 32Power to make leases for 21 years

  32 (1) The following persons, unless the settlement contains an express declaration that it is not lawful for them to make the demise, may from time to time and without any application to the court, except as hereinafter mentioned, demise the settled estate or any part thereof for any term, not exceeding twenty-one years, to take effect in possession at or within one year next after the making thereof: 1. A person entitled to the possession or to the receipt of the rents and profits of any settled estate, for an estate for life or for a term of years determinable with any life or lives or for any greater estate not holding merely under a lease at a rent. 2. A tenant in fee simple with an executory limitation, gift or disposition over on failure of the tenant’s issue or in any other event. 3. A tenant for years determinable on life not holding merely under a lease at a rent. 4. A tenant f…

• 32.
• 33Against whom leases valid

  33 (1) Every demise of a settled estate authorized by section 32 is valid against the person granting the demise and all other persons entitled to estates subsequent to the person’s estate under or by virtue of the same settlement. R.S.O. 1990, c. S.7, s. 33 (1). Idem (2) Every demise of unsettled land by a tenant by the curtesy or by a tenant in dower is valid against the person granting the demise and all other persons entitled to an estate subsequent to the estate of such tenant. R.S.O. 1990, c. S.7, s. 33 (2).

• 33.
• 34Provisions as to persons under disability

  34 (1) All powers given by this Act, and all applications to the court under this Act and consents to and notifications respecting them, may be executed, made or given by, and all notices under this Act may be given to the guardian of property, attorney acting under a continuing power of attorney for property or litigation guardian on behalf of persons who are incapable as defined in the Substitute Decisions Act, 1992, and by or to trustees or assignees of the property of bankrupts, debtors in liquidation or insolvents, and the Children’s Lawyer or any other litigation guardian may consent to, and give notifications respecting such applications, and give all notices under this Act on behalf of any minor. R.S.O. 1990, c. S.7, s. 34 (1); 1994, c. 27, s. 43 (2); 2009, c. 33, Sched. 2, s. 68 (1). Court approval (2) All consents, notifications or notices respecting an application that are giv…

• 34.
• 35No obligation to make or consent to application

  35 Nothing in this Act imposes any obligation on any person to make or consent to any application to the court or to exercise any power. R.S.O. 1990, c. S.7, s. 35.

• 35.
• 36Tenants for life, etc., to be deemed entitled despite encumbrances

  36 A person shall be deemed to be entitled to the possession or to the receipt of the rents and profits of an estate although the person’s estate may be charged or encumbered, either by the person or by the settlor or otherwise, to any extent, but the estates or interests of the persons entitled to the charge or encumbrance are not affected by the acts of such persons unless they concur therein. R.S.O. 1990, c. S.7, s. 36.

• 36.
• 37Powers conferred by other Acts

  37 Nothing in this Act interferes with the exercise of any powers to authorize or grant leases conferred by any other statute. R.S.O. 1990, c. S.7, s. 37. ______________

• 37.