Property Law – Pavlich – December 2015 1

CH1: LEGAL CONCEPTS OF LAND

Rights in Airspace
Case Facts/Conclusio Ratio/rules
n
Kelsen v -P sued D for -A permanent fixture attached to adjoining land that infringes on the airspace of
Imperial overhanging sign; another’s property will constitute a trespass (not nuisance); airspace is owned to a
Tobacco Co permanent held to certain height; broad ratio: airspace capable of ownership
[1957] be trespass; for P-property right has been given to Kelsen under the lease, he has the right to exclude
everybody, including the freehold owner
Ad coelom Maxim: Whoever owns the soil owns to the heavens above and to the depths
below. Airspace is land, and it is an in rem right.
Owners and leasors who have possessory interests in the building can also have
possessory interests in the airspace above the building – have the same in rem rights
Bernstein (Lord -P sued Ds for -Over-flight by aircraft falls outside zone of ordinary use AND enjoyment over which a
of Leigh) v aerial photos - landowner would have airspace ownership rights; ad coelom maxim limited
Skyviews [1977] over flight NOT - Airspace rights extend only up to the “ordinary use and enjoyment” by the owner.
trespass Anything above that is not considered trespass on privately owned land.
-surveillance is a nuisance
Manitoba v Air -Province can’t Supports the notion that you can't have ownership of airspace all the way up to the
Canada [1980] tax airlines for heavens, but does so by saying that you cannot own airspace at all --> clearly this is an
flights overhead error
**trespass?? need to know height for enjoyment, frequency**

Ad inferos vertical section of land= the top layer can be owned by the landowner, the layer of earth below (which could
hold mineral wealth) by the gov’t
 allows you to utilize the things below the surface of the earth; all of this is owned by the Crown

Legislation
Land Title Act, Air space constitutes land and lies in grant. This allows the owner in fee simple to subdivide land into
s. 138-143 “airspace parcels” for which indefeasible title can be obtained, and dispose of them by grant, transfer, etc. No
easements or restrictive covenants in respect to the grantor’s land are implied in the transfer.
Strata allows definition of volumetric air parcels and the subdivision of airspace into even smaller parcels that can be
Property Act sold to private owners. Bare land strata plan permits the subdivision of the horizontal plane only
Building strata plan allocates strata lots to individual owners (vertical)
- Permits a person to acquire fee simple ownership in multi-unit building on land he/she doesn’t own

Fixtures v Chattels – Maxim: quicquid plantatur solo, solo cedi = whatever is affixed to the soil belongs to the soil
Case Facts/Conclusion Ratio/rules
Re Davis [1954] -Bowling alley as - To be a fixture, the object needs to be affixed for the better use of the building.
chattel Two part test—degree of annexation and object of annexation (if to improve
freehold, then fixtures, but if for better enjoyment of the chattel, then chattels)
•Degree of affixation:
 How well is the object affixed to the building
 Consider how easily it can be removed, how permanent the object is
•Degree of annexation:
 If object is to improve the freehold, even if only slightly affixed = part of
realty
 If object is for the better enjoyment of a chattel =/= part of the realty
Zellstoff Celgar -mill was If the objective intent of the object of annexation is permanence, then it is seen as for
Limited v. British constructed in the better use of the land and therefore a fixture
Columbia 60s and most of - The objective intent of the equipment was for it to remain for its useful lifetime
the current - Took into consideration that it was a pulp mill, and that the equipment was therefore
equipment was for better use of the land
installed in the 90s
- Almost all of the
equipment was
affixed, almost all
could be
 Property Law – Pavlich – December 2015 2
dismantled or
removed
CMIC Mortgage -Cover All #2 If not affixed, assume the item is a chattel unless owner's actions show that it was
Investment Corp deemed a chattel intended to be/used as a fixture
v Rodriguez 2010 b/c moveable INTENT is relevant; if intended to be moveable it is then a chattel
-Item attached to a structure will become fixture if it loses its essential character.
-RBC v Maple Ridge 6 rules: (1) Only attached by own weight, easily removable =
chattel (2) Plugged in, removable = chattel (3) Attached even minimally = fixture (4)
Attached, removable but w/o necessary part = fixture and vice versa (5) Tenant’s
fixture can be removed as chattel (6) Purpose test considers intention (covers areas
not included in 1st 5 rules; subjective intention)
CoverAll 2 could have been installed on a buried foundation but it was installed on
portable above-ground foundation; Mrs. R had to have made a conscious decision to
do it that way which suggests she wanted to have the option of moving the building
around her property or dismantling it quickly and easily
Elitestone Ltd. v. Bungalow had When D’s bungalow was built, each piece became part of the structure, which was
Morris 1997 been resting on itself part and parcel of the land. The bungalow is considered to be part of the land.-
concrete pillars Object brought onto land can be classified under one of three things: Chattel, Fixture,
since ‘45. D lived Part + parcel of the land itself (#2 and #3 = treated as being a part of the land)
in it & didn’t -3 criteria: 1. Degree of annexation; 2. Object/purpose of annexation; 3. Whether the
consider it to be fixture is treated as part of the land (like houses)
chattel, P wanted
to evict him.

Water/Riparian Rights – Statute trumps CL if license – Right to use unrecorded H20 for domestic purposes –
Commercial use w/o license = unlawful
Common Law -H20 not owned; H20 rights attached to ownership of land; right to flow (diminished in neither quantity nor
Background quality; no diversion); right to use (ordinary/domestic); Right to use or not use w/o losing right ;commercial use
required H2O be returned to watercourse substantially undiminished in quantity and quality
Water -Water Sustainablity Act: use of flowing water – must be licensed
Legislation Domestic purpose: use of H20 for household purposes by the occupants of one or more private dwellings
(other than multi-family apartment buildings), including hotels and strata or cooperative buildings, located on a
single parcel, including the following uses:
A. Drinking water, food prep and sanitation
B. Fire prevention
C. Providing water to animals or poultry kept for household use or pets
D. Irrigation of a garden not exceeding 1000m^2 that is adjoining and occupied with a dwelling
5(1)- property in and the right to use and flow of all H20 at any time in a stream for all purposes vested in the
govt, except where private rights have been established under authorization
5(2)- same as above, except with percolation and flow of ground H20, and private rights have been deemed
under s 22(8) or established under authorizations
6(1)- person must not divert H20 from a stream or an aquifer, or use H20 diverted from these unless a) holds
an authorization b) diversion or use is authorized under regulation
6(3) Unless regulations under section 135 (5) [regulations closing or restricting access to H20 source] provide
otherwise, a person is not prohibited from diverting, in accordance with any applicable regulations, and
beneficially using unrecorded water
(a) from a stream for domestic purpose or for prospecting for a mineral, or
(b) from an aquifer for prospecting for a mineral. (ok to use unrecorded water for domestic purposes)
6(4) A person may, in accordance with the regulations, divert, and beneficially use, including store,
groundwater from an aquifer for domestic purpose unless
(a) provided otherwise by regulations under section 135 (6), or
(b) this subsection does not apply to the applicable aquifer by regulations under section 136 [regulations
requiring authorizations for domestic use of groundwater].
7(1): a licence entitles its holder to do the following in a manner provided in the licence:
A. Divert and beneficially use the quantity of water specified in the licence
B. Construct, maintain and operate the works authorized by the licence and related works necessarily
required for the proper diversion or use of the water or power produced from the water
C. Make changes in and about a stream necessary for the construction, maintenance or operation of the
works referred to in b or to otherwise facilitate the authorized diversion
 Property Law – Pavlich – December 2015 3
D. Construct fences, screens and fish or game guards across streams for the purpose of conserving fish
or wildlife
22. Precedence of rights; the general principle is first in time trumps the ones later in time
Water Protection Act: purpose to foster sustainable use, property in and the right to the use and flow of H20 is
vest in the BC govt

Case Facts/Conclusion Ratio/Rules/Attitude to RRs

Johnson v Anderson D diverted stream that went through
[1937] 1 DLR 762, P’s property; P used it for DOMESTIC
51 BCR 413 (SC) purposes, sought demo/injunction; D
-Narrow embrace of had license but not for diversion; P
RRs v. Steadman wins, remedy by way of orders, not
-Full engagement w/ damages
CL rights
Schillinger v H P owned land, diverted H20 for
Williamson Blacktop hatchery; neighbor/logger D’s ground
& Landscaping Ltd water flowed to P, contained silt that
(No 2) (1977 BCCA) contaminated P’s H20/closed business;
(unlawful use vs P had license to divert but for different
lawful in Steadman) Creek, P claims damages; D wins
-COMMERCIAL use (vs other 2)
Steadman v -P using H20 for DOMESTIC
Erickson Gold purposes from well; Ds building road,
Mining Corp (1989 contaminates H20 with silt, makes P’s
BCCA) H20 unusable; no licenses
-Diamond saw (incidental/minor
(lawful use vs commercial use – detracts from overall
Schillinger) domestic use? Not here; non domestic
use too small  insignificant)
Riparian law still prevails for unrecorded H20; Act only steps in when
dealing with licenced H20
WA provides that the riparian owner can get flowing water on his land
and has a remedy against wrongful and unauthorized diversions
-RO still has right to make use of H20, still has access to remedy
against unauthorized diversion depriving him or right (unless taken
away by legislation – WA doesn’t); CL operates, right to use/flow
-P’s diversion unlawful; his claim was based on consequences of that
diversion  must fail, his breach of statute (41(1) of WA  6 WSA) =
an offence for any person to divert H20 from any stream w/o authority
or to use any H20 when he is not lawfully entitled to do so
- RRs, if any, can exist only for a person lawfully using the H20 and
only way to acquire the right to the use and flow of H20 in any
"stream" is under the provisions of the WA (P hadn’t done so)
-Under WA property in and right to use/flow of H20 vested in Crown,
except right to unrecorded H20
-You can use ground H20 to extent that is dries up neighbor’s well, but
can’t contaminate it (if P’s H20 = ground H20, he wins, but can’t tell
so D wins)
-P has a right to use and enjoy the H20 until the Crown issues a licence
in respect of that H20; until then the P is entitled to claim that the D
must not make the H20 unusable
-flowing unrecorded H20 for domestic purposes has the right not to be
contaminated

Policy reasons for EXPANSIVE VIEW OF RIPARIAN RIGHTS (Johnson)

PROS CONS
 Fills gaps in statute  Intro’s lack of clarity
 Limits bureaucracy (prevents e/o from needing license)  Not democratic (leg elected, judges appointed)
 Reflects common sense/public understanding  Public interest in enviro integrity, econ development
 Allows for more interpretation (not just statutory)  Common law = piece meal

Accretion- RO’s entitled to an increase by accretion, or can suffer decrease by erosion

 Doctrine of accretion: gives recognition to the fact that where land is bounded by H20, the forces of
nature are likely to cause changes in the boundary between the land and the H20
 Where these changes are gradual and imperceptible, the law considers the title to the land as
applicable to the land as it may be so changed from time to time
 AVULSION= sudden changes in land don’t give rise to gain or loss of property rights as
opposed to accretion (cannot use doctrine on avulsion)
Case Facts/Conclusion Ratio/Rules
Southern Centre -The lake’s high-H20 mark marks the -doctrine of accretion applies
of Theosophy Inc. land’s eastern boundary but, since it’s A riparian property owner may lose as well as gain
v. South Australia receded over the years due to accretion from changes in the water or boundary level
1981 partly caused by construction, another 20
acres are exposed that A intends to claim

Right of Access-
Case Facts/Conclusion Ratio/Rules
North Saanich A constructed a wharf on and across the -R) has the right access and regress from water
(District) v. foreshore (delineated as the land btwn high -Cannot interfere with public right of navigation or put
Murray 1975 H20 and low H20 mark) adjacent to his down anything which disturbs the foreshore
Property Law – Pavlich – December 2015
land. R claims trespass.
Support- support is part of the land
Case Facts/Conclusion
Cleland v. P blamed D for the destruction of his
Berbarick 1916 property when D excavated sand and bank
from his own property, which greatly
facilitated the action of wind and water on
P’s property. D responsible for intrusion
Bremner v. D dug holes on his property. Wind blew
Bleakley 1942 sand from P’s property into D’s holes. It
was unable to be returned to P’s original
property. D started selling the extra sand. P
wanted it back
Gillies v. D didn’t shore up the side of the excavated
Bortoluzzi 1953 hole to protect the adj bldgs from
collapsing. P’s grocery store got trashed,
and he sued for damages. D accused P of
negligence in overloading the wall and
floor of his store. D blamed the collapse on
heavy winds, and began a counter-claim. D
guilty of trespass
Rytter v. Schmitz -Removal of the soil caused a subsidence
1974 loss of lateral support for the P's property,
allowing the subsoil to fall away and so
leaving no support for the western side of
the Ps building
-for the P; liable for negligence, trespass,
rights of lateral and vertical support had
been ascertained, (had been obtained prior
to amendments to the LTA, which now
does not allow you to acquire easements
by prescription)
CH2: THE GENERAL PRINCIPLES OF LAND LAW
 Control disposition/transfer of land
o Inter Vivos (b/t living persons) – by sale or gift
o On death – by will, according to intestacy, variation of will
4
Ratio/Rules
The right of the owner of land is to have that land left in
its natural plight and condition without interference by
the direct or indirect action of nature facilitated by the
direct action of the owner of the adjoining land
Sine quo res maxim: Support is part of the land itself,
must remain with the land, not an easement
Sic utere maxim: The right of the owner of land is to
have that land left in its natural condition without
interference by the direct or indirect action of nature.
Neighbours must not interfere with or prevent this
enjoyment.
Owner of land is entitled to all the natural advantages
belonging to that land ∴ to all things which in the course
of nature may be deposited thereon- cannot be
facilitated by person
- Reductio ad absurdum argument: it is ridiculous to
designate every grain of sand as R’s chattel
Excavation is allowed so long as it does not cause a lack
of horizontal/vertical support to the adjoining land
- Landowner entitled to lateral support for land in
natural state but not entitled to support for weight of a
building
- D would be liable for lateral support sufficient to
maintain the soil on the adjacent property in its natural
state. P had a prescriptive right to easement of vertical
support (now abolished)
-if you want to excavate your property and it is going to
affect the neighboring property, then you have to protect
the natural integrity of the neighboring property ; applied
only to lands without structures
-Lateral support doesn’t include support for additional
weight of any structures on the land unless: a) obtained
by easement or prescription, or
b) it can be shown that subsidence would have occurred
even without those structures
duty of care owed; not to trespass or be a nuisance
-removal of vertical support= trespass
-Right to vertical support and lateral support of your own
land in its natural state
- No one can interfere with the land by removing lateral
support
-Though an owner is entitled to have his soil supported in
its 'natural state', if he artificially imposes upon it
additional weight by the erection of a building he is not
entitled to the lateral support of the adjacent land of
another owner to sustain that artificial weight unless he
has acquired a right thereto by an easement or otherwise
Property Law – Pavlich – December 2015 5
o die without any heirs, the Crown comes in and takes the land = escheat

REAL PROPERTY PERSONAL PROPERTY

-Land -Personalty (fungible and non fungible)
-Tenurial (own interest in land) -Allodial (own actual thing) – precludes estates in personalty
-Freely alienable -Freely alienable
-Disposed of inter vivos or by will, intestacy -Disposed of inter vivos or by will, intestacy

 Tenure – escheats and forefeitures are the only that still exist under our system; Statute of Quia Emptores 1290
prohibited further sub-infeudation
 Estates – Tells you how long interests in land will last (duration); diff = ability to divide times in land

Corporeal Interests (entitles s/o to right to possession of land; landowner has ‘estate’ in land from absolute owner Crown)
1. Fee Simple – Indefinite interest in land; freedom to dispose; heritable
2. Fee Tail – Abolished in BC in 1921; as long as there are descendants
3. Life Estate – Interest for one’s lifetime; can be passed on but ends with death of original holder
4. Estate pur autre vie – Interest for life of another (see Life Estate; To A for B’s life)
5. Leasehold Estate{estate for fixed period)
6. Future Interests
Incorporeal Interests
No right to possession (main distinction from corporeal interests); e.g. easement (right of way), restricted covenant,
mortgages

 Leasehold Estates – for fixed period; originally regarded as K (rather than interest in land); increased protection
 Freehold Estates – less flexible than leaseholds; same protections; nature determined as matter of law
 Future Interests – it is property, even though A cannot enter into the premises and use and enjoy it, his right to do
so in the future when B dies is property that has a commercial value; A is left with the dispendi and he can dispose
of his reversionary interest, he can sell to X; X is now described as a remainder person…X now waits for B to die

 The Use  Trust (A = feoffor = settlor, B = feoffee = trustee, C = cestui que use = beneficiary)
o Legal title remains with trustee (must administer it for benefits of their heir), beneficiary relies on courts
to see that trustee holds legal title to benefit
o a transfer was made "unto and to the use of A in trust for C"
o Trustee, as legal owner, can transfer legal title to 3rd party
A ------------------------------- B ----------------------------- C
Freeholder in New freeholder, gained Gains benefit,
Fee simple legal estate from A equitable estate
Feoffor Feoffee to Use Cestui que use
(Grantor) (Trustee) (Beneficiary)

 Legal (common law) vs. Equitable Interests

o Common law  nemo dat (can’t give what you don’t have; protects original owner)
o Equity protects innocent 3rd party (bona fide purchasers for value w/o notice)
o Equity applies test of good conscience (should person have to respect equitable interest; clean mind?)
o The equitable interests in the trust is in rem

 Equitable Third Party Transfer

o the in rem right comes to and end for the equitable beneficiary when those trust assets are
passed/transferred out to a bona fide third party purchaser
o a third party who was a volunteer (in other words, did not give value) could not, on becoming aware that
the property was trust property, refuse to recognize the trust
o if the third party had paid for the property, everything depended on the state of the third party's knowledge
at the time of the transfer
o if the third party knew of the trust and knew that the transfer was in breach of the trustee's obligations,
then the beneficiary could still enforce the trust
o the equitable interest is vulnerable against the bona fide purchaser for value without notice that a transfer
is in breach of trust, and in this respect differs from legal title
Property Law – Pavlich – December 2015 6

 Freedom on Alienation (Common law transfer of title requirements)

1. Freedom on Disposition
 Current owner has freedom to transfer property
2. Limiting restraints on disposition/alienation
 Direct; fee tails (abolished); future interests (rule against perpetuities); strict settlement
 All limited; freedom of alienability
3. Mechanics of transfer –
 At common law:
 Establishing good root of title  search for all docs relating to property going back 60
years; had to be repeated with every transfer
 “Livery of seisin” (public, physical delivery)
 Statute of Uses
 Canoot be oral

 Re Fraser
o LE can be created in personalty, if not fungible, and where testator’s intent is clear
o LE do apply to personalty where it is relevant ; the personalty was part of the life estate; you can have a
life estate in movables (provided they’re not fungible/exhaustible)
o Deceased left will, R says no life estate in personalty, or will should be interpreted as conferring on
widow an absolute power of encroachment on personalty
o Recipient of LE may enjoy revenue derived from corpus but no more unless indicated by testator – not
indicated here

CH4: THE ACQUISITION OF INTERESTS IN LAND

4 WAYS OF ACQUIRING INTEREST IN LAND

1. Crown Grant
2. Inter vivos transfer (interim agreement, transfer follows this)
3. Will or intestacy (or through variation of will)
4. Proprietary estoppel

CROWN GRANT
 Land Act
o s. 50(1)(a) – Crown can only resume/take back up to 1/20 of land (w/o building, garden, etc.)
o s. 50(1)(b) – Crown grant does not convey right to geothermal resources, minerals, coal, fossils, etc.
unless specifically provided for

INTER VIVOS TRANSFER

1. The Contract
 Enforcing a K relating to land
o S. 59(3) of Law and Equity Act – K must be in writing/signed by both; written evidence of K and the
transfer
o 59(1); the equitable state need not be in writing
o still allow the oral sale of land (this is unenforceable under s 59); if one of the parties has started to act
under the K and the other party has started to receive, then the equity law steps in and enforces -->
equitable doctrine of past performance
o S 59(3)(b) and (4) interpreted as restating the equitable concept of "part performance", as a basis for
enforcing an oral disposition of land but liberalizing some of its traditional equitable requirements
 If one of the parties had performed and the other accepted this performance - even partly so -
then the accepting party must now perform his side of the oral contract too - even though it was
never in writing.

2. The Transfer (form)

 Writing and sealing:
 Property Law – Pavlich – December 2015 7
o Property Law Act
 S. 15(1) – You need piece of writing to show transfer, but no specific wording
 S. 16 – Instrument need not be under seal

 Registration – prescribed forms; need to register with the Land Registry

o PLA ss 4-7: generally transferor must deliver transferee a registrable transfer (e.g. agreement for sale, fee
simple, lease)
o What is registrable?
 Land Title Act, ss. 39, 185, 186: prescribed form, single page (Form A), deemed to include words
on schedule B
 185: forms of transfer
 186: implied covenants
 ss 2: a transfer of a freehold estate for valuable consideration in the approved form
under 185 2b (this is if the old form deed comes in, discretion for the registrar to take it)
then this document is deemed to be made under part 1 of the land transfer format ; it
includes all the words in column 1 of the schedule of the land transfer act

3. The Transfer – When is it operative?

 BC guarantees to person that he holds an estate in fee simple once he is registered
 the statement by the transferor to the transferee, in a CL jurisdiction that is not land registration the statement goes
into a bin in the land records office as a deed ; in a Land Title district, registration of title (what is the bundle of
rights?)
 the land title office sorts out and they assess who has what bundle of rights (this is called indefeasible title, list the
name of the property and who has the estate in fee simple  does this by looking at the chain of records on that
property since the Crown grant and you make the assessment  also recorded is all the things that qualify the
ownership  limits may be a mortgage, a restricted covenant, may be an easement
 E.g. Registered owner A transfers Blackacre to B who does not register; A then transfers Blackacre to C who does
register
o At common law, B would protected by nemo dat
o In Land Title system, C’s interest prevails
o As against 3rd parties, registration required to protect B’s interest
o As against A, registration not necessary to pass interest
 Land Title Act:
o S 20: unregistered instruments do not pass estate
- If you don’t register, you do not get the title
- Powerful incentive to get on title ASAP, the other person is out of luck

GIFTS
Case/Facts Facts Ratio/rules
Ross v Ross •L to convey property to Ross (grandson); kept • Physical delivery of a deed to the grantee is not necessary to
granddaughters out constitute effective delivery
•Deed was signed, witnessed and attested to → L said • The retention of possession of the deed by the grantor itself is not
she would register it herself sufficient to constitute non-delivery
•Died before she registered it, kept it in her purse • Provided she intended to make Gson seriously the owner and that
•Was there delivery of deed? ➢For grandson she did not tell Gson and continued to live there did not matter; the
day she put the seal on, she meant it (that’s all that is important-
witnesses indicate that she did)
•If the transferor intended to be immediately and unconditionally
bound by the deed then physical delivery of a deed to the grantee is
not necessary to constitute effective delivery
Zwicker v. -D given certain properties but deed was not to be -A document operative upon death is not a deed but a testamentary
Dorey recorded until Z died document. The court looked at intention at the time of transfer.
-Z also conveyed this land to others -What is essential to the delivery of the document as a deed is that the
-P arguing the original deed to D was a testamentary property whose deed the document is expressed to be (having sealed
disposition ∴ not valid it) shall by words or conduct expressly or impliedly acknowledge his
-For P intention to be immediately and unconditionally bound by the
provision contained therein  don’t need to deliver or record
 Property Law – Pavlich – December 2015 8
- a deed signed by the grantor and held to be delivered on his death
is not validly delivered as an escrow
 Intention of grantor is important

MacLeod v. -P = granddaughter -In a land title system in a gift, to make the transfer complete, the
Montgomery -D was going to transfer land to P as gift  transfer donor must deliver to the registrar the transfer form (to the transferee)
document delivered to P as soon as executed AND must make available the duplicate. Equity will not force a
-Needed duplicate title in order to register  never volunteer to complete that which is incomplete.
given to P • Once you are handed the means to obtain registration, this is
-P went to court to try and compel the duplicate title equivalent to actual registration
-If the duplicate is with the registrar, handing you the transfer form
-For D  gift not complete
means that you are the owner and you have proven this to the
registrar
-To complete a gift effectively, the donor is oblige to do what can be
done; in order for a transfer to be registered, that transfer has to be
accompanied by a duplicate certificate of title, unless the title is
already lodged at the Land Titles Office
when you go to the land title office, you have to present a transform
form and you have to give the duplicate indefeasible title, can be
retained by the current owner of the land (not always), if you want to
prevent transfers from taking place you hold the duplicate
indefeasible title because the registrar cannot proceed without out

Required Steps for Completed Gifts

 Intention: Donor must have mental capacity to appreciate the nature of what they are doing (parting with
ownership). Words, or actions, must be unequivocal or unambiguous: must clearly point to intention to part with
ownership.
 Acceptance: the donee must accept the gift. Anything short of outright refusal equals acceptance.
 Delivery: transfer of possession (or its equivalent) of the gift from donor to donee is required to complete the gift.
Delivery is both evidence of intention/acceptance, but also a required element of the gift on its own.
 Registration (LTA, s.20): the donor must have done everything that needs to be done in order for the transfer to
take place. This includes both delivery of deed and registration. A written Form A is required to transfer an interest
in land (no oral gifts). Donor must provide Form A (PLA, s. 5).

4. Transfers to Volunteers
 People who acquire interest in land w/o paying for it, no monetary consideration
o Presumption of Resulting Trust: A ---------- B
 Presumption that A has transferred legal title but retained equitable title; B holds in trust for A
(equity says people don’t just go around giving away their property)
 the utendi is with the transferee, the fruendi is with the transferor
o Presumption of Advancement: Husband --------- Wife, or, Father ---------- Child
 Presumption that A transfers title absolutely (equity say you have obligations to spouse/child due
to certain relationship); exception to PoRT
 LTA, ss 20-22 – Unregistered instrument does not pass estate; operation of instrument is from time of registration
 Property Law Act, s.19(3) – Words of Transfer; voluntary transfer need not be expressed to be for use/benefit of
transferee to prevent resulting trust; i.e. you know longer need to say “A transfers to B for her use/benefit
absolutely” (historically specific language was needed for gift, now no)

ACQUISITION OF INTERESTS IN LAND ON DEATH

 Governed by statutes including Wills Act, Estate Administration Act, and Wills Variation Act  Wills, Estates and
Succession Act (WESA) as of 2014
 Anyone 16+ can make will, becomes operative only on death, can be revoked/replaced up until then
 Witnesses to will cannot be beneficiaries but executor can be

By Will
 Wills, Estates and Succession Act (WESA)
o S. 37 – in writing, signed, witnesses in presence of will-maker
o Deliberate policy choice NOT to do away with claims by adult independent kids, maintain possibility
 Property Law – Pavlich – December 2015 9
-that person by transmission, becomes the owner of the deceased's property (the trustee), gets to accumulate all the assets
and pay off all the debts and pay off to the heirs the assets
-the will has to be lawfully and properly executed; you have to be 19 year or older to be a witness ; will has to name who the
heirs are; the witnesses cannot be heirs

On Intestacy
 WESA outlines distribution of estate in case of no will
 Rules of intestate succession apply when there is no will or no valid will; preference for spouse

PROPRIETARY ESTOPPEL
Proprietary estoppel= a means by which property rights may be affected or created, it is invoked where there is a want of
consideration or of writing

must satisfy these 3 elements:

1) the owner of the land induces, encourages or allows the claimant to believe that he has or will enjoy some right
or benefit over the property;
2) in reliance upon his belief, the claimant acts to his detriment to the knowledge of the owner;
3) the owner then seeks to take unconscionable advantage of the claimant by denying him the right or benefit
which he expected to receive

Case Facts/Decision Ratio/rules

Clarke v Johnson • A (Johnson) owns the camp; former son-in
law Clarke (respondent) occupies the camp
• Clarke sought to bar his son from the
camp, Johnson sought to bar him
• Clarke said he contributed funds to the
camp over the course of decades
-Johnson believed that Clarke's use of the
camp was premised on his willingness to
share it with his children
-PE occurs when the owner allows the other person to expend
money on the piece of property; it is unconscionable to kick that
person off the property
-The work he has done and his expectations of rights and he was
induced this is in effect gives it to him; it estopps the true owner
from denying in the proprietary interest that is given by the court to
the P
- Johnson allowed Clarke to believe that he would own the camp
and ultimately be inherited by his children (permission to build and
lent funds)
-Clarke contributed significantly to the camp all with the
knowledge and consent of Johnson ; denial of Clarke's use of the
camp was unconscionable

REMEDY:
 decides against damages and gives effect to cultural and spiritual value that people might have in camps
 it does this by giving him a license (but it is irrevocable, looks close to an interest in land); allows the children to
come but the children have to conform to fathers rules and regulations
 NOT an interest in land, not transferable, can still sell property but they can sell without the license because the
license is not interest in land
 -if the court had granted a proprietary equitable interest such as an equitable easement or equitable life estate on the
basis of PE the court would have created a property interest capable of registration on the A's title that would have
bound purchasers

IP
COPYRIGHT
 Copyright Act
o (1) For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or
reproduce the work or any substantial part thereof in any material form whatever, to perform the work or
any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial
part thereof, and includes the sole right
(a) to produce, reproduce, perform or publish any translation of the work
Property Law – Pavlich – December 2015 10
COPYRIGHT= Bundle of exclusive rights in works, performers’ performances, sound recordings, and communication
signals

Should copyright protection be granted in literary works? Why or why not?

 Yes, people should benefit from their own work and labour (Labour theory)
 Promotes creation and dissemination of literary works (utilitarian justification)
 Personality theory
 Many authors will make their work available for free for other reasons besides economic incentives (ie.
career, etc)

Copyright is protected by statute, not separate CL rights, Copyright is protected by fed legislation, according to the
Constitution
• Purpose of copyright?
 Former purpose: to protect and reward authors
 Current purpose:
Balance between promoting the public interest in encouraging and disseminating works of the arts and
intellect and obtaining (Theberge)

Original
Literary, dramatic, musical, or artistic work
Must be able to have copyright protection (ie. can’t protect an idea – idea must be expressed)
 Can protect the way data has been arranged
 More than a mere copy (and)
 Creation of the work involved an exercise of skill and judgment
 Skill: the use of one’s knowledge, developed aptitude or practised skill in producing [a] work
 Judgment: the use of one’s capacity for discernment or ability to form an opinion or evaluation
by comparing different possible options in producing the work
(CCH Canadian et al v. LSUC (2004, SCC))

What are the rights of copyright owners?

 See s. 3:
• Produce, reproduce the work or any substantial part of the work in any material form
• Perform the work in public
• Produce any translation of the work
• Communicate the work to the public by telecommunication
• Authorize any rights of the copyright owner

Théberge v Galerie d’Art du Petit Champlain- REPRODUCTION ISSUE

reproduction means an increase in the number of copies (therefore no copyright infringement here as the image was
lifted from the paper and placed onto canvas)
Copyright requires a balance btwn promoting the public interest in the encouragement and dissemination of
works of the arts and intellect and obtaining a just reward for the creative
Moral rights focus on the artist's right to protect throughout the duration of the economic rights both the integrity of the
work and his or her authorship of it
o The integrity of the work is infringed only if the work is modified to the prejudice of the honor or
reputation of the author
economic rights benefit to the artist or author was (and is) the "sole right to produce or reproduce the work or any
substantial part thereof in any material form whatever" for his or her life pus 50 years
o Such rights can be bought and sold either wholly or partially
o The owner of the copyright can be, but need not be, the author of the work

Defences
-users' rights:
 Essential part of furthering the public interest objectives of the Copyright Act
 Tools employed to achieve the proper balance between protection and access
 Must not be interpreted restrictively
-non-commercial user generated content:

MORAL RIGHTS
Property Law – Pavlich – December 2015 11
• Protect the author’s honour and reputation; copyright protects economic rights
• Based on the idea that an author’s work is an extension of the author…
 Personality rights
• Cannot be assigned (s. 14.1(2)/17.1(2))
• Last for the same term as copyright in the work/performance (s. 14.2(1)/17.2(1))
• Can be inherited (s. 14.2(2)/17.2(2))
• Can be waived (s. 14.1(2)/17.1(2))

protected under the Copyright Act

• Both authors and performers (2012) have moral rights
• Three rights protected:
 Attribution (incl. right to remain anonymous)
• Right to be associated with the work as its author/performer by name or under a pseudonym and
the right to remain anonymous (where reasonable in the circumstances). (s. 14.1(1)/17.1(1))
 Integrity (protects against changes to work that would harm author’s honour/reputation)
• Infringed in two situations:
1. Where the work is either distorted, mutilated or otherwise modified to the prejudice of
the honour or reputation of the author
2. Where the work is used in association with a product, service, cause or institution to the
prejudice of the honour or reputation of the author.
 Association (prevention of work being used in association with certain things ie. politics)
o Right to be associated with the work/performance by name, under a pseudonym “where
reasonable in the circumstances”. May also remain anonymous.
2. Other rights:
a. Disclosure (right to disseminate work)
b. Reconsider/withdraw

Canadian courts have held that that the test applied to determine whether a distortion or association is prejudicial to the
honour or reputation of the author is subjective-objective test
 Subjective: does the author feel the distortion, etc is prejudicial?
 Objective: is the author’s view objectively supported?

Snow v. Eaton Centre (1982)

• Ratio: Moral rights in art can be upheld through the Copyright Act if it is shown that infringement of the rights is
prejudicial to the artist's honour or reputation, both subjectively and objectively.

Prise de Parole Inc. v. Guérin, Éditeur Ltée. (1995)

3. Is there fair dealing: no
 The court applied the test for infringement of moral rights used in Snow v Eaton Centre Ltd.:
 Subjective component (creator’s perspective): the author was frustrated by the changes, arguing that it
is such a clumsy reproduction of his work that he would rather not have his name associated with it
 Objective component (perspective must be reasonably arrived at): the court found there had been no
damage to the author's reputation or honour; there had been no change in the amount of Germain's
public appearances, no ridicule or mocking by associates, no people who had complained of the
editing.
 As a result of their being no objective evidence of damage to the author's reputation, the court found no
infringement of moral rights.

PERSONALITY AS PROPERTY
Personality: idea of commercial value in your name/likeness
• Should the law protect the commercial value that individuals have in their personality?
 Yes: Labour theory; built your own personality/reputation and no one else should reap benefits from this
(unjust enrichment)
 No: Too difficult to define “personality” and prove unique individuality
 Law should be wary about protecting personality commercially because this might overlap on other
individuals’ rights
 Property Law – Pavlich – December 2015 12
Krouse v. Chrysler Canada
The law can recognize a tort of misappropriation of personality, for which the court presented the following test:
1. Must use the plaintiff's image in a fashion recognizable by the public
2. The use of the image must be for the defendant's commercial advantage
3. The use of the image suggests implied endorsement of defendant’s product
4. There must be demonstrable harm to the plaintiff

Athans
The claim for wrongful appropriation of personality succeeded. Although the plaintiff had failed to show that the drawings
suggested that he was associated with the summer camp, or that his image suffered as a result of the use of the drawings, his
proprietary right in the exclusive marketing for gain of his personality, image and name had been interfered with. The defendants
knowingly made a commercial use of the plaintiff's representational image without his consent. This constituted an invasion and
impairment of the plaintiff's exclusive right to market his personality.

Gould Estate
The tort of misappropriation of personality should not be interpreted too broadly. In determining the scope of the tort, take account of
the public interest – here – freedom of expression
 No misappropriation of personality here

Privacy Act, RSBC 1996, c. 373

 s. 3(2) It is a tort, actionable without proof of damage, for a person to use the name or portrait of another
for the purpose of advertising or promoting the sale of, or other trading in, property or services, unless that
other, or a person entitled to consent on his or her behalf, consents to the use for that purpose.
 Can apply tort under statute rights or common law