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Property Summary

PROPERTY CHARACTERISTICS:..........................................................................................6 GENERAL PRINCIPLE: PROPERTY CAN HELD BY THOSE WITH LEGAL PERSONALITY.............................................6 TYPES OF RIGHTS:..................................................................................................................................6 TERMINOLOGY AND RELATIONSHIPS:........................................................................................................7 CONCEPTS IN PROPERTY LAW............................................................................................9 VICTORIA PARK RACING AND RECREATION GROUNDS CO. LTD. V. TAYLOR (6)...........................................9 NOTES ON VICTORIA PARK:....................................................................................................................9 INTERNATIONAL NEWS SERVICE V. ASSOCIATED PRESS (23).....................................................................10 RIGHT TO EXCLUDE OTHERS...............................................................................................................11 HARRISON V. CARSWELL (26)..............................................................................................................11 NOTES ON HARRISON:......................................................................................................................11 RIGHT TO EXCLUDE CONSTITUTIONAL GUARANTEES...........................................................................12 COMMITTEE FOR THE COMMONWEALTH OF CANADA V. CANADA................................................................12 NOTES ON CCC..............................................................................................................................13 PROPERTY AND BODY PARTS...............................................................................................................14 MOORE V. REAGENTS OF THE UNIVERSITY OF CALIFORNIA (65)................................................................14 JOAN GILMOUR, OUR BODIES: PROPERTY RIGHTS IN HUMAN TISSUE (67)...........................................14 NOTES:...........................................................................................................................................14 THE CONCEPT OF POSSESSION..........................................................................................16 ROSE, POSSESSION AS THE ORIGIN OF PROPERTY:.............................................................................16 PIERSON V. POST (97):........................................................................................................................16 NOTES ON PIERSON:.........................................................................................................................16 PERRY V. GREGORY (103):..................................................................................................................16 POSSESSION AND THE FINDERS OF LOST OBJECTS..............................................................................17 ARMORY V. DELAMIRIE (106)..............................................................................................................17 PARKER V. BRITISH AIRWAYS BOARD (107)..........................................................................................17 SOUTH STAFFORDSHIRE WATER CO. V. SHARMAN (110).........................................................................18 BRIDGES V. HAWKESWORTH (111)........................................................................................................18 CITY OF LONDON CORPORATION V. APPLEYARD (114)............................................................................19 GRAFSTEIN V. HOLME AND FREEMAN (114)...........................................................................................19 KOWAL V. ELLIS (115).......................................................................................................................19 ELWES V. BRIGG GAS CO. (115).........................................................................................................20 JOINT FINDING: .................................................................................................................................20 KERON V. CASHMAN (124)..................................................................................................................20 EDMONDS V. RONELLA (126)...............................................................................................................20 ISSUE OF INTENTION............................................................................................................................21 BIRD V. FORT FRANCES (128)..............................................................................................................21 NOTES ON BIRD:.................................................................................................................................21 AG (CANADA) V. BROCK (136) .........................................................................................................22 WEITZNER V. HERMAN (139)...............................................................................................................23 STATUTORY LIMITATIONS ON OWNERS RIGHTS AGAINST FINDERS (140).....................................................23

Property Summary
REAL PROPERTY: POSSESSORY TITLES.........................................................................24 RELEVANT STATUTES...........................................................................................................................24 RELEVANT DOCTRINES.........................................................................................................................24 ASHER V. WHITLOCK (143).................................................................................................................25 NOTES ON ASHER:...............................................................................................................................25 RE ST. CLAIR BEACH ESTATES V. MACDONALD (163)...........................................................................25 NOTES ON ST. CLAIR...........................................................................................................................26 CO-OWNERS AND ADVERSE POSSESSION................................................................................................26 TENANCY AT WILL..............................................................................................................................27 MCLEAN V. REID (1978) NS SC AD (174)......................................................................................27 DISPOSSESSION OF A LEASEHOLDER........................................................................................................27 THE ELEMENT OF INTENTION..............................................................................................................28 KEEFER V. ARILLOTTA (182)...............................................................................................................28 BRIAN BUCKNALL, TWO ROADS DIVERGED: RECENT DECISIONS ON POSSESSORY TITLE.......................29 PIPER V. STEVENSON............................................................................................................................29 MASIDON INVESTMENTS LTD. V. HAM...................................................................................................29 BEAUDOIN V. AUBIN............................................................................................................................29 BUCKNALLS OBSERVATIONS:...............................................................................................................30 NOTES ON TWO ROADS....................................................................................................................31 WOOD V. GATEWAY OF UXBRIDGE PROPERTIES INC.................................................................................31 NOTES ON WOOD................................................................................................................................32 QUIETING TITLES................................................................................................................................32 FUNDAMENTAL PRINCIPLES GOVERNING PROPERTY INTERESTS IN LAND ....33 RELEVANT PRINCIPLES AND TERMINOLOGY...........................................................................................33 DOCTRINE OF ESTATES.......................................................................................................................33 RELEVANT TERMINOLOGY.....................................................................................................................33 TYPES OF ESTATES:.............................................................................................................................33 CONVEYANCING AND LAW OF PROPERTY ACT.........................................................................................35 VARIATIONS ON A FEE-SIMPLE ESTATE................................................................................................36 CONDITION PRECEDENT........................................................................................................................36 CONDITION SUBSEQUENT (RIGHT OF RE-ENTRY)...........................................................................37 FEE SIMPLE DETERMINABLE (POSSIBILITY OF REVERTER)..........................................................37 NOTES ON CONDITIONS:......................................................................................................................38 REMOTENESS:.....................................................................................................................................38 VOID CONDITIONS:..............................................................................................................................38 EFFECT OF VOID CONDITIONS...............................................................................................................39 NOTE ESSEX, DOWN, TUCKS: ..........................................................................................................39 RE: ESSEX COUNTY ROMAN CATHOLIC SEPARATE SCHOOL BOARD AND ANTAYA (250).............................39 RE: TUCKS SETTLEMENT TRUST (254).................................................................................................40 RE: DOWN (259)...............................................................................................................................41 NOTES ON DOWN................................................................................................................................42 LIFE ESTATES....................................................................................................................................42 RE: WATERS......................................................................................................................................43 RE: MCLOGAN...................................................................................................................................43 LIFE ESTATES: PUR AUTRE VIE........................................................................................................44 LIFE ESTATES AND SUCCESSIVE INTERESTS IN LAND................................................................................45

Property Summary
THE RULE IN SHELLEYS CASE...........................................................................................................45 AVOIDING THE RULE IN SHELLYS CASE................................................................................................46 RE RYNARD.......................................................................................................................................47 COMMON LAW REMAINDER RULES:.....................................................................................................47 NO REMAINDERS AFTER A FEE SIMPLE...................................................................................................48 NO SPRINGING FREEHOLDS...................................................................................................................48 TIMELY VESTING.................................................................................................................................49 NO SHIFTING FREEHOLDS......................................................................................................................49 LAW AND EQUITY...............................................................................................................................50 EQUITABLE ESTATES............................................................................................................................50 DOCTRINE OF USE...............................................................................................................................50 STATUTE OF USES, 1535 ....................................................................................................................51 SITUATIONS WHERE THE STATUTE OF USES DOES NOT APPLY.................................................................52 THE STATUTE OF USES AND LEGAL EXECUTORY INTERESTS......................................................................53 MODERN TRUSTS:...............................................................................................................................54 RULE AGAINST PERPETUITIES:.............................................................................................................54 NOTES ON RULE AGAINST PERPETUTITES............................................................................................55 BAILMENT, LICENCES AND LEASES.................................................................................56 BAILMENT: .......................................................................................................................................56 BAILEES RESPONSIBILITIES:.................................................................................................................56 BAILORS RESPONSIBILITY:...................................................................................................................56 TYPES OF BAILMENT: ..........................................................................................................................57 HEFFERON V. IMPERIAL PARK (366)......................................................................................................58 LICENCE: ..........................................................................................................................................59 PROPERTIES OF LICENCES.....................................................................................................................59 LEASES: ...........................................................................................................................................60 PROPERTIES OF LEASES:.......................................................................................................................60 STATUTORY FRAMEWORK.....................................................................................................................61 BRITISH AMERICAN OIL V. DE PASS (386)............................................................................................61 METRO-MATIC SERVICES V. HULMANN.................................................................................................62 HIGHWAY PROPERTIES V. KELLEY, DOUGLAS & CO. (407).....................................................................62 RESIDENTIAL TENANCIES:.....................................................................................................................64 RE CANADIAN PACIFIC HOTELS LTD. AND HODGES (401).......................................................................66 REMOVAL OF A TENANT:......................................................................................................................67 COHEN V. KLEIN (424).......................................................................................................................67 HORST V. BEINGESSNER (434)..............................................................................................................68 VALERY CONSTRUCTION LTD. V. ARNO (435)........................................................................................69 TRANSFERRING PROPERTY INTEREST BY GIFTS AND SALE...................................70 REQUIREMENTS TO MAKE GIFTS ENFORCEABLE..........................................................................................70 GIFTS GENERALLY: ............................................................................................................................70 COCHRANE V. MOORE (442)................................................................................................................71 TRUSTS:.............................................................................................................................................71 IN RE: COLE (453)............................................................................................................................72 NOTES ON COLE:................................................................................................................................73 INTENTION:........................................................................................................................................74

Property Summary
THOMAS V. TIMES (464).....................................................................................................................74 CAPACITY:.........................................................................................................................................75 CASADA V. CASADA (470)..................................................................................................................75 DONATIO MORTIS CAUSA:..................................................................................................................76 RE ZACHARIUC; CHEVRIER V. PUBLIC TRUSTEE (478).............................................................................76 TRANSFERS OF INTEREST IN LAND..................................................................................78 STATUTE OF FRAUDS:..........................................................................................................................78 AGREEMENT OF CONTRACT AND SALE:....................................................................................................78 LYSAGHT V. EDWARDS (490)...............................................................................................................79 NOTES ON LYSAGHT:...........................................................................................................................80 SPECIFIC PERFORMANCE........................................................................................................................81 SEMELHAGO V. PARAMADEVAN (452)....................................................................................................81 NOTES ON SEMELHAGO:.......................................................................................................................81 STARLIGHT V. CLOVERLAWN (504).......................................................................................................81 INWARDS V. BAKER (524)...................................................................................................................83 NON-POSSESSORY ESTATES IN LAND:.............................................................................84 EASEMENTS GENERALLY.......................................................................................................................84 REQUIREMENT OF A DOMINANT AND SERVIENT TENEMENT........................................................................84 IN RE ELLENBOROUGH PARK (552)......................................................................................................84 NOTES ON ELLENBOROUGH...................................................................................................................85 JENGLE V. KEETCH (555)....................................................................................................................86 NOTES ON JENGLE...............................................................................................................................86 THE REQUIREMENT THAT THE DOMINANT AND SERVIENT TENEMENT CANNOT BE OWNED OR OCCUPIED BY THE SAME PERSONS....................................................................................................................................86 EASEMENT MUST BE CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT.........................................87 SHELF HOLDINGS V. HUSKY OIL (558).................................................................................................87 LIMITATIONS ON EASEMENTS:...............................................................................................................88 EASEMENTS BY OPERATION OF LAW......................................................................................................88 NEGATIVE EASEMENTS:.......................................................................................................................89 PHIPPS V. PEARS.................................................................................................................................89 COVENANTS AND THE USE OF LAND.....................................................................................................90 FREEHOLD COVENANTS: ENFORCEMENT AT LAW.....................................................................................90 FREEHOLD COVENANTS: ENFORCEMENT AT EQUITY..................................................................................91 TULK V. MOXHAY (604).....................................................................................................................91 NOTES ON TULK:................................................................................................................................92 BENEFIT OF THE COVENANT:.................................................................................................................92 CANADA SAFEWAY LTD. V. THOMPSON..................................................................................................92 COVENANTS AND DISCRIMINATION.........................................................................................................94 NOBEL AND WOLF V. ALLEY................................................................................................................94 NOTES ON NOBEL:..............................................................................................................................95 NEW TYPES OF COVENANTS RUNNING WITH THE LAND..........................................................................95 BUILDING CODE .................................................................................................................................95 PLANNING ACT...................................................................................................................................96 SUBDIVISION PROCESS UNDER THE PLANNING ACT..................................................................................96 CONDOMINIUM ACT: OBLIGATIONS ON UNIT HOLDERS.............................................................................96

Property Summary
ONTARIO HERITAGE ACT: HERITAGE EASEMENT AGREEMENTS.................................................................97 CONSERVATION AUTHORITIES ACT AND CONSERVATION EASEMENTS..........................................................98 CONCURRENT INTERESTS AND FAMILY PROPERTY..................................................99 CO-OWNERSHIPS.................................................................................................................................99 MCEWEN V. EWERS AND FERGUSON....................................................................................................100 SEVERING A JT.................................................................................................................................100 KNOWLTON V. BARTLET (670)...........................................................................................................101 PROPERTIES OF CO-OWNERSHIPS:.........................................................................................................101 PARTITION ACT S. 2.........................................................................................................................103 NOTES ON PARTITION ACT:................................................................................................................103 KNOWLTON V. BARTLETT (680).........................................................................................................103 COOK V. JOHNSTON (678).................................................................................................................104 PARTNERSHIP:...................................................................................................................................104 OWNERSHIPS IN COMMON APPLY TO PERSONAL PROPERTY.........................................................................105 FAMILY PROPERTY...........................................................................................................................105 HISTORY:.........................................................................................................................................105 DOWER............................................................................................................................................105 CURTSEY..........................................................................................................................................105 CURRENT FRAME WORK....................................................................................................................105 CARATUN V. CARATUN (694).............................................................................................................107 NOTES ON CARATUN..........................................................................................................................108 PETKUS V. BECKER (707)..................................................................................................................108 NOTES ON PETKUS.............................................................................................................................109 FAMILY INTERESTS:..........................................................................................................................109 WHAT OBLIGATIONS ARISE?................................................................................................................110 MARY ELLEN TURPEL, HOME/LAND................................................................................................110 ABORIGINAL LAW AND TITLE:...........................................................................................................111 ABORIGINAL CONCEPTS OF PROPERTY..................................................................................................111 LEROY LITTLE BEAR, ABORIGINAL RIGHTS AND THE CANADIAN GRUNDNORM....................................111 NOTES:............................................................................................................................................111 PROPERTY, POWER, POVERTY.............................................................................................................112 NOTES ON PROPERTY POWER, POVERTY...............................................................................................112 K. MCNEIL, COMMON LAW ABORIGINAL TITLE...............................................................................112 BRIAN SLATTERY, THE HIDDEN CONSTITUTION: ABORIGINAL RIGHTS IN CANADA..................................113 DELGAMUUKW V. BRITISH COLUMBIA..................................................................................................114 NOTES ON DELGAMUUKW...................................................................................................................114 ABORIGINAL TITLE AND THE CROWN...................................................................................................115 BUCKNALLS OBSERVATIONS AND COMMENTS ON ABORIGINALS..............................................................115 RIGHTS TO THE LAND.........................................................................................................................116 WISDOM IN VIEWING ABORIGINAL LANDS ACCORDING TO CURRENT STANDARD.......................................116

Property Summary

Property Characteristics:
De Soto: Property is not things it is a bundle of rights. It is not a primary expression of assets but a legal protection of an economically meaningful expression about assets. o Capitalism doesnt work in developing countries because they do not have an accessible means of enforcing property rights. Property: A bundle of rights against other people to tangible and intangible things (example: land and chattels) o Relationship among people in respect of objects o Rights of ownership that the legal system will enforce against others o There may be limits on property rights (i.e. treatment of animals) To be property it must be alienable. Rights are relative not absolute.

General Principle: Property can held by those with legal personality


Natural persons (living human beings) o Children UNDER 18 precluded from holding property. Artificial persons (corporations) o Unincorporated associations generally do not have property rights (the individual members or a trustee may own items instead of the group) o Exception: Aboriginal title to land Delgamukkw v. BC: aboriginal title is vested in the aboriginal nation (sui generis property right) Aboriginal nation has social/political existence but is not a corporation A grouping of natural persons but the title is vested in the nation as a group. Who has no capacity to hold an interest in land? o Children: Minors may hold an estate in land but are restricted in disposition/alienation Statute gives the court discretion to order sale/disposition of a minors interest in property where required for maintenance or education of the child o Mentally Ill: Capacity to hold property but with stringent restrictions on disposition. Statute provides for management of disposition of property under supervision of the public trustee or a designated power of attorney. NOTE: ability to hold property has Political & Social Implications: o Property is associated with power.

Types of rights:
Real Property: traditionally rights to land.

Property Summary o Claims based on these can result in recovery of the property. (Traditionally only land was subject to such a right and so it has come to be known as real property) o There are two subdivisions of Real Property rights: Corporeal Heriditiments: Capable of being held in Possession Traditional land Incorporeal Heriditiments: Incapable of being held in possession. Easements, covenants, Personal Property: traditionally rights to property. o Claims based on these are settled with damages only. It is now possible to get some items back that are personal property. Chattels Real: Leaseholds Chattels Personal: Other personal Property Chattels Personal was further divided into: o Choses in Possession: Tangible property Cars, Watches, o Choses in Action: Intangible property. Promissory notes, bonds, IP Sui Generis: Of its own nature. o Aboriginal Rights are an example. They are held by the tribe in common.

Terminology and Relationships:


Title: the person who has the legal right to the property. o Ownership is the highest form of legal title. o Rights Associated with Ownership: Right of possession and to recover possession Not always exclusive (easements) Right of enjoyment and use Subject to restrictions (zoning laws, historical easements, environmental easements) Right to derive income from property (i.e. rent, lease) Right to alienate the property Sale and transfer of title. Right to leave the property by will. Unless it is a Life Estate: property rights terminate on death. Possession: The person who actually holds the property. o Ownership is assumed from possession. (Possession is a proprietary interest) Onus of proof is on the non-possessor to show that they have better title to it. o Nemo Dat Quad Non Habit Rule: It is only possible to pass on the title you ACTUALLY have in property. Imperfect title is passed, it is not perfected by a transfer

Property Summary True owner can recover where there is a defective title. Ex. A thief can only pass on the title has. This is less than the title of ownership. Obligation/Covenants: restrictions or forced actions on a party. Escrow: a deposit of documents to be held in trust. Bailment: One party owns, one possesses the person in possession is said to be in possession of a bailment. Selling Real Property: o Chattels, fixtures and Accretions. Accretion: cannot be removed from the property without damage to itself or the real property Not about the diminution in value, more about causing actual damage to the property. Are sold with the Real Property. Unless otherwise stated in the contract Fixture: objects that are screwed to the walls but can be removed without damage to itself or the property (not those things simply hanging on the walls). Are sold with the Real Property. Unless otherwise stated in the contract Chattel: can be picked up and removed. Are NOT sold with the Real Property. Unless otherwise stated in the contract Deed: if a deed is created for a property then, without express terms, the full interest is granted.

Property Summary

Concepts in Property Law


Victoria Park Racing and Recreation Grounds Co. Ltd. v. Taylor (6)
Private Property needs to be exclusive. If it can be enjoyed with out exclusivity it is not private property. (A spectacle is not property need to take steps to exclude others). Facts: (1937) A property owner adjacent to a horse racing race track built a raised platform that allowed him to view the race track and the betting prices. The Commonwealth Broadcasting Corp then broadcast what they saw to the world. The race track owner sued for an injunction (an equitable remedy) to stop the broadcasting. People were listening to the broadcast and not attending the races, causing serious financial losses to the race track owner. Claimed: o Nuisance (interference with right of use and enjoyment of land) o Right of privacy o Property right in the information and spectacle Held (Majority Latham & Dixson): o No Nuisance. It is lawful to erect what one pleases on ones land. This did not interfere with the ACTIVITIES OF THE P on his land. There is THEREFORE no precedence for this action in Nuisance. o No right of privacy. o No property in a spectacle (a horse race) Need to make an effort at exclusion to have property rights. Quasi-property created by enterprise organization and labour. BUT it is not property because it does not need to be exclusive in order to be enjoyed, another person viewing it does not harm the enjoyment of others. Not private property it is public property and is available to all. It if it is private property then the OWNER must exclude others from its enjoyment. Minority (Rich & Evatt): o Nuisance Smoke, vibrations, noise are all nuisance related. They are all physical imposition on the land next door. Non-natural use of land sustains the action. There is no absolute right of action within the ambit of a persons property. The rights of the d and p are related. Each owners rights are limited by the rights of others. Difference: Minority willing to do it to protect the race track.

Notes on Victoria Park:


Policy: 9

Property Summary o World is better off if everything is divided among PRIVATE PROPERTY OWNERS. Tragedy of the Commons: open to the public no one cares for it and it is wasted. Frozen Capital- if no one owns land- shanty towns, no capital investment for infrastructure & development. o Contrast: allowing public use of ROADS INCREASES their value. Non-natural use of land: o Vibration cases: Someone creates a big factory with machines that cause vibrations. These vibrations shake other properties. o Rylands v. Fletcher: could have been protected against the water breaking through into a mine shaft. This is a type of nuisance. An action on one property that adversely affects another property. Conversion: an action to retake something that belongs to you but has been taken by another party. o The problem with pleading this in this case is that nothing was taken from them. They still have all the information they would have had before. o The misappropriation of information is not really a conversion; it causes economic damages but not physical damages.

International News Service v. Associated Press (23)


Majority gave protection of news as a Quasi Property against other news agencies only. Property was considered common when it was in the public. Facts: The International News Service was copying news from the early editions of the Associated Press and selling it to their subscribers. The AP seeks an injunction. The sale of news to the public is what sustained the AP in their efforts to get news. INS used the AP news to undercut the sale of AP papers. Held- Majority: Some injunctive relief was granted against INS by majority. o Written form of news in articles is quasi property There is a competing right against competing news service but not against the public (common property in that regard). Dissent: o Once information is created it should be as free as the air. o An essential element of individual property is the legal right to exclude others from enjoying it. o Protection should only be given if the gatherer assumed the obligations of supplying it, at reasonable rates and without discrimination to all that applied for it. o POLICY: Information cannot and should not be controlled, the more people that know what is going on in Europe the better.

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Property Summary

Right to Exclude Others


Harrison v. Carswell (26)
Owners of shopping center are permitted to invoke the trespass remedy against picketers. NOTE: Amendment to OLR Act, picketing now legal in Ontario malls. Facts: The owner of the mall refused to allow the defendant to picket one of his tenants on shopping mall property. There was a legal right to strike due to a labour dispute. They are told that they are not allowed to picket because it is trespassing on Mall property. Held Majority: o Must follow the precedent set in R. v. Peters. Follows the precedent and upholds the trespass charge. I cannot distinguish the two cases. o Refers to Dixson: Judges should not change the law! o Peters: Owner of a shopping plaza permitted to invoke trespass remedy on picketing with regards to a labour dispute. Picketing was occurring in a common area of a plaza. o Owner not acting out of malice. Doesnt let ANYONE leaflet on mall property. o Rights of the owner cannot be taken away without due process of law. Did not rescind those rights by inviting people onto his land. Dissent: o There is a legal right to picket here that did not exist in Peters. This right MUST BE PROTECTED. o People should have a continuing privilege in using the public areas of the shopping center. Subject to limitations based on: The nature of the activity and the object pursued cannot be inconsistent with the normal use of the mall A limitation against material damage.

NOTES on Harrison:
Amendment: o Ontario Labour Relations Act: allow people to legally picket where ever the public normally has access. POLICY: Shopping Mall Picketing - Arthurs. o Picketing is lawful even if it interferes with the normal use of the picketed property. o Inconvenience to adjacent shop owners is handled by restricting activities. o Justification: In public: taxes pay for the maintenance of the sidewalk and roads. They are entitled to picket there. 11

Property Summary In a mall: the landlord pays for the maintenance of the common areas. Making them picket on the roads is impracticable. BUT cant let employers avoid impacts of labour conflicts just because they are in a mall!

RWDSU v. Eaton Center


o Facts: The union was trying to organize Eatons employees. Went onto Eaton Center property to do it. They were passing out pamphlets trying to organize the employees, while the mall was closed at a staff entrance. The mall owners Cadillac Fairview told them to leave. o Held: Union ENTITLED to be there (opposite to Harrison). Distinguishable from Harrison. OLRB decision not Court decision. Information campaign was off mall hours, when the stores were closed. Harrison NOT a blanket exemption for mall owners to participate in unfair labour practices. Property rights of Cadillac Fairview were trumped by the Unions right to try to Organize. Courts found that Cadillac was acting colourably for Eatons helping to prevent organisation. Acting on behalf of an employer to prevent organisation is against S. 64 of the Ontario Labour Relations Act.

Right to Exclude Constitutional Guarantees


Committee for the Commonwealth of Canada v. Canada
Right to freedom of speech on public property (takes no position on private property) trumps right of exclusivity of owner as long as the TEST is satisfied: Traditional openness of the property. Public ordinarily admitted to the property as a right. Compatibility of the property with the expressive activity. o MUST BE CONSISTENT WITH THE PRINCIPLE PURPOSE of the public place. Significance of the property to the message being communicated. Availability of OTHER public arenas in the vicinity for expressive activities.

ONUS on claimant to show it is a public area. Facts: the p was distributing leaflets in Dorval airport (government property). There was a federal regulation stating that no person should advertise or solicit on his own behalf or on behalf of any other person without permission from the Minister. The CCC was told to leave. They challenged this. Held: LHD

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Property Summary o LHD takes stand that property rights are subject to infringements. If you cant exercise Charter rights on PUBLIC PROPERTY (government owned property) the Charter loses all meaning. But not all government owned property!! o Offices, air traffic control towers, judges chambers Refuses to take a stand on PRIVATE PROPERTY. Cites US position: o The more an owner, for his advantage, opens up his property for public use. o The more the statutory and constitutional rights of the people using his land circumscribe his rights. ONUS on claimant to show it is a public area. o NON-SECURITY zones of airports satisfy the test.

NOTES on CCC
Cannot invoke freedom of expression so as to interfere with the functions of the public place. o Parliamentary Library: cant enter and start a public speech. But can enter wearing a T-shirt with a political message. R v. Behrens o Facts: Demonstrators in Parliament. o Held: could not be charged with trespass so long as they were peaceful and did not interfere with the function of the legislature. R. v. Banks: Freedom of expression is more to protect POLITICAL instead of COMMERCIAL communication. o Begging is more commercial. So it is not protected as a CORE value of the Charter. R. v. Shack: o Facts: a group trying to reach migrant workers to inform them of their rights was stonewalled by the owner of the property they were staying on. o Held: The benefits of the migrant workers hearing the information outweighs the detriment to allowing the trespass. Mans right to his property is not absolute. BUT solicitors and peddlers of all kinds are also not permitted to enter the property without permission. Lehman v. City of Shaker Heights (55) o Facts: Politicians wanted to advertise on busses and subways. The city prohibited such advertising. o Held: This was valid. People on busses are captive audiences. They should not be forced to see political advertising; they have no method of escaping the advertising. Task Force on the Law concerning Trespass: o Trespass to Property Act creates the potential for abuse.

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Property Summary Especially against minors. Owner voluntarily limits the duration of the ban. o Public perception is that the shopping center is public property The inconsistency between the public perception and the legal position causes strained communications. o Malls are socially important They are where young people go to be seen, meet and converse. Displaced and replaced streets and street corners. Privatization of town squares should carry with it obligations to allow for non-productive uses.

Property and Body Parts


Moore v. Reagents of the University of California (65)
No property in human tissue. Once it is removed from the human body you lose control over it. Facts: Moore had his spleen removed as part of treatment for cancer. It was somewhat unique; enriched in a particular type of cells. Because of its unique property the spleen useful in research. Research was performed with the cells. They developed a new line of cells, spurring a number of products, to great economic advantage to the researchers. Moore sued because he believed that his property was used to make the cell line without his permission. Held: There are no property rights to human tissue. Once it is removed from the human body you lose control over it. o A researcher can have rights tissue BUT the donor of the tissue cannot. o Researcher gets rights because of his labour.

Joan Gilmour, Our Bodies: Property Rights in Human Tissue (67)


Positives of giving rights: o Clear strong acknowledgement of control over ones self. It would do little to enhance human dignity and rights. Inappropriate to assigning property rights to human tissues. o Property rights import economic systems. It is improper to discuss humans in this way. They are not chattel and neither are their body parts. Human tissue is already being used as property by Bio-technologists. o Right to use and transfer the material.

NOTES:
UK: human tissue (blood, sperm, eggs) should not be bought and sold for profit. Bill C-13 Act Respecting Assisted Human Reproduction and Related Research

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Property Summary o S. 5(1): (a) No cloning, (b) no creating in vitro embryos (for any purpose other than reproduction or training for producing reproduction.) o S. 7(1): No one can purchase, offer to purchase or advertise the purchase of sperm or ova from a donor or person acting on behalf of a donor. Woodward v. Commissioner of Social Security: Facts: mother was impregnated using fathers frozen sperm AFTER the fathers death. o Held: Children entitled to inheritance if mother shows that Father gave consent to have his sperm used as it was.

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Property Summary

The Concept of Possession


Rose, Possession as the Origin of Property:
Locke Labour theory: original owner is the person who mixes his or her labour with a thing and thus establishes ownership over it. o Problem: could a person pour a can of tomato juice in the ocean and claim ownership? Consent Theory: get ownership by the consent of the rest of humanity. o Problem: administrative costs. How does society get together and recognize your title? Common law: Possession or Occupation. o FIRST possession is the root of title. o The first person to COMMUNICATE a claim on the land. Necessary to develop a system of symbols that our society can understand as communicating possession.

Pierson v. Post (97):


Clear act of possession required to take control of property. Facts: Post was hunting a fox, he chased it down to deserted beach. Pierson, shot the fox and took off with it. Post sued Pierson for the fox carcass. Held: o Majority: There needs to be a CLEAR and UNEQUIVOCAL act of possession. Shooting the fox was that act of possession o Dissent (Followed in Subsequent Cases): A committee of fox hunters should be used to decide when possession is made clear. Use custom instead of court law. This was followed in subsequent cases.

NOTES on Pierson:
California Gold Rush: much deference given to the custom of the miners. Majoritys CLEAR ACT was undoubtedly meant to be wider than the audience suggested by the Minority (Fox Hunters understanding).

Perry v. Gregory (103):


Use the custom of the group to determine what the clear act of possession is. Facts: Two experienced metal detectors were searching in a field. Perry received a signal from his new detector. He began to dig a hole. Perry asked Gregory to verify the find. Gregory verified the find and then continued to dig up the item. He then took possession of it.

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Property Summary Held: The p was able to recover the object (original finder). o It was a custom in the field of metal detecting to assert possession over an item that you had begun to dig a hole on. o Custom of the group was followed by the court to determine the clear act of possession

Possession and the Finders of Lost Objects


Armory v. Delamirie (106)
Finder has title against all but the true owner. Facts: A boy found some jewels while acting as a chimney sweep. He took the stones to a jeweller. The boy handed the stones to the jeweller for assessment, the jeweller refused to hand it back. The boy sued in conversion. Held: The boy was able to recover. o Finder has title against ALL but the true owner.

Parker v. British Airways Board (107)


Finder was able to claim damages because there was no manifest control over the 1st class waiting area in which he found the bracelet. Finder needs to have superior claim because there needs to be an incentive to turn in the object so the true owner can re-take possession. Facts: A man found a gold bracelet in the ds executive waiting area (restricted access). He turned it over to an employee with instructions that if the real owner was not found he should be contacted (he left his name and address). He was never contacted, though the real owner was never found. The d sold the braclet at a profit or 850. Held: The man was able to recover the 850 plus 50 in interest. o The Finder had superior claim to the occupier (in this case). This would not be so if: The finder was trespassing (or some other wrong doer) The owner was exercising manifest control over the area. The standard for manifest control is HIGH it was not met. Need to regularly search for lost articles. o Layers of those who can lay claim to the bracelet True owner A claimant against the true owner if it was bought on credit for instance. The finder The possessor of the land. In this case the lessee. Those that took custody of the bracelet from the finder.

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Property Summary o Rights and Obligations of the Finder No rights unless It has been abandoned or lost He takes control of it. Very limited rights if he takes it into his control with dishonest intent or in the course of trespassing. Finder acquires a right to keep it against all but the true owner, those claiming through the true owner, those with a prior right subsisting at the time the chattel comes into his control. An employee finder takes it into care and control on behalf of his employer (employer acquires the finders rights). Obligation to take all reasonable measures to find the true owner and to take care of the chattel until then. o Rights and Liabilities of an Occupier Occupier of land has rights superior to those of a finder if: Chattel is attached to the land. Occupier of a building (or chattel: ship, car, ) has superior rights to those of a finder if: Chattel is attached to a building. Occupier has manifested an intention to exercise control over the building and the things found upon it. If occupier has rights superior to the finder he has an obligation to take such reasonable measures to ensure that the lost chattel are found and to take care of the chattel until it is found.

South Staffordshire Water Co. v. Sharman (110)


Things imbedded in property give the occupier primary rights. Employees cede their rights as finders to the employers. Facts: The defendant found two rings embedded in some mud he was hired to remove from the bottom of a pond on the ps property. Held: The p was entitled to the rings. o The d was acting as an employee of the p. o Also the rings were imbedded in the property. They were a fixture.

Bridges v. Hawkesworth (111)


In public areas of an occupiers premises which the occupier is not exercising adequate control over the finders rights are superior to the occupier. Occupier must be exercising control prior to the find. Facts: The p, a commercial traveler, came into the ds store and found a parcel of money on the ground. He turned the money over to the shop keep to allow him to

18

Property Summary find the real owner. The shop keep looks for the real owner and then keeps the money. Held: The p was entitled to recover the money less the amount the shop keep spent on his search for the real owner. o The money was found in a public area of the store. The shop keeper was not exercising adequate control over that area of his store to claim it for himself. The notes were never in his custody or within the protection of his house o Had it been found behind the desk it would have been in an area the shop keep exercised control over and would have been his.

City of London Corporation v. Appleyard (114)


Workers cede their finders rights to the employer. Facts: Two workers found money in a cellar a safe. Held: leaseholders were entitled to the money. o Workmen were employees of the owner. o The leaseholder EXPLICITLY reserved the right to anything of value found in the remains of the building.

Grafstein v. Holme and Freeman (114)


Possession of an object implies possession of the contents of that object if the possessor is retains control over the object. The possessor has a superior right to the finder. Facts: The owner of a store (p) employed the ds. The owner expanded the store into a new area. The ds found a box when the p expanded the store. The p took custody of the box and put it on a shelf. 3 years later the ds open the box and take possession of the contents a large amount of money. Held: The owner was entitled to keep the money not the employees who actually found the money. o Treated the finding of the money as when the box was opened. o BUT the box was in the ps possession. o Did not find based on the ds acting in the employ of the p.

Kowal v. Ellis (115)


If a finder is not trespassing he will have superior rights to the occupier if he finds something that is not attached to the ground that the occupier does not know about. Facts: The owner of some land allows a man to drive over his field. As the man is driving along the field he spots a pump. He takes the pump. The owner of the land sued for control of the pump. Held: The finder was entitled to take control of the pump.

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Property Summary o Pump goes to the finder. o The property owner was not asserting manifest control over the land.

Elwes v. Brigg Gas Co. (115)


If a finder finds something that is attached to the ground the occupier will have superior rights to the finder. Facts: a worker found an ancient boat embedded on the property of a land owner. Held: The land owner was entitled to the boat. o The boat was embedded in the property. So it was a part of the property owned by the owner.

Joint Finding:
Keron v. Cashman (124)
Need to have state of mind to possess. Possession is not just the person who first takes personal possession. Finder who has no intention to inspect the object cannot claim title to the value of the object if it is taken away from him. If the value of an object is realized jointly it is shared jointly. Facts: One of 5 boys finds a sock. Another boy takes the sock and the 5 stat playing with it. The sock bursts open and money falls out. Held: The money was divided equally between the boys. o Found while in the common possession of all the boys. Insufficient evidence to show that Crawford (original finder) wanted to examine the stocking before it was snatched from him. Had this been established all of the money would have been Crawfords.

Edmonds v. Ronella (126)


Money was not found until it was removed from the property. An essential element is the state of mind to keep possession of the money. Facts: Two boys find an envelope full of money in the garbage. A girl helps them take the money to the police. Held: The three were ordered to split the money equally. o It wasnt considered found until it was out of the parking lot.

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Property Summary

Issue of Intention
Bird v. Fort Frances (128)
Where the true owner asserts no intention to possess they have no rights even if wrongfully dispossessed of possession. The finder even if trespassing, has superior claim to the chattel, against all but the true owner. Facts: A boy trespasses onto a property and finds a can full of money. He begins spending the money without trying to find the real owner. The police came and took possession of the money. Held: Since the true owner and occupier of land had no intention to assert their claim to the money the finder had the highest rights to everyone else. o Possession creates rights. Not as extensive as ownership. o The boy was not a true finder. Money was not in a publicly accessible place. Money was not lost Someone put the money there deliberately. o No Animus Furandi: good intention on finding (no attempt was made to find the true owner). o But finder was in possession. Even though his possession was interrupted he is allowed to take it back. o The owner of the property made no claim on the money.

Notes on Bird:
R. v. Christie (132): There needs to be an intention to exercise control in order for it to be considered in your possession. o Facts: police found marijuana in the trunk of the accuseds car after an accident. She claims she saw it, panicked (believing it to be her childrens) and drove around looking for friends in a panicked state. o Held: This was a criminal case. There was no intention to exercise control over the marijuana. This is important in a Criminal Code matter. Moffatt v. Kazana (133)

There was no intention to abandon it was simply forgotten. The true owner wanted to reassert his right. True owners rights are better than the finder. o Facts: Russell, when he moved into his house brought with him a biscuit tin filled with money. He placed the box in a false flue. From time to time he would take money out of the box and use it. The house is sold to Kazana. 21

Property Summary Workers find the box filled with money. Moffatt, the heir of Russell sues for the box filled with money. o Held: The box was not abandoned, it was simply forgotten. Moffatt was able to recover the money, as the true owner of the box. Russell had never ceased to be the owner of the box. True owner trumps finder, finder trumps 3rd party. Moffat didnt get ownership of the box as the purchaser of the house because it wasnt considered when the house was sold. She should get everything that the vendor has not said she will not sell. The object was not abandoned. It was forgotten. o NOTE: Recaption: The right to enter onto someone elses land to recover a chattel without the assistance of the legal process. (Permits technical trespass.)

AG (Canada) v. Brock (136)


Possession is prima facia title. Abandonment: voluntary relinquishment with intention of terminating ownership, possession and control without vesting ownership in any other person. Must be absolute, No intention to reclaim or resume possession. Facts: Man is pulled over for a traffic violation. He is arrested for a vehicle ownership discrepancy. Police search the car and find $300,000 (US) in his car. He denies it is his. The next day, with a lawyer he claims the money on behalf of offshore investors. He dies. Drivers estate and the municipality claim the money. Held: He released his claim to the money. So his estate doesnt get it. o Possession is prima facia title. Possession is protected against all but those that can show a better claim. o Abandonment: voluntary relinquishment (by the owner or holder), with the intention of terminating ownership, possession and control without vesting ownership in any other person. Must be absolute. No intention to reclaim it or resume possession at any time. o Court of Appeal: There is a rebuttable presumption of ownership created by possession. This was rebutted! He was in control of the car so he was in control of the contents of the car. Parker Obiter: Applying Parker: He did not know of the money so he did not have possession of it when it was found by the police. State therefore should be entitled to the money.

22

Property Summary

Weitzner v. Herman (139)


Abandonment requires that there be no intention to repossess. Facts: During renovations at a home she had just purchased from an elderly widow a woman and her contractor found $130,000 in a fire extinguisher. They did not tell the widow but gave her old photos and other things found in the house. The widow found out about the money but thought it was only $12,000. She claimed a 1/3 interest. The purchaser and the contractor had her sign her rights to the found money away for $4,000 Held: The widow was entitled to recover the entire amount. o The money clearly belonged to the widow. o The finders did not behave honestly.

Statutory Limitations on Owners rights against Finders (140)


Limitations Act: after 2 years you realize that it is lost the finders title to the found chattel is absolute. o The real owner is barred from bringing an action. Treasure Trove and the Protection of Antiquities: any treasure trove found in a wrecked ship may be subject to a claim by the Crown. Canada Shipping Act: Need to deliver a found wreck to the Crown in a Week.

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Property Summary

Real Property: Possessory Titles


Relevant Statutes
Possessory Titles analysis ONLY applies to the Registry Act. Possessory titles do not run under the Land Titles Act. o Registry Act: Old method of registering titles in land. Almost completely gone. It is still used in some rural areas and near Kingston. However the switch to the Land Titles system is continuing and should be complete in 2007. o Land Titles Act: Current method of registering titles in land (dominant in Ontario. One system, formal registry and survey. Bucknal- Limitations Act will allow people to bring possessory claims even after conversion to LTAct. Within 10 years there can be no more possession claims. Possessory issues arose before act and have not yet been dealt with/not asked before Act came to be. Ontario Real Property Limitations Act: o S. 4: Cannot bring an action to recover land 10 years after you acquire the right to bring an action. o S. 5(1): The right to bring an action is deemed to start at the time of dispossession of the land (rent not paid). 10 years after the land is taken over (with or without the knowledge of the actual owner) the possessor gets full title. o 5 (7): one year after the tenancy at will begins adverse possession begins to run. o S. 8: Entry on the land is not sufficient to acquire possession. o S. 13: Offer to purchase (in writing/signed) stops the statutory limitation period from running. o S. 15: Provides for the extinguishment of the title holders rights to bring an action to recover possession after the limitation period has expired. o S. 28: In the case of and adverse possessor hiding facts that would have let the owners know there was an adverse possessor, the time begins to run from when it is first known or discovered or should have been discovered with reasonable diligence.

Relevant Doctrines
Possesory Title: The right to hold title because of you have held it for a certain period of time (10 years) Livery of Seisin: ceremony for the transfer of land. o Grantor and grantee stand on land to be granted with a witness. Grantor symbolically delivered seisin by handing the grantee a twig or a handful of sod and expressing the words of transfer.

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Property Summary

Asher v. Whitlock (143)


Possession is prima facia title but it can be rebutted by evidence that the opposite party has a better title. The will of the heir rebutted the possessory interest of the husband. Facts: Williamson (1842 and 1850 enclosed the waste of the manor). The owner of the manor had actual title to the land. However the owner of the manor is not represented. Williamson passed and left his cottage to his wife in his will until she re-married, it would then pass to his daughter. His wife (Lucy) remarried, thus title passed to he daughter (Mary-Ann). However the daughter, wife and new husband lived together in the cottage. The daughter then died and soon after the wife died. The new husband remained in the property. The heir of the daughter, 2 years later, sued to have the new husband removed from the property. In total he had been living there for ~4 years. Though there is no evidence that the heir was ever in possession. Held: The heir was entitled to have the new husband ejected. o The P (heir of the daughter) was entitled to have the new husband removed because she was the actual owner. The daughter could likewise have had the new husband ejected. o Cockburn: The new husband was in possession so he had title against all but the actual owner. The actual owner has come forward.

Notes on Asher:
Durante viduitate (during widow hood): Type of estate. It is a life estate subject to termination at the end of widowhood. It is held for the life of the party or until the condition is met.

Re St. Clair Beach Estates v. MacDonald (163)


Offer to purchase the property shows that they did not have possession. Facts: The MacDonalds owned a strip of land on the Grant farm. There was a small disputed area of land which the MacDonalds used regularly without the owners permission (seeded and cut grass, built a skating rink, stored a boat, built a dog house, erected a pole with a 3 foot deep foundation, had weeping tiles installed for the septic tank) but was owned by the Grants. The Grants did some agricultural work on the land. The MacDonalds used it as a part of their yard. The MacDonalds made 2 offers to purchase the land from the Grants. The Grants sold the land to St. Clair Beach Estates. Held: MacDonald could not show possession. He had not stopped the Grants from using the land as they choose. Thus St. Clair Beach Estates got the land. o Test for Adverse Possession: Actual possession for the statutory period by themselves and those through whom they claim.

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Property Summary Possession was with the intention of excluding from possession the owners or persons entitled to possession. Discontinuance of possession for the statutory period by the owners and all others, if any, entitled to the property. o Appellants did not have the intention to exclude the owners. They made 2 offers in writing. Admission that the other party has title. Owners were able to come onto the land and they chose to pick apples. They werent prevented from using the land as they pleased.

Notes on St. Clair


Animus Possidendi: occupation with the intention of excluding the owner as well as other people. o Exclusive Possession and Animus Possidendi are both required for an adverse possession claim. Would have commenced possession when the bird house was built (with the 3 foot foundation) and the boat parked on the property. o But this was short of the limitations period. Lutz v. Kawa (1980) Alta C.A.: Torrens registration (similar to land titles) statute but Alberta statute permits continuation of such claims (often, these system preclude AP claims) o Do not need to exclude true owner if one doesnt know there was a true owner. If it was a situation where one had to know there was a true owner, it would mean a conscious wrongdoer would be in a better position than persons who made an honest mistake Because she didnt register the title, the subsequent purchasers defeated her title o In a case where the person does not realize they are in adverse possession, dont need conscious intent to exclude the true owner because dont know there is a true owner

Co-Owners and Adverse Possession


In a situation of co-ownership, any co-owner is entitled to possession the land. o If one or more owners are in possession and there are one or more owners who are not in possession, the possession of those on the land is not deemed to be possession for those NOT on the land o Result: Joint Tenant 1 can be adverse to Joint Tenant 2 and end up with complete title to land.

Adverse Possession can be acquired without the intention to exclude the other coowners

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Property Summary

Tenancy at Will
Tenancy at Will: Person is in possession with the owners permission and is not paying rent (usually arises in a family situation) o Possession via tenancy at will becomes adverse after one year and the limitation period begins to run from that date. o Limitations Period- After Occupying land for 10 years- Claim Adverse Possession- can try to claim title from true owner. Must be- exclusive, visible, actual, open not secretive- without permission or violent. o Reward those in society which maintains land for society. Ontario Real Property Limitations Act 5 (7): one year after the tenancy at will begins adverse possession begins to run.

McLean v. Reid (1978) NS SC AD (174)


Tenancy at will, limitations period starts to run one year after you stop paying rent. Facts: Brother 1 inherits the property and Brother 2 lives on the property for 33 years as tenant a will. Brother 1 sells the property and seeks an order to get him to vacate the land. #2 claims adverse possession. Held: Brother 2 in possession via tenancy at will (limitations period runs one year from start of tenancy at will). o Brother 1s title is extinguished via statute of limitations. o Statute also provides mere entry is not sufficient to reclaim possession. Brother 2 is entitled to the land. o McLean acquires nothing because Brother 1 did not have a good title to sell (Nemo Dat Quad Non Habit Rule) RE: OReilly (No. 2) (1980) Ontario (173) o Farm left to siblings but only a few siblings remained on the land for 33 years o Court used the equitable doctrine of latches to bar a claim by the beneficiaries who were not in possession Note: S.2 of RPLA states claims under equity are not barred

Dispossession of a Leaseholder
Limitation period runs against the leaseholder until the end of the lease Landlord has no right of possession while the lease is in force. Limitations period does not run against landlord until the lease ends. Leaseholder gets an AP and the limitation period expires vis--vis the leaseholder. However, the leaseholder surrenders the lease to the landlord at the end of the lease period. So the AP against the leaseholder cannot also dispossess the landlord. AP period starts again with the land lord. o Limitation period against AP begins to run against the landlord who is now entitled to possession at the END OF THE LEASE.

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Property Summary A lessee whose own title had been extinguished by adverse possession could by surrendering the lease to the landlord and enable the lessor to evict the squatter.

The Element of Intention


Keefer v. Arillotta (182) Test for adverse possession:
Not enough to make intermittent use of the land. Facts: (Keefer Respondant, Arillotta Appellant) There is a small strip of land separating the properties. Arillotta owns the property but Keefer has an easement over the property and used it for a variety of purposes not included in the easement. Claim for adverse possession based on the easement being exceeded. o Keefer put gravel on the driveway at his own expense. o Owners maintained the grass. Keefer held BBQs on the grassy part of the easement driveway. o Keefer moved a garage over onto the easement property and the owner (Cloy) did not object. o Cloy used the driveway to make deliveries but for few other uses. When Cloy rented out the apartment above his store he did not allow the tenant to park in the driveway. Held: The possessor needs to exclude the owner from the use that the owner intended to make of it. (Adversity test) o A person claiming possessory title must establish ALL three criteria Actual possession by the statutory period by themselves and those through whom they claim Possession was with the intention of excluding from the possession the owner or persons entitled to possession Note: In Canada, this is the subjective intention of the person claiming the AP Person acquiring possessory title MUST INTEND to exclude the owner from uses the owner intended to make of the property Discontinuance of possession for the statutory period by the owner and all others, if any, entitled to possession Intention of the owner is an important consideration (OCA) o If the owner doesnt intend to use the land, there is no discontinuance. Possessory title cant be acquired by depriving the owner of property uses they never intended to have. Inconsistent Use Test: Was the owner precluded from uses they wanted to make of the property?

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Property Summary o Did Keefer Satisfy the test? Only satisfied the test with respect to the part occupied by the garage.

Brian Bucknall, Two Roads Diverged: Recent Decisions on Possessory Title


Piper v. Stevenson
Facts: Piper bought 6 acres but fenced in 8 (1901). She worked the land, farming it. In 1911 the actual owner of those lots sold them. The new owner tore down the fence and took over the land. Held: The land was returned to Piper. She had possessed it, and fenced it in for 10 years. It was now hers.

Masidon Investments Ltd. v. Ham


Facts: D rented 100 acres of land from previous owner. Half was used for residential purposes and half as an airstrip (run by the D that became popular with other pilots. Owner of the land lost title to the P. D able to continue to rent the residential half but not the airstrip half. Continued to use airstrip half of the land. P was holding the land as an investment but did nothing with it. D sued to get a proclamation of adverse possession (had used the land with out the Ps permission for over 10 years). Held: Owner did not intend to use the land therefore, not dispossessed of the land o He did not meet the test articulated in Keefer o Masidon had no intention towards the land so his rights to it were inviolable. o 1982 Court of Appeal decision!

Beaudoin v. Aubin
Facts: Beaudoin (B) leased the property for 15 years then purchased it. From the time of that lease up until they purchased the property they had possession of a piece of land (now in dispute) because the fence was in the wrong spot. At the time they bought the land they knew that it was not theirs but continued to occupy it for a further 13 years. At this time the Aubain family (A) learned that they had paper title to the land and disputed As claim to it. Held: B was entitled to keep the land. o But there is no knowledge and therefore no intention of adverse possession!! o Anderson J rejected the intention test entirely and determined that the intention and adversity tests were not appropriate elements of the law is a simple matter of possession.

29

Property Summary

Bucknalls Observations:
Beaudoin v. Aubin was decided a year before Masidon v. Ham. o Masidon v. Ham did not discuss Beaudoin v. Aubin. Divergence in approach is almost as different as the divergence in results for Masidon and Piper. Masidon decision depended heavily on the reasons in Keefer by Justice Wilson (then of the Ont. CA) o Animus possidendi: need to have the intention to exclude the owner from the use the owner wants to make of the land. o Relied on the Leigh v. Jack decision. Two tests for proof of intention under Masidon: o Intention of the possessor to exclude the owner from such uses as the owner wants to make o Intention of the owner to make some use, or no use, of the land. In other words: o A person in possession of land which he does not own can only acquire possession if: He knows he DOES NOT OWN the land, and He knows the INTENTION of the owner and acts in a manner INCONSISTENT with those intentions. o The weaknesses of this test are apparent. Cant get possession due to mistakes. It is inconsistent with previous decisions. Common law: o Without stealth Needs to be actual possession. A series of trespasses will not suffice. o Without violence Cant physically keep the true owner from the land Without permission Cant be exercising the owners rights with respect to the land. Bucknalls Ideas of a Modern Approach: o Peaceful ownership amounting to possession is the DEGREE of use of the property that a true owner would make of it. Property that is not susceptible to some degree of open continuous control will remain with the paper title holder UNLESS the claimant to a possessory title takes unusual measures to establish the existence of his interests. o Possessory estate established through a variety of indicia (none on their own sufficient to establish possession: Enclosure Continuous possession Formal repudiation of claims by the true owner Demonstrated intention to possess the lands as if the claimant were the true owner. 30

Property Summary o Intention to possess: Open, obvious, continuous possession. Intention is not an issue it is assumed. Facts are equivocal and the lands are not in continuous use. Subjective intention of the possessor MAY BE a relevant factor. o In possession without the permission of the title holder is a necessary factor. In possession with the permission of the owner, possessory period does not run.

Notes on Two Roads


2 types of owners. o Paper title (legal owner) o Possessory title (possessor of the land) Person who has possession has an estate that the courts will protect right from the moment that he takes possession. That estate is held against the legal owner. Adversity: Adversity test is not a part of Ontario law [Wood v. Gateway] If the person taking the land is seen as grabbing it this generally will be seen as immoral and will be decided in favour of the paper owner. o Masidon v. Ham, Leigh v. Jack Limitations Act. o If a claim can be made it MUST be made in 10 years.

Wood v. Gateway of Uxbridge Properties Inc.


In the case of a mutual mistake intention to bar possession is implied. Inconsistency test does not apply in mutual mistake. BB: Wood can be used to argue that Inconsistency test is no longer in effect. There is thus an assumption about animus possidendi. Facts: For 18 years Woods enjoyed exclusive use of a 2 acre parcel of land. They honestly believed they had title to that land as did their neighbours, and treated it as though they were the true owner. The Woods had several buildings on that land and had the land fenced it. The neighbours sold their parcel of land to a developer; they had held that land for the speculative purposes. The developer did a survey and found that he owned the 2 acre parcel. Held: The Woods were given title. o Need only show that for an uninterrupted period of 10 years three conditions were met. Actual possession of the land Intended to exclude the true owners from possession

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Property Summary True owners were effectively excluded from possession (Inconsistent use test) o Mutual Mistake: Court will not bar possessory title due to inability to form an intention. Mutual mistake can create and inference that the party did intend to exclude others (including the true owner). Inconsistency test DOES NOT APPLY to CASES OF MUTUAL MISTAKE. Inconsistency test was developed to prevent injustice by allowing trespassers to gain title over rightful owners. (Leigh v. Jack) Can establish effective exclusion of the true owner.

Notes on Wood
Possessory title claims only run under a registry in the Registry Act in Ontario. o Once Land Titles is completed there will be no more possessory claims. ***Wood can be used to argue against Keefer that intention is not required. (BB)

Quieting Titles
In cases where a person can show a title based on possession an application may be made to register such an interest. Under quieting titles legislation. o Ontario application is made pursuant to the Courts of Justice Act

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Property Summary

Fundamental Principles Governing Property interests In Land


Relevant Principles and Terminology
Tenure: We hold our interest from the sovereign, the crown. The crown owns all the land. o This is the system we have in Ontario. Alloidal: Complete out right ownership. o This does not exist in Ontario law. o The largest estate you can hold is a fee-simple (against the crown). Seisin: hold or have. Escheat: When an owner dies and leaves no heirs (there is no will and he has not disposed of his land) the land reverts to the crown. o In Ontario it becomes vested in a Public Servant (the crown) o Same position is taken for Corporations If a corporation is wound up without divesting of the land it Escheats. o It is possible to get this land back. But it is time consuming and difficult.

Doctrine of Estates
Multiple parties can have a claim to the land at different TIMES. o Quantity of the estate is the important figure (amount of time) Historical Perspective: Property used to be a method of securing the family. Currently property is viewed as a commodity.

Relevant Terminology
Grant: An intentional transfer amongst living people Devise: A transfer that takes place in accordance to a will. Perpetuities: If a property might vest at a later date then it must happen with in a Perpetuity period: a life or lives in being plus 21 years. o If you create an estate for your Grandson then he must take it within the perpetuity period.

Types of Estates:
Fee Simple: highest form of ownership in a tenurial system (not the same as allodial ownership as in a civil law system). o Free and common socage: you were free to use the land as you so chose. This is the only type of fee simple in Ontario. o Grant or Devise to create a fee-simple. John & his heirs (Words of Purchase) & (Words of Limitation)

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Property Summary Used to be the only way to transfer land in Fee-simple. Otherwise (without those exact words of limitation) it was determined to be a life estate. Currently the presumption is in favour of a grant of fee simple. o Statute of Wills: This created the current estate of fee-simple. Enabled land owners to leave land to anyone. This made Escheat rare. No longer needed an heir to pass your estate to, you could designate an heir. o Fee simple can be divided up into the smaller estates. Life Estate, Leasehold, Life Estate: Fee-simple on the property for the life of the grantee. o Life Tenant: grantee. o Remainder: the remaining interest in the land after the life tenant dies. o Remainderperson: the person entitled to the remainder of the estate. If no Remainderperson is declared in the grant then the grantor is the remainderperson. In such a case the grantor is said to have a reversionary interest in the land. Grantor is then called the reversioner If the grantor is dead then it reverts to his estate. o Grant or Devise to Crate a Life Estate: X to A for life. A has a life estate (control of the estate for her life). X has a right of reverter. o When Mary dies the estate returns to him. X to A for life then to B A has a life estate. B is the remainder person. o When A dies the estate goes to B. Both have a current estate. Both can alienate it to the point that they control. o A can sell her estate to C (estate pur autre vie) but when A dies the estate reverts to X (even if C is still alive) X no longer has any interest in the land. o Life estate is for and indeterminate amount of time. Fee-Entailed Estate: the estate lasts as long as there are lineal descendants to the grantee. The grantee gets a life estate and so do his lineal descendants. o These are essentially obsolete everywhere except Manitoba. Land subject to a Fee-tail was under valued and under used. o Grants to Mary for life and the heirs of her body. Mary has nothing to give away. It goes to her descendants. Mary has no say in how the estate is .

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Property Summary The law has since barred the entail (turning it into a fee simple). These no longer exist. Conveyancing Law and Property Act: any words of limitation that would have created an Entailed Estate now create a fee-simple (or the largest estate the grantor had to give) Leasehold Estate: this is the same as a life estate but for a determined amount of time. o A leases to B for 10 years. Same as a life estate but it is of a determinate amount of time. Leaseholder (B) Right of Reversion (A) A can terminate the lease at any time with reasonable notice. The estate (either way is alienable!) B can sell his estate to some one else (to the point where he controls it only for however long his leasehold is) A can sell his estate Words of Purchase and Limitation o Words of Purchase: Indicate to whom an interest is being conveyed Example: To X o Words of Limitation: Define the size of the estate conveyed to the grantee (i.e. fee simple, life estate) Example: and his heirs or and the heirs of his body The heirs are not getting an interest in the land. The term is used to define the size of the estate being given. o Under Common law words of limitation had to be precise to grant feesimple (and his heirs). Default position was a life estate. o Conveyancing Law and Property Act: Default position for a grant is fee simple and need to give intention to show it is a life estate. To X, to X in fee simple, to X forever, to X and his issue These all create a fee simple whereas they used to create a life estate. o Ontario Succession Law Reform Act: Same but for devises.

Conveyancing and Law of Property Act.


Without words of limitation you transfer your entire estate. To prevent this there must be a contrary intention somewhere in the grant/devise. o 5(1): to transfer a fee simple, it is not required to use the word heirs (as the word of limitation) o 5(2): Words of limitation can include in fee simple or other words indicating the limitation intended o 5(3): Where no words of limitation are used, the entire estate gets passed (i.e. default is fee simple or best interest held by the testator) o 5(4): 5(3) only applies if there is not a contrary intention indicated elsewhere in the document

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Property Summary o 5(5): Applies to conveyances made after July, 1886

Variations on a Fee-Simple Estate


Estates in fee simple may be absolute or qualified o Absolute fee simple estate: Terminates ONLY on the death of a testator without heirs (Escheat). o Qualified fee simple estate: Terminates on the death of a testator without heirs (as all fee simple estates do) OR on the happening of some specified event at which point the estate can be recovered by the grantor (conveyance) or testators estate (devise). Three types of qualified fee simple estates o Condition Precedent o Condition Subsequence o Determinable Limitation

Condition Precedent
The grantor does not grant the estate until a condition is met. This is a condition on the acquisition of a grant. o Common words used in Fee Simple subject to a Condition Precedent: On the condition that When he o Similar to a unilateral contract. The estate does not automatically transfer this must be requested (similar to a right of re-entry) No abeyance of seisin. Example: o X grants to A and his heirs on condition that A marries B. o (Words of Purchase) (Words of Limitation) (Condition precedent) Before wedding: X has Fee Simple. A has a unilateral contract with X but no property right. After the wedding: A has Fee Simple. If X decides to give it the estate to someone else before the wedding. This a unilateral contract o Act or forbearance of the party seeking the benefit makes the unilateral contract effective. The transfer would be valid BUT X would be in breach of his contract with A. What if he decided to mortgage the property? He is able to do this. o The estate is contingent so it is improbable that he can transfer the right BUT it is not impossible.

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Property Summary

Condition Subsequent (RIGHT OF RE-ENTRY)


The grantor gains the right to terminate the estate at the occurrence of some specified event (right of re-entry). This is created by the addition of a condition (as an independent clause) to a grant in fee simple absolute. o Common words used in Fee Simple subject to Condition Subsequent: Provided that On condition that But if o The estate is already granted and the condition subsequent is a condition of retention. o If right of re-entry is not exercised within 10 years of the breach the limitations act kicks in and right of re-entry is lost. o Right of re-entry cannot be conveyed to another person. Example: o X to A in fee simple on condition that A does not marry. o (Words of Purchase) (Words of Limitation) (Condition subsequent) A gets a fee simple subject to a condition Subsequent X gets a right of re-entry (needs to consciously exercise this right in order to enforce it it does not occur automatically) If X fails to do this he may be barred from doing so by the Statute of Limitations or the Ontario Real Property Limitations Act. o X grants to A and his heirs 40 acres on condition that the land is used as a vineyard. The condition is personal on the grantee. Once the grantee passes on the condition is removed from the land. Right of Re-entry: If the event occurs the estate can make a claim that the land be returned to the estate.

Fee Simple Determinable (POSSIBILITY OF REVERTER)


The estate will automatically determine on the occurrence of some specified event (possibility of reverter). The estate automatically reverts at the occurrence of the event. Once it is not possible for event to occur the grantee gets a fee simple. o Common words used in Fee Simple Determinable: So long as: so long as the land is used for school purposes During While: while the CN Tower stands Until: until the lands are no longer used for railway purposes o If the grantor fails to take possession of the land in 10 years the grantee can gain fee simple in the land by way of adverse possession. o Possibility of reverter cannot be conveyed to another person. Example: 37

Property Summary o X to A in fee simple until B marries o (Words of Purchase) (Words of Limitation) (Determinable event) A has determinable fee simple When B dies (unmarried) A gets a fee simple absolute. X has possibility of reverter o X grants 5 Acres to the church for so long as the property is used for church purposes. Could the trustees rent the land? Probably, so long as they use the money for church purposes. Could the trustees sell the land? Probably not to just anyone. BUT they may be able to sell to another church. Could they mortgage the land? The trustees have the power to mortgage BUT no one would take that mortgage because if the Church is in default they can get nothing. o Once the land stops being used for church purposes it would revert to Xs estate. So if the bank tries to take the land it would go to Jeans estate. Would the mortgage be on the land when it went back to Jean? No. Once the estate is gone anything dependent on that estate is lost. So the mortgage is no longer secured. Jean gets back the estate she gave. o The bank took the risk that the estate might dissolve. Possibility of Reverter: event occurs, the estate reverts to the grantor automatically.

Notes on Conditions:
Remoteness:
The law dislikes interests that may arise at a remote point in time. Rule against perpetuities: created to combat the problem of remote vesting of interests. o A right of entry could thus be lost if it vested at a time too remote in the future. o But a possibility of reverter could not occur beyond the event so the rule against perpetuities did not apply to it. Statute has changed this. Rule against perpetuities now applies to both right of entry and possibility of reverter.

Void Conditions:
Can be void for a number of reasons:

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Property Summary o Repugnant: if the condition is inconsistent with the freedom of enjoyment, disposition, and management of the estate. Any restriction that substantially takes away the power of alienation. Ex. Absolute prohibition on the sale of land, land can only be sold to one person, land cannot be alienated without consent. Partial restraint on alienation may be upheld. Ex. Preventing alienation to a particular person or a particular class. Contrary to public policy Ex. Conditions that incite the grantee to commit a crime. Ex. Discriminatory restraints on alienation. o Uncertain: if the court cannot tell what the grantor wanted the condition may be void for uncertainty.

Effect of Void Conditions


Condition Precedent: Entire grant fails. The condition cannot be satisfied. o Courts dislike this and try to find ways to uphold the condition. Condition Subsequent: Grant becomes a fee simple. The condition is a separate part of the grant. Determinable: Entire grant fails. The condition is a part of the grant. o Court dislikes this result so they try to construe these as a condition subsequent to avoid this result.

NOTE Essex, Down, Tucks:


All of these cases are made by way of application instead of action. These cases are about using property to control the conduct of others through:

Re: Essex County Roman Catholic Separate School Board and Antaya (250)
Court made it a condition subsequent to avoid having the grant fail. The condition was too vague uncertain what was meant by school purposes could not be determined. Court tries to give effect to the grantors intention. Facts: The respondents father granted land to the applicant so long as the land was used for school purposes in 1925. The school stopped using the land for school purposes around 1977. The respondent is trying to get the land back. o If it is a determinable fee simple it is not subject to the rule against perpetuities. Statute only impacts after 1966 and common law does not apply to determinable fee simples. Condition remains on the land forever. o If it is a condition subsequent then the rule against perpetuities bars the right of entry. 39

Property Summary Held: Used the Education Act. If the property has been within the possession of the church for 50 years any restriction is removed. o In addition, it was decided that it was a condition subsequent superadded condition upon a grant of a fee simple rather than an integral part of the very limitation of the estate created in the School Board Clause in question: the grantor reserves to himself and his heir the preference to buy the said property at the current price should the same cease to be used for the purpose intended o Principle of the Perpetuities period: The perpetuity must vest with in the perpetuity period. Perpetuity period is a life or lives in being (someone who is alive normally the grantor but can be any assigned person) plus 21 years (21 years starts running when the life in being ends) to a maximum of 40 years. o Perpetuity period had expired: He did not leave a perpetuity vested in the life of an individual. As a result the perpetuity expired so the right of reverter was lost. o Difference between Determinable Fee Simple and Fee Simple subject to a condition Subsequent. Determinable: part of the grant. While, during, as long as, until Subsequent: added on clause. Provided that, on condition that, but it, if it happens that

Re: Tucks Settlement Trust (254)


Conceptual uncertainty causes a condition to be void for uncertainty (renders the condition meaningless). Evidential uncertainty does not. Court resorts to extrinsic evidence to resolve issues of evidential uncertainty. Facts: Sir Adolph Tucker left an estate that required that in order to obtain the estate his heirs had to marry an approved wife. The approved wife was a person of the Jewish faith (any question of this could be answered by the chief Rabbi). His sons son (Sir Bruce) married an unapproved wife. o Sir Bruce contended that the condition was void for uncertainty. Collapse the trust and as sole heir get the money free of encumbrances. If he failed Sir Bruce would get nothing and the trust would pass to his heirs. Held: This condition is not too vague. Would have to show Conceptual uncertainty not just evidential uncertainty to succeed. o Conceptual Uncertainty: a condition which is not expressed clearly enough to give it effect.

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Property Summary Dont know what the testator wanted to do, we thus cannot achieve their goals Renders the condition meaningless. o Evidential Uncertainty: the condition is clear enough but the facts are not clear enough to apply the clear condition. NEVER renders the condition meaningless. o There was no Conceptual uncertainty. o The issue of evidential uncertainty is solved by the use of the Rabbi.

Re: Down (259)


Test of conceptual certainty for Determinable or Subsequent: need to be able to tell from the beginning what will bring the estate to an end. condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine The condition precedent is in equity younger brother does not have an estate he has an equitable right to the property. Courts will struggle to give effect to the testators intentions. Facts: David Down leaves an estate to: His sister, his son Stanley and his son Harold. Harold goes to court to have the will construed when he reached 26. Wants to know if he has to stay on the farm forever in order to be entitled to his half of the estate. o The will states that: Stanley gets use of the farm Harold when he reaches 30 and provided he remains on the farm gets half of the farm. o What are the entitlements: Stanley Fee simple. Until Harold reaches 30. When Harold reaches 30 he has a right to claim half of Stanleys estate. Harold Has a right to create an estate at 30. He has a future interest in the estate. But that right is only enforceable against Stanley. o This is not an estate it is a right against Stanley to create an estate. Held (Laskin): Harold gets a half interest in the farm upon turning 30. o The provision that he stays on the farm is a condition Subsequent that is void for uncertainty.

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Property Summary o OR Must he continue to stay on the farm (Condition Subsequent) o Court chooses condition subsequent Influenced by desire to give effect to the testators intent to benefit two sons equally Principle of interpretation that attempts to give effect to the testators wishes. o If they chose condition precedent then the son would get nothing. o Test of conceptual certainty for Determinable or Subsequent: condition must be such that the Court can see from the beginning, precisely and distinctly, upon the happening of what event it was that the preceding vested estate was to determine Need to know from the beginning what will bring the estate to an end. Too unclear what stay on the farm means. What does stay mean? To what extent? What about farming? To what extent? No duration is indicated. Is it a life commitment? Must he be on the farm at the time he is 30 (Condition Precedent)

Notes on Down
What if Stanley mortgages the property BEFORE Harold turns 30? o Harold would have a claim against Stanley. o The mortgage would be good. Contracts are only enforceable against the other contracting party BUT property is enforceable against the world.

Life Estates
Life estate is granted for the duration of the lives of one or more persons. Terminates on their death. o If a life estate is based on two or more lives, it is measured by the person who lives the longest Example: To A and B for as long as either of them live Life estate can be Qualified (subject to any of): o Condition subsequent o Condition precedent o Determinable Question: Did the testator or grantor intent to create a qualified life estate or personal licence? o Licence: enforceable only against the grantor (privity of contract) o Life Estate: enforceable against the world and alienable. Impact of Striking Down a Qualified Life Estate o Condition Precedent: the entire grant will fail 42

Property Summary o Condition Subsequent: the condition will be struck down, converting the estate into an absolute life estate o Determinable Limitation: the entire grant will fail.

Re: Waters
Cardinal Rule of construction: Try to give effect to the testators intention. Read each clause in the context of the whole will and the circumstances under which the will was made. Life estates are alienable rental of the property was permissible. However if she had a licence rental would have been impermissible. Facts: Waters leaves to Jones (in contemplation of Marriage) the USE of his house for as long as she lives or until she re-marries or decides she doesnt want the house anymore. Taxes, insurance, repairs and other up-keep shall be paid by Jones. Jones chooses to rent out the house beneficiary of the Waters estate does not want her to do this. o Determinable life estate: she has the right to alienate her estate as she chooses. o Licence: renting the property is beyond her power to do. o Other issue: There is an outstanding work order on the house for repairs. Held: This is a determinable life estate (upon her marriage or upon giving the trustees notice that she no longer needs or desires the property) o The language: for as long as she lives is sufficient to create a life estate. Conditions are only against remarriage or written notice she no longer wants the property o Rent: She is able to rent the house because she has a life estate! There is no condition barring her from renting the property. No condition that she must remain in the property. o Repairs: Jones is to take the burdens with the benefit (encumbrances that accompany the property). Failure to make the repairs does not mean that she is giving up her interest in the life estate because she is not doing her repairs!! This is too vague to create a reversion.

Re: McLogan
Need to look at the intention of the grantor and try to give effect to that intention. Courts will construe a determinable fee simple as a condition subsequent if they want to preserve a grant with a void condition. 43

Property Summary Courts very willing to find a life estate over a licence when they think it better suits the intention of the grantor. Facts: Kovalchik and McLogan were great and good friends and had an intimate relationship. When McLogan died he left his house to Mary then the remainder to Leftdahl then to his estate. The wording of the devise is: o To hold my property as a home for Kovalchik until her death or until she is not residing therein personally, whichever shall first occur and thereafter to Leftdahl until her death or until she is no longer residing therein personally whichever shall first occur. o Kovalchick, due to illness had to leave the house but first wrote to the trustees to say that she was not giving up her interest in the house. If this is a licence the trustees can terminate her interest in the property upon reasonable notice. Held: It fits within the testators intention to say she has a life estate in the property. Condition is void for uncertainty so it is an absolute life estate. o Court was swayed by the language and decided that this was in fact a life estate. To be held as a home. Until her death. o Subject to a condition subsequent: Not residing therein personally Subject subsequent is void for uncertainty. What is meant by not residing personally? On vacation, in hospital, Need to be able to tell from the beginning precisely what event would cause the estate to be determined.

Life Estates: Pur Autre Vie


There are two types of life estates o Pur sa vie: life estate created to last the life of the recipient o Pur autre vie: life estate created to last the life of another person Two scenarios under which a pur autre vie life estate can be created o To A for the life of B o To A for her life. Then by deed A conveys the life estate to B Nemo Dat Quad Non Habit Rule: grantor can only give as good a title as she has Cestui que vie: the person whose life measures the size of the life estate granted in the pur autre vie (the autre vie) Inheritance o The general principle is that a life estate is not an inheritable interest. Third Person and Life Estate o What happens if we do not know their whereabouts? Conveyancing Law and Property Act

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Property Summary S. 48, 49 and 46: court can order a person be produced in a case where it is believed a body is being concealed S. 46: If the person has left the jurisdiction and is away for more than 7 years, it is presumed s/he is dead. Presumption is rebuttable.

Life Estates and Successive Interests in Land


Restrictions are placed on the life tenant that do not apply to fee simple holders o Law tries to prevent property from falling into disuse and disrepair. o Protects the remainderperson or reversions interest in preserving the land. The Doctrine of Waste o Governs what the life tenant or leaseholder can do to alter physically the real property in order to ensure they wont substantially reduce value or damage the property o Four Types of Waste Ameliorating Waste: act that enhances the land Courts generally do not impose liability because it creates value for remainder/reversioner. Permissive Waste: passive inaction. Damage resulting from failure to preserve or repair the property. No legal obligation to maintain/repair and courts wont hold liable. Unless something in the original deed makes the life tenant liable for repair and maintenance. Voluntary Waste: life tenants actions that reduce the value of the property (ex. mines or removing trees). Court will hold a life tenant liable for voluntary waste Equitable Waste: severe and malicious destruction by the life tenant. Acts a prudent person would not do in the management of his or her own property. Court will hold a life tenant liable for equitable waste o The grantor can make the life tenant unimpeachable for waste NOT liable for the first three types of waste (ameliorating, permissive and voluntary). Does NOT include equitable waste. Unless the clause reads not be impeachable for waste whether it be voluntary or equitable (s.30 Conveyancing Law and Property Act)

The Rule in Shelleys Case


Historical Background o Lords made money by the incidents of relief, where the heir had to pay the Lord to receive inherited land

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Property Summary o Relief only applied when the heir took the land by inheritance and NOT an inter-vivos transaction o Landowners invented a grant to seize on this rule and avoid relief X to A for life, remainder to the heirs of A in fee simple A is acquiring a life estate As heirs would get an interest in fee simple. Lords could not get relief because transfer stemmed from an intervivos conveyance. o Lords wanted to end this practice to ensure they got their relief. Rule in Shelleys Case o If a freehold estate is granted or devised to a person, and by the same instrument, an estate is limited by way of remainder to his heirs, whether the remainder immediately follows his estate or follows an immediate remainder, the word heirs is construed as a word of limitation and not purchase. The heirs do not receive the fee simple estate in remainder. That just indicates the size of the estate given to the grantee. o Result: A just gets the fee simple. Doctrine of Merger: A gets a life estate and a fee simple BUT the life estate is swallowed by the fee simple. Limitations on the Rule: o The rule ONLY applies when the grantor uses the word heirs to refer to the whole inheritable issue over generations BUT, does not apply if X has a specific heir in mind (or a limited group of heirs). o Rule applies if there is an intermediate remainder (X to A for life, then to B for life, remainder to As heirs). BUT, in this case, the doctrine of merger doesnt apply because of the intervening life estate

Avoiding the Rule in Shellys Case


Clear intention that heirs does not apply to the entire line of inheritance o To A for life, remainder to As heirs living at the time of As death in fee simple o X to A for life, remainder to As heir and his or her heirs. Note: Heir is at the time of As death is a word of purchase and his or her heirs is a word of limitation Grant to A for life, X keeps fee simple in reversion and makes a trust to grant to heirs who arent in fee simple. Equity and common law therefore, rules does not apply. o G to A for life, to trustee in fee simple (reversion) in trust for As heirs

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Property Summary

Re Rynard
Determinable life estate, so Shellys Rule does not apply. Shellys Rule is still a part of Ontario law but it only applies to pure life estates. Facts: Rynard owned a farm she inherited from her father. Her husband was to get the property but he died. She left the use of the farm to Kennedy (he had to pay $160) to his father until his fathers death. Upon Kennedys death $1500 of the estate should go to Bernard and the remainder to the heirs of Kennedy o The executor of the estate and Kennedys children would be fighting Kennedys attempt to apply Shelleys rule. Held: The interest was limited to a determinable life estate SO Shelleys rule does not become applicable o There were obligations. SO the rule in Shelleys case did not apply. Not a pure life estate. Shelleys rule only applies to PURE life estates with the remainder going to the heirs. o Testatrix seems to have been referring to Kennedys children alive at the time the will was made. o Shelleys Rule is still a part of Ontario Law. HAD Wilson found this was a pure life estate and that the testatrix had intended his full line of issue instead of living heirs only Shelleys rule would apply and Kennedy would have had a fee simple. Even though this flies in the face of the testators intention. o Try to apply the law in a way that would apply the testators will in the way that they would have wanted.

Common Law Remainder Rules:


Common law remainder rules do not apply to Equity wills and trusts. o BB: Trusts are used to avoid these now. Developed in order to avoid: o Abeyance of seisin: any period of time during which it might be unclear who was seized of the land. Types of future interests permitted at common law: o Reversion o Vested remainder o Possibility of Reverter o The right of Entry for Condition Broken These were permitted at common law because neither raises the possibility of the abeyance of seisin Common Law Remainder Rules o No remainders after a fee simple o No springing freeholds

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Property Summary o Timely vesting o No Shifting Freeholds Note: ONLY apply to common law conveyances these rules dont apply to devises (wills) because they are equitable. The estate is given to a trustee who gets fee simple in the estate. o The trustee is then given terms for paying out the trust. o The trustee then follows those terms.

No Remainders after a Fee Simple


Once a grantor has disposed of a fee simple there is nothing left to grant o Thus there can be no remainder. o The rule also applies if the fee simple is Conditional Examples: o X to A and his heirs, remainder to B and his heirs A gets a fee simple and nothing left for B. B receives nothing because it violates the legal remainder rule. o X to A and his heirs until A goes bankrupt and then to B and his heirs Remainder is invalid because cant have a remainder after a fee simple Grantor retains the possibility of reverter on this Determinable Fee Simple. o X to A and her heirs on condition A does not go bankrupt and remainder to B The remainder is invalid because a fee simple is granted Grantor retains the possibility of reverter on this Determinable Fee Simple.

No Springing Freeholds
Prohibits creation of an estate that springs up in the future unsupported by a prior particular estate in Freehold. o The rule requires an immediate passage of seisin from grantor to grantee. Examples: o X to As first born child in fee simple (unborn) Invalid. There is no possibility to transfer immediately. o X to A for life, remainder to As first born child in fee simple (unborn) The contingent remainder is supported by a prior particular estate. The transfer occurs immediately to A then to As first born on As death. Goes in reversion to grantor if no first born at the end of As life estate. o X to A for 2 years then to B and her heirs upon attaining 21 years. (B 20)

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Property Summary A gets a leasehold interest which is not the same as a freehold interest. There is no seisin in a leasehold estate. Leasehold estate cannot support a contingent remainder. This estate cannot support the grant to B so B gets nothing. o X to A for 2 years then to B and her heirs upon attaining 21 years. (B 21) A gets a leasehold interest. B gets an estate in seisin immediately subject to As 2 year lease.

Timely Vesting
There cant be a gap in seisin. So the estate must vest before the prior particular estate runs out. o Common law normally takes a wait and see attitude to determine if the interest will vest. o If the grant requires a gap in seisin then it will fail. Examples: o X to A for life, remainder to B when B turns 21 Contingent remainder that requires wait and see If B turns 21, when A is alive then the remainder is valid If A dies before B turns 21, the remainder is invalid o To A for life then one year after As death, remainder to B in fee simple A one year gap in seisin that violates the rule. Remainder to B is invalid ab initio (from the outset) A gets a life estate grantor gets reversion.

No shifting Freeholds
A remainder is void if it operates to defeat the prior particular estate of freehold. o Can only vest in possession upon the natural determination of the prior estate. o The common law does not allow the grantor to convey a right of entry to a stranger. This rule does not apply to a Determinable Life Estate. There the condition is a part of the estate. So that event determines the natural determination of the estate. You cant transfer the possibility of reverter or right of re-entry to anyone. Examples: o X to A for life, but if A goes bankrupt, then to B immediately. The condition subsequent attempts to give B the right to terminate the estate before its natural determination. So it is void. A gets a fee simple subject to a condition subsequent. B gets nothing. X holds the right of re-entry. o X to A for life or until the CN tower falls, and if the CN tower falls, then the remainder to B in fee simple.

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Property Summary As estate terminates naturally when the CN tower falls or when A dies. B acquires a valid possession that will vest in possession when As estate ends.

Law and Equity


Equitable Estates
Common law remainder rules only apply to the common law NOT to equitable estates. So to avoid land lord fees and the common law remainder rules people granted lands to the USE of others. o This granted an equitable right in the land (protected by the courts of equity) but not a legal right to the land (no possession).

Doctrine of Use
A grantor granted seisin of his land to X with the direction that X was to permit B to use the land. o Legal seisin conveyed to a trusted person. o Trusted person held the property for the benefit of the grantor Uses of this doctrine: o Avoid taxes were not paid for the transfer of the land by transferring to younger people to the use of someone older. o Avoid the common law remainder rules. Could create springing interests and shifting interests in equity. Springing interests did not vest until the condition was met. Until then the grantor retained the use of the land. Example: o X to A and her heirs to the use of B and his heirs A was seised of the land in fee simple. Enforceable in the courts of common law. Encumbered by the equitable right of B to use the land. Enforceable only in the courts of equity. Avoiding the common law remainder rules. o X to A her heirs to the use of B when B turns 21 (B 15) When B reaches 21 the equitable use will vest in A. Until the contingent is met, its an equitable executory interest Executory Interests: equitable interests that have yet to be executed (i.e. future interests that have not vested and will only do so in the future, if at all) The grantor has the resulting use of an equitable fee simple until B turns 21 at which point it springs from X to B A has the legal fee simple and B as the equitable fee simple

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Property Summary For A to obtain the legal fee simple, F must transfer it and seisin would pass to F. o X to A and her heirs to the use of B for life and the reminder to C and his heirs when C turns 21 (C 18) A receives legal fee simple as feoffee of uses B holds a vested equitable life estate C gets an equitable fee simple at age 21 vested in interest (does not get possession until B dies) AND resulting use springs from grantor to C Until C turns 21, he has an equitable executory interest The use is with the X of the equitable fee simple and springs to C when he turns 21 (X has no further interest in the land when C turns 21 Cs executory interest becomes an equitable fee simple)

Statute of Uses, 1535


It is a part of the law of Ontario. Consolidated with the 1980 RSO. o ***Disagreement with the book: Statute of Uses does not still cut down trusts. Purpose of the statute of uses was to eliminate the doctrine of uses. o Prevent the evasion of taxes. Method: Reunite legal and equitable title by removing legal title from the feoffee o Where a person is sized of the land to the use of another person or corporation, the person or corporation shall be deemed to be seized of the estate that would otherwise be held for his/her use ONLY applies where a person is seized of the land to the use of another Effect of the Statute of Uses o Eliminates the feoffee (executes the feoffee) o Changes an equitable estate to a legal estate The legal interest held by the feoffee will be executed and the interest will be transferred to B. Examples: o X to A and his heirs for the use of B and her heirs As interest is executed and transferred to B A is no longer in the picture. B is seized of the land (as of the moment of feoffment) and the entitlement is transferred to a legal interest (rather than an executory interest) B has a legal fee simple o X to A and his heirs to the use of B for life, remainder to C and her heirs As interest and executed and A drops out of the picture B gets a life estate vested in possession and is seized of the land

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Property Summary C gets a legal vested remainder in fee simple. Vested in interest and will vest in possession when B dies.

Situations where the Statute of Uses Does NOT Apply


Where the feoffee is a corporation. o Statute does not apply where the feoffee is not a natural person o Can avoid the statute by granting to a corporation. The use held is a leasehold interest o Only applies where the feoffee is seized of the land. This can only occur in a freehold interest. o Grantor retains fee simple in reversion. o Example: X to A for 99 years and then to the use of B for 99 years. Feofee has active duties to perform in the grant such as managing the property. o Feofee requires legal title to fulfill their responsibilities Statute does not apply to personal property Exhausting the Operation of the Statute of Uses o Use upon a use: The operation of the statute is ended after the first use is executed X to A and his heirs and to the use of B and his heirs to the use of C and his heirs Legal interest held by B is executed o The middle one was eliminated and so it became X to A and her heirs to the use of B and his heirs. B acquires legal fee simple AND the operation of the statute is exhausted at this point C gets equitable interest in fee simple (known as a trust) Statute of Uses turns it to: X to and to the use of A and her heirs to the use of B and her heirs. The first one was eliminated and so it became X to A and her heirs to the use of B and his heirs. o X to and to the use of A to the use of B and her heirs. o Unto and to the use of: Effect of evading the statute of uses and able to create equitable interests in property Creates a trust and avoid the legal remainder rules (because it is equitable) Specific language is very important to B in trust for C does not create separate estates Statute of Uses would apply Example X grants unto and to the use of A and his heirs, in trust for B and her heirs. o A gets legal FS as trustee 52

Property Summary o B gets equitable FS under the trust

The Statute of Uses and Legal Executory Interests


If there is a single conveyance to uses executed by the statute, the previously equitable executory interest held by B becomes a legal interest o Can now avoid the common law remainder rules. Examples o X to B and his heirs to the use of C and his heirs until C becomes a lawyer and then to D and his heirs B is executed via the statute of uses (drops out of the picture) C gets a legal fee simple subject to a determinable limitation D gets a legal executory interest. o X to A and his heirs to the use of B turns when he turns 21 As interest is executed Prior to B turning 21, it is a legal executory interest When B turns 21, the fee simple and seisin spring to C In the meantime (until C is 21), X has the legal fee simple until B meets the condition at which point the fee simple and seisin spring to C The Rule in Purefoy and Rogers o If a legal executory interest can comply with common law remainder rules, it must. A legal executory interest will be void if it can comply with the common law remainder rules, but fails to do so. o Applies to contingent remainders contained in a conveyance to uses o Examples X to A and his heirs to the use of B for life, and then to Bs first child to turn 21 years of age. (B has no children). As interest is executed B obtains a legal life estate Contingent remainder interest to Bs first child to turn 21. This child is unascertained and the remainder is subject to a condition precedent. o If this is not met, it will be void. (i.e. if the 1st child doesnt turn 21 during Bs life) The childs interest cant take effect as a legal executory interest if it turns 21 after Bs death because it COULD have complied with the common law remainder rules, yet failed to do so. Valid if child turns 21 in Bs life. o Method to Avoid The Rule in Purefoy v. Rogers X to A and his heirs to the use of B for life and then to the use of Bs first child to attain 21 either before or after Bs death

53

Property Summary Equitable grant provides there may be a gap in seisin which violates common law remainder rules. However, the rule does not apply here because the interest contemplates an executory springing interest that cant comply with the legal remainder rules

Modern Trusts:
Feoffee of uses now called the trustee. o Has a fiduciary obligation to the beneficiary. Cestui que use now called the beneficiary of the trust. These are essentially the same as a to the use of

Rule against Perpetuities:


Reasons: Future interests should at some point be cut-off because: o They restrict the alienability of land. o Owners of such land are unlikely to invest in its maintenance or development. Rule: a life in being plus 21 years or 40 years, whichever is less is the perpetuities period. o Under common law if it is possible that the interest will not vest within the perpetuities period then it is void for uncertainty. o Under Statute (Ontario Perpetuities Act) there is a wait and see approach. If it has not vested in the perpetuities period then it is void for uncertainty. o The perpetuities period is statutorily limited to 40 years in Ontario! Rule: the 40 years applies to the grant of possession not vesting. o BB from class. Applies to contingent interests: Future interests that have not yet vested in interest. This happens if: o The person who is entitled to take the interest has not yet been ascertained. B is entitled but is not born yet. o The interest is subject to a condition precedent. The rule against perpetuities does not apply if the interest is vested in interest: the person entitled to the benefit is ascertained and it is not subject to a condition precedent. Examples o A grants to B for life the remainder to C. Not a problem if B and C exist. Everyone is identifiable. If C is not born within Bs life plus 21 years. It is invalid. o A grants to B for life, remainder to Bs eldest son for life, remainder to the eldest son of Bs eldest son and his heirs. B is alive. So a life estate is created. If B has no son at all then there is a reversion to A. 54

Property Summary If B has a son: The interest must vest to his eldest son within 21 years after Bs death. o X to A for life then to B. If A lives for over 40 year after the grant from X, Bs interest is lost. The interest becomes a fee simple in A.

NOTES on Rule Against Perpetutites


Recall Delgamuukw o The rule against perpetuities did not apply. o Aboriginal title is Sui Generis (of its own nature not common law)

55

Property Summary

Bailment, Licences and Leases


Bailment:
Definition: delivery of personal chattels in trust, on a contract, express or implied. o Care, control and exclusivity are important factors in finding bailment. (Heffron) There is a requirement that the bailor intend to hand over control to the bailee. o The chattel is possessed and used by the person who is not the owner. Bailee: a person in possession of chattel which they know they do not own, even if they dont know who the bailor is. Possession of a chattel that you think you own BUT someone can prove that you do not is a type of bailment. Sub-bail: A bailee can sub-bail an item. Provided the terms of the bailment explicitly of impliedly permit it. Bailor: a person who has legal title to the chattel.

Bailees Responsibilities:
Recent case law: there is one standard of care, that of general negligence but liability is determined by bearing in mind who was to benefit from the arrangement. o The bailor must act reasonably with the bailment to see that no harm comes to the chattel. If they do this they are unlikely to be held responsible. Exceptions: o Common carriers: held to strict liability unless altered by statute or the terms of the contract. o Innkeepers: statutorily exempt from strict liability so long as they conspicuously post signs that show the statute saying they are not liable. o Employee: not a bailee of employers chattels. Simply in custody. But there is no intention to hand over control of the chattel. Bailee may have a right of action against a 3rd party that deprived him of his bailment.

Bailors Responsibility:
Bailor for reward: a responsibility to ensure that the chattels are reasonably fit and suitable for the purposes of the hirer. Gratuitous Bailor: only required to inform the bailee of known defects. Liability to 3rd parties: o Bailee acting simultaneously as an agent. Liable for the agents acts o Personal negligence: careless instructions regarding the use of the chattel. 56

Property Summary Liable for defects (as above) o Bailment with operator. Responsible for operator.

Types of Bailment:
True or Formal bailment: highly documented and contractual. It is critical in current Property law. (GE Capitals Bailment of planes to Air Canada, Heffron) o Leases of Equipment, storage of chattel, o The essence is that it is a contractual obligation. Informal bailment: undocumented but intentional bailment relationships. (All Finders Cases) Constructive Bailment: Items which one would reasonably expect to be found in the bailed item. As well as unexpected items that are communicated to be with the bailed item. Are constructively bailed with the bailed item. o This occurs in Hefferon v. Imperial Parking and Minichiello v. Devonshire Hotel. o There is not the same DEGREE OF INTENTION as in the two types of bailment above. The courts construct it even though it might not have been explicitly considered by the parties.

Minichiello v. Devonshire HotelFacts: There was a briefcase filled with $16K worth of jewels. The p informed the ds attendant that there were valuables in the trunk. Then gave over the keys. The brief case was stolen. Held: There was bailment. The items in the trunk were considered to be constructively bailed with the car. o Devonshire Hotel is a classy hotel. The p took some steps to protect himself. He does all he can to create a contract to protect himself. The hotel allowed the contract to occur. It is responsible. Involuntary Bailment: o There is a commercial tenancy. The landlord goes to the office after the tenancy has expired (paid in full). He finds it is fully equipped with office furniture. The landlord would be bailed of those items involuntarily. Warehousemans lien: The landlord would move the items into storage and pay for those items to be in storage. When you pay be $X you can have it back. This is the same as when your car is towed. o There is a residential tenancy. The tenant leaves and leaves unmarketable furniture. Tenant Protection Act: the landlord must keep the furniture together for 1 month. Then the landlord is able to sell it.

57

Property Summary

Hefferon v. Imperial Park (366)


Care, control and exclusivity are the important factors. Exclusive care and control created a bailment. Court will assert its right to examine the situation and determine what is really going on bailment or licence. Fundamental breach causes the entire contract, exclusion of liability clause included, to fall away. Constructive bailment: anything reasonably expected to be found in the bailed chattel. BB: Hefferan may not continue as precedence for parking lot theft cases today. Unfair they should take on the risk. Facts: plaintiff leaves his keys with the parking attendant at the attendants request. There are signs everywhere and a ticket given to him that says that the lot is not responsible for any damages. The lot closed at a certain time and then the keys were moved to a different lot. The p left the car past the closing time. He went to get his car and it was gone! The parking lot did not know what had happened. Car was found damaged and abandoned with items missing. o Was there a bailee relationship or a licence to park? Held: There are multiple ratios. Depends on what you want to show. o Licence obligations and Bailment obligations are different. Bailment: obligations are created even if they are unintended. Licence: no obligations other than to honor the existence of the licence. o Court will assert the right to define the relationship between the parties. Look at the facts and decide what it is (licence or Bailment). On these facts there was a bailment. Only the ticket with the proper number could get the car Supervisor was responsible for the cars. They took the keys to the car. o Fundamental breach of the contract (failure to control the keys) causes the whole contract to fall away. So the exculpatory clause also falls away. Their failure to control the keys was a fundamental breach that, if allowed to escape liability under the exculpatory clause would negate any benefit delivered by parking off the highway! Even if the bailment expired at the closing time of the lot the duty to safeguard the keys remained with the lot. o Constructive Bailment: Goods that were reasonably foreseeable to be in the car are bailed constructively with the car.

Bata v. City Parking Canada Ltd.

58

Property Summary o Facts: the p left his keys in the car at the request of the attendant. There was a sign that said that charges are for use of parking space only. The car was stolen. o Held: The p was unable to recover. This was seen as a licence because of the sign.

Dixon and Zilinski v. City Parking Canda Ltd.


o Facts: there were no parking spots. The p left his keys in the car at the request of the attendant. There was a sign that said that charges are for use of parking space only. The car was stolen. o Held: The p was able to recover. This was seen as a bailment.

Fundamental Breach and Exculpatory Clauses:


o It is possible to contract out of liability even for a fundamental breach. o Courts will try to find a way out of exculpatory clauses if at all possible. There must be notice or constructive notice of it. If the clause is not prominently or obviously displayed it does not apply. Burden of Proof: o There is a presumption that the bailee was negligent if harm comes to the chattel while it was under his bailment. Bailee is in the better position to know what happened to the chattel. Hypothetical: o If he just parked on the lot and had not given the key (care and control) to the parking lot administrators. This would be a licence. What responsibilities attach to the licensors?? o NONE! Just not to accuse the licencee of trespass.

Licence:
Definition: A grant of such authority to another to enter upon land for an agreed purpose as to justify that which would otherwise be a trespass and its only legal effect is that the licensor until the licence is revoked is precluded from bringing an action. (Hefferon) o Licensor: person who gives non-exclusive use of their legal title o Licensee: person who has non-exclusive use of the land.

Properties of Licences
There is no obligation on the licensee other than to honour the licence! There is no property right in a licence it is merely a contractual right. o Little more than a defence to a charge of trespass. o Not alienable o Not enforceable against the world Just the licensee. Though it is possible to have rights enforced by equity. o No Equitable remedies are available on breach. 59

Property Summary Only monetary remedies.

Leases:
Definition: A lease is a grant of exclusive possession from the land of another person for a predefined period. This is a legal estate in land. Leases are a mix of property and contract law. o Lessor/Landlord: owner of the land under lease. o Lessee/Tenant: party possessing the land under lease. Main difference between lease and fee simple is that lease is for a specific period of time.

Properties of Leases:
Leases are Alienable: o The Landlord can alienate the land, subject to the interests of the tenant. o The Tenant can assign the remainder of his interest to another. OR if he wants to maintain the lease he can sublet it to another party. o It is possible to put in contractual terms that stop it from being alienable. BUT absent those terms it is possible for the tenant to sublet! Leases are Enforceable against the world: o New owner of land has to recognize the lease. On breach can bring equitable remedy for re-possession. Length of time: o Leases are normally for a certain term. o There are also periodic tenancies which automatically renew at the end of each period. These keep renewing period by period by period until the landlord or tenant cuts it off. Period can be 1 or 2 years. But normally is 1 month. o How much notice has to be given to terminate the tenancy. Periodic if it is renewing for more than 1 year. 6 months notice. Periodic if it is less than one year. Period. Commercial Tenancies: common considerations. o Fixturing: It may be necessary for the landlord to have their tenants fixture and improve a property (happens in malls). If this is required then the Landlord may give the Tenant rent abatement for this fixturing. o Anti-competition: Restricts the landlord from allowing competition near the leasee. You cant rent to another pharmacy (or whatever) on this same property. OR you must use this store for X purpose.

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Property Summary

Statutory Framework
Landlord and Tenants Act. o Rights and obligations on both the tenants and the landlords. In 1968 Part IV to the Landlord and Tenants Act was added to deal with residential tenancies. Landlord and Tenants Act has been replaced by the Commercial Tenancy Act and the Tenant Protection Act. o Commercial Tenancy Act: for leaseholds all of the covenants that touch and concern the land can be enforced against assignees. Example: o A leases to B. B assigns to C. C defaults. Property: Estate in A tenancy in C. Contract: Covenant with B remains enforceable unless A has agreed to release B. Statute: A has the right to seek recovery from C. Commercial Tenancies Act.

British American Oil v. De Pass (386)


Exclusive possession is an essential characteristic of a lease. A mere privilege to occupy is a license. Facts: BA oil is trying to terminate the lease and put someone else in charge of the gas station. The defendant is refusing to go out of possession. Tenant wanted it to be construed as a licence so that he could gain access to a more favourable notice periods than was available under the Landlord and Tenants Act. Held: The court will look at the actual arrangement, not what the parties have called it, to determine if there is a lease or a licence. o Defendants position: There are a lot of conditions attached to the agreement it should be a licence. The terms and conditions interfere with the right to exclusive possession. o Court: The EXCLUSIVE POSSESSION of a property is an essential characteristic of a lease. If the right conferred is merely a privilege to occupy under the owner, it is a licence. Although exclusive possession does not mean it is not a licence. It is an important consideration. This was a lease: Unable to accept that the restrictions are capable of making the lease a licence. The appellants are put in control of the Property. There is still a landlord and tenant agreement. 61

Property Summary

Shell-Mex and BP v. Manchester Garages Ltd.


o Facts: An agreement personal to the d was executed that compelled the d only to deal with Shell-Mex. As well the agreement permitted Shell-Mex employees to stop in at any time and check on the operation. o Held: this was held to be a license because the ability of Shell-Mex employees to stop in at any time removed the possibility of exclusive possession.

Metro-Matic Services v. Hulmann


Exclusive occupation of the area indicates a lease. To make it a license there needs to be an express restriction as to possession and control to create a lease. The court will not read them into the agreement. Restrictive covenants against uses the lessee can make of the leased property are not restrictive against exclusive occupation. Wording suggesting the intention to create a lease is a consideration in determining the intentions of the parties. Facts: there was an agreement that a coin-operated laundry room in the basement of a building. A new owner buys the building and wishes to replace the current laundry company. The agreement has several restrictive covenants that prohibit access to the machines to reasonable hours. Held: There is a lease. o Wording suggesting intention to create a lease is important. There must be an intention to transfer an estate. o Exclusive jurisdiction over the laundry room. The restrictions on use are not an important factor. No more than a restriction to use an apartment only as a dwelling would impact whether it was a lease or not. There needs to be an EXPRESS restriction as to possession and control. These should not be read into the document. The restrictive covenants were prudent parts of the arrangement and did not transform the lease into a licence.

Highway Properties v. Kelley, Douglas & Co. (407)


There are 4 options available when a tenant stops paying rent and abandons a lease. Do nothing and sue for damages and rent. o BB: Highway Properties removes this option because there is now a duty to mitigate. Terminate the lease. Retaining the right to sue for the rent accrued. 62

Property Summary Landlord can advise the tenant that he intends to re-let the premises on the tenants account and enter into possession on that basis. Terminate the lease with notice to the tenant that damages will be claimed for the loss of the lease. o This option is introduced in this case Property law is brought into contractual law: rights under a lease do not terminate with the estate. BB: Option number 1 is eliminated. There is a positive duty to mitigate on the termination of a lease. It is possible to try to rely on it but unwise. Facts: Highway Properties owns a shopping center. Kelley Douglas is a grocery store and the anchor tenant in the shopping center. Kelley Douglas decides to leave. Highway Properties divides up the vacant store and rents it out. However it is still not getting the same amount of money for the rental space it was with Kelly Douglas. Lease required Kelley Douglas to carry on business continuously after taking possession of the premises. Held: Highway Properties is entitled to damages from Kelly, Douglas & Co. o Options available to Highway Properties on the breach by Kelly, Douglas & Co.: Do nothing and sue for damages and rent. Terminate the lease. Retaining the right to sue for the rent accrued. Landlord can advise the tenant that he intends to re-let the premises on the tenants account and enter into possession on that basis. th o 4 option available: Terminate the lease with notice to the tenant that damages will be claimed for the loss of the lease. o In this case: Highway properties cannot reasonably leave the property vacant. They need a vibrant plaza for the other tenants. For this they need a new anchor. There is a clause that states that Kelly, Douglas & Co. will continuously run a business on the property. o Overrules Goldhar precedent that states that contractual rights are terminated with the estates termination. So the mitigation of losses does not destroy the landlords ability to collect damages. BBs idea of the effect of this case: o You are obligated to mitigate damages. o Options available: Leave the lease empty and sue for your rent. This option is no longer available. ****This is in disagreement with the book. The book believes there are now 4 options available.

63

Property Summary Possible to try to rely on this BUT it is unlikely to work. Take the property over as an agent for the tenant. Landlord takes the estate over to lease for the tenant. Mitigating damages by finding another tenant BUT original tenant is still on the hook for the difference. Sublet on behalf of the tenant. Accept the repudiation and lease to someone else. This is what would happen if there was more money given in the new lease or subletter than the old leasee owed. o Over ruled Goldhar: The contractual relationship are as important as property relationships. Upon the termination of the Estate there remains the ability to sue for damages. Goldhar v. Universal Sections: The landlord can only get damages up to and until they take possession. o The termination of the estate in land also terminates the terms of the lease. o The contractual right is terminated when the landlord takes possession so it is not possible to get damages. Goldhar tried to sue for the lost future earnings When you accepted surrender of the lease you gave up your right to claim future damages.

Residential Tenancies:
Different from Commercial tenants: o Commercial tenants, interested in having a long term lease, someone that will draw others to the building (good stores for the mall), So there is a commercial interest on either side. This means that there is a slightly better equality in bargaining power. In residential tenancies there is very little commercial interest on both sides: o There is an emotional attachment to your home that does not exist to the same extent with a commercial tenancy. o There is an inequality in bargaining power. Sometimes this depends on the strength of the market. o There is an inequality with regards to documentation There is a 3 page standard form contract. The average tenant doesnt really read it AND the average tenant doesnt really think that they have the ability to negotiate. The landlord can thus put in VERY strong terms in the tenancy agreement. o There is an inequality in enforcement. Landlord can easily have the tenant removed by court order.

64

Property Summary But is the tenant going to go to court and spend money to get changes? History shows us they wont. Ontario Tenant Protection Act was passed to alleviate some of these inequalities. o Security of Tenure: tenant is able to stay on the premises until the LL has a good reason to get him out. o The LL has to maintain the building at an appropriate standard (S. 96). Pajelle v. Herbold (SCC 1973): Property advertised as having a swimming pool and recreational facilities. But the pool was empty. Tenant argued that the property was not maintained because the advertised swimming pool was not maintained. Tenant really just wanted out of the lease because the building was in a poor area. LL has to maintain the building at a reasonable level. If they advertise a feature (swimming pool) they have a duty to maintain that feature. Held: The SCC held that it was important to keep the pool in good condition because it was advertised. Thus she was able to walk out on her lease. o Control of Rent. 1975: possible to raise rent in whatever increments LLs wanted. This became an abusive practice against Ts by LLs. Rent Control Act: Each unit had rent established at the time the act came in. o Rent could be increased by guidelines set out in the act 2-3% (established guidelines). o The rent control was on the unit. The tenant did not matter. o Problem: the landlord has no real incentive to keep the property properly maintained. Tenant Protection Act: o The tenant is protected from rent increases. o When the tenant leaves it is THEN possible to go to the market and get whatever the market will bear. o Until the tenant leaves the unit is rent controlled. o Duty to Mitigate: This is on both the tenant and the landlord. Bars residential LLs from using option 1 in Highway Properties. o Statutory obligations Cannot be overruled by contractual obligations. Prohibition on Security deposits in excess of 1 months rent. LL cannot prohibit pets in the building. 24 hrs written notice before the LL can enter. LL cannot arbitrarily refuse the tenants right to sublet. 65

Property Summary o Curtailment of LLs remedies. Right to distress: LL may impound tenants goods until payment of rent. REMOVED. o Recognized grounds for early termination: Failure to pay rent Tenant carries on illegal acts Tenant misrepresented income to get public housing Tenant commits wilful, negligent or undue damage to the property. Tenant causes substantial interference with the landlords or another tenants reasonable enjoyment with his residential complex for all usual purposes. Tenants act seriously impairs the safety of any person. Tenant has too many persons in the unit. o No fault grounds: Good-faith possession where the landlord requires the premises for himself or herself or a family. This remedy is not available to corporations. Demolition and conversion to a non-residential use.

Re Canadian Pacific Hotels Ltd. and Hodges (401)


Facts: Hodges chooses to live in the hotel with his family. He lives there as his only home. He pays the daily rate for the hotel. 15 years after he moved in he moved out. When he left he had a bill of $13,000. o CP tried to use Part IV of the Landlord and Tenants Act to get the money it was owed because it was easier than traditional means. Problem: Part IV does not apply to the travelling and vacationing public. o CP Argues: it is entitled to rely on this part of the act. It is a tenancy at will. Court has the ability to look at what is actually going on and what the applicable law is (Re: McLogan, Down, Walker). Problem: it is not a tenancy at will it is a renewable tenancy on a daily basis. It is a residential tenancy o He brought in his own furniture, he installed a phone line, he was there for 15 years! There was an intention to create a tenancy relationship. o Hodges Argues: it is not a residential tenancy. The maids come in and go out (no exclusivity). There is no right to sublet (this was agreed by both parties). Held: Hodges was not a tenant. He had no exclusivity and he was unable to sublet. The hotel treated him as a regular guest. He was thus a regular guest. o There was no intention to create an estate. Intention is a major factor.

66

Property Summary

Removal of a Tenant:
Cohen v. Klein: o It is only in exceptional circumstances that the tenant will be able to block forever the landlords attempt to retake the premises. o BUT this is if the Landlord is acting in good faith! Horst v. Beingessner: o If the landlord is not acting in good faith then the tribunal will not find that it is unfair to block the eviction. o In that case they are swayed by the fact that there were 4 units available and the unit they chose to possess was the one with the lowest rent! Neither apply as precedent. o The LL must show that he is acting in good faith. o The tenant must show that it should exercise its discretion.

Cohen v. Klein (424)


To allow the tenant to remain in possession gives the tenant rights better than ownership. Facts: The LL seeks to terminate the tenancy of two long time tenants so he can take possession. The unit was in an Orthodox Jewish area. There was a great deal of convenience for Held: two stages to an analysis to evict so LL can take possession. o Determine grounds for an eviction. Established: judge believes that there is a good-faith attempt to retake possession by the LL. o Determine grounds to refuse an eviction. Tenant: the eviction would be unfair. The reason for the eviction is his low rent o This is not enough. Religion means that he must live close to place of worship; has to walk to worship on Saturdays. o Reasonable limits need to be placed on this consideration. o Convenience is not enough to prevent eviction. Too fragile to handle the changes. o Doesnt buy it. They are only 53. They will have to pay more. o They havent looked into it. LL doesnt have to evict the newest tenant. Everyone is rent protected. There is nothing protecting the lowest paying unit from being taken over. Fairness argument not about the LLs alternatives also about the tenants choices.

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Property Summary LL may have other alts but this does not give the tenant a superior claim. Fairness goes to tenants more restricted choices and/or misconduct by the LL. o Only exceptional circumstances when it will be refused: Forever: Wrongdoing by the LL. Inducing the tenants to invest lots of $$ in the property Foreseeable Future: serious prejudice to the tenant. Serious illness, no other options - beyond the tenants control. Delay Eviction: fairness factors As in this case (delay of 4-8 months ordered) o To hold otherwise than to allow eviction would give the tenant property rights better than ownership. LL, because of investment, entitled to use the property as he wishes.

Horst v. Beingessner (434)


Tenant Protection Act, S. 84: The tribunal MAY refuse to grant an application to remove the tenant UNLESS it would be unfair to the Landlord to do this. Tenant needs to persuade the ORHT that they should exercise their discretion and NOT throw him out. o Show this is as much about getting rid of them as it is re-taking possession of the unit. Landlord needs to persuade the ORHT that it would be unfair NOT to grant the order to throw the tenant out. LL entitled to take possession if he or a family member requires the rental unit. (Tenant Protection Act, S. 70) Facts: the tenant has been in place for 18 years. The LLs father wants to move into the unit. Tenant has a medical condition and low income. It would have been a severe burden on the Tenant to move. There was another unit available to him. Held: LLs unable to evict the tenant. o Ontario Tenant Protection Act S. 70 (1): the landlord requires the rental unit o The father did not require the unit. It appeared that there were other reasons for selecting the unit they did. (4 other units available and the one they chose to posses was the one with the lowest rent) As much about getting rid of the tenant as it was about finding a place for the father to stay. The father was able to take another unit.

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Property Summary o Ontario Tenant Protection Act S. 84 : the ORHT is entitled to refuse to grant the application unless unsatisfied, having regard to all the circumstances that would be unfair to refuse The LL must establish that it is unfair to the LL Unable to do this in the circumstances.

Valery Construction Ltd. v. Arno (435)


Facts: Lots of accusations about damaging the property and endangering others. BUT the LL does not produce any evidence to back up the allegations. Held: The LL was unable to evict. o Without evidence of actual wrongdoing the ORHT will not evict. o So the tenant was not evicted. Only thing Valery could prove was dangerous was the removal of the fire alarm. This was forgiven as an isolated incident caused by the defective fire alarm.

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Property Summary

Transferring Property Interest by Gifts and Sale


Bargain promises are generally enforceable in contract Non-bargain promises are generally unenforceable in contract. o Gifts are non-bargain promises.

Requirements to make gifts enforceable


Formal transfer documents: o Bargain: an agreement of purchase and sale (contract). These can be informal Implied by going to the book store taking the book to the counter and paying for it. Oral (this is enforceable but there is an evidentiary gap). o Gift: a deed of gift. A deed is a document executed under seal. Under contract law a seal imports consideration (removes the ability to challenge on the fact that there was no consideration If there are no formal transfer documents equity will enforce the gift only o The donor or transferor needs to intend to make the transfer. o The gift must be accepted by the donee. o There must be a sufficient act of delivery. Delivery must be made by the gift giver. Gifts can be retracted any time up until delivery.

if:

Gifts Generally:
In gift law we look for: o Intention to give o Intention to receive o Delivery of the gift. Some of the ideas from the finders cases apply: o Delivery: an intentional act of donation (words of gift can be an act not just words) by the donor AND an intentional act of acceptance and possession by the donee. was the transfer so clearly made that it has to be recognized by a 3rd party? Delivery timing o BEFORE the gift Donee in possession of something that he does not own [bailee] then the donor says you can have that. o Delivery can come WITH the words of gift. o Delivery can come AFTER the words of gift. Constructive delivery:

70

Property Summary o The parties act as though the gift has been made. Symbolic delivery: o Picking up and transferring the property is not necessary/possible. You put your hand on something and say I am giving this to you. Note: If it is something simple and identifiable then it is not generally necessary to make a deed of gift. o BUT if it is a complex multi-faceted gift then it is wise to make an inventory and a deed of gift.

Cochrane v. Moore (442)


Actual delivery of the gift is required. Symbolic delivery is acceptable.

Notice of a gift will make it enforceable on a new owner. Facts: Moore, a gentlemen rider (a person not paid to ride the horse court looks on him with a certain degree of sympathy). Benzon gives more the interest in a horse. Cochrane advanced a significant amount of money to Benzon. Benzon then sold a number of assets to Cochrane, including the horse in which Moore had a stake. When the horse was transferred to Cochrane, Benzon told him about Moores interest and Cochrane told Benzon he would make it right. Held: Moore was entitled to win. He retained the interest in the horse. o Delivery of the interest in the horse is not possible. But the letter from Benzon to Moore was constructive delivery. o Cochrane told Benzon he would recognize the gift This made Cochrane a trustee of Moores stake in the horse. Minority: o Actual delivery is required. Only parliament can change that. There was no delivery so there was no gift. o There is another ground on which they decide the case: It is an invalid sales contract because it was based on a fraudulent misrepresentation. Benzon had legal title to the horse and held of it in trust for Moore. So Moore can claim against Benzon NOT against Cochrane o Benzon tried to make a proper gift in Moore, passing legal title. But he failed to do this. So a resulting trust was created in Benzon for Moore.

Trusts:
Express Trust: Trustee has an equitable duty to the beneficiary of the trust. To create one 3 criteria must be met. o The intention to create a trust.

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Property Summary o The subject of the trust. o The object of the trust. Resulting Trust: a transfer of property without an intention to create a gift. o Recipient of the property holds it in trust for the transferee. o Presumption of advancement: presumes a gift not a resulting trust in the case of family. Family Law Act repealed this doctrine for husbands and wives. Constructive Trusts: to ensure a just result where a person without title to property has made a significant contribution to acquiring or maintaining it, thus preventing an unjust enrichment.

In Re: Cole (453)


Delivery of the gift is a necessity. Words of gift combined with an act of delivery. It was unclear what items formed the gift. There was no inventory of what was given and nothing was specifically handed to her. Delivery can occur prior to, contemporaneous with, or subsequent to the words of gift. Onus on the party trying to establish there was a gift to do so. They shared the property joint possession. This weighs against the finding of a gift. Facts: A man makes a lot of money during the war. He buys his wife a house and furnishes it with 20,000 worth of furniture. His wife arrives at the house, after it is furnished, and says to his wife its all yours. The wife walks around the house touching everything. He then goes bankrupt. The trustee in bankruptcy then tries to take the furniture. He executed a deed of gift transferring the old house and old furniture to his wife. But he did not do likewise for the furniture in the new house. o Wifes (novel) Argument: Donee can go to the gift and this should constitute delivery. He gave her everything and then she went and touched it. There was too much for him to deliver each piece individually. But she was near each piece when the words of gift were spoken. Donee handled some of the pieces in the presence of the donor. Held: there was no clear act of delivery or possession. So it was not a gift. o There was no clear act of delivery in this case. It was an imperfect gift that was never corrected. o Delivery can occur prior to, contemporaneous with, or subsequent to the words of gift. Prior delivery: delivery does not need to be made by the donor. Only that the donee has possession of the gift (bailee). o Onus is on the wife to show that there was a gift (including delivery). o There needs to be a clear intention to create a gift. 72

Property Summary There is not one here. They shared the property and the possessions. Legal title remains with the husband.

Notes on Cole:
A great problem with the vagueness of the gift. o There was no inventory in the house. It is very ambiguous as to what was the content of the gift. o The gift was made years before the bankruptcy. It was not possible to tell what had been added after the gift. If Cole had chosen a specific item and given it to her then this would likely have worked. (I give you this piano (puts his hand on it). She says I accept (he removes his hand). That may work. o BUT if they both played the piano then it might be joint possession just like what occurs here. o The case where the father gives the furniture then leaves the house makes a gift because there was no joint possession. But the gift is not vague so it might work.) Types of Delivery o Constructive Delivery: the son worked on a barge for a period of some years and this was considered delivery when the father spoke the words of gift. o Symbolic Delivery: bulky chattels that cannot easily be delivered. The donor can put his hand on the gift and accompany this gesture with the words of gift. Hypotheticals: o A man was a great collector of art. He gave gifts of art to his partner. He was defrauding clients and was sued. The claim of the partner to the art was not respected. o If Mrs. Cole had spent family money to buy the furniture then it would be a half interest in the furniture for her. Mackedie Estate v. Mackedie: A son was given five paintings over five years for his birthday by his father. The paintings were taken down, wrapped and handed to him with a note saying happy birthday. They were then, with the agreement of all parties put back in the possession of the father. o The son got the paintings. There was a clear delivery of the paintings. Constructive/Symbolic Delivery: o Watt v. Watt Estate: the daughter was given the keys to a car and told this is for you. But he kept a duplicate set of keys. No gift because there was no change in possession o Bauernschmidt v. Bauerschmidt Estate: a duplicate set of keys was given to a safety deposit box. No gift because there was no change in possession. o Admr v. Lewis: the only set of keys to a safety deposit box were given and the donee said you can have anything in there.

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Property Summary There was a gift because there was a change in possession.

Intention:
There must have been an intention to make the gift.

Thomas v. Times (464)


There must be a clear intention to make a gift. The onus is on the party trying to show there was a gift. There is heightened suspicion when the donor is deceased.

Act of delivery can occur after the words of gift and through an intermediary with the donors consent. BB: this looks like a unilateral contract. Facts: A poet wrote what turned out to be a very famous play, under milk wood. He lost the original manuscript on the eve of a trip after a night of heavy drinking. The plays producer (Cleaverdon) gave him a copy of the manuscript for his trip. He said thank you told the producer where he might have lost it and if you find it its yours. The producer found the manuscript. The play-write died unexpectedly on the trip. The producer sold the manuscript to the d. The administratrix of Thomas estate, his widow, is suing the d to get the manuscript, now very valuable, back. Held: There was a gift. Ds argument prevails. o ONUS is on the party claiming that there was a gift. o Ds argument: It was intended as a gift. The manuscript was not very valuable (but that is not important) Thomas was prone to this sort of gift AND the producer had just saved his trip by getting him a copy. The producer told the story of the gift several times while Thomas was still alive. There would have been no reason to do this unless it was true because Thomas was expected back! Delivery: Delivery was made by the bar in which Thomas lost the manuscript. He got that possession with the authorization of Thomas. o Ps argument - Failed: It was never intended as a gift. You have to treat statements about what a dead person said with GREAT SUSPICISION the dead man cannot rebut the statement. He told many people the story when he thought Thomas would return from his trip. Evidence that Thomas did not give the manuscript as a gift.

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Property Summary Thomas had hoped that the manuscript would be returned to him. He said that the producer was looking for it. The conversations were from 12 years ago. There was no delivery. There was delivery through the bar. o BB: Contract analysis: it looks like a unilateral contract.

Capacity:
The donor must have the capacity to make the gift. o This includes being free from undue influence.

Casada v. Casada (470)


Onus of showing there was no undue influence is on the donee. Facts: The younger brother was given the farm on his fathers death. He was a dependent kind of person. The older brother had alienated his father and moved to New Zealand. The older brother constantly complained about being left out of the will. The younger brother always wanted a relationship with his older brother. He gave his older brother money so he would move home from New Zealand and then also gave the older brother a gift of half of his land (150 acres worth about $200K!). This gift is challenged as being made by undue influence. Held: The gift was obtained by undue influence. So it fails. o If there is a relationship of confidence and influence then it is possible to have a gift set aside as procured by undue influence. No need to show that there is ACTUAL undue influence. The relationship creates a rebuttable presumption of influence. Not about knowing what you are doing but about being unduly influenced. There must be some vulnerability in the donor and some position of influence in the donee. o Look at the specific facts of the case. Test to rebut presumption: must satisfy the court that the grantor, knowing and appreciating the effect of the transaction, acted voluntarily and deliberately, free from the influence of the grantee. Donee must show the gift was a free exercise of independent will. o Independent legal advice is such proof. o Undue influence is used to PREVENT people in dominant positions from exercising that influence. Onus of showing there was no undue influence is on the party taking the benefit of the gift (donee). o There was undue influence here. Transaction should be set aside. The older brother was not a good person.

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Property Summary The younger brother was in a mentally weak state and highly susceptible to a domineering person. The older brother was such a person. Younger brother was under the influence of the older brother at the time of the gift. There was no evidence of independent legal advice. Gift was NOT a spontaneous act and was not a free exercise of the will of the donor.

Donatio Mortis Causa:


Re Zachariuc; Chevrier v. Public Trustee (478)
Donatio Mortis Causa: is a gift made in contemplation of death (death is imminent) and subject to revocation if the donor survives. Three things are required: o Made in contemplation (though not necessarily expectation) of death. o Delivery by the donee of the subject matter of the gift o The gift must be made under such circumstances as shew that the thing is to revert to the donor in case he should recover. There is a requirement of delivery. o There is some question as to whether the test for deliver in donatio mortis causa is as strict as for inter vivos gifts.

NOTE: the public trustees ability to take property that was left behind when the person dies and has no family or will (Escheats). o The public trustee is reluctant to deny a lawful claim. o This is why they did not put up much of a defence. They do not want to aggrandize themselves. Corroboration is necessary when showing a gift made by a deceased donor. Onus on the donee to show that the gift occurred. Facts: Chevrier and Zachariuc are good friends and neighbours. Zachariuc had no will, but on the night of his death he said, I give what I have to you to Chevrier. He makes arrangements to make a will the following morning. He gives him a key, first and only time he did that, and asks him to check in on him and bring a witness to make a will. He also told Chevrier about a large sum of money ($16K) hidden under the house in a tin. When Chevrier stopped in the following morning Zachariuc was dead. The public trustee was given title to the property. Checked the house and did not find the $16K then scheduled the house for demolition. Chevrier went to the Trustee and told him where the money was. They found the money. Held: The gift was a donation moritus causa. o It was made in contemplation of death.

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Property Summary Made reference to his not dying tonight when the gift was made. o The key constituted delivery. (Similar to safety deposit cases.) Delivery requirements are much MORE relaxed from the standard of inter-vivos gifts. The key combined with the description made delivery valid. 1st time he ever gave Chevrier his key. o The third requirement is valid. Zachariuc remained on the property. If he didnt die it wouldnt revert. o Other considerations: Zachariuc was dead. There was a need for corroboration of Chevriers story. The fact that they found the money where no-one else would have looked was corroboration. Level of corroboration is not that high.

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Property Summary

Transfers of interest in Land


Statute of Frauds:
Requires written evidence of transfers in land. o S. 1: the creation of a free hold estate in land must be in writing and signed by the parties. Failure to meet these requirements will create an estate in will only. Estate in will: this is a right to be on the property that can be terminated at anytime. o S. 1(2): leases are void unless made in writing. Only applies to leases over 3 years. o S. 2: Any change in property needs to be done in writing or by deed signed by the transferor. Statute of Frauds and Conveyancing Law and Property Act need to be read together. o S. 4: NO ACTION SHALL BE BROUGHT upon a contract or sale of land UNLESS it is a contract in writing. Courts do not like to let the statute of frauds operate to create injustices. o They will often be lenient with what qualifies as an agreement in writing.

Agreement of contract and Sale:


The contract for sale spells out: o The size of the lot. o Chattels included. o Fixtures excluded. o The purchase price. o The deposit price (a percentage of the land ~ 10%) When contract is signed the deposit is paid and then the estate is transferred at the closing date. Caveat Emptor: o Buyer looks through the title to find encumbrances (unpaid taxes, liens, building claims) and ensure that the title belongs to the seller. Then buyer makes requirements of the seller. I require that you discharge the mortgage. I require that you remove the easement on the back yard. The seller responds I will discharge the mortgage. I cannot remove the easement. o The agreement WILL contain a provision stating that the buyer has had the opportunity to inspect the house. The purchaser puts into the contract ALL of the possible clauses needed for due diligence. o Essentially it is Buyer beware. 78

Property Summary BUT the vendor cannot conceal a problem. This will void the contract. What if it is something that the vendor knows BUT is not obvious to the purchaser? (House floods in the spring time) It remains Caveat Emptor in Ontario. But the law is evolving due to new cases in the US. o In the US the vendor has to tell the buyer everything that they know about the house. o BB: Wouldnt be surprised if this happened in Ontario in the near future. The buyer can put a warranty clause in the contract from the vendor. This is common in buying new homes. o Something that the government is running (New Home Warranty) However it is uncommon in re-sale residential homes. Conditions: o The agreement contains a number of conditions. If all of the requirements are not met and the Buyer will not accept them not being met then the contract is null and void and the deposit money is returned. o Examples: This contract is dependent on the property being re-zoned. This contract is dependent on the survey of the land. There can be terms dependent on the environment of the land.

Lysaght v. Edwards (490)


The moment there is a valid contract (a contract that is sufficient in form and substance that there is no ground for having it set aside) between the vendor and purchaser the vendor becomes a trustee in equity for the purchaser. If anything happens due to the negligence of the vendor the vendor is responsible. If anything happens that is beyond the control of the vendor the purchaser is responsible. Risk transfers when the contract is valid. Facts: Lysaght entered into an agreement to buy some land but died before the transfer took place. His heirs did not wish to continue the sale. Edwards sued to make the sale go through. Held: o Equity is important because the contract is not enforceable after one of the participants dies. The interest in the property is in equity. The moment you have a valid contract for sale the vendor becomes in equity a trustee for the purchaser of the estate sold. Beneficial ownership passes to the purchaser. Vendor has a right to the purchase money

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Property Summary Vendor has a right to retain possession of the estate until the purchase money is paid (in the absence of an express time for possession) o Valid Contract: a contract sufficient in form and in substance so that there is no ground whatever for having it set aside as between the vendor and purchaser. o The risk is then transferred from the vendor to the purchaser as soon as there is a valid contract. The vendor must take reasonable care of the property in the meantime. If anything happens without the negligence of the vendor the damages will be the responsibility of the purchaser.

Notes on Lysaght:
Before Contract Contract Conveyance Law Vendor Vendor Purchaser Equity Vendor Purchaser Purchaser o Interests of the vendor and purchaser in law and in equity. All interests are in fee simple. o Equity deems as done that which ought to be done. Hypothetical: o A nursery has a large tract of land that is sold to a developer on condition that it be re-zoned for a subdivision (condition that the developer gets draft plan approval). The nursery removes shrubs; the developer tries to stop them because they wanted to use the shrubs for the subdivision. There is no draft plan approval yet. The contract is not yet valid so there is no EQUITABLE interest in the shrubs. There is no draft plan approval so there is no valid contract yet. Once there is a valid contract the vendor has an obligation NOT to WASTE the estate. BUT under contract law it is probably possible to say the shrubs were a part of the purchase contract (they are fixtures). Can the nursery owner, before draft plan approval, pick up the shrub and leave with it. There may be contractual remedies. What if the land burned before the re-zoning. The risk goes to the purchaser once the purchaser has a common law estate. Contractually, the risk is generally put back on the vendor.

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Property Summary

Specific performance
In equity the courts could order both damages and force an individual to do something (specific performance). o Specific performance would only be awarded where damages were not a sufficient remedy. Such as for a unique item. Property was prima facia Unique. But no longer considered as such (Semelhago v. Paramadevan)

Semelhago v. Paramadevan (452)


Property is not prima facia unique. It is possible to recover damages instead of specific performance. Facts: Buyer looking to buy a house in a subdivision. Makes an agreement to pay $205 k for the house. The vendor refuses to sell because the real estate markets were soaring. By the time of trial the property was worth $325 k. Held: Damages were awarded. o The courts found the one subdivision house looked like any other. So property was no longer prima facia unique! Damages were given instead of specific performance. o Need to show that the property is unique. Its substitute would not be readily available. o Damages: assessed at $120 k. Sopinka did not take account to the increase in the BUYERS house as well. He found that the value of the buyers house is unrelated to the value of the sellers house. There was nothing in the sale contract requiring the buyer to sell his house.

Notes on Semelhago:
Damages leave the purchasers of houses under-compensated because it ignores the emotional attachment to the house. Generates uncertainty in the law.

Starlight v. Cloverlawn (504)


If you are barred from bringing a claim by the Statute of Frauds you may try to bring one through equity by the Doctrine of Part Performance. Doctrine of part performance requires: The acts of part performance must be referable to no other title Such as to render it a fraud in the defendant to take advantage of the contract not being in writing. Contract must be such that in its own nature it is enforceable by the courts. Proper parol evidence of the contract.

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Property Summary Specific performance will not be ordered if it will injure a party who has done nothing wrong. In that case damages will be ordered. Facts: Starlight owns a franchise of convenience stores. It procures a place for the franchise and makes changes to the property, stocks shelves and so on. They then get 2% of the profits. Cloverlawn builds shopping malls. Cloverlawn and Starlight come to an agreement that Starlight will rent a unit at $100 k/year. Starlight made a number of alterations to the property at some expense to them. Cloverlawn never signed the lease agreement with Starlight and then leased the property to another company, Macs. o Starlight had to sue for specific performance. Even though they knew they would be barred from success because Macs now had the store. They did this to engage the equitable jurisdiction of the court. In common law the contract would be set aside by the statute of frauds. Because the completed part performance and a claim for specific performance is available they can sue for damages! Otherwise they would be stopped for claiming damages. Held: Starlight is entitled to damages from Cloverlawn. o Doctrine of Part Performance relieves the burden of the statute of frauds. It requires The acts of part performance must be referable to no other title Such as to render it a fraud in the defendant to take advantage of the contract not being in writing. Contract must be such that in its own nature it is enforceable by the courts. Proper parol evidence of the contract. o This was met by: The payment of the deposit cheques. This on its own would not have been enough. Preparation of altered plans. Purchase of signs and shelving. Payment of expenses concerned with these matters. o Damages: Starlight tires to claim for the money it would have made. The courts are unwilling to do this because it is too uncertain. They decide to look at the difference in lease values in order to establish an award of damages. But does not award the full amount. Uses the Macs contract to establish what the market rate might be. Sets damages at $20k plus the deposit of $790. o The courts could not award specific performance because Macs had a valid claim to the unit. It took the property without knowing that Starlight had a claim on the place. 82

Property Summary If Macs had known then it would have been possible to evict them and have the courts place Starlight in its place.

Inwards v. Baker (524)


Possible for a license to be coupled with an equitable interest. Facts: Son built a cottage on his fathers land. The father allowed this and said nothing. The father died and left the land to Inwards. He did not mention the cottage. Inwards sees this as a licence that can be ended with notice. Held (Denning): o There is a larger right than a licence. It is a licence coupled with an equitable interest. o It is not an estate in land. It looks like a life estate BUT it cannot be transferred to another party

83

Property Summary

Non-Possessory Estates in Land:


Profit au prendre: right to go onto property and take things for your own. o Examples: A licence that allows you to go in a quarry and take the stone. A licence that allows you to go into a farm and take some berries. Easement: An easement is a grant that allows the one party a right of use some of the others land. It is similar to a licence but it is irrevocable. o Requirements to create an Easement: (Re: Ellenborough Park) There must be a dominant tenement (property that enjoys the benefit of the easement) and a servient tenement (property that is burdened by the easement). The easement must accommodate the dominant tenement. The dominant and servient tenements cannot be both owned and occupied by the same person. The easement must be capable of forming the subject matter of a grant.

Easements generally
There are no time limits on easements (they are equivalent to a freehold) But it is possible to set time limits on easements (these are equivalent to leaseholds) o You can pass over my property for 10 years. By then you will have a road. Types of easements o Easements by operation of law o Easements by necessity o Easements by grant (I grant you an easement to pass over my land) o Easements by reservation (I will sell you this land subject to an easement that I can pass over it)

Requirement of a Dominant and Servient Tenement.


An easement is given on the land not to the person.

In Re Ellenborough Park (552)


Sets out the requirements of an easement: There must be a dominant tenement (property that enjoys the benefit of the easement) and a servient tenement (property that is burdened by the easement). The easement must accommodate the dominant tenement. The dominant and servient tenements cannot be both owned and occupied by the same person. The easement must be capable of forming the subject matter of a grant. o The rights cannot be too vague.

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Property Summary o It cannot be inconsistent with the proprietorship or possession of the alleged servient owner. o It cannot be a mere right of recreation without utility or benefit. The easement must provide some benefit to the dominant tenement not simply to the people. (Access to the park increased the value of the homes so it provided a benefit to the dominant tenement). Facts: A park is available to certain users, who are given keys, whose land abuts the park. It is also available to certain users whose land is close to the park. Held: There was an easement. o There is a Dominant Tenement and the Servient tenement. Dominant Tenement and Servient Tenement do not need to touch each other Helps if they do but is not necessary. But there needs to be some nexus between the dominant and servient tenement. This existed because the homes were near to the park. Easement in Gross: Easement for which no dominant tenement exists. These were not allowed by the OLD common law. BUT this is an evolving area. o The easement needs to accommodate the dominant tenement. It needs to add some convenience to the dominant tenement (the land). The park did this by providing a benefit to the OWNERS of houses. o The dominant and servient tenement need to be owned by different people. Otherwise the easement is destroyed. o The easement needs to be capable of forming a grant. The rights cannot be too vague. They werent it was an ability to access the park It cannot be inconsistent with the proprietorship or possession of the alleged servient owner. Amounted to a joint occupation of the park. It cannot be a mere right of recreation without utility or benefit. The access to the park increased the value of the property. There was utility and benefit to the property.

Notes on Ellenborough
Hill v. Tupper: A man owned a property that allowed him to launch boats into the river. He attempted to block others from gaining the same right. o Held: the monopoly on launching boats into the river is not the accommodation it is the ability to launch boats.

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Property Summary How is the park owned? The park is likely vested in trustees who maintain the park for the owners. The park is the servient tenement. What is the nature of an easement: o It can be a freehold estate if there is no termination on it. o It can be a leasehold if it is subject to some temporal limitation. o It can be a life-estate if it is for as long as they live. Example: just a utility and benefit. o Everyone who buys a house in a subdivision is granted a membership in the golf course. Membership in a golf course is a contractual right BETWEEN the PURCHASER and the GOLF COURSE. The golf course charges annual fees. It remains purely contractual not an easement interest!

Jengle v. Keetch (555)


The easement must be used only for the purpose it was created. If it was created to benefit Bs land it cannot be used to benefit Cs land. Facts: Three cottage properties (A, B, C) are side by each. Only A has access to the road from his land. B has an easement that allows it to travel across As land. C cannot get that same easement from A. So he rents a section of Bs land to park on. A challenges this. Held: A was able to block Cs access to the land. o That is a colourable use of Bs easement. B cannot grant an easement over As property by allowing access to Bs property. It was clearly for the use of Cs property. o Cs use of the easement could only be for the enjoyment of the leased potion of the dominant tenement.

Notes on Jengle
Question: What if B gets a severance and splits the property in half. o The easement would still be available to the second half of Bs property. o But it would strictly speaking not be available to service Cs lot. Only the second half of Bs lot. Question: What if B gets the land re-zoned to a marina. o A would need to bring an (injunction) against the use of the easement in that manner.

The Requirement that the Dominant and Servient Tenement cannot be Owned or Occupied by the same Persons.
If the same person owns both the dominant and servient tenements the easement is destroyed.

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Property Summary

Easement Must be Capable of Forming the Subject Matter of a Grant


Three grounds are required to show that it is capable of forming the subject matter of a grant. o The rights cannot be too vague. o The rights cannot be inconsistent with the proprietorship or possession of the alleged servient owner. o The rights cannot be a mere right of recreation without utility or benefit.

Shelf Holdings v. Husky Oil (558)


This grant necessarily limits the owners rights. However this does not mean that the grant is inconsistent with the owners rights. The owners rights must be heavily diminished to stop it from being an easement. Facts: Husky Oil runs a pipeline beneath the land the Shelf owns. Shelf would like a declaration that Husky Oils interest is invalid and hold them ransom to get a better deal. Held: the court looks at the interest and decides that it is an easement. The easement does not need to be registered to be enforced. o Shelf: the right that Husky has is NOT an easement. Husky are in possession! They have a pipeline in place. They have exclusive and unrestricted use of the subtratum. This is a property interest The property interest needed to registered to be valid. This is not a registered interest. By the Land Titles Act it is invalid. o Husky: It is an easement. Easement does not need to be registered to be valid. Cases that show possession equates to title are different because in those cases possession was obtained via a statute that expressly stated that possession equated to title. o Court: it is an easement Look at the actual intentions of the parties. Easement cannot be at odds with the proprietary rights of the owner. But it will necessarily detract from those rights. Only defeats and easement when the rights are so diminished that it cannot be an easement. Here we look to the granting document to see the rights ceded: o Grantee retained the rights to use the land. o There is not sufficient interference with the grantees rights so as to be at odds with the proprietary rights of the owner.

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Property Summary

Limitations on Easements:
Easement serves ONLY the dominant tenement to which rights were granted. Subject to an implicit limitation on the degree of use it will bear. o Cant offend the original agreement. Subject to contractual limitations. o Can make such limitations as: this easement is only for Pedestrian traffic Emergency vehicles Residential traffic. For so long as it is used for a single family dwelling. Ect. Easements are not exclusive. o The grantee can give them to whomsoever they choose. Servient and Dominant tenement have the RIGHT to make repairs BUT not the OBLIGATION to make repairs. o Servient tenement is subject to tort claims.

Easements by Operation of Law.


Implied Grant: A sells to B but doesnt mention that the only passageway serving the property is his. o B gets an easement by implied grant because A didnt ensure that B was aware he did not have access to the apparent laneway. Easement by prescription (577). If you can show that you have had a right of passage for 20-years you dont have to show that it was granted you get an easement. But it is not perfect. o If Servient tenement can show that there was NOT a lost modern grant (Dominant tenement must have been given a grant that has been lost). Need to show that no grant was given. Permission was given to cross the land but it was not an easement. That permission is revoked. This is how to defeat a prescriptive grant after 20 years but before 40. o If you have a passage of right for 40 years you can have a claim defensible against everyone. Easement by necessity: Cs property is land locked (no legal means or accessing the property) and Ds property has access to the road. o Can C gain access to the road over Ds land. o Hirtle: an easement of necessity is granted. (NS) In Ontario it is a stricter rule. Need to show that you had access and lost it. Ontario will not create a new road.

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Property Summary

Negative Easements:
Phipps v. Pears
Easements can be: Positive: Give the owner a right to do something on the neighbours land they otherwise would have no right to do. Negative: right to stop the neighbour from doing something they otherwise would have a right to do. o Easement for support: if the wall is relying on the other wall structurally then it is not possible to tear down that wall. BB: Both are really negative and positive at the same time. It just depends on your perspective. Need to proceed cautiously with creating new negative easements. There is a concern of unduly restricting the enjoyment and alienability of land Facts: 2 houses were built side by side with touching walls. The houses were built by one owner but are now owned by two separate owners. The older of the two houses is condemned and torn down. The wall that was touching the other was not weatherproofed. Cracks due to weather damage. The p sues claiming that there is an easement of protection that is similar to an easement for support. Held: There is no such thing as an easement for protection. o Easement for support: if the wall is relying on the other wall structurally then it is not possible to tear down the wall being relied on with out buttressing the wall needing support. Protected from loosing its support. Fails here because the wall was not supported. o Positive easement: Give the owner a right to do something on the neighbours land o Negative easement: Right to STOP the neighbour from doing something. BB: Both are really negative and positive it just depends on who you are looking at. o Need to proceed cautiously with NEGATIVE EASEMENTS. There is a concern of unduly restricting the enjoyment and alienability of land. Easement for light and air: Arises through prescription by the passage of time. o Ive had the sun coming in my window for a great deal of time. I can prevent the neighbour building a house that will prevent the sun from coming in my window. o This is not the law in Ontario.

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Property Summary Light and air are not an easement! But in England it was previously able to arise by prescription. The limitations act has stopped this from happening in Ontario.

Covenants and the Use of Land


Covenants do not transfer with ownership unless they are communicated. o Covenants are enforceable in contract between the parties. If notice is communicated they are binding in equity on noncontracting parties o Covenants cannot be replaced by zoning laws. Zoning laws are too broad. Privity of Contract: only the original parties to a contract are bound by it. o Benefit of a contract is assignable but the burden under it is not. Privity of Estate: a tenurial relationship between the landlord and the tenant. o Exists between: Landlord and tenant Assignee of the landlord and the tenant Landlord and assignee of the tenant Assignee of the landlord and assignee of the tenant. o Does not exist: Between an landlord and sub-tenant. In Freehold land. Where privity of Contract does not exist: o Can only enforce the covenants that touch and concern the land. o Assignees are only liable for breaches while they hold an estate in the land. If there is neither Privity of Contract nor Privity of Estate a covenant cannot be enforced. With 2 exceptions: o In equity, a negative covenant can run with the land. The benefit of any covenant can be assigned o At law, the benefit (but not the burden) of a positive or negative covenant that touches and concerns the land can run with an estate. Neither Privity of Contract nor Privity of Estate if: o Vendor and Purchasers assignee o Vendors assignee and Purchaser o Vendors assignee and Purchasers assignee

Freehold Covenants: Enforcement at Law


2 Methods of creating them: o Contractual agreements between 2 landowners o Agreement in the contract of sale of the land. Benefit of a Covenant can pass but not the burden (NO DISTINCTION BETWEEN POSITIVE AND NEGATIVE COVENANTS). o Covenantee must have an interest in the land.

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Property Summary o Covenantee and assignee must have the same legal estate in land. o Touches and concerns the land Covenant was entered into for the benefit of the land and not a merely personal benefit. Must affect the land (mode of occupation, value of land in more than a collateral way) It doesnt have to actually affect the covenantors land in order to enforce it. o Pakenhams Case: Covenantors assignee able to enforce a covenant to perform a mass on Sundays Burden of a covenant cannot pass with the land.

Freehold Covenants: Enforcement at Equity


Requirements to enforce at Equity: o A dominant and servient tenement. o Notice on the part of the assignee of the covenantor o A negative or restrictive covenant o Land benefited by the covenant retained by the convenantee o A Covenant that touches and concerns the land o Intention on the part of the covenantor to bind successors and not just the convenantor personally.

Tulk v. Moxhay (604)


If notice of a negative covenant is given it is enforceable against the new purchaser. The covenant is worth $ it would be inequitable for the covenantor to make the covenant then sell it to someone who could break it. Court will not enforce the positive obligations of the covenant but will enforce the negative ones. BB: today notice is given by registering the covenant/easement on the land. When the buyer performs their due diligence they will see the covenant on the title and be notified. Facts: Tulk sells an enclosed garden (Leicester Square) to Els with a covenant that the garden is to be maintained and not used for any other use than a garden. Tulk rents out houses surrounding the garden. Tulks tenants are allowed access to the garden (dominant tenement). The garden, many years later, was sold to Moxhay. He wants to tear down the garden and put up a building. There was no covenant in the deed of sale from Els to Moxhay. But Moxhay had notice of the covenant. Held: Moxhay cant change the garden into a building. He had notice of the covenant. o Vendee couldnt violate the covenant. It would be inequitable to allow the vendee to sell it to someone who would be able to violate the covenant.

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Property Summary The covenant is worth $. It hurts the value of the land. Courts dont want to allow the vendee to be able to profit off of the vendor.

Notes on Tulk:
Covenant is a proprietary right in the land until the land is conveyed with out notice of the covenant. Requirement of Notice: Need to give notice to a bona fide purchaser in order to maintain the covenants enforceability. o Squatters dont count as bona fide purchasers: Re Nisbet and Potts Contract Squatter is bound by the covenant. It must be a negative covenant: No power to enforce a positive covenant. o Haywood v. The Permanent Benefit Building Society Tulk has both a positive (to maintain the square) and a negative (to not build on the square) covenant. o The court will not enforce the POSITIVE obligations but will not enforce the NEGATIVE obligations.

Benefit of the Covenant:


To pass to an assignee the benefit of the covenant the assignee must demonstrate that: o Covenant touches and concerns the land. o Demonstrate entitlement to the benefit. Show that the covenant was annexed to the land. o Covenant was assigned in addition to the conveyance. Annexed to the land: o Must provide a benefit to the identified parcel of land or to the present and subsequent owners of the land. o Needs to specify if it is part or all of the land. (Presumed to be all of the land: Federated Homes) Can be enforceable if the covenant is expressly assigned. o Only the benefits that attach to the land are enforceable. Not just personal benefits.

Canada Safeway Ltd. v. Thompson


The court will look at the obvious intentions of the party. Court will not destroy those intentions by being overly technical. Required Elements of a Restrictive Covenant: The Covenant must be negative in nature (similar to an easement). o The court will look at the actual meaning of the covenant NOT so much the wording. 92

Property Summary It must affect, and be intended to affect by the original parties, the land itself by controlling its use. o Touch and concern the land: it must be imposed for the benefit, or to enhance the value, of the benefited land. Land must be capable of being benefited by the covenant AT THE TIME the covenant is imposed. Two plots of land must be concerned. One must be the dominant tenement and the other must be a servient tenement. The dominant tenement can be a lease. Anti-competition covenants: These are important in the development of shopping centers. The preference to restrictively construe covenants that restrain trade is of little importance; so long as they are not too restrictive. Facts: Woolworth had a long term lease with Safeway (made in 1971). Woolworth owned property, which it partially leased to Safeway, with an option to purchase adjacent property. The lease with Safeway restricted Woolworth from using the land in the adjacent property to build a store that would compete with Safeway. They also gave Safeway options on parking in the optioned property. 20 years later Woolworth sold its land to the city. Safeway seeks a declaration of its rights. City had notice of the covenant. o In 1971 the parking agreement is purely contractual. o In 1975 Woolworth buys the optioned property. Inwards v. Baker: might be a licence coupled with an equitable interest. More likely it is an easement. o In 1982 Woolworth sells the original mall to Thompson Mall (but not the option property). The rights would bind Thompson mall. o In 1995 the option property is sold to the city. Is the anti-competition included in the sale to the city? Held: The obvious intention was a restrictive covenant o Safeway: Restrictive covenant. It runs with the land. o City: Covenant was not clearly annexed to the land. It is a restriction on alienation not on use. This is a personal Anti-competition clause. Covenant was not clearly drafted. o Court looks at the intention of the parties. Court refuses to destroy the obvious intentions of the parties by being overly technical. This does touch and concern the land It intimately affect the lessor-lessee relationship.

93

Property Summary Policy: it is important to allow these types of covenants in shopping centers. (Spence) The public policy objective of restrictively construing covenants that restrain trade is of little importance in these modern public shopping cases. As long at the clauses are reasonable and not too restrictive the court should not strike down the covenant for restricting free commerce and alienation of the land. Required Elements of a Restrictive Covenant: o The Covenant must be negative in nature (similar to an easement). The court will look at the actual meaning of the covenant NOT so much the wording. The property will be used as a single family dwelling. o This sounds positive but is in effect negative. The property is to be used only as a golf course for the benefit of the subdivision. o This sounds negative but is in effect positive (they have to run a golf course!) If it is a POSITIVE covenant is there anything that the land owner could do to keep the covenant running?!? Yes you can put it into the transfer AND take a further covenant that the new land owner will not transfer the land to anyone who will not take on the positive covenant. o Though this doesnt stop someone from transferring without the covenant but damages will arise. o It must affect, and be intended to affect by the original parties, the land itself by controlling its use. Touch and concern the land: it must be imposed for the benefit, or to enhance the value, of the benefited land. Land must be capable of being benefited by the covenant AT THE TIME the covenant is imposed. Intimately effects the relationship. o Two plots of land must be concerned. One must be the dominant tenement and the other must be a servient tenement. Covenantee must be a separate person to the covenantor.

Covenants and Discrimination Nobel and Wolf v. Alley


Covenants can be struck for: Too uncertain Repugnancy

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Property Summary A covenant restricting sale to certain races does not touch and concern the land. There is a clause in the Conveyancing Law of Property Act that says that no covenant on land can be discriminatory Facts: There is a covenant on the land which Nobel owns not to sell to anyone of Jewish blood. Nobel wants to sell to Wolf, who is of Jewish blood. Alley, represents the other owners in the community who want to maintain an all white community. Held: the covenant is not enforced. o It does not touch and effect the land. This is not a covenant on the land it is a restriction on Alienation. Tulk has never been applied to protect something like this. o Also fails on annexation. Cant be sold BUT it can be inherited. The covenant is not sufficiently connected to the land. o Too uncertain to be enforced. Makes the covenant unenforceable. Unclear who is of unclean blood.

Notes on Nobel:
There was a clause in the Conveyancing Law of Property Act that says that no covenant on land can be discriminatory.

New Types of Covenants Running with the Land


For the most part positive obligations do not run with land. However there are some statutory exceptions to this rule.

Building Code
Ensure that new work is done up to the appropriate safety standards and old buildings remain safe. o Meet the statutory building code requirements. o Also possible to force old buildings to be repaired to ensure their safety. The city can issue a work order. If it is not done the city can spend its own money to perform the work order. The work order cost is then added to the propertys taxes. This is really a regulation and not a covenant o If you want to build or renovate you need a permit. o To get a permit you give the building office your plans. o The office checks the plans to ensure they are up to code o The office approves plans and sends an inspector to ensure that the work is done according to the approved plans. If work is not done up to code or plans are not approved and construction goes ahead anyways then it is possible for the city to have the building torn down.

95

Property Summary o This is very rare

Planning Act
There are several levels of planning. Regional: Official Plan o Very broad plan that gives the general usage of the land. o Infrastructure is planned around this plan. Roads, schools, electricity usage Municipal: Municipal Plan (Zoning By-laws) o Much more detailed. o Says how far from the road the building has to be, the amount of land coverage the building is permitted to be Zoning is ENTIRELY NEGATIVE o It is pervasive on a municipality level. o It is possible to get variances with consent of the surrounding owners and failing that it is possible to get variances from the Ontario Municipal Board If Zoning laws change and they are no longer in accordance with the use of land then there is no obligation to change the use of land. o Lawful non-conforming use.

Subdivision Process Under the Planning Act


Divisions of Land create new obligations on the city (sewers, fire, water, emergency services) o The developer is responsible for putting in all of the roads, sewers, electrical, water systems, lighting and so forth for the subdivision in order to get approval from the city. o When the plan is registered those works are ceded to the city and the city manages them. The subdivision plan is normally very detailed and must be in accordance with the Planning Acts municipal by-laws. o Subdivision agreement includes a designation for lands to be sold to the School Board to build a school. The subdivision plan is registered on the land and is conveyed to each of the owners. This is a POSITIVE COVENANT created and running with the land.

Condominium Act: Obligations on Unit Holders


Owners of units own that part of the building. How do you control the owners of the units? o Declaration which establishes the Condominium corporation (unique to each Condominium building) Change requires approval of the unit holders. These impose restrictive covenants No Changes, No Signs, No animals 96

Property Summary And positive Covenants Can order changes or repairs to the problems to the approval of the board of directors. Failure to do so would mean that the Board could fix the problems and charge the unit holder. o By-Laws adopted by the Condominium More about how the condo is run. o The rules adopted pursuant to the by-laws. Tend to be negative. Enforceable in court. NOTE: o There is a vacant land condominium clause in the Condominum Act. You could structure a subdivision under similar by-laws and declarations as a Condo! This would enable you to create very strict covenants on the use of the land.

Ontario Heritage Act: Heritage Easement Agreements


Public restrictions on the destruction or change of certain buildings that are deemed to be of historical or architectural merit. o Not necessarily old buildings but young and old. The historical Society creates a list of buildings they would like to see protected. o This list means very little. But it does restrict owners from destroying a building for 1 year while an attempt to find other uses/owners for the building is made. If no such owner/use is found the building can be destroyed. o However it is often used by the Municipality to decide which buildings to protect! When a building is protected (Heritage Easment) it is only certain features that are protected not the entire thing. o Notice is given to the owner of the building that it is to be protected and the owner can object to the designation. Why would you want your building protected? o Hurts alienability by changing what you can do with the building. o But the Heritage Act also creates an easement so that the heritage act allows the municipality to maintain the land. o The land can also give you the ability to pass the density that the land has to another building. Density (the right to build a certain number of units) It is possible to allow them to sell the density to other developers (this occurred with St. James and a new building the spire) Is this a transfer of Property?

97

Property Summary No. There is no right to sell the density. It has to be transferred through the city. Easement is registered against the land and it runs with the land to new owners. o There is no dominant tenement. This is an easement in gross.

Conservation Authorities Act and Conservation Easements


Same as heritage easements but for sensitive environmental areas. o Obligation to preserve them in their natural state. You can get a tax credit for the easements.

98

Property Summary

Concurrent Interests and Family Property


Co-Ownerships
Successive estates are a type of multi-party ownership but they are not joint possession so they are not co-ownerships. o Co-ownerships grant title and access to the land. 4 types: o Joint Tenancy: Each joint tenant has the whole of an undivided interest in the whole of the property. But must share it with the other joint tenants. Right of survivorship: when the owner of the tenancy dies the deceaseds right is extinguished. No rights are transferred on death. They all already have a whole interest. Rights are simply extinguished. There are no limits on the number of people that can hold a JT. Four unities of a JT Unity of Possession: same right of possession. Unity of Interest: each must have the same interest. Unity of Title: title has to start at the same place Unity of Time: same as unity of title (start at the same place) o Tenancy in Common: each has an undivided interest in the whole of the estate (undivided or 1/3 interest). Only One unity in a TC Unity of Possession: same right of possession. No requirement of unity of interest means that a relationship where one party has a greater interest is possible. Party A has 1/3 and party B has 2/3 interest in a property. None of the TC own any particular part of the land. o Tenancy by the entireties: Husband and wife became one person at law and they owned the property as one individual. Married Womens Property Act extinguished this type of coownership. o Co-Parcenary: Property to be left to a male heir but none exists. The property is divided amongst the female heirs. Not discussed. Conveyencing Law of Property Act s. 13: there is an assumption in favour of Tenancy in Common. There must be a clear intention to create a Joint Tenancy. o Prior to this the law favoured Joint Tenancies. Unification of ownership made fee collection easier for the Land Lords. o And Equity favoured Tenancy in Common.

99

Property Summary Disliked JT because on death the interest was lost and could not be transferred. o In electronic registration you check a box saying JT or TC. This gives the clear intention of what you are trying to create.

McEwen v. Ewers and Ferguson


Conveyencing Law of Property Act s. 13: there is an assumption in favour of Tenancy in Common. A clear intention to create a joint tenancy is required. If there is ambiguity then it is a TC not a JT that is made.

BB: in electronic registration that clear intention is made via a check box that says joint tenants. Facts: Father leaves a property jointly to his daughters. Each of them was to have an equal share of the proceeds of the said sale. Bertha, one of the daughters, dies. The other daughter sells the property. Bertha leaves her interest in the property to her brother. Held: There was a tenancy in common relationship. o Conveyencing Law of Property Act s. 13: there is an assumption in favour of Tenancy in Common. The court requires a CLEAR intention to create a Joint Tenancy. o Intention: the father left the property Jointly to his daughters. Jointly is not enough. He also said that if they sold they should divide the land equally. If this was a JT it would be superfluous to include this. This makes it apparent to the court that the Testator did not intend to create a JT by the use of the word jointly Courts were unclear if the Testator meant to create a JT. So they employed the presumption in favour of TC.

Severing a JT
JT cannot be revived after it has been severed. It must be re-created. 3 ways to sever a JT: Look for an irrevocable act of severance. o Any act that destroys any one of the unities severs a JT and creates a TC. Such acts can be undertaken unilaterally. Look for a clear and irrevocable act of severance. This way there is a mutuality (giving up right of survivorship as well as removing the right from others). o Mutual agreement. o Any course of dealing that suggests that all JTs view their interests as TCs. Unclear if JT was severed 2 factors sway courts: o Courts prefer TCs over JTs due to the inherent fairness of TCs compared to JTs.

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Property Summary This continues though it is no longer justified. It began due to the common laws preference for JTs. However now JTs are only created when that is the express intentions of the parties. o Fairness to a 3rd party to allow severance. Murdoch v. Barry: a wife in a JT wished to sever the JT before her death. She conveyed a deed from herself to herself. o Held: This was an irrevocable act of severance. Notes: o Conveyance of an estate will sever a JT but conveyance of an encumbrance will not. o There is a low threshold for when an agreement to sever occurs. o Murder of one co-owner by another does not sever a JT. This creates a TC

Knowlton v. Bartlet (670)


It is possible to sever a JT by creating a deed from yourself to yourself. There is no need to notify the other JT. Facts: Husband was given a great deal of land from his parents. He deeded that to wife as a joint tenant. The live together on the property for a long time then, due to marital difficulties split up. In a divorce order there was an agreement to give the land to the husband. But the deal required the husband to pay $3,000. He never paid that amount. Wife executed a deed from herself to herself. Held: there was severance of the JT. o Should any of the unities cease to exist the JT is severed. Can use the Statute of Uses to create a deed from yourself to yourself. The conveyance to herself severed the JT and created a TC. o Divorce Decree: It is of no force or effect because it was never exercised.

Properties of Co-ownerships:
Right of Survivorship when it is not possible to tell who died 1st a TC relationship imposed. o Ontario Succession Law Reform Act S. 55(2) It is possible to enter a JT or a TC with a corporation. o Conveyancing and Law of Property Act. TC or JT: there is a right to alienate (includes mortgages) the interest the JT/TC has in the land. o Implications: JT: severs the JT because it destroys 2 of the unities (unity of title and unity of time). Vendors interest is then converted to a TC.

101

Property Summary However the remaining members of the JT would remain JTs with each other (on the remaining portion of the land) and TC with the vendor. TC: new owner of one of the interests. To divide land there is a requirement of a court order of an agreement amongst the JTs and TCs o Consequences of Sale Court will order sale if partition is not possible. Partition is preferred because if the sale is ordered it proceeds by way of a Sheriffs Sale. At sale the land goes to the highest bidder in a sealed bid. There is no guarantee that the party seeking to partition the land will be able to buy it. Obligations for JTs/TCs: o Property Taxes: There is an obligation to pay the taxes because it is a condition of owning the land. o Invest in the land: There are no obligations to carry out any repairs to the property But there is a right to do so. Investment contributes to the value of the land: An accounting for what is invested in the property is made on the sale of the land. o Statute of Ann: if you get more than your share from a 3rd party you can divide that money up. BUT this more applies to money made off the land. o Share in the profits of the land from 3rd parties Does not apply when the profits come from the work of one of the co-owners. Occupation rent. o 3 circumstances where there is a requirement to pay occupation rent. Co-owner in possession has excluded the other co-oweners. Co-owners come to an agreement over occupation and occupation rent. Where the co-owner in possession is required to be viewed as an agent of the other co-owners. All co-owners are entitled to possession of the whole of the land. o No one co-owners use of the land governs the other owners use of the land. It is wise to consult with the other co-owners before making a new use of the land. Adverse possession: o Courts make it harder to allow an adverse possession of the land when they are siblings.

102

Property Summary o If they werent siblings the court is not as careful about preserving interests All co-owners are as entitled to make use of the land. No one JTs use of the land governs the other owners usage of the land.

Partition Act S. 2
Co-owners may be compelled to make or suffer partition o Permits the court to order the destruction of the co-owners unity of possession by defining boundaries for entitlement to individual parcels. If sale is ordered it would be a Sheriffs sale done by sealed bid. o The existing co-owners would have no control over who got the land. Court does not like to allow dysfunctional relationships to continue. o So person seeking partition is likely to succeed. o Court is unsympathetic to parties trying to make other co-owners buy them out for more than the value of the land. Partition Act pre-dates Municipal Zoning Acts. o There is need for approval to make changes on the land now according to the zoning plan.

Notes on Partition Act:


In practice it is extremely difficult to get partition because you need to get permission for severance from the municipality. This is difficult to do. o As a result, SALE is MORE COMMON than PARTITION.

Knowlton v. Bartlett (680)


Where partition isnt possible sale will be ordered. However, sale may be delayed in fairness to the co-owner in possession. Courts have discretion. Factors influencing that discretion: Advanced age of the co-owner Not informed of the JT being severed Co-owner in possession had made improvements and paid taxes. No concern that the land would lose value during the delay. The co-owner in possession wanted to live on the land and the other co-owner wanted to sell to realize the value of the land. Investments in the land that have improved the value of the land are accounted for on the sale of the land. Facts: Husband was given a great deal of land from his parents. He deeded that to wife as a joint tenant. The live together on the property for a long time then, due to marital difficulties split up. Wife executed a deed from herself to herself. They were TC. Her heir seeks partition or sale. Held: Neither severance nor sale of the land is permitted. 103

Property Summary o Due to the type of land partition is not possible. Small cottage. o Due to the parties involved sale should be postponed. Court has discretion to order postponement of sale when partition is not possible. Chooses to exercise that discretion Bartlett was of advanced age. Bartlett was unaware his wife had severed their JT. Bartlett had made improvements to the land and paid for taxes o No concern that land would loose value if not sold immediately. o The investments would need to be considered in the sale of the land. Bartlett wants to live on the property Knowlton wants to realize on its value.

Cook v. Johnston (678)


Partition is the norm. Sale is the exception. Sale is only ordered when partition cannot be made without prejudice or when it is advantageous. BB: in practice sale is the norm and partition is the exception. This is because partition needs to be approved by the municipalities under the Planning Act. This is not always easy to get so sale often occurs. Facts: The two were co-owners of an island used as summer getaway. They found they could no longer get along as co-owners and sought partition or sale. Held: Partition is ordered. o Principles Partition is the norm. Sale only occurs where partition cannot be made without prejudice or it is more advantageous to the interested parties. o More advantageous to partition the land. Other similar islands are not available.

Partnership:
Governed by the Partnership Act. An agreement amongst parties to pursue some gain. o These are not corporate or Juridical Entities. o This is more like family than like a corporation. Partners are co-owners as Tenants in Common. o Partners own the property NOT the partnership 104

Property Summary Partnership controls if you can come in or leave.

Ownerships in common apply to personal property.


Can a family own a chattel as co-owners? Yes! Although there has never been a case on this.

Family Property
History:
At common law women could hold property. She was a juridical entity as a single woman (femme sol). After marriage however the woman lost her claim to the property by coverture. o The man took her property and became the Juridical entity for the husband and wife. There was some unease in wealthy families about this because they did not want to give all of their property to go to the husband. o So the wealthy families transferred the entitlements of the woman to a male relative. o Settled the estate: she is the beneficiary of that estate. Coverture did not apply to equitable estates. o A womans equitable interests in land or her trust-fund would not become her husbands property.

Dower
Dower: A protection for the wife. A formal and legal undertaking by the husband to the wife, giving her the husbands goods. o Conditional estate on the wife surviving the husband. o She is then entitled to a life interest in 1/3 of his property. If you held an interest in equity Dower did not attach. o So the wife did not have any interest in to uses granted to the husband. o The dower claim was sufficiently an estate so that the husbands property could not be sold without the wifes bar of dower. This applied in Ontario until 1977 family law act.

Curtsey
Curtsey of England: Wife dies before the Husband. Any land that she brings into the marriage becomes a part of her estate. The husband gets a life interest in 1/2 of that property.

Current Frame Work


Some think that the changes occurred to protect men. o Protect their assets on bankruptcy. Married Womens Property Act: a woman can hold property as if she were femme sol. 105

Property Summary Divorce: o Divorce is within the jurisdiction of the federal government. o Got divorce law in 68. Before that you needed to get special legislation from parliament. Divorce legislation did not discuss assets. Most women did not take advantage of the Married Womens Property Act. Husbands still controlled the majority of the marriages property. Murdoch v. Murdoch: Mrs. Murdoch had worked on her husbands farm with him as a partner. She had however made no financial contribution to the farm. She claimed that it was a resulting trust. Held: Mrs. Murdoch was entitled to $200/month of financial support but was not entitled to share in the land. In the absence of a financial contribution a resulting trust cannot arise. The work she did was that which any ranch-wife would do. Dissent: Mrs. Murdochs considerable contribution to the success of the farm was beyond what any wife would do. She was entitled to a property interest by way of a constructive trust. Murdoch Provided the Catalyst for Change in the law: o Recent amendments ensure sharing of property on a divorce. This is as a matter of entitlement based on the existence of a marriage. Based on status rather than need. o Family Law Act created in 1977. Created under the assumption that protection needed to be given to women. BUT protection actually goes both ways. Property is defined in general terms (s. 4). Any interest, present or future, vested or contingent, in real or personal property o Family Law Reform Act: actually sets out the division of assets. There is still room for interpretation on some issues of property such as professional degrees : Corless v. Corless: Wife worked to support husband while he finished his 3rd year of Law School. Husband forced wife to move around a lot o Held: LLB should be valued as property but of $0 value. Partnership in law firm was property of value. Keast v. Keast: wife put her mature student husband through medical school. o Held: Medical degree is not property. But wife entitled to extra support. Linton v. Linton: wife supported husband financially while he acquired his Ph.D.

106

Property Summary o Held: Doctorate is not property. Instead awarded substantial and on-going support.

Caratun v. Caratun (694)


Nature of property makes characterizing a degree as property impossible. Specifically that it is not transferable and requires labour to realize any value. Allowing one spouse to share in the fruits of anothers labour is support not property. Facts: Mrs. Caratun is a Canadian citizen. Mr. Caratun is an Isreali. They had a child and then came to Canada. Mrs. Caratun worked to put Mr. Caratun through dental college. The purpose of the marriage, for Mr. Caratun, was to become a dentist in Canada. Once he became a dentist and a citizen of Canada he left her (he waited 2 days). When he left they had no assets whatsoever. But he had good prospects for making money. She claimed an interest in those prospects. Held: a degree is not property. o Broad definition of property under the Family Law Act. Only real right conferred by a professional degree is a right to work in a particular field. o Nature of property presents some insurmountable problems with characterizing a degree as property. A degree is not transferable. (Alienation is an important aspect to property). Only Dr. Caratun can practice as a dentist. It relates only to the work that is done. Transferability is a KEY aspect of property. Personal effort is required in order to give it any value. Allowing one spouse to share in anothers labour is a support issue not a property issue. Property under FLA: share the property from the partnership during the marriage. Once the partnership ends there is a requirement for self-sufficiency. o Property value on future labour frustrates the FLAs ideas of property. The only difference between this and other rights to work is the exclusivity. This presents some difficulty in estimating the value. o This is an actuarial enterprise. Inclination, length of physical and mental capacity to work, competition o She gets $30,000. This is her contribution to his degree. Same reward as given by the trial judge but a professional designation is not property. Trial judge found a constructive trust in it. Ignores her contribution to his becoming a citizen.

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Property Summary

Notes on Caratun
An income stream from a work related injury would not be considered property o It is explicitly removed from family property by the Family Property Act. o Disability is directed at an individual that can no longer work. It is compensation for future earnings which are not included in property. An income stream from a pension would be considered property. o It was created by the work of the husband that he was enabled to do by the work of the wife. It is transferable and can be divided between them.

Petkus v. Becker (707)


There was a trust based on Petkus labour: Resulting Trust: common intention on the part of the title holder as well as the claimant that the property should be shared. Constructive Trust: prevention of unjust enrichment lies at its heart. There is an obligation by Natural justice and equity to refund the money. o Requirements: An enrichment A Corresponding deprivation The absence of any juristic reason for the enrichment. Facts: Mr. Petkus and Ms. Becker came to Canada separately. They lived together in a common law relationship and worked together for about 20 years. They created assets together which included 2 pieces of property containing bee farms. The relationship broke down. Ms. Becker moved for a division of proceeds for half of the assets. Becker contributed $ to the relationship for the purchase of the property and worked on the property contributing to the success of the business. All property was held in Petkus name. Held: Becker was entitled to half of Mr. Petkus property in the SCC. o Court is swayed by the doctrine of unjust enrichment. She contributed She believed she had an interest in the farm. No evidence that he told her he considered her work to be gratuitous. He freely accepted the benefits of her work and money. o Therefore it is unjust to allow him to take the enrichment. Constructive Trust applies. Resulting trust would have worked also but the trial judge found that there was no common intention o Absence of marital bonds is not a problem. o Contribution of labour and money develop the necessary causal connection.

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Property Summary

Notes on Petkus
Example: A is a pensioner. He wants to buys a house for $100,000. Asks his son B to move in to help defray the costs. B becomes a tenant. B invests $50,000 to renovate the basement. B becomes unhappy with the relationship and moves elsewhere. B wants to reclaim the $50,000 he invested in the house. o Probably this is a resulting trust. It is unjust for A to enjoy the benefit with no recognition of Bs interest and the two intended to share the property. o Easier to show is that there is a constructive trust. o Application for partition and sale would probably be best. If you have an interest in land you can make an application. BUT Taking this to court would not be worthwhile because legal fees would easily eclipse the value of the damages. Better solution is to work out a deal. Have the land setup as joint ownership. Have a mutual will setup (mutual will is unchangeable). Petkus did not end up paying because he lied, cheated and hid his assets. Mrs. Becker killed herself in protest to the legal system. The outrage from the Murdoch decision (Pre-Dates the family law act) that generated the new wave of legislation that finally bloomed in Petkus. Peter v. Beblow: co-habiting couple. Man worked outside the home while the woman did the household work and had a part time job. o SCC Held: The idea that household work and child rearing should not give rise to equitable claims is untenable. Household labour will result in a constructive trust. Anderson v. Luoma: principle in Peter expanded to same-sex couples. But not entitled to family law remedies (1986). OLRC: recommended expanding family law protection to all heterosexual and same-sex cohabitee couples.

Family Interests:
Blood relationship: parent and child, child and child, cousins (pushing it) o There is a property relationship to this. Dependents have certain prerogatives with regards to support and wills (statutory). Conventional Matrimonial Relationships (husband and wife): the courts give a great deal of privilege to these. Division of assets, division of matrimonial home, entitlement to support. Common Law Heterosexual Relationships: creates an obligation for support but it does not yet provide for a division of assets or division of the matrimonial home. Formal Same Sex Union: a matrimonial relationship just like the conventional matrimonial relationships. It is not yet at the same level of protections because the statutes have not yet caught up.

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Property Summary Common Law Homosexual Relationships: This is probably going to be the same as a common law heterosexual relationship. Long Term Non-Sexual Co-Dependant Relationships (two-old maids sharing a house): Is this a relationship that should give rise to support obligations? There is a care obligation that otherwise might have to be taken care of by the state.

What obligations arise?


There has been a complete change in how we look at property in a family relationship. We are also pushing what counts as a family. o Formal matrimonial relationships will be privileged as to Support Division of Property o Common law matrimonial relationships (same-sex or heterosexual) privileged as to Support Division of property is not yet included but may be. o Dependency relationships Dont give rise to support or division of assets But BB wouldnt be surprised to see it happen through statute because of the social importance of these relationships in an aging population.

Mary Ellen Turpel, Home/Land


Colonial regime of Canada is unjust when it is thrust upon aboriginal peoples. o It dates from around confederation. o At that time (and up until the 50s) there were attempts to integrate aboriginals into society. Instead of respecting their unique culture. Two Cases discussed from BC: o Derrickson v. Derrickson o Paul v. Paul o Both of these cases are in respect to the division of reserve lands on the break up of a marriage. o Problem: The provincial family law statutes have no authority over the division of Indian lands. Indian Lands are governed by the Indian Act. Indian Act assigns land to members of the band by councils. The Minister of Indian affairs approves these assignments (certificates of possession). o Most certificates of possession are issued to men. Forcing land allotments is a method of displacing tribal structures and integrating natives. There is no constitutional basis for the application of the family law acts to reserve lands.

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Property Summary Can only get financial compensation. o This is no compensation. The matrimonial home is much more than financial value. The loss of a place to live on the reserve often results in the women being forced to leave the reserve and her family. o Compensation is normally small because most on the reserve live below the poverty line. o This leaves the aboriginal women with no protection under these Acts. Yet of all women aboriginal women are most in need of protection. 70% of aboriginal women are subject to abuse. Traditionally women in aboriginal society had a status that was superior to men in traditional aboriginal culture.

Aboriginal Law and Title:


Aboriginal Concepts of Property
Property is not owned by anyone, this is not possible. Gift from their forefathers, owned by all members of the community (past, present and future). o Chief Seattle Very different from the view of Westerners.

Leroy Little Bear, Aboriginal Rights and the Canadian Grundnorm


Aboriginals view the world in cyclical terms instead. o As opposed to the western linear view. Native ownership of land is similarly holistic o Land belongs to the tribe as a whole. Past present and future generations. No such thing as fee simple o Various other parties have a claim to the land Plants, animals, other members of the tribe. o Creator gave the land to all living creatures. This is why when Indians recognized the white man as people they shared their land with them. o But Europeans didnt get the same rights because they werent descendants of the original grantee. Natives couldnt give fee simple ownership of lands because they didnt have it themselves. Aboriginal concept of land is that it is not transferable. It is inalienable.

Notes:
Delgamuukw v. British Columbia

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Property Summary o Recognized that aboriginal title is Sui Generis and held communally by aboriginal peoples. Includes a right to exclusive occupation and use of defined lands. o The differences of ideas about ownership lead to misunderstandings in land negotiations. Also create legal challenges for aboriginal property interests at common law. o Historical relationships to land need to be established by evidence.

Property, Power, Poverty


Absence of property leads to dependence o Property = power

Notes on Property Power, Poverty


Local 1330, United States Steel Workers v. US Steel Corp. o Facts: Application by the union to keep steel plants running or sell them to the union. Plants were obsolete and the costs of modernization were greater than the costs of demolition. o Held: There is no such property right. This would place obligations on plants to the community should they choose to close. Vancouver v. Maurice o City entitled to an injunction to remove 200 people from the sidewalk around a building. They started living there after being forced from the building. South Africa v. Grootboom o Evicted from their informal homes on land that had been designated for formal low-cost housing. o Held: Under the South African constitution EVERYONE has the right to have access to adequate housing Entitled to homes, including plumbing and electricity.

K. McNeil, Common Law Aboriginal Title


Indigenous people were in occupation of land, presumed to have possession and therefore (by English common law) fee simple. When crown took over it took sovereignty of the land at an international level. However at a municipal level the natives were in possession. o If crown wanted possession of the lands it would have to take possession. Crown must prove its title like everyone else. o Doctrine of Tenures is the fiction that all land in England originally belonged to the crown. At the time of colonization the attitudes of the British to the natives was very ethnocentric.

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Property Summary o There were no strong arguments advanced on behalf of the natives that they had an equal claim to the land. Marshall: Aboriginal rights are still in existence unless. o The rights were ended by a treaty o The rights were legislated away by Parliament o The rights were incompatible with British law US: 1955 defined aboriginal claims on land. o Permissive right of occupation on Government owned land. Not really a fair balance between the competing aboriginal and European claims to land. Canada: Still largely undefined (1989) o Sui Generis, neither beneficial nor personal and usufructuary in nature. o General inalienability Can only be surrendered through the Crown. (Creates a Fiduciary obligation on the crown.) Aboriginals should now be able to assert their rights to the land. o They were the original occupiers and the Crown does not have better claim to the land. It is not too late to declare and enforce the rights of the aboriginals. o Present-day holders of land would likely be protected (even if unlawfully taken) by statutes of limitation. So only publicly held lands are at stake to the ceded to the aboriginals. The resources on these lands should go to the original occupiers and not the public at large. Not unreasonable to leave the fate of these lands tied up with the people who are so intricately interconnected with them.

Brian Slattery, The hidden Constitution: Aboriginal Rights in Canada


When the British conquered the French the aboriginal leaders they ceded their rights to them. o But the French had never conquered the aboriginals. They had only worked with them. o Aboriginals distrusted the white man because of their intrusion on native land. Royal Proclamation 1763 o Ensure that no native lands are taken by British subjects without native consent. Colonial governments forbidden to grant any unceded aboriginal lands. Public purchases adopted as the official mechanism for extinguishing aboriginal title. Removed all subjects that settled on unceded lands.

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Property Summary

Delgamuukw v. British Columbia


Source of aboriginal title is their historical occupation of the land. Test for existing aboriginal title in the land The land must have been occupied prior to sovereignty Present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity between present and pre-sovereignty occupation At sovereignty that occupation must have been exclusive. New evidentiary rules were established regarding the use of hearsay. New trial ordered but negotiations urged. Facts: The p (two first nations tribes) claim to a large chunk of lands in BC. They had made no treaties with the crown for their land as the crown moved into BC. After a long trial they were denied. Held: SCC slapped down trial judge ruling and stated a new trial would be necessary. Suggested that negotiations would be better. o There are ~6,500 aboriginals but there are ~30,000. o Aboriginal land is inalienable except to the crown. o Aboriginal Title: Encompasses the right to exclusive use and possession held pursuant to that title for a variety of purposes. Not all of which need to be associated with practices, customs and traditions that are integral to aboriginal society. Protected uses must not be irreconcilable with the nature of the groups attachment to the land. In alienable except to the crown. Crown has a fiduciary obligation. o Source of Aboriginal Title: Original occupation of the land. Aboriginal law gives title and this has been historically respected. NOT the Royal Proclamation of 1763. o Test: The land must have been occupied prior to sovereignty Present occupation is relied on as proof of occupation presovereignty, there must be a continuity between present and presovereignty occupation At sovereignty that occupation must have been exclusive.

Notes on Delgamuukw
Policy Question: How should aboriginal Title evolve? Ontario faced a similar problem in the Chippewas of Sarnia

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Property Summary o There was no real treaty (the treaty on which the land was ceded was a fraud). o The Chippewas were not allowed to re-enter the land o The social structure in place could not be overturned. o The Chippewas were granted compensation for their lost land.

Aboriginal Title and The Crown


Aboriginal land is Sui Generis. o It is inalienable: the land is owned by all members of the tribe past, present and future. If they wish to alienate the land they have to sell it to the crown and then the crown sells it for them. This creates a fiduciary duty on the Crown to aboriginal peoples. o Encompasses the right to exclusive use and possession held pursuant to that title for a variety of purposes. Not all of which need to be associated with practices, customs and traditions that are integral to aboriginal society. o Protected uses must not be irreconcilable with the nature of the groups attachment to the land.

Bucknalls Observations and Comments on Aboriginals


Ethnocentricity on the part of the colonizers (bordering on racism) o Aboriginal had a much more communal view of property. Didnt understand the idea of ownership. o Aboriginal concepts of property are VERY DIFFERENT from our views!! o Sharing of property is the concept of aboriginal property. They did not have a word for personal property. Treaties were often formed on different understandings of what was happening o Sometimes (Chippewa in Sault Ste. Marie), treaties were formed without the consent. Some settlers simply took property without recognizing any interests in the land other than their own. So what are we recognizing when we recognize aboriginal ownership? o Aboriginals are forced to use Western ideals to claim ownership of their lands. To come into the debate on ownership they needed to adopt the language and ideas of the debate! At the time they did not understand the idea of transfer. So they were disadvantaged. There was a view that aboriginals should be assimilated into Canada. o There was an assumption that there could be a cultural assimilation of Natives (ceasing native culture and making it western culture) o This is where the Residential Schools came from

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Property Summary Taught in English, not allowed to use native languages, taught western faith, abused, (TERRIBLE TIME) o In the 1970s the Indian Act was nearly abolished, bringing about the assimilation of Natives into Canada (ending their distinct culture. What is the nature of the current crown interest? o Crown has the right and it is burdened by the Aboriginal right of title. o They have a fiduciary relationship with the natives. Aboriginal Rights with respect to land o They are able to buy land BUT it does not gain protection. Only lands that satisfy the test in Delgamuukw are protected.

Rights to the land


Reserves: o The band has the ability to administer its property. o The property is owned by the crown. The band is the party entitled to occupation. They allow members to occupy property. When a member dies the band decided who gets that property. o Reserve lands cannot be sold to non-Indians unless there is a vote of the community to surrender the lands They are then surrendered to the crown and then the crown surrenders them to the non-Indian. o What rights should the native nation have with respect to the lands? Any beneficial use of the land in line with their culture. (Usufructuary right) Recent controversies: Van der Peet: right to commercial fishing was denied in favour of a frozen rights approach. Only protect the traditional uses at the time of European contact. Logging of crown land where there is a native claim. o Courts held that the crown must consult with natives before giving up logging rights to those lands.

Wisdom in Viewing Aboriginal Lands According to Current Standard


Why are aboriginals amongst the poorest peoples in Canada o If I dont own the land why would I build on it? It might not go to my family. Really only applies to the reserve where the band decides who gets the property upon the death of the possessor. o Tragedy of the commons There were broad unallocated areas that everyone had rights to (grass lands, valleys, ) areas that anyone could allow their livestock to graze.

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Property Summary No one took care of the common areas. SO they were destroyed. No one had responsibility for the land so no one took care of it and everyone exploited it. o Should property be the basis of aboriginal cultural identity

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