Property Law Term 2 Frameworks

UNIT V - FREEHOLD ESTATES

FEE SIMPLE: Common Law Estates

Doctrine of Tenure

● Doctrine of tenure: Crown holds underlying title to all land as the basis for its sovereign authority (no private absolute title to land, owner rights rest on Crown title)
● Feudalism/Doctrine of Tenure → invasion of England by William the Conqueror in 1066 (Invasion of Matilda)
○ No one physically owns land because all land someway derives back down to the Crown
○ William redivided land amongst tenants in chiefs (you have possession of this land)
■ Promised to William military service (Crown granted land in return)
● Whom do you hold your land

Doctrine of Estates
 ● Doctrine of estates: divide ownership into difference slices of time and distribute those slices to different people (how do you hold your land)
○ Estates: purely legal creations that enable the division of ownership into successive "slices of time" between different owners
○ Considerable degree of both flexibility and control
● Only 3 types of estates: fee entail (this is historical, curtailed women from inheriting), fee simple, life estate - Freehold Estates
○ Fee simple: largest estate known to law, closest any private owner has to absolute ownership in common law system, full ownership of land subject to allodial title of
Crown - all rights over the land forever
○ Life Estate - only hold rights over land for duration for life then reverts back to whoever granted you that land
○ Fee Tail: (don’t exist anymore) - legal limit on land - bequeath to you but have limits what you can do with land (no bearing in law today)

Tenure vs Estates

Tenure Estates

● Tenure describes how you hold land ● Estates describe how you hold land “temporally”
“spatially” ● Mediates relationship to your land
● Mediates relationship to your lord ● Estates still used
● Tenure is largely irrelevant
Basic Principles of Estates

● Must be understood within historical context

○ Feudal legacy and doctrine of tenure
● Legal abstraction
○ Does not allow direct or “absolute” ownership
● Only applies to real property
○ Chattels can be owned outright

Estates in Fee Simple (Land, real property)

● Fullest expression of ownership

● Limits
○ Waste
■ Common law limit
■ Can’t act to destroy your land
■ Can’t put waste upon your land through positive action or omission
■ Can’t alter physical characteristic in the land (protect land in long term)
● Successor could actually sue you if they think you are laying waste to the land (affecting value of land etc.)
○ Legislation
■ Municipal bylaws (can’t build a 10-story tower on a small residential street)
○ Nuisance
● Creation/transfer
○ Inter vivos grant (transfer of property with or without payment)
■ Selling land
○ Devise (disposition of property by last will and testaments)

● 2 ways you can create a new estate in land and transfer that estate to others:
○ Inter vivos transfer: grants of property rights in the land to someone else during your lifetime, normally in exchange for money or other valuable consideration
■ Court broadened statutory language by expanding the acceptable language for fee simple
○ Testamentary bequest: devise your property rights in the land to someone else after you die by making a will
■ Courts consider the intention of the testator considering the whole will, and possibly its surrounding context
RC Ellickson, “Property Land”

● Perpetual ownership in fee simple serves a primary goal of conservation

○ Advantage of infinite land interest: low transaction cost device to induce landowner to conserve natural resources for future generations
○ Estates divide ownership over time and allow law to treat rights to future possession as a current/present legal interest
○ Flexibility was crucial for management and control of family wealth
○ Privileges property rights over other institutional forms for conservation
■ Promotes a cultural bias

Class Exercise

Drawing on the readings, what are the theoretical benefits of the English doctrine of estates? Are you convinced by them? Why or why not?

- 2 out of 3 says greatest thing since sliced bread

- Benefits of English doctrine of estates?
1. Incentive to Protect: Theoretically it provides a motivation to protect the land for generations
- Presumed that people care about descendants
2. Incentive to Improve: Maximize value (Ellickson)
3. Flexibility: in the management of wealth (somewhere to put money) (Gray & Gray)
4. Avoid Tragedy of the Commons: individuals have an incentive to take more and more → if have a common resource and we all share and each of us only take 5% that’s
okay but nothing stopping us from taking 10% or 20% → incentive to take more because if we don’t someone else will → exhaust the resource
- Argument in a dif way → can leave our resources to sit on our land and we don’t have to worry about someone swooping in and stealing it → avoid it
Criticism:

- If you just want to leave something and protect it as a nature reserve → can’t protect it from development and someone else using it (if not utilizing land, then you forgo it)
- Fee simple → greater inequality, keep within family → perpetuates initial unequal distribution
- Owning more than can possibly use (on a peninsula, housing crisis, some people own more land than they can use, and some don’t have enough)

Terminology

● “Estate in land”
 ○ Fee simple, legal doctrine of estates
● “Deceased’s estate”
○ Referring to all property you own in your life → legal meaning
○ Legal body still around → legal ownership → transfers into estate (governed by someone, then redistributed)
● “My country estate”
○ Using estate because big house or been in family - country house → no legal meaning

● Grant → transfer property

○ Grantor (transfers property), grantee (receives property)
● Devise → Gift of land by a will
○ Testator (person who wrote the will), Donee (receives gift of land)
○ Executor (appointed to deal with the estate of deceased), trustee (appointed to run a trust, property held by someone for the benefit of someone else), beneficiary (
● Reversion → Right to succeed to property on death of present possessor
■ If you die without a will and no heirs property will revert to the Crown - property goes somewhere else (if have full ownership, no reversion?)
○ Remainderman (person to whom the land is reverted to)
■ Can be family, Crown, etc.
● Intestate → Person who dies without a will

Traditional Common Law Rules

● Which of the following clauses in an inter vivos grant of land do you think are sufficient to transfer the entire fee simple interest?
a) “To Y in fee simple”
○ Legislated out in some places
b) “To Y”
c) “To Y and her heirs”
○ Have to use this one under the common law
d) “To Y, their successors and assigns”

Words of Purchase and Limitation

To whom i.e. (Alex) and what is being transferred (full fee simple but not necessarily any rights but right to transfer onto their heirs) → if just to Alex, then it would be a life estate and
not past their death (have to say ‘and her heirs’
- Have to use ‘and her heirs’ not D because they have to be exact and have legal meaning
 Thomas v Murphy [1990] NB
*Fee Simple
Notes:
*Court is struggling with the consequences
of the law’s traditional formalism.
McLeod Dies (granted onto) → McLeod’s
Estate → title document (without word
heirs)
- Doesn’t use the magic words “heirs”
- Don’t verify title anymore
(insurance company deals
with it)
- Quick claim → verify/rectify title
Facts:
● Thomas purchases a piece of land from a seller (Y, “grantee”),
who in turn received it through a grant from X (“grantor”)
● Claim is that the transfer from X to Y was DEFECTIVE because it
contained the phrase “to Y, their successors and assigns” rather
than “to Y, their HEIRS, successors and assigns”
● Murphy is Thomas’ lawyer.
● Thomas is suing because Murphy didn’t catch the problem and
Thomas had to pay a bunch of money to get it fixed.
Relevant Legislation:
Property Act, RSNB 1973, c P-19 (New Brunswick)
Reasoning:
- Plf believed he was purchasing a fee simple
estate in land when in fact he may have gotten
much less because the word “heirs” was absent
in a prior conveyance to the seller.
- Traditional Common Law Rule: only one way to
create a fee simple estate in land via grant.
- The magic formula → “To Y and their
heirs” in the deed or other instrument
of transfer.
- Any other formulation would be strictly
interpreted as creating a life estate, even in the
fact of the grantor’s clear intention to the
contrary.
- For a device, the rule is more flexible
- Courts consider the intention of the testator in
light of the whole will and context.
- 12(3) In a conveyance, it is not necessary in the
limitation of an estate in fee simple to use the
words “heirs”, but it is sufficient if the words “in
fee simple” are used.
- Doesn’t help because doesn’t say fee
simple
 Legislation
LIFE ESTATES
What is the Life Estate
● An interest in land carved out of Fee
Simple
● Right of possession and ownership
○ Not inheritable (thus not a fee)
○ Subject to same limits of estate,
nuisance & legislation
■ Such as waste
Ontario Legislation: Nova Scotia Legislation:
Conveyancing and Law of Property Act, RSO 1980 c 90 Conveyancing Act, RSNS 1989, c 97
13 Except where a contrary intention appears by
5(1) In a conveyance, it is not necessary, in the limitation of an
the conveyance,
estate in fee simple, to use the word “heirs”.
(a) where words of limitation are
not used, the conveyance
(2) For the purpose of such limitation, it is sufficient in a conveys the whole property
conveyance to use the words “in fee simple” or any other words right that the party conveying
sufficiently indicating the limitation intended. had power to dispose of by the
conveyance, including, in the
case of real property, the fee
(3) Where no words of limitation are used, the conveyance simple
passes all the estate, right, title, interest, claim and demand
that the conveying parties have in, to, or on the property
conveyed, or expressed or intended so to be, or that they have
*Now if you say transfer to Alex then they get fee simple
power to convey in, to, or on the same and all
Wills Act, RSNS 1989, c 505, s 27
27 Where any real property is devised to any
person without any words of limitation, such
devise shall be construed to pass the fee simple
or other the whole estate or interest which the
testator had power to dispose of by will in such
real property, unless a contrary intention
appears by the will.
Types of Life Estate The Life Estate Today
Life estate Pur Sa Vie – for the life of the grantee ● Not as common but still used today
○ Marital homes
● To “X for Life” ■ A spouse dies – they may have
● TO X – no words of limitation (in common law) it is deemed to a property that their spouse
be a life estate - (now assume fee simple if no words of lives in – they bequeath the
limitation) marital home to my partner
 ● Measured by lifetime
○ Usually the lifetime of grantee
(in life)/donee (in will) but can
be another
○ Basically, can convert a fee
simple to a life estate for the
lifetime of the grantee
● Can be created through grant or devise
Life Estate Pur Autre Vie – for the life of another person until they die and then it goes
to my children
● To X for Life of Y ○ Family run businesses
■ Like farming businesses –
keeping the land in the family
● Presumption is creating fee simple, so must be
explicit
● Legislation overrides Common Law
○ Most legislation – eliminates the need
for words of limitation -

Exercise

● “To Y for life, then to W and their heirs”

○ What does this transfer? Assume it is a fee simple – giving a life estate to Y – once Y dies, the property transfers back to a fee simple and is given to W and their heirs
■ “Their heirs” words of limitation indicating a fee simple
● “To the Children of H for life, then to H and their heirs”
○ What does this transfer? Assume it is a fee simple – giving a life estate to the children of H – once all children die – transfers a fee simple to H and their heirs

Doctrine of Repugnancy

● Operates where a testator tries to accomplish “… two things which cannot logically stand one with the other.”
● Court must determine which part of the testamentary intention predominates, and reject subordinate intention as being repugnant to dominant one
● The court will not give substance to things that cannot stand together
○ What is the primary intention – reject the subordinate one
● Relevant to wills – not really relevant to grants while you are alive

Exercise

● “To X and their heirs, then to Z and their heirs”

○ What is the problem? This is repugnant – giving X a fee simple and telling X what they can do with their fee simple. By transferring a fee simple – you are transferring all
rights of ownership. Not allowed to constrain the rights of inheritance
○ How can this be interpreted?
■ Could ignore the first part – ultimate destination is Z
 ■ Could indicate trying to give a life estate to X and a gift over to Z

—----------------------------------------------------------------------------------------------------------------------------------------

● Historically it played a central role in inheritances of land and control of family wealth BUT NO LONGER functionally important in modern context
● Life estate: confers a “life interest” on the recipient—meaning that the estate exists only for the duration of the recipient’s (or some other person’s) life, have use of occupation
and possession
○ Life estate is MORE LIMITED than fee simple
○ Upon the death of the person with the life estate, there is a “remainder interest”
○ Remainder interest disposes of what remains of the fee simple after the death of the life tenant, this is sometimes referred to as a “gift over”
● Contradictions:
○ A "gift over" can be repugnant if a devise (testamentary bequest) attempts to transfer land using language that suggests a fundamental contradiction between two
conflicting intentions
○ Fee simple has an infinite duration and carries with it the right of the estate’s owner to determine how to dispose of the fee interest after they die
○ It is inconsistent with this right—and indeed with the very nature of the fee simple estate—to grant or devise the fee interest first to X while also trying to ensure that X
transfers their fee simple to Z after they pass away

"To Y for life, then to W and their heirs”, transfer is doing two things:

● Owner of fee simple are transferring a life estate to Y, which will exist until the end of Y’s life
● The transferor is stipulating what should happen to the fee simple interest in the land after Y’s death. In this case, that fee simple interest will go to W.

Power to Encroach

- Access all capital available (could spend it all before end of life, nothing for next people)
- “For their use”
OR could only get income from the money have other set aside (trust can move on to heirs etc.)
 R v Walker 1942 ONCA Issue: Reasoning:
*Court establishes 3 categories for life estates Can you transfer property absolutely to someone else, and also give 3 ways to interpret:
(Will) instructions on how it will be treated upon the death of that person? 1. The gift to the first person named prevails and
the gift over fails as repugnant.
Facts: ○ Wife has life estate; nephews have fee
● John Walker died on March 27, 1903.
simple as a remainder interest.
● After his widow died in 1922, there were competing claims
from beneficiaries of both John and his widow. 2. The first named takes a life-estate only, and so
● The testator gave to his wife "all of my real and personal the gift over prevails.
property", but added that "should any portion of my estate still ○ Wife has fee simple interest, nephews
remain in the hands of my said wife at the time of her decease get nothing.
undisposed of by her the remainder shall be divided as 3. The first named takes a life estate, with the
follows . . ." power to sell (trust).
○ Wife has life estate with power to
The Will: encroach
“I give and devise unto my said wife all my real and personal property ... Court choses #2: an absolute transfer of land cannot be
and also should any portion of my estate still remain in the hands of my
said wife at the time of her decease undisposed of by her, such accompanied by a gift over.
remainder shall be divided as follows ...” You can’t give a fee simple, then tell them what they can
The testator’s spouse receives: the entire estate, which therefore do with it
passes via her will when she died
Ratio:
Decision: ● An absolute transfer of land (fee simple) cannot
NO, wife has a fee simple interest be accompanied by directions on how to deal
with the land upon the death of the receiver;
however, if all that is transferred is a life estate,
then these types of gifts are valid.
● It is possible to transfer a life estate with the
power to sell the property (must be explicit), and
if this is the case then the gifts will be void if the
property is sold
● The case turned on the words "undisposed of"
which makes the gift over repugnant

R v Taylor 1982 SK Issue: Decision:

*Life Estate Whether Kathleen had a life estate or fee simple. Wife had a life interest with limited power to encroach.
- If she had a life estate, the gift over was per John's will
- If fee simple would mean the gift over would be in accordance Reasoning:
with hers

Facts:
● John Taylor died on February 26, 1965
● His will stipulated that Kathleen receive his real and personal
property "to have and use during her lifetime" with a gift over
to their daughters.
● Kathleen died in 1981 and her will stipulated that her assets be
sold and ½ the money be given to charity, and the other half
split amongst her daughters.
● Taylor’s will give wife his estate "to have and use during her
lifetime" and stipulates any remainder on her death must be
divided between daughters but she changed it
The Will:
"I give, devise and bequeath all my real and personal estate of which I
die possessed to my wife Kate ... to have and use during her lifetime ...
Any estate of which she may be possessed at the time of her death is to
be divided equally between my daughters ...”
The testator’s spouse, Kate, receives: the estate for her life only
Court found "clear words" to indicate a life interest with
what remains as a gift over. There was no power of
disposition; capital was to be used for maintenance.
Ratio:
Intention must be taken from will as a whole, and courts
must give effect to it.
- Court found "clear words" to indicate a life
interest with what remains as a gift over. There
was no power of disposition; capital was to be
used for maintenance
- Use of words “have and use during her lifetime”
= life interest with power to encroach - is not an
absolute interest - and if combined with gift over
does not mean that the gift over will fail - overall
intention is important. In this case, overall
intention leads to life estate with power to
encroach.
Power to encroach + life estate doesn’t mean the same
as an absolute interest
 Townshend v. MacInnis Facts:

- The testator gave all his property to his sister “to be used and disposed of as she wishes during her lifetime” followed by a
gift over “any that is left at her death” to X
- Here – sister took an absolute interest

How is this different? Seems like a life estate and both have the power of encroachment

- And disposed of kills the words during the lifetime – dispose is explicitly the right to inherit. Dispose gave the sister the
entire estate
Distinguished in Taylor because of the words “disposed”

Christensen v Martini Estate, 1999, ABCA
*Life Estates
Notes: *Life Estate, get mortgage on it, no
mortgage from bank (listed on title doc, “life
estate”
Issue: What kind of interest was given to Martini?
Facts:
● Peter Martini and his wife owned a duplex with the Christensen
(sisters) living in one half.
● When Martini died, he made several provisions regarding the
sisters.
● The will was drafted by Peter without legal counsel
● Will specified: "I give to my wife ... [his half of the duplex] for
her use. When she no longer needs [it] that she gives said
property to [the Christensen’s]"
- Appellant = Martini = widow of testator = Sharie Raby
- Respondents = Sandra Christensen and Sonya Nadon = the
Christensen’s = long-time friends and neighbours of the
testator
- Testator had a first wife – owned duplex w/ the
Christensen’s
- In will – testator gave Sharie Raby his half of the duplex
“for her use. When she no longer needs it that she gives
said property to the Christensen’s”
The Will:
Reasoning:
Judgement
- Testator gave Martini a life estate without
power of encroachment in the half of the
duplex
Language
- It is trite law that when interpreting will’s
provisions, a court should give effect to the
testator’s intentions as ascertained from the
expressed language of the instrument and
the surrounding circumstances
- In this case it is apparent that the testator
intended to benefit both Martini and the
Christensen’s – supported by the language
of the provision, the entire will, and
surrounding circumstances
- Most likely interpretation – testator
intended Martini to have life estate without
power of encroachment and a gift over to
the Christensen’s
 “I give to my wife ... 2203 31 Ave ... for her use. When she no longer
needs 2203 31 Ave. ... that she give said property to Sandra and
Sonya ...”
The testator’s spouse receives: a right to the property until she dies,
regardless of “need”
Decision:
Court interpreted the will based on the entire document and determined
bequest to be a life interest, with a gift over to the sisters.
- The absence of the words “during her
lifetime” or similar magic words don’t mean
that the testator didn’t intend to grant his
wife a life estate. Especially since testator
was a lay person writing their own will
- There is no mechanism to force Martini to
make an inter vivos transfer of the property
to the Christensen’s – it is up to Martini to
decide when she “no longer needs” the
property – might not make determination
during her lifetime – essentially a life estate
then.

Ratio:

- “For her use” combined with “when she no

longer needs” = life estate without power of
encroachment with a gift over - the court should
endeavor to give effect to testator’s intentions.
Strict transfer language not required.
- Court interpreted the will based on the entire
document and determined bequest to be a life
interest, with a gift over to the sisters.

UNIT VI - EQUITY

Origins of Equity → The Origins and Nature of Equitable Interests

Class Exercise: Who owns the Stanley Cup?

● The trustees
 ● Winners have interest in it and physical possession (possession is 9/10ths of the law maxim - not true)

Brief Introduction to Equity:

● Specific body of law developed by the English Court of Chancery (out of chancellor, second in command to king)
○ Used to remedy failing of the common law
○ Focused on fairness
○ “King’s Conscious”
○ Developed parallel to common law
○ Prevails of the common law
■ Equitable rule prevails over common law
● Relevance to Tenure and Estate:
○ Equitable Trusts
■ Beneficial Interests
Equity, Equity, and Equity
● Equity → body of law exercised by the courts of equity
● Equity → just or fairness
○ Equity seeking groups (social justice)
● Equity → value remaining in an asset
○ Equity of redemption
■ Money after debts are paid (sell house to pay debts, get difference/remainder)
○ I.e., shares of company (can trade on stock market, equities market), Interest in a house (mortgage, remaining amount you own)

Equitable Maxims

“A [maxim] is worth a thousand words…”

● “Equity is equality”
 ● “He that has committed inequity shall not have equity”
● “Equity regards not the circumstances but the substance of the transaction”
○ A bank can’t take out the little guy
● “He who come to equity must come with clean hands”
○ Equity will not reward those that come there through a crime
○ I.e., Can’t murder your spouse and claim their life insurance
● “Equity regards as done that which ought to be done”
● “Equity follows the law”
● “Delay defeats equity”
● “Equity will not suffer a wrong to go without remedy”

Equitable Defences and Remedies

Equitable Defences Equitable Remedies (small claims can’t do this,

● Doctrine of Latches superior court)
○ Cause of action but doesn’t do something for years and years and then does (not so relevant now ● Injunctions
because we have statutes of limitations (2 years) ● Specific Performance
● “Clean hands” ○ I.e., want grandmothers wedding
○ Can’t claim an equitable right if you’re not being fair yourself ring not money
● Estoppel ● Declaratory Orders
○ If you make a statement and the other person relies on it, you can’t go back on it
○ I.e., say your debt is forgiven then later sue them for the money - can’t do this
● Equitable set-off
○ Debtors and creditors
○ Awarded $100k but owe $20K so then awarded $80K (difference)

Equitable Entitlements

Common Law Equity

Origin of Entitlement: Statutory Device or Bureaucratic registration Obligations of conscience

Focus: Form Substance

Remedial Outcome: Damages In Personam remedies

Remedial Characteristics: Compensate Conferment

- immediate

Discretion: Entitled to remedy Judge has discretion

Binding Impact: Binding on the world Requires assistance

Equity Today

Judicature Act, RSNS 1989, c 240 → s 41(a)-(d) / s 43(11)

● s 41(a)-(d): If you have an equitable claim that would have been acknowledged by high court of justice or equitable chancellor then NS court will recognize it
● 43(11): equity prevails over common law

Terminology

● Seisin → the possession of land by freehold (fee simple, life estate)

○ Seized → to be in possession of something
● Feoffment → grant of ownership of freehold property
○ Feoffee → a trustee of a fee
● Use → the right to take the profits of land belonging to another (benefit)
○ Cestui que use - beneficiary
○ Feoffee to uses - trustee of a fee (fee simple/life estate)
● Settlor → person who creates a trust

Legal Estate v Equitable Estate

Legal Estate Equitable Estate

Fee Simple: Life Estate: Beneficial Trust:

“To A and their heirs” “To A for life, then to B and their heirs” “To F and their heirs to the use of A for life, then to
the use of B and their heirs”

The “Use’

“To F and her heirs to the use of A and his heirs”

(F takes a legal fee simple estate) / (A takes an equitable fee simple estate)

- When legal title is transferred then you pay taxes

- When beneficial title is transferred you don’t pay taxes

History of the Use

● Purpose: to avoid feudal taxes

○ Inheritance tax
● “To F and G and their heirs to the use of O for life, then to the use of O’s oldest daughter and her heirs”
● Statute of Uses, 1535, 27 Hen VIII c 10 (doesn’t apply to corporations)
○ To F and her heirs to the use of A and his heirs
 - F more or less disappears it goes to A
- So, then A would get taxed
- A and his heirs is seized so wipes the rest out of the picture

Avoidance by Exemption

...(to paraphrase) where a person is seized to the use or trust of another person or corporation...that in every such case the person or corporation granted the use shall
be seized… (in possession of the fee)
- If i am going to fee someone in use, they are going to be seized in the fee simple as well

Thus, use is not executed if:

● Active Use → feoffee (trustee) to uses has duties to perform (e.g., collecting rents, lease forever (99 years))
● Personality → only applies to seized land. Personal property (e.g., leases) not affected
○ To B for 999 years to hold for the use of C”
■ Got around by writing a lease
● Corporation seized of land → only applies to person or persons (not corporations)
○ To B Ltd. to hold for the use of C = To B Ltd. to hold for the use of C = To C

● Equity (Avoidance by Exemption)

○ Statute of Uses (trying to avoid taxes) - some thought changes the common law and others thought it made no real difference
■ Pre-dates trusts - arguably what created trusts
Avoidance by “Use upon a use”

● Method: exhausting the operation of the statute

● Result: change in vocabulary

○ Trust / Settlor / Trustee / Beneficiary

The Modern Trust

● Creation
○ “to A to the use of B in trust for C”
○ “to B to the use of B, to the use of (or in trust for) C”
■ “unto and to the use of B in trust for C”
○ “to B in fee simple to the use of C for life, with the remainder to the use of D in fee simple”
■ C will get legal life estate (has to use for D - beneficial interest)
■ After C dies, remaining of fee simple goes to D (beneficial and legal)

Ex: To B limited in trust for C _________ (no limit for C) - need something in space
Trusts: Express, Resulting & Constructive

A Trust

● Property where legal ownership is held by one person or corporation and equitable ownership is held by another person or corporation
● The legal owner (trustee) must act for the benefit of the equitable owner (beneficiary)
● Can be created by deed or devise

- A piece of property, real or chattel → legal ownership is held by one person (legal title) but another person owns the equitable or beneficial ownership → one
has legal claim one has beneficial claim → two people have claim

The “Use”
“To F and her heirs to the use of A and his heirs”

(F takes a legal fee simple estate) / (A takes an equitable fee simple estate)

*because of taxes - gets you out of it

Express Trusts

● A trust created through the settlor’s express intent as outlined in the deed or devise
● “to A to the use of B in trust for C”
○ B gets legal interest and C would get beneficial interest
○ Would now say → “To unto the use of B in trust for C”
● “to A Ltd in trust for C”
○ Use that property to benefit C
Class Exercise:

For each of the following examples, describe all of the interests created by the transfer:

1. X grants: “to T and her heirs in trust for A for life, then in trust for B and his heirs”
- “to T and her heirs in trust for A for life, then in trust for B and his heirs”
- A gets life estate (legal interest for the life of A) for the benefit of B (beneficial/equitable interest)
- Once A dies, given full interest to B and his heirs (legal and beneficial/equitable interest) = absolute title
- X reversionary title after A’s death for B….
- B → Right to dispossess (can will away their rights)
- Becomes → “To and onto A for life in trust for B and his heirs, then to B and his heirs”

2. X grants: “to W and her heirs to the use of T and her heirs in trust for A for life, then in trust for B and his heirs”
- “to W and her heirs to the use of T and her heirs in trust for A for life, then in trust for B and his heirs”
*W = legal title / T = beneficial title → Statute of Uses takes away W
- W = nothing
- T = legal title for the benefit of A (A’s life, beneficial life interest)
- After A dies, T = legal title for benefit of B (B’s life, beneficial interest after A’s death, divisible (can dispossess))
- When T dies you look to T’s will

3. X grants: “to T Ltd in trust for A and her heirs”

- Statute of uses doesn’t apply to corporation
- T Ltd. gets legal title for beneficial interest of A (A has right of dispossession of beneficial interest)

4. X devises: “to T and her heirs in trust for A and her heirs”
- “to T and her heirs in trust for A and her heirs”
- X gets nothing
- A gets full legal title and beneficial interest

5. X devises: “to T and her heirs in trust for A for life, then in trust for B and her heirs when she reaches the age of 25.”
- “to T and her heirs in trust for A for life, then in trust for B and her heirs when she reaches the age of 25.”
- T = nothing (use executed)
- A = life interest
- B = beneficial interest (can pass on beneficial interest, dispossess)
 - After A dies, legal interest reverts back to X (if they’re dead, their heirs) B gets beneficial interest upon B turning 25
- When B is below 25 X gets legal title and beneficial interest

Resulting Trusts

● Arises by IMPLICATION from the circumstances of a particular transaction

○ If you have a hole in the grant, the hole will fill up and the beneficial interest will result back to the settler
● Resulting because the beneficial interest “results” back to settlor
● Recognized in two circumstances:
1) Settlor has failed to fully dispose of beneficial interests in property
“To Acme Trust in fee simple to hold in trust for B for life”
- Acme Trust legal title
- B beneficial interest
- B dies, beneficial reverts back to settlor
2) By gratuitous transfer (i.e., transfer without consideration; i.e., gift)
“Equity will not assist the volunteer”
- If not specified will assume just legal title not beneficial interest
- Beneficial interest will then result back to the settlor

Class Exercise:

Class Exercise 1:
X devises: “to T Ltd. in trust for A for life, then in trust for B and their heirs when she reaches the age of 25.”

What happens to the property after A dies and before B turns 25?
- T = legal title for A’s benefit (beneficial interest) then B when B reaches 25
- A = beneficial life interest
- B = beneficial when 25
- Beneficial interest reverts back to X

Class Exercise 2:
Suppose that one day out of the blue, your parents send you a package from their lawyer with documents that grant you title to their house and a note saying that “they
would like some more freedom to travel in their retirement.”
Would you assume that they meant to give the house to you as a gift?
- In Trust
- Still need a place to live when they come back
- Don’t need permission to fix etc. but will come back
- Could mortgage it
- Gift
- Know your parents, want to help set you up for life

*Court would have to figure this out

Advancement and Gratuitous Trusts

Gratuitous
In the case of Gratuitous transfers, equity generally presumes a resulting trust but...

...this is sometimes reversed and replaced by the alternative presumption of advancement

Advancement

● Historically presumption of advancement applied in two situations:

1) where transferor is a husband and transferee is his wife
2) Transferor is a father and transferee is his child
—--------------------------------
- Exception:
o gratuitous transfers between some family members are presumed to transfer full title.
- context of opposite-sex spousal relationships:
o husbands were presumed to intend gifts to their wives for their “maintenance” based on the assumption that married women were financially
dependent on their husbands (same assumption about transfer from wife to husband didn’t apply).
- SCC in Rathwell
o cast doubt on whether presumption of advancement applies as between spouses; Court relied on changing social context: in “modern” intimate
relationships, assumption of intention to make a gift was no longer credible.
- Context of parent-child relationships (where “advancement” comes from), “principle of parental obligation”:
o fathers were presumed to give gifts to their children. Status with respect to mothers uncertain (Court in Pecore clarifies)

Pecor v Pecor, [2007] SCC

*Trusts, advancement

Madsen Estate v Saylor, 2007, SCC - Father and daughter had close relationship and held joint accounts in which father retained control.
- Some evidence that father intended to make a gift of the money (financial reliance of daughter; choice of joint accounts with
right of survivorship).

Distinguishing factor:
- In Pecor, other siblings (who would take under the residue of the will) supported daughter’s argument
HERE, other siblings contested daughter’s claim

UNIT VII - LEASEHOLD INTERESTS

The Nature of a Lease and of Interests

Nature of Leases
Lease

- “A contract by which a rightful possessor of real property conveys the right to use and occupy the property in exchange for consideration, usually rent. The
lease term can be for life, for a fixed period, or for a period terminable at will”
o Black’s Law Dictionary (11th ed. 2019)
- The lease creates the leasehold estate
- A lease is way more than a contract – a lease creates an interest in the property – thus it is an estate.

Characteristics

- Creates an estate interest in the land whereby the tenant has the right to exclusive possession of property
o Allows occupier to use and enjoy the property to the exclusion of strangers
o The tenant can declare who can and cannot enter. Subject to the lease and statute
o Heavily regulated area of law – up until WWII, tenants had no rights – generally in the common law the landlord had right to inspect for waste –
nothing really comparable for the tenant
o Statutes have addressed a lot of these old issues
- Landlord has no right to say what you do in that space (things about noise, what colours to paint the walls)
- Lease documents can include a lot of things. If you sign it, you are contractually bound
- Early in the common law
o Leases were essentially contractual in nature – as people began to sue – saw that this was inappropriate – courts began to grant the remedy of
possession – suddenly there is a land interest involved – thus a lease is a chattel real (lease is chattel (property) but real (estate attached to it))
- Obligations, and corresponding remedies, governed by both privity of contract and a privity of estate
o Must exist between ascertained persons – must be a named person.
o Payment of rent is not essential

Kinds of Leases

The Common Law recognizes 3 kinds of leases

- Fixed term
o It will end on a set date in time
- Periodic lease
 o Ongoing month-to-month at the first of the month – legislation might say that when a residential lease ends it converts to this
- Tenancy at will
o Either party can end at their will
- Tenancy at sufferance – in the textbook – if someone overstays their tenure of an estate – argument they are a leasee – kind of legal fiction – cannot fall
into tenure

Freehold vs Leasehold vs License

- A Freeholder is seized of the land

o Have the right to dispossess the land to their heirs
- A Leaseholder is granted possession of the land
- A Licensee is merely granted mere permission to be on the land
 Fatac Ltd (In liquidation) v
Commissioner of Inland Revenue,
(2002) NZCA
*Lease
Issue: Who is liable for payment of GST (depended on
whether the land was tenanted to the property or whether
they were a licensee?
Decision: it’s a license
Ratio: NZ should return to the exclusive possession test
Lord Denning:
Now:
Here
Reasoning:
Distinguishing feature of tenancy– right to exclusive possession
o For a limited time, tenancy is an interest in land conferring
the right to possess it for a limited time
o Creates an estate in land
- License – mere permission to be on the land – can have additional
permissions to perform specific acts there
- This distinction isn’t really that important in daily practice –
important for eviction discussion
o Tenant (protection) vs licensee (no protection)
- Other reliefs
o Forfeiture, seize property for unpaid rent – dependent on
this distinguishment
- Look at intention of the parties
- Circumstances where exclusive possession has been given is also
considered.
- *fill some of this in*
- Distinction between them turns on the intentions of the parties →
intention as to substantive rights, not to classification →
terminology used is immaterial
- Exclusive possession is even excluded except for right of repair //
inspection – tenant’s right originates from the right of exclusive
possession
- Doesn’t matter what label we give it – all that matters – is the right
actually granted – intentions only matter only so far as did you
intend to give the right or not
- Lack of rent doesn’t preclude exclusive possession
- 1991: agreement was that at pohenni’s companies would have a
 general right of access to the land as long as they didn’t obstruct
Atlas
- 1996:
- Atlas’s rights were far from exclusive – couldn’t exclude Mount
Wellington or the group of companies – Atlas’s right to exclude
didn’t include these parties – they only had a license

Exclusive possession does not mean unlimited use

Refinements to the Rule of Exclusive Possession

1) Exclusive possession that is terminable by the owner at will would be possession in name only.
a. A necessary incident of a right to exclusionary possession is a defined term (fixed or periodic).
b. Argument that tenancy at will is a weak use of the estate
2) Payment of rent is relevant to the presence of an intention to be legally bound, but is not a precondition for a tenancy, per se.
a. Lease agreement can exist with no rent payments (gifts are possible)
3) Limitations upon the purpose to which the occupier can put the land do not negate a tenancy. Exclusive possession is not synonymous with an unqualified
range of permitted uses.
a. You can have a lease where the landlord says you cannot garden in the backyard.
4) Consistent with the role of exclusive possession is the refusal to recognize a tenancy where:
a. The owner is prevented from granting a tenancy by statute;
b. Where the landlord’s right of entry is inconsistent with exclusive possession; or
i. When this happens – not recognize the tenancy – it is not tenancy without exclusive possession (statute would
override this)
c. Where right to exclusive possession can be terminated pursuant to some legal relationship extraneous to that of landlord tenant (e.g., employee
occupies employer’s premises in order to perform duties, where purchaser is in occupation pursuant to agreement of purchase and sale).
i. No tenancy
ii. You can be fired under some other legal regime like employment – the presence in the building is not due to the
tenancy
5) Terminology used to describe a tenant’s right of occupation is significant only if it indicates an intention that the occupier enjoy exclusive possession.
Conversely, a requirement that an occupier not impede an owner’s right of possession and control tends to negate exclusive possession.
 Metro-Matic Services Ltd. v
Hulmann, (1973) ONCA
*In notes - took Fatac test into
Canada
Reasoning: Problematic term 6(e)
- You must grant access to all tenants at all times
- Granting access to the space. Not exclusive access
So, what is this?

- They don’t have exclusive possession – they don’t have a lease.

- Intention – clearly, they intended it to be a lease – there is consideration (payment of rent)
- 6(d) – tenant will pay for all water and electricity for the machines – lease sets out a broad scope of duties

TJ: not a lease

CA: there was intent to form of a lease

CA – wrong – they were relying on Denning’s law of looking to intent – this is no longer good law.

If it was heard today – likely wouldn’t be decided this way as there was no exclusive possession

Transfer of Lease

Both the reversionary interest (landlord) and leasehold interest can be transferred
o At end of lease – right to exclusionary possession can be transferred
- A leasehold interest can be transferred in two ways:
o 1) Through assignment
§ Assign over the tenancy of the lease – new tenant and existing landlord have no contract (cannot have a contractual agreement)
§ There is a privity of estate (between landlord and new tenant) – what terms in the lease agreement get transferred since there is no privity of
contract
§ Privity of estate, but no privity of contract
o 2) Through a sub-lease
§ No privity of estate, and no privity of contract
§ Can sublease and can resume your interest as a tenant. No privity in estate between the subtenant and landlord)
- Rule in Spencer’s Case (1583): all the ‘real covenants’ in the lease run with the assignment.
o All real covenants will bind the landlord and new tenant
o A real covenant is one that is said to touch and concern the leased property – directly impacts the landlord and a tenant
§ Example of a real covenant: rent,
o That is, it impacts the landlord as landlord or tenant as tenant
Merger Restaurants v DME Foods Issue:
Ltd., (1990) CA Does mergers lease restrict the use of the parking area for
*Lease merger?
Is the owner entitled to alter the common areas to give DME
access
Facts:
● Merger operates a restaurant, DME operates a
restaurant on neighboring property. Both owned by
same company. Merger is assignee of a lease.
● Construction leads to less parking for DME, owner
says they can use Mergers lot for parking. Merger
argues they have exclusive right to that lot.
TJ: Merger has exclusive right
Decision: Mergers lease cannot be construed to allow the owner to permit DME
parking
Reasoning:
Lakeview – who took over in 1986 – said that the exclusive right to
parking is not covenant to the agreement
- Caselaw – similar cases where parking lots don’t run with the land.
CA distinguishes based on the facts
- The passage of time has not affected the rule laid down in
Spencer’s case that covenants which touch or concern the land run
with the land and are binding upon successors in title.
- Touching and concerning the subject matter of the lease: to run
with the land, covenants must either affect the land itself, that is,
the nature, quality or value of the thing demised.
o Our case – parking in a shopping plaza will directly affect
the nature and value of the land. No parking = no
customers
o Textbook on shopping centre leases – says that parking is
essential for business
Merger’s common area rights touch or concern the demised premises. Such
rights cannot be considered as merely collateral to the demise
 Sundance Investment Corp. v
Richfield Properties Ltd., (1983)
ONCA
Issue: Did Richfield unreasonably withhold its consent to a
proposed sublease by Sundance?
Facts:
● Richfield owns HH Plaza. 2 major tenants lease
almost the entire thing (Sundance and Beaver).
● Sundance wanted to sublease the property to Swiss
Chalet but requires prior consent (permission) from
Richfield.
● Beaver doesn’t want Swiss Chalet to sublease
because the terms of a Swiss Chalet. Require a
parking setup which would interfere with Beaver’s
business.
● Richfield rejects sublease in support of Beaver.
Worth noting that Beaver’s rent paid to Richfield is a
percentage of their total sales
● *Get some more facts from this case*
● Chamber Judge – can rely on Beaver lumber’s
objections – referred to CA
Decision: Withholding of consent is not unreasonable.
Ratio: The burden of proof rests on the tenant and not the
landlord to prove that consent for subletting is reasonably
withheld. Landlords may rely on any genuine reason for
withholding consent
Reasoning:
Belzil J.A (majority):
- Appellant:
o Objection based on parking – not based on the fact that a
restaurant is being put in
o Issue of parking is a normal incident of any use of this
premises
- Respondent
o We can rely on Beaver lumber’s objection =
o Sublease would jeopardize the operations of Beaver
lumber even if we can’t rely on it
- Beaver will likely lose customers if they are forced to park much
further away. Not unreasonable to withhold consent if it could
adversely affect other tenants as well as the landlord’s own
interests.
- Even if this is not the problem:
o the burden of proof rests on the tenant and not the
landlord to prove that consent for subletting is reasonably
withheld.
o Landlords may rely on any genuine reason for withholding
consent
- Beaver lumber pays substantial rent – no reasonable landlord
would consent to the loss of 80,000 a year – and reject the
sublease
- Not withholding because it’s a restaurant (subleased to a
restaurant before w/ no problems) but because the nature of the
business would interfere w/ other interests.
- Cites Halsbury’s: burden of proof is on tenant and not landlord to
prove consent is unreasonably withheld. Cites another case:
landlord may rely on any genuine reason for withholding consent.
Harradence J.A: (dissent):
 - The term “nature of business” cannot be extended to include
something inherent in every business (parking). Every business
needs customers – every customer must park
- Cannot allow landlords to restrain alienations so quickly
- Argues that Beaver is objecting to any successful business because
they will occupy significant parking if they draw customers.
- The lease did not grant any tenant sovereignty over any particular
area of the parking lot

Can landlord reject tenants on the basis that the tenant won’t achieve
sufficient business. Unreasonable for a landlord to reject a business based
on insufficient business. Thus, the majority decision is unjust.

General Notes
● You have privity to the estate if you hold tenancy (neighbour doesn’t unless they hold easement)
○ Do you have an interest in the land
● Tenant has privity of contract with landlord and very specific rights within the property
○ You have privity of estate with landlord
○ You have an interest in the property

Obligations and Residential Tenancies

Statute of Frauds, RSNS 1989, c 442

3 Every estate, or other interest in land not put in writing and signed by the person creating or making the same, or his agent thereunto lawfully authorized by writing,
shall have the force of a lease or estate at will only, except a lease not exceeding the term of three years from the making thereof, whereupon the rent reserved
amounts to two thirds at least of the annual value of the land demised.
- Unless at will lease needs to be written and signed
- At will only
- If you don’t sign the lease, it will be “at will” can be ended when anyone wants
- Exception: if 2-year lease doesn’t need to be written or signed
- Has to be within first 3 years that you can sign the lease (they can’t actually terminate at will within first 3 years)

Sources of Obligations
 ● Common law
○ Understood from property perspective
● Contract
○ Freedom of contract
● Statute
○ Remedy power imbalance

State of the Common Law

- NS: If you sign a fixed term at the end of the term a landlord can
kick you out or raise rent etc.
- ON: lease renews automatically

Remedy of Possession: If tenants were unjustly thrown out of property they

can apply to court
- Only available once you take actual occupation of the premises
- Could sue for breach of contract through other remedies

Remedy of Distress:
- Distress no longer available, have to go to landlord/tenant board

Scope of Quiet Occupation

Southwark LBC v Tanner, [2001] 1 AC 1 (HL)
Facts:
- One plaintiff lives in a block of flats
and the other is on the first floor of
converted Victorian house
- Complain about hearing all sounds of
neighbour
Reasoning:
- Courts note that neighbours aren’t necessarily noisy but the flat
and house don’t have sound insulation
- Court looks at tenancy agreement - contains no warranty that the
flat has sound proofing - contract doesn’t say anything
- The old common law does not imply any such warranty that a
house has to be sound proofed
- Tenants don’t have bargaining power to express this or freedom to
reject a property that doesn’t suit their needs
- Parliament needs to put it into residency tenant act
- Potentially they can go on - in contract that they have right to quiet
occupation and landlord can’t prohibit this - in law quietly doesn’t
mean no noise but without interference or interruption of
possession
- Have to look at use of ordinary way - can’t elevate that
- Must be physical interference not just mere annoyance
- Can’t complain about sound proofing etc. though
- Quiet enjoyment: the landlord can’t interfere with possession,
interference has to be physical, mere noise annoyance isn’t enough
- Unless they made representations that it was quiet (if in lease or
tells them quietest you’ll ever find)

“The covenant for quiet enjoyment is therefore a covenant that the tenant’s
lawful possession of the land will not be substantially interfered with by the
acts of the lessor...”

- Also tried for nuisance - court dismissed this - landlord not making
the noise, it was the tenants, knew there would be other tenants
when moved in
 Pellate v Monarch Investments Ltd. (1981), 23 Facts:
RPR 8 (Ont Co Ct) - P lived in small apartment while
studying for Bar exam
- Landlord undertook extensive
renovation
- Landlord gave option to terminate
lease and kept up to date of what
was happening
- Offered to pay them and suggested
alternate study space - offered to put
up in hotel - P said no
- P decided to stay
Sued for landlord that made apartment
unlivable
Curtis Investments Ltd v Anderson (1981), 24 Facts: Noisy upstairs neighbor
Man R (2d) 220 (Co Ct)
Principle of Non-Derogation
● Principles states that a lessor (landlord) cannot use the property retained in a way that renders the demised premises materially less fit for the purposes for
which they were let
Reasoning:
- Decided for plaintiff
- Landlord did all they reasonably could
- But they talked about right to quiet enjoyment (not about landlord
acting reasonably)
- Now broadened it to physical enjoyment
- Using the land as its intended to be used - did not intend that your
kitchen was going to be replaced
- If landlord had told at beginning of tenancy might be
different
Reasoning:
- Landlord not liable because not active participation in the actions
so how can they be responsible
- To be liable the landlord has to be an active participant
Petra Investments Ltd v Jeffrey Rogers plc [2000]
L & TR 451 (Ch D)
Clark’s-Gamble of Canada ltd. V Grant Park Plaza
Ltd [196] SCR 614
Note: Courts respect freedom of contract →
Tenants are not usually in a place to negotiate
though
Legislation/Forms/Laws
Residential Tenancies Legislation
Residential Tenancies Act RSNS 1989, c 401
Facts:
- P tenant was a lady’s fashion retailer
- Renting space in commercial mall
- Landlord said they wanted the mall
to attract a specific sophisticated and
cosmopolitan stores to attract those
clients (high end fashion store)
- Nothing in the lease itself that the
landlord would do this (just shopping
mall, rented for commercial spaces -
not limited to high end fashion)
- Landlord unable to secure tenants
they wanted
- Landlord rented to a music shop and
now tenant is annoyed and sued
Said: you rented this space to me; you use the
other spaces in a way that makes her space
less fit
Facts:
- Landlord leased part of shopping
center for a discount shopping store
- Expanded the centre and rented
another part to another discount
shopping store
- Tenant argued this amounted to a
derogation
Reasoning:
- Test: Did the action render the premises less fit for which it was
intended to?
- Does renting the shop across the way prevent you from carrying on
business with high end fashion
- Nothing in principle to extend that the landlord doesn’t have a duty
to do anything?
- If you can still carry on business though the landlord is not
interfering
- Nothing in lease to say the landlord had to rent out to specific
people
Reasoning:
- Does not render the premises unfit for doing business
- You’re free to contract whatever you want - if it was in lease that
wouldn't rent out to any other discount store then could be breach
of contract - not the case here
Key Provisions:
● Purpose – s 1A
○ Efficient and cost effective way to settle disputes (Ontario’s says purpose is to protect tenants, can only evict if less than 5 units and need for family
(loophole)) → s 10AB “mutually agree”
● Application – s 3
○ Not allowed to ask for application fee
● Disposal of Property – s 5
● Free Access – s 5A
● Statutory Conditions – s 9
○ In every lease we are going to impose these terms
○ All leases will include these
○ Tenants don’t have power to demand express terms so parliament does it for you - landlord cannot opt out of this
● Notice to Quit – s 10
● Rental Increase – s 11
○ Terms for when they can increase rent - restraints on this
● Application to Director – s 13
○ If someone breaches a term of the residential tenancies act? You apply to director to resolve it (they have authority to delegate or investigate etc.)
○ Right of appeal to Small Claims Court (procedural step)

*Section saying you have to use a standard form lease

Other Legislation and Regulations

Interim Residential Rental Increase Cap Act, SNS 2021, c 22
- Until Dec 2023, landlords shall not increase rent by more than 2%
- Legislation does not delegate authority to anyone - have to cap it by passing another piece of legislation (currently discussing if they are going to pass another
piece of legislation to keep it same, increase it, get rid of it etc.)
- Even if security of tenure landlord can increase the rent
- In ON legislation says the minister may make regulations dealing with rental caps (delegates authority to minister and they delegate it to
 residential/tenancy board) - usually akin to inflation
- They have had rent control for a while
- NS rent control came from pandemic - turning into permanent measure
- In common law no such thing as rent control - problematic - legislation comes in

NS Reg 190/1989
- Regulations tend to be about very specific issues
- More day to day procedural practical matters

Standard Form Residential Agreement (NS)

https://beta.novascotia.ca/sites/default/files/documents/4-439/form-p-standard-form-lease-en.pdf
- Help regarding balance of power
- Makes everything standard - every tenant knows what they’re getting into - landlord knows too
- Most tenants won’t have a lawyer
- Some assurance that the lease is fair
- Fill in the blanks lease
- Fix term lease - once lease expires, no security - they can up the rent $1000
- Periodic lease - start it and it goes on until you terminate it - YOU WANT THIS

Questions:
- Landlords can put rent up more than 2% if new tenant?
- If they don’t use the standard lease and someone signs a non-standard - does it default to standard?

Residential

Reform of Residential Tenancy Laws

Ten key areas of reform:
1. Security of tenure for residential tenants and lodgers
○ Not just a lease, also an estate
2. Notice periods for termination
 3. Setting standard obligations and balancing rights and responsibilities for both landlords and tenants
4. Remedies for tenants
5. Restricting the self-help remedies of landlords
6. Curbing the bargaining away of statutory rights
7. Modernizing the general law of landlord and tenant
8. Development of accessible and effective dispute resolution procedures
9. Establishment of landlord and tenant advisory boards
10. Rent control mechanisms

Leases Subject to Residential Tenancy

Residential Tenancies Act, RSNS 1989, c R 401

Application of Act

3(1) Notwithstanding any agreement, declaration, waiver, or statement to the contrary, this Act applies when the relation of landlord and tenant exists
between a person and an individual in respect of residential premises.

(2) For the purposes of subsection (1), the relation of landlord and

tenant is deemed to exist in respect of residential premises between an individual

and a person when an individual

(a) possesses or occupies residential premises and has paid or agreed to pay rent to the person;

(b) makes an agreement with the person by which the individual is granted the right to possess or occupy residential premises in consideration of the
payment of or promise to pay rent;

(c) has possessed or occupied residential premises and has paid or agreed to pay rent to the person.

- If people are paying rent for residential tenancy, then we assume the act comes into play
- Not everyone pays rent - i.e. staying in parents house for free - not concrete if Act applies

What is a Residential Tenancy

Are the following subject to the Residential Tenancies Act:

 ● A university dorm room
○ No
● A long term care bed in a hospital
○ No
● A basement apartment
○ Yes
■ Don’t want to impose this structure with family - if they share kitchen and bathroom not tenant/landlord relationship ONTARIO
■ NS - no specific exclusion so probably subject to Act
● A nursing Home
○ No
● A short term cottage rental
○ No
● Hotel
○ No
*Look at definitions for residential tenant in Act
Subletter: can’t go directly to landlord they must go to you as tenant and you go to landlord - must be careful when subletting or being a subletter
 Matthews v Algoma Timberlakes Corp., 2010
ONCA 468
*Residential Tenancies
Issue: Is the property a residential premise or
not?
Facts:
● A big amount of property divided into
smaller property
● People renting property and built
cottages on it (weekend stays)
● Def (Algoma) bought all of the land
and tried to hike up rent by 400% on
part and evict the other side (river
dividing)
● Trying to see if they are protected by
the Residential Tenancies Act
No dispute if leases but dispute if residential
leases
Decision:
It was a residential premise - Act applies
Notes: focused on the individual cottage
owners not the land being rented as a whole
(railroad company)
Reasoning:
*It was a residential premises
1. Is it a living accommodation?
○ Tried to figure out what rental unit meant (living, sleeping,
eating there - there was a kitchen)
○ Attended property throughout year
○ Carried on common activities of people living in
accommodations
2. Intended as a rental unit?
○ Counted as rented premises because paying rent to
occupy land
○ Cottages were not commercial (original leases said no
commercial prop)
○ Leased as single family cottages for private use (not a
camp or company cottage etc.)
3. Residential tenancy or recreation
○ No different between recreation and residential -
shouldn’t be punished
○ Clearly not commercial so only other option is residential
○ Legislation doesn’t make a distinction of how the premise
is used
■ Would punish those with second properties, snow
birds etc.
Divisional court: focused on recreational tenancy - said there is no such
thing so doesn’t matter - not going to punish people for how they are going
to use their prop
Algoma argued: pointed to S 5A of Ontario act - excluded seasonal (hotel,
lodge, campground etc.)
- Court reject this - said the cottages are not temporality or
seasonable
- Come all year round
 - Have year to year
- Owned for 20+ years
- In lease can be renewed

Evictions and Terminations of Tenancies

● Highly regulated (by statutes)

○ Formal requirements
■ I.e., eviction notices have to signed, dated, in a particular form etc.
○ Notice requirements
■ Can’t just do it and say be out tomorrow
○ Right to rectification
■ Has a right to i.e., pay the rent over a time period (about 15 days) then the eviction notice is void

● Grounds for eviction:

○ Non-payment of rent (s 10 (6))
○ Threat to safety (s 10 (7A))
○ Interfering with possession or occupancy of landlord or other tenants (s 10(7B))
○ Damage or neglect to property (s 10(7B))

Nova Scotia Provisions

Residential Tenancies Act, RSNS 1989, c R 401

● Notice to Quit - Section 10

○ s 10 (6) - Non-payment of rent (s 10 (6))
○ s 10 (7A) - Threat to safety
○ s 10 (7B) - Interfering with possession or occupancy of landlord or other tenants
○ s 10 (7B) - Damage or neglect to property
○ s 6(D), s 13 – Enforcement

*Right to respond
Question?

● “Where a fixed-term lease exists or where a year to year or a month to month tenancy exists or is deemed to exist and the rent payable for the residential
premises is not paid by the tenant on or before the fifteenth day after the rent is due, on or after the sixteenth day the rent is due the landlord may give to the
tenant notice to quit the residential premises effective not earlier than the fifteenth day after the date the notice to quit is given to the tenant.”
● My rent is due on the 2nd of every month. If I do not pay my March rent, when can the landlord serve me with a notice to quit? When is that notice effective?
○ Notice to quit:
○ Notice Effective:
- Are weekends and holidays included?
- Depends
- When do you start counting?

Right to Housing

National Housing Strategy Act, SC 2019, c 29, s 313

s 4. It is declared to be the housing policy of the Government of Canada to

(a) recognize that the right to adequate housing is a fundamental human right affirmed in international law;

(b) recognize that housing is essential to the inherent dignity and well-being of the person and to building sustainable and inclusive communities;

(c) support improved housing outcomes for the people of Canada; and

(d) further the progressive realization of the right to adequate housing as recognized in the International Covenant on Economic, Social and Cultural
Rights.

What are the practical implications of this act?

Moratorium of Evictions
 Attorney General (Ontario) v Person Unknown, Facts:
2020 ONSC 467 ● ACTO (Advocacy Centre for Tenants Ontario) is seeking to move for an order setting aside the order of a Chief Justice
*Covid which ended the moratorium on residential evictions in Ontario set on March 19, 2020. The order was made on July
6, 2020.

Decision: Motion for a stay dismissed.

Reasoning:
ACTO’s concerns are not properly directed at the Chief Justice’s order re-opening court enforcement services – there could be
individual concerns which should be taken up with the government
ACTO’s concerns
● Believes that its premature to lift the moratorium on evictions and that the Chief Justice wasn’t told of the
continuing risks to individuals facing eviction
● Basically – the government went to the Chief Justice ensuring that lifting the moratorium would only lift when it was
safe – then made a new declaration of emergency legislation
● ACTO argues that the end of the declaration of emergency didn’t ensure that it was sage to evict people as the Chief
Justice was told – arguing that COVID still continues
Applicable Legal Test:
● To obtain an interlocutory injunction (or stay) the mobbing party must establish that
● (a) there is a serious issue to be tried (or in some cases, P has a strong prima facie case)
● (b) the moving party will suffer irreparable harm if the injunction isn’t granted
● (c) the balance of convenience favours the granting of the injunction

Applying the Test

● The motion turns on whether ACTO and other tenants can establish that there is a serious issue to be considered on
their proposed motion
● (b) a tenant that’s evicted and exposed to an increased risk of COVID on the streets or in shelters suffers harm that
cannot be readily compensated in money (irreparable harm).
● (c) balance of convenience test compares the harm to the moving parties if a stay is denied against the harm to the
responding parties if a stay is granted
○ This is hard to do – no landlord or tenant groups are parties.
○ Here it is balancing the risk of COVID to the subset of evicted, vulnerable tenants and mortgagors who may
 end up homeless or in shelters against the economic risk to landlord and mortgagees of a further delay of
evictions for a few weeks or months
● Believes that this is an issue for the province and not the court
● If the court were to answer this: it “would mix the court in the government’s business and cross the lines separating
the respective branches of government delineated by the SCC”
● (a) serious issue to be tried doesn’t set a high bar – tenants haven’t brought anything forward – ACTO has attempted
to take tenants issues but brought nothing substantive

*if someone didn’t pay rent they couldn't kick them out - tried to lift it and advocacy group came and said don’t lift yet

Test to obtain injunction

1. Serious issue to be tried
2. The moving party will suffer irreparable harm if the injunction is not granted
3. The balance of convenience favors the granting of injunction

UNIT VIII - INDIGENOUS INTERESTS IN LAND

History of Aboriginal Title in Canada

Indigenous Law & Aboriginal Law

● Indigenous Law – the law of the Indigenous people themselves
● Aboriginal Law – the branch of Canadian public law dealing with rights and land claims relating to Indigenous people

Doctrine of Estates
Royal Proclamation, 1763
- During 7 years war (England v France mostly)
- English took over from French
- Set out guidelines for European settlement with Indigenous territory (supposed to not be west of Appalachian Mountains)

The Right to Use and Benefit

“That inference is, however, at variance with the terms of the instrument, which shew that the tenure of the Indians was a personal and usufructuary right,
dependent upon the good will of the Sovereign. The lands reserved are expressly stated to be "parts of the dominions and territories;" and it is declared to be the will
and pleasure of the sovereign that, "for the present," they shall be reserved for the use of the Indians, as their hunting grounds, under his protection and dominion.”

- St Catherine’s Milling & Lumber Co v The Queen (1889) LR 14 AC 46 (JCPC)

St Catherine’s Milling & Lumber Co v The Queen (1889)
LR 14 AC 46 (JCPC) - Dylag
Facts:
● Land in NW Ontario - apart of treaty
● Federal gov thought under terms of
treaty and pursuant to sec 91 sub 24 of
Constitution (gives Crown legislative
authority to deal with Indigenous
population) to administer those lands
● Because they thought they had this right
they began granting timber licenses to
the company in question
● Province of ON challenged this and said
they had the exclusive right under s 109
of Constitution (Prov deals with natural
resources of province)
Reasoning:
SCC: ruled against federal gov
● Further appealed to privy council in England
● How they tried to define Indigenous title (identified
source of Indigenous title laid in Proclamation)
● Sees Indigenous title gives them a right to use and
benefit form land (read very narrowly)
● More or less how Indigenous Title was interpreted by
courts for the next hundred or so years

Aboriginal Title

“Although I think that it is clear that Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the
Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one
in the solution of this problem to call it a “personal or usufructuary right”. What they are asserting in this action is that they had a right to continue to live on their
lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was “dependent on the goodwill
of the Sovereign.”

- Calder v British Columbia [1973] SCR 313

*1973 that began to change
 Calder v British Columbia [1973] SCR 313 - Dylag Facts:
● Niska brought an application against AG
for BC for declaration that they had
Aboriginal Title to land in question and
that they never extinguished the land or
ceded territory to BC
● In BC no treaties (unceded territory and
Crown can’t make claim of ceded
territory)
Reasoning:
COURT: SCC dismissed appeal
- 6 judges said title existed
- 3 said title extinguished
- 3 said title not extinguished
- 7th dismissed it on procedural grounds (didn’t have
right to sue Crown)
- Reject earlier definition of earlier Indigenous Title

● Where the gov didn’t have treaty with land they said
they should start making treaties
● Long and ongoing and led to Constitution Act of 1982

Constitution Act, 1982

35 (1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed

(2) In this Act, aboriginal peoples of Canada includes the Indian, Inuit and Métis peoples of Canada.

(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.

(4) Notwithstanding any other provision of this Act, the aboriginal and treaty rights referred to in subsection (1) are guaranteed equally to male and female persons.

Sui Generis

“Aboriginal title has been described as sui generis in order to distinguish it from “normal” proprietary interests, such as fee simple. However, as I will now develop, it is also sui generis
in the sense that its characteristics cannot be completely explained by reference either to the common law rules of real property or to the rules of property found in aboriginal legal
systems.

- Delgamuukw v British Columbia [1997] 3 SCR 1010

● if indigenous title not a mere usage then what is it

● “Of its own kind” = “sui generis”
● Our common law system can’t explain it on its own (need Indigenous law to explain)
 Delgamuukw v British Columbia [1997] 3 SCR 1010 -
Dylag
Tsilhqot’in v British Columbia, 2014 SCC 44
*Establishes test for Indigenous Title
“Defined what Aboriginal title means. The court ruled title includes the right to the benefits associated with the land and the right to use it, enjoy it and profit from it.”
Facts:
● Claim filed in 1984 (13 years of litigation)
● Examining treaty #8 which was concluded
in 1899 and covered vast territories of
western provinces
○ Granted Indigenous population
right to hunt on privately owned
land
● Chiefs claimed portions of sq/km of BS
● Divided in 133 individual territories for
simplicity - trial judge went to each
territory (didn’t assess as one unit) but
specifically at what was going on in each
territory
● Originally claim was for ownership of
territory and jurisdiction over it - BC said
that is improper
○ Eventually justification was
changed to title of the land
Reasoning:
COURT:
- Ordered a new trial after 364 days of trial
- What does a Suis Generis title mean
- Suis Generis has several characteristics or
dimensions
1. Inalienable to third parties → land
held by indigenous title cannot be
transferred or surrendered to anyone
but the Crown
2. Source of the title → originally (court
originally thought) royal proclamation
where this title came from → but just
merely recognized title it existed prior
to → title arises from the fact that the
land is occupied by Indigenous
people, not just in physical act of
occupation (proof of possession of
land) but also from the fact that
possession and occupation occurred
prior to the assertion of the British
Sovereignty → other title arrives after
British sovereignty but Aboriginal
predates (could apply after?)
3. Communal nature of the land →
indigenous land cannot be held by
one individual → held by nation or
community
 Tsilhqot’in v British Columbia, 2014 SCC 44 - Dylag
Facts:
● Province of BC granted forest license to a
company within territory of nation
● People objected to commercial logging
license and sought help from court for
declaration to prohibit commercial
logging
● Blockade of bridge that logging company
was trying to fix up
● Premiere promised no further logging
without consent of people
● Talks broke down
● In 1998 the Tsilhqot’in amended claim to
include title to land
● In 2002 trial commenced over 5 years
(339 days)
Reasoning:
COURT:
- Trial: in principle entitled to declaration but for
procedural reasons refused to give declaration of title
- BCCA: Tsilhqot’in had not established claim to title but
left open possibility to claim specific title to specific
sites
- Confirmed hunting and trapping rights
- SCC: asked to affirm Trial judge findings and go further
and make the declaration that it’s their title
- long judgment
- Radical title
- When can the Crown infringe on Indigenous
title

Legal Characteristics of Aboriginal Title: (Degalmut)

1. Radical Crown title is subject to Aboriginal Land interests where established.

2. Aboriginal title gives the Aboriginal group the right to use and control the land and enjoy its benefits;
3. Governments can infringe Aboriginal rights conferred by title but only where the can
○ (i) justify it on basis of a compelling and substantial purpose, and
○ (ii) establish that the action is consistent with the Crown’s fiduciary duty;
4. Resource development on claimed land where title has not been established requires the government to consult with the claimant; and
5. Governments are under a legal duty to negotiate in good faith to resolve claims.

Test for Aboriginal Title

● Aboriginal title to land is based on ‘occupation’ prior to assertion of European sovereignty.

● Occupation must possess three characteristics:
1. Sufficient; (actually to sufficient to their livelihood)
 ○ Not every passing travel along the ground will mean sufficient (not just passing through an area)
○ Has to be understood from Indigenous (practice, customs, traditions) and Common Law perspectives (possession and control)
■ Fishing, hunting, exploitation of resources,
■ Building dwelling houses etc.
2. Continuous (where present occupation relied on); and (question for trier of fact)
○ Customs and traditions etc. existed prior to European sovereignty
○ Still have some sort of occupation today (doesn’t have to be unbroken chain)
3. Exclusive.
○ You can exclude others from using it
○ At time of sovereignty had capacity to contain exclusive control
○ Doesn’t mean presence of other groups negates exclusive control but show that had some capability to exclude others from land (they
needed permission to come on land etc.)
○ (in relation to other aboriginal peoples)
○ Must consider common law and aboriginal law

COURT:
- Archaeological evidence and Oral evidence of continuity
- Showed exclusivity
- SCC agreed with trial judge

Reserve Lands and Land Reform

Indian Act, RSC 1985, c I-5

● Primary law for the management of Reserve Lands
○ Over 600 bands in Canada and over 2,000 reserves
■ 165 approx. have signed onto it by 20__
○ Also deals with Indian Status and First Nation governance
○ Applies to First Nations
■ Not to Inuit or Metis
○ Problematic Act
■ Paternalistic
■ Gov asserting authority over 600 nations
● First introduced in 1876,
○ Continued policy of Royal Proclamation, 1763
 ■ Advanced policy of assimilation
● A new version passed in 1951
○ Since then amended many times
*Pierre Trudeau wanted to take away Indian Act (White Paper)
- It was problematic
- But didn’t want to replace it just said they can be like any other Canadians

*SEE T2 NOTES FOR PROVISIONS

In Class Exercise:

● Using the worksheet posted on Brightspace, compare the property rights established by ss. 20-45 the Indian Act to those of a fee simple AND of Aboriginal
title.
○ In what ways are the property rights described in the Indian Act, similar and/or different from the common law estate in fee simple and Aboriginal
title?

Comparing Aboriginal Title to the Fee Simple Estate

LAND

Land Reform Land Codes Musqueam Land Codes

● Framework Agreement on First Nation Land
Management signed in 1996
○ Originally included 13 First Nations
○ As of October 2019, 165 First nations have
signed onto the Agreement
● Land Codes are drafted and approved by
the community
○ Once ratified 44 sections of the
Indian Act no longer apply
○ Does not need to be approved
Preamble
Whereas the Musqueam Indian Band has entered into the
Framework Agreement on First Nation Land Management with
Canada on February 12, 1996, that was ratified on behalf of the
 ● Signatories opt out of the land management sections
of the Indian Act, and develop their own Land Codes
○ Agreement is not a treaty and does not
affect existing treaty rights
○ As of October 2019, 91 First Nations have
enacted their own Land Codes
● Ratifying legislation Framework Agreement on First
Nation Land Management Act, SC 2022, c 19, s 121
○ Repeals First Nations Land Management Act,
SC 1999, c 24
by the Minister (only needs to
be approved by community)
○ Government no longer involved
in decision making of First
Nations’ Land and resources
(does not affect title)
● Title to land is not affected
○ Still held by the Crown for use
and benefit of First Nation
Government of Canada by the First Nations Land Management
Act, S.C. 1999 c.24.
And Whereas the Musqueam Indian Band wishes to manage its
lands and resources, rather than having its lands and resources
managed by the Department of Indian Affairs on its behalf under
the Indian Act:
Now Therefore, this Land Code is hereby enacted as the
fundamental Land Law of the Musqueam Indian Band

● Purpose is to further the desire of self-governance and

manage their own land vs gov

*SEE T2 NOTES FOR PROVISIONS

UNIT IX - QUALIFIED TRANSFERS

Basic Concepts

Future Interests

“An interest in property in which the right to possession or enjoyment of the property is postponed to a future time. Nevertheless, it is presently existing interest in
the property, and it is thus part of the total ownership of the property…”
Anger and Honsberger Real Property, Vol 1 (2nd ed., 1985)

● Made possible by the “estate”

● Arouse as way to control land into the future
○ Results in legal “tug of war” between grantors and grantees
■ Grantors wanting to control land after they’re gone
 ■ Grantees wanting to do whatever they want with it
○ State has economic interest in keeping land freely alienable

Recognized Interests

● Future Interests:
○ Reversions
○ Remainders
○ Contingent Interests (condition precedent)
■ Transfers or grants of property that require conditions to be met for the grant to happen/trigger (when they turn 25 for instance)
○ Defeasible Interests (condition subsequent)
■ Some condition in future that can result in transferee losing title (want land band)
■ Can be defeated
○ Determinable Limitations (internal limitation)
■ Internal limitation built into transfer itself
■ Not a condition
■ I am giving you this transfer for this amount of time
*Determinable and Defeasible have little difference

Reversions and Remainders

Ex.
- To A for life → Once A dies it comes back to me as the grantor (the grantors future interest in the land returning back to them)
- To A for life then to B in fee simple → no longer reverting back to grantor (no reversionary interest) → up until A’s death B’s interest is future interest
(remainder interest)

● Stuartburn (Municipality) v Kiansky, [2001] 8 WWR 145 (QB)

*if a right is not certain then it’s contingent
Stuartburn (Municipality) v Kiansky, [2001] 8 WWR 145 Facts:
(QB) - Dylag ● Application brought by municipality
whether Kiansky was able to hold office
● Must hold land or be a tenant or occupier
of land within municipal region
● At time of application Kiansky sold his
home and moved outside district but still
had interest in grandmother's life estate
(future interest in that property within
the electoral district)
○ Recorded in land titles office - he
was registered owner of estate in
remainder
Reasoning:
COURT:
- He has a present right
- Allowed to hold elected office
- Know someone will die just not the date (event is
certain)
- Remainder interest is a present right even though the
enjoyment of property is postponed
- There can’t be a gap in ownership in common law
Notes:
Take away:
● Vested in possession versus vested in interest
● Vested and certain versus contingent and uncertain
*if a right is not certain then it’s contingent

Right of Reverter: a present interest (it exists) and know it’s going to revert back
Right of Reentry: doesn’t exist until the ___ happens, created out of thin air at that time
- Similar to a reversion but not because not automatic they have to initiate it
1) To A for life but should A predecease me then to B for _____ (bold is gift over)
Contingent Interests (Condition Precedent)

“To A for life, remainder to B when and not before B turns 25 years of age”

● A right subject to a condition precedent

○ Attainment of an age
○ Marriage
○ Birth of child
○ Citizenship
● Consequence of invalidity:
○ Condition voided
○ Grant voided with it
*if B dies and then A dies then goes to A’s estate

*in order to get the grant you have to meet a condition, if the condition is not met then it’s void.

Interpreting Contingencies
 McKeen Estate v McKeen Estate, 1993 CarswellNB 35
(QB) - Dylag
Facts:
● Testator died in 1981 and his will directed
that his entire estate be held in trust for
his wife for her life (dies 1992)
● Upon her death specific gifts of money to
people and real property to people
● Residue to be divided between sisters
equally if both alive if only one alive then
residue goes to sister absolutely
● Two sisters died in 1989 (before the wife)
Reasoning:
COURT
- Could go back to grantor's estate or sisters estates
- If contingent on sisters having to be alive to get it then
it goes to grantor
- If not contingent then goes to sisters estates
- Testators intent is of concern
- This man knew what he was doing, what to do with his
money, prescribed a substitute executor instead of his
wife → probably didn’t want to die intestate
- Based on this the sisters interest started right away,
not contingent so it goes to sisters estates
- Vested interest with possibility of devesting
should they predecease each other

*Courts make certain presumptions without evidence

- Will presumed the testator intended to dispose all of
their property (trying to avoid without a will without
heirs etc.) People don’t intend to die intestate.
- Intend to create vesting rather than contingent
interests (words identify these)

● Rule in Browne v Moody, [1936] OR 422 (PC):

“Where in a will the only gift is to be found in a direction to divide among certain legatees and the time for division is postponed permitting the enjoyment of
a prior life interest and not for reasons personal to the legatees, the vesting of the gifts in remainder is not postponed until the death of the life tenant but
takes place immediately on the death of the testator.”

- Basically saying: where you have a transfer of property for a life estate and the remainder goes to someone else, we are going to presume that this
remainder vests immediately if there is no other condition expressly stated otherwise

Defeasible Interests (Condition Subsequent)

 “To A in fee simple, provided that the property is used for a museum”

● An interest that terminates upon the occurrence of a specific event (condition subsequent)
○ Operates to defeat the grant
● Event creates a right of re-entry
○ Grantor holds a possibility of reverter
○ Subject to rule against perpetuities
● Consequence of invalidity:
○ Condition severed from grant
○ Grantor’s right of re-entry is destroyed
○ Gift becomes absolute

*Looks a lot like covenant but a covenant is a contract and runs with land - this is a part of the transfer

Determinable - could be present interest (if reversionary)

Rule Against Perpetuities

 ● Requires that future interests
○ (i) be certain; and
○ (ii) be able to vest within 21 years of the life of the last person alive at the creation of the interest
■ I.e., child and father at creation, once father dies then child has it only for 21 years
■ When someone is pregnant the last person alive is the fetus
■ If someone is 95 when they get is going into 100s
● Exists to limit power of grantors
● Perpetuities Act, SNS 2011, c 42
○ No longer exists in NS - could just create a corporation - kind of pointless Act

Determinable Interest (Limitations)

“To A in Fee Simple for as long as they stay in school”

*Built into grant

● An interest that automatically comes to an end on the occurrence of a specific event

○ Internal limitation
○ Event may never happen
■ E.g., To A in fee simple until he marries
○ Upon occurrence of event, reverts back to grantor
● Consequence of invalidity:
○ Entire grant fails
○ Grantee gets nothing
 Caroline (Village) v Roper - Dylag Facts: Reasoning:

● 1925 Thomas roper allowed community - Perpetuities?

hall to be built in his land, but he retained - Words are future tense “to the trustees so long as it is
title used as a community hall”
● 1946 he died and widowed inherited last - Defeasible
● 1949 a member of community hall - Estate of Thomas Roper got remedy no matter how
wanted to build a basement and said they looked at it
would be easier if transferred to them
○ Wife agreed but only for
community hall
○ She includes separate doc that
says the land shall be reverted
back to late Thomas Roper estate
if used for anything else other
than community center (not in
title doc, separate)
● Community hall transferred around to a
bunch of people and eventually ends up
in hands of village
● 1982 hall burned down and land left alone
● 1987 the village wanted a determination
of who had title to the land because they
wanted to commercialize the land
● Grandkids came in and said it should
revert back to them if not used for
community hall

State Limitations on Private Power

Grounds for Invalidity

A court may find a condition invalid on one of the following grounds:

1) The condition is impossible to fulfill;

2) The condition is too uncertain;
3) The condition imposes an undue restraint on alienation;
4) The condition violates the rule against perpetuities; or
5) The condition contravenes public policy
Consequence of Invalidity

● Contingent interest (condition precedent)

○ Condition voided
○ Grant voided with it
● Defeasible Interest (condition subsequent)
○ Condition severed from grant
○ Grantor’s right of re-entry destroyed
○ Gift becomes absolute
● Determinable limitation
○ Entire grant fails

Impossibility

1) “The condition is impossible to fulfill”

“Where a Testator grants a bequest, subject to a condition which is impossible, the dominant intent must be the gift, because to intentionally draft into a will
a void condition is an absurdity.”

- Unger v Gossen, 1996 CanLII 1062 (BC SC)

 Unger v Gossen, 1996 CanLII 1062 (BC SC) - Dylag
● A condition is invalid if it’s:
○ Physically impossible to fulfill; or
○ Legally impossible to fulfill.
I.e., grant invalid if “move land to NS” → Impossible
Uncertainty
Two standards:
1. Conditions Precedent - must be possible to say with certainty that any proposed beneficiary is or is not a member of the class
● language must be capable of some reasonable meaning.
Facts:
● Person died on May 8, 1994, left a Will
● Estate of $150K
● Will provided entire estates should be
held in trust for her sister then divided
among 3 nephews provided they become
residents of Canada within 15 years of her
death
● Sister predeceased testator
● At time will was drafted, the 3 nephews
were residents of Soviet Union
● At testators’ death they were residents of
Germany
● At time of death, they were all 65+ years,
none spoke English, highest level of
education was grade 7, no money
○ Immigration lawyer: none
eligible to immigrate into Canada
○ Legally impossible for them to
become Canadian
Reasoning:
- Where you have a condition that it is impossible by
the operation of law
- The condition should be ignored if condition was not
sole motivator for the gift
- If can be determined if the testator's reason for
imposing conditions is no longer valid
- Grant should be void because impossible but
exception
- Whole intention of testator was that didn’t want
money going to Soviet Union (wants nephews to have
it but not go to SU)
- Will made this clear
- Donated a bunch of money engaged with that
kind of activity
- Now in Germany, so that condition is no longer valid
Notes:
- it does not matter if the condition becomes
impossible before or after making the will
- Doesn’t matter if testator had knowledge of
the law (knew if legally impossible)
- Courts don’t like voiding entire grants; they like to
find a way
 ● lower threshold of certainty
2. Conditions Subsequent / Determinable Limitations - must be able to see from the beginning, precisely and distinctly, what events would trigger the condition
● Higher threshold of certainty; more vulnerable to scrutiny
I.e., as long as it allows the family to use it → who is the family?
Facts:
HJ Hayes Co v Meade (1987), 208 APR 419 ● Owns a farm and dies in 1929
*On condition that each of the children “…reside on said land ● Farmhouse to wife for life and rest for son
and cultivate the same.” Harold
● Divided farm into 2 lots and left them to
nephews Frank and James
● If either of two nephews did not reside on
land, then it would go to Harold upon
payment of $1000
● In 1929 Frank took possession of his lot
but James moved to USA
● Later James moved house on that lot and
then died and left the house to wife?
Decision: James gets the grant
Facts:
Fennel v Fennel, [2012] NJ No 63 (SC (TD)) ● Josephine Fennel died on Nov 5, 2008
*On the condition that “..all of my family can make use of the ● Left family home to 5 of 11 children who
said house at any time without costs provided that they share didn’t live in NFL
in the upkeep of the said house” ● Wanted home base for them to come
back too
● all of my family can make use of the said
house at any time without costs provided
that they share in the upkeep of the said
house
Decision: House went to the 5 children absolutely
no conditions attached
Undue Restraint on Alienation
*can’t tie it down forever, want to go to market at some point, economics
Reasoning:
- James not residing on land (not vested)
- Can’t be vested in Harold (didn’t pay $1000 from
James to Harold - cannot vest)
- Land would revert back to Grandad (no residue)
- Then would go to testate (don’t want that, not going
to interpret it that way)
- Intention of testator: no question wanted sons to have
the land, each to receive something, no justice in
testate, better that James receives something
- Condition was subsequent and uncertain so void
- So then given to James absolutely
Reasoning:
- Condition subsequent
- Void due to restrain on alienation
- Void for uncertainty?
- Who falls within the class of family? Immediate
siblings? Or their kids? or?
- How much does one need to contribute
- What is the timing of monetary payments
- No contextual analysis in will to help answer these
questions
- Therefore, condition void
- Condition subsequent, grant becomes absolute
 “Therefore, a testatrix giving an absolute interest in her property cannot, at the same time, impose a condition on the gift that deprives the beneficiary of the rights
recognized in law as part of the essential nature of the absolute gift.”

- Fennel v Fennel, [2012] NJ No 63 (SC (TD))

● Reasonable restraints:
○ Right of first refusal
○ Prohibition against a partition

Facts:
Trinity College School v Lyons, 1995 CarswellOnt 403 ● Selling parts of farm to school
(Gen Div) ● In one agreement they gave the school
*Restraint on alienation the right of first refusal to purchase a
specific lot (the lot they lived on for $x
amount)
● Property given to daughters?
● School suing for specific performance
want land or damages of value of land
● Sisters say problem doesn’t arise because
transferred before death (says on death)
Reasoning:
- Right to purchase generally is okay → where a person
has a right to meet any offer made it’s generally
acceptable (put on market, X offers $100K, asks them
if they want to match)
- Repugnant to say they have to buy for a specific
amount of money or to specific person (fine to say
family to meet market price but unreasonable to say
only can sell to family)
- Should’ve respected contract and allowed them to buy
it

The Rule Against Perpetuities

*don’t like dead people having control, “can only use for a museum” but only for so long

● Requires that future interests

(i) be certain; and
(ii) be able to vest within 21 years of the life of the last person alive at the creation of the interest
● Exists to limit power of grantors
● Perpetuities Act, SNS 2011, c 42

Contravenes Public Policy

“Nonetheless, there are cases where the interest of society requires the court’s intervention on the grounds of public policy.”
 - Re Leonard Foundation Trust, 1990 CarswellOnt 486 (CA)
● Considerations:
○ What is public policy? Who decides?
○ Testamentary freedom v Public Policy
■ Competing interests
■ You should be able to do what you want with your property v live in society and have to do what is accepted
○ Public, Quasi-public, Private
■ Different standard for donating money as private citizen vs public organization vs quasi-public organization
Re Leonard Foundation Trust, 1990 CarswellOnt 486
(CA)
Issue:
Do recitals need to be considered?
Is this a public or private trust?
Does this trust violate public policy?
Facts:
● Leonard created an indenture on dec 8
1923 for a scholarship that contained
numerous abhorrent recitals
● Stating that the white race is the best
qualified to progress the world
● Contained various conditions for eligibility
○ British subject, white, protestant
● Scholarships to be given in priority (1st
children of clergy men, children of
schoolteachers, children of military
officers, etc.)
● Mostly male
● Female scholars not to exceed ¼ female
students
● In 1981 the trust began receiving
complaints from gov agencies including
HR commission of Ontario, Alberta etc.
● 1975 several schools began to complain
● 1972 U of T and u of A stopped processing
award
● Trust brought application to court - this is
a problem but what can we do
Decision:
Recitals need to be considered
Brought trust in line with public policy - didn’t get
rid of trust, used common law power to alter
terms of trust and use public policy to guide it (got
rid of the abhorrent terms)
Reasoning:
Can those recitals be considered in deciding the issue (how to
deal with this trust)
- They don’t have legal authority just stating contextual
belief
Recitals
- Can’t isolate recitals from trust document and
disregard them, document has to be read as a whole
- The recitals intend to give meaning etc. and need to
be viewed in entirety
- Don’t contradict operative provisions
- Throughout indenture kept making reference to
recitals etc.
- Can’t ignore recitals in this context
- Even if just to motive and not operative can’t ignore
them
Public?
- Applications from public
- Given to go to public schools
- Scholarship’s purpose
Violate public policy?
- Can only be invoked by courts in clearest of cases
(don’t want judges to impose own values instead of
societies)
- Although entitled to freedom of what you want to
happen with money - Has to be limited in case of
public trust by public policy considerations
- Can look to constitution equality rights and Charter
- Not just look to legislation but widespread criticism of
the trust - demonstrates how offences the terms are
to fair minded citizens
- Not in interest of public policy
- Brought trust inline with public policy
Not all restrictions based on a class will violate public policy
- Ok to say:
- Will go to student
- To assist historically disadvantaged
community
- Charter allows these
McCorkill v McCorkill Estate, 2014 NBQB 148
Spence v BMO Trust Company, 2016 ONCA 196
Facts:
● Reviewing testator will on application
from testator sister
● Testator gave large donation to neo-Nazi
organization
● Court should invalidate the gift based on
public policy
Decision;
Stopped gift based on public policy
Notes:
People that will challenge a will are generally
people who think they are entitled to something
Facts:
● Provided unconditionally for distribution
of estate to daughter Donna and her sons
● Will made no provisions for other
daughter Veralina because she had no
communication with him for several years
and shows no desire to have relationship
with him
● Veralina said she was disinherited
because she had a child with a man of
another race
● Brought in testimony from father’s care
Reasoning:
1. Prior to this case only conditions were invalidated but
not entire gift (Leonard was just conditions)
2. They increased the instances where policy can
invalidate based on the character or recipient
Through statute gov has banned donations to terrorist
organizations
- Neo Nazi organization not listed (doesn’t fall under
this)
Courts established a…
Test for Unworthy Heir
If at the time the gift takes effect:
1. Does core and substantial objective - immoral mission
- manifestly violating Canadian public policy / Charter
values
2. Do they do this using a legally means?
Based on test, it confines to small enough bracket, not
overbroad (judges can’t just stop gift cuz they don’t like
organization)
Can have the most despicable person be a beneficiary (can be
in jail) - law doesn’t disentitle because criminal etc.
- Again, argument for Test not being too overbroad
Reasoning:
Trial successful
Trustee and beneficiary appealed - appeal allowed
- No one even a child is entitled to be a part of a will in
Ontario
1. Veralina has no legal entitlement to share in Estate
2. Not an interpretive case, will is not ambiguous
3. Will imposes no conditions that offend public policy
- Law allows to scrutinize for public policy in restrain of
 caregiver that he was a racist
Decision:
Appeal allowed, Veralina not in will
a marriage (you’re in will provided you marry or don’t
marry a type of person) - court can intervene
- Gives money to son on condition he no longer talks to
my ex-wife - court can intervene
- Can’t intervene with parent child relationship
- Give to son but if they convert to another religion they
can’t get it - court can intervene (goes against
Canadian rights)
- These all require beneficiary to act in certain
manner

In this case no condition that requires someone to act - it’s

markedly different
Veralina points to McCorkill and says that it allows us to
invalidate absolute gifts
- Court says McCorkill doesn’t apply here (re hates
crimes against Canada HR laws)
- Not dealing with unworthy heirs, doesn’t apply
- The will does not offend public policy - can’t intervene
or bring in external evidence
- Even if it did this is a private bequest then HR
or Charter doesn’t apply - only applies to
state action
- Allows people to dispose of property as they
wish

Veralina points to other case law but distinguished on the facts

that they required trustee to act in a certain way or with
discretion (trustee chose not to give to someone because of
certain religion)

Simple unambiguous gift to Donna - not public policy issue

Even though private condition if the terms are factually

abhorrent and against HR then could change it (examples
above) but mostly not going to intervene in private matters
 UNIT X - SHARED OWNERSHIP

Basic Concepts & Creating Shared Interest

Recognized Types of Shared Ownership

● Common Law:
○ Joint Tenancy
○ Tenancy in Common
● Statutory Regimes
○ Matrimonial
○ Condominium
 ○ Cooperative

Joint Tenancy

● Where two or more people own the same interest in land

○ Each holds the whole land jointly, and nothing separately

Two features: (have to have both for joint tenancy)

1. Requires four unities
a. Unity of Possession – all co-owners share “possession of the whole”;
b. Unity of Interest – all co-owners must hold interests that are equal in extent, nature, and duration.
■ Can’t be A and B and B at 25 years
c. Unity of Title – each of the co-owners’ interests must flow from the same legal source; and
■ Same document, same transfer
d. Unity of Time – all co-owners must receive their interests at the same moment in time.
■ B at 25 years (can’t be this)
■ Exception is a Will
2. Grants Right of Survivorship

Jus Accriscendi (Right of Survivorship)

● On death of one tenant, their interest passes automatically to surviving tenant

● Continues until the estate is held by a sole tenant
● Jus accrescendi takes priority over a will or intestate succession rules
Tenancy in Common

● Where two or more people own distinct interests in the same land
○ Can be 50/50, 80/20 etc. of value of land (doesn’t have to be equal)

Two features:
1. Only requires unity of possession (can be other unity ones but doesn’t have to be)
○ (Each have full right of exclusion and possession) 80/20 only becomes relevant when i.e., selling the land
2. No Right of Survivorship
○ Upon death, interest forms part of deceased’s estate
○ A = 80% and B= 20%
○ A dies then 80% value goes to heirs not to B

Class Question

In what situation would you want to hold property as a tenant in common? As a joint tenant?

Joint Tenancy
 - If you’re married (don’t have to pay state tax)
- Family relationships (spouse children etc.)
- Avoid taxes, no transfer of documents

Tenancy in Common

- Business partnership: hold property with a business partner

- Want the money to go to kids rather than business partner

Creation

Through an express grant or devise:

“To A and B in fee simple as joint tenants”

- (grant has to satisfy the 4 unities, if it doesn't then it automatically becomes tenant in common)

“To A and B in fee simple as tenants in common”

*Clear, unambiguous

Interpretive Rules

“I cannot doubt, having regard to the authorities respecting the effect of such words as "amongst" and "respectively," that anything which in the slightest degree
indicates an intention to divide the property must be held to abrogate the idea of a joint tenancy and to create a tenancy in common.”

- Robertson v Fraser (1871), LR 6 Ch App 699

*The presumption at common law is assumed joint tenancy, if it doesn’t satisfy then tenancy in common

- Any word that suggests that there is a differing interest then tenancy in common
 ● Where ambiguous look at:
○ Words of severance
■ “Jointly”
■ “equally”, “equal shares”, “share and share alike” “to be divided between”
○ Presumptions
■ Parties created a joint tenancy
■ Rebuttable (can look to will, any indication that intention to create something else will rebut that presumption)
○ Intention

Class Exercise

A devises “to B and C as joint tenants, but should B become a lawyer, then B’s interest shall pass to D.”

● Are B and C joint tenants or tenants in common?

○ Tenants in common
○ B subject to condition subsequent
○ C not subject to condition subsequent
■ don’t share unity of interest so can’t be joint tenancy
● “B dies without becoming a lawyer” → Who holds the property following B’s death?
○ Interest would go to his estate
○ No right of survivorship

Presumptions

● Common law presumes a joint tenancy

○ Provided that four unities are met
○ Absent four unities must be a tenancy in common

Equity presumes a tenancy in common where:

1. Purchase price provided unequally.
○ Spouse A puts in $80K and Spouse B puts in $20K (why would you put in 80% for the other to get 100% in the end) → tenancy in common
2. Where two or more persons advance money on mortgage;
○ Spouse A $500K and Spouse B $500K → joint tenancy - No mortgage
 ○ Whenever a mortgage going to assume → tenancy in common
3. Partnership property
○ Not spouse but business partner, even if no mortgage → tenancy in common
■ Equity doesn’t like gifts

● Statute presumes a tenancy in common in stated circumstances

○ Look to wording of statute

Statute

Real Property Act, RSNS 1989 c 385, s 5

5 (1) Every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy
but every estate vested in trustees or executors as such shall be held by them in joint tenancy.

(2) This Section shall apply as well to estates already created or vested as to estates hereafter to be granted or devised.
 Robb v Robb, 1993 CarswellBC 110 (SC) Vancouver
*Joint tenancy or tenant in common
Issue:
Who is owners of shares in capital of condo tower
and who holds leasehold interest in suite?
Joint tenancy or tenant in common?
Facts:
● Husband had interest in shares of a
condo and a suite
● He dies and wife has it all
● Kids wants declaration
Decision:
Shares and Lease joint tenancy
Ratio:
Courts acknowledge that equity will presume a
tenancy in common in these situations
Charge should include assignment of a lease
Reasoning:
The owner of such a suite cannot own in fee simple
- Building owned by company
- The company’s shares are owned by owners of suites of
building
- Owner pays purchase price for shares and lease
- Once acquired just have to pay common taxes and
common operating costs
- March 1960 suite 501 is granted to Auto Becker with 15
years with 38 shares of capital
- In 1965 he sold leasehold interest and shares to
Cameron’s
- In 1986 the Cameron’s died and the Robbs purchased
- When Robbs purchased the money came entirely from
Mrs. Robb, but the assignment was in favour of Mr. and
Mrs. Robb
- Neither assignment of lease etc. identify joint tenancy
or tenant in common
- Some external evidence for joint tenancy
Mr. and Mrs. Robb held property jointly
Mr. Robb dies, and, in his Will, he left everything to her
COURT
- External evidence parties wanted joint tenancy
- Later Mr. Robb transferred a Cali property to Mrs. Robb
- Makes sense he would want in jointly
- Shares are joint tenancy
● Common law - joint tenancy
● Equity - tenancy in common
● Legislation (prop law in BC) - land transferred in fee
simple charged or contracted to two or more people
will be a tenant in common unless otherwise appears
○ Court: if applies to assignment of leases then
tenancy in common
 Court however said:

Class Exercise

How would Robb v Robb be decided if it took place in Nova Scotia? (based on statute)

● Leasehold is an estate (less than fee simple but still an estates)

*Matrimonial Act generally assumes joint tenancy

Severance of Joint Tenancies and Condominiums

*equity and status will preserve a tenancy in common

Severance of Joint Tenancies

● Process by which a joint tenancy is transformed into a tenancy in common

○ Ends right of survivorship → severs joint tenancy
● Four ways to accomplish:
1. Mutual Agreement
■ Parties can enter into a written agreement
2. Unity Disruption
■ Unilaterally or with agreement destroys one of the four unities → so then now own as a tenancy in common
■ E.g., transfer an interest to oneself without the other being aware
3. Course of Dealing
■ Course of action indicating an intention to treat as a tenancy in common
4. Other means
■ Bankruptcy, court order, execution, murder (not allowed to benefit from illegal acts → will end joint tenancy)

Class Exercise

A, B and C hold title as joint tenants. A sells her interest to D.

What is the state of title?

- A can sell interest but in doing so disrupts the unities

 - Title no longer in same doc, vestment doesn’t happen at same time
- D enters in as a tenancy in common

What happens if B dies?

- They retain their interest as joint tenants (goes to C)

*If B sells interest, all just tenants in common

 Sorensen Estate v Sorensen, [1977] 2 WWR 438 (CA)
*Severance of joint tenancies
RATIO:
Without specific action or more than agreement then you
can’t sever → if it impacts right of survivorship than
sever ???
Need to actually do an action
- in order to sever land your action must go to chief
characteristic of joint tenancy, being right of
survivorship
- if your action does not go to right of survivorship,
joint tenancy will not be severed
- you need to take action, declared intent is not
enough – you need to actually transfer the land
Notes:
Death bed wish:
- Despite what my Will says i want you to have all my
jewelry → this is valid
- But can’t give away property
Issue: Did any of the following actions sever the
joint tenancy: (are they joint tenants?)
1. Execution of the divorce settlement
2. Execution of the trust deed
3. Execution of the will
4. Commencement of action for partition of
lands
Facts:
● Mrs. S and Mr. S own tow lots as joint
tenants
● Divorce in 1969
● According to divorce settlement Mrs. S is
to retain lot with house on it and they
executed a lease in favour of Mrs. S for
nominal rent
● They agree to sell the other lot (not clear
if they sold it)
● A third lot somewhere
● They had a son who was suffering from a
mental disability and will never be fully
independent. (lived in group home)
○ Mr. S agreed to pay Mrs. S $100
per month for support
○ Registered security against the
house for him (if Mr. S stops
making the payment she can
seize his interest in the property
with house)
● 1974 Mrs. S was diagnosed with cancer
→ wanted to sell property to provide
capital for her son
● Executed a trust deed declaring her
interest in the 3 lots to be in trust for her
son
● Executed a transfer to sever joint tenancy
● In will her 2 daughters as trustee to pay
income from sale to son etc.
● Brought a motion to partition lot but died
before
Decision: Joint tenancy severed due to the trust deed
Reasoning:
Person alleging severance has BOP (daughters)
1. Execution of Divorce settlement
○ Does not constitute severance of title
○ the subsequent conduct of MRs S (executing a
trustee where she is serving property)
evidence that she thought the divorce
settlement hadn’t severed it
○ Lease agreement not enough because doesn’t
impact right of survivorship (lease was just for
life)
○ Securities they placed on house doesn’t
impact chief characteristics being right of
survivorship (on MR S the charge would seize,
and she would get the property - even if
arrears the husband estate would be liable for
arrears but she could pursue those arrears
through other avenues)
2. Execution of Trust Deed
○ Wife in trust deed stated that she intended to
sever joint tenancy
○ But no evidence that trust came to intention
of the party
■ Have to have an action
○ Declaration by one party not shown to other is
not severance
○ If she transferred to herself immediately there
would be a severance but the trust doc
delayed severance until her death
○ Upon her death the right of survivorship would
be triggered before legal transfer could
happen (legal title to husband)
○ She made her son an equitable beneficiary
■ Court said that gift of equitable title
to the son severed the joint tenancy
■ Transferred the gift immediately (was
enough to sever it)
■ Enough of an action
 ● Mr. claims through right of survivorship 3. Execution of the Will
that his is the sole owner of the 3 lots ○ Not enough to sever joint tenancy → no
transfer of property
○ The solicitor would not be able to deliver to
son - can’t because right of survivorship is
immediate
○ Even if death bed gift you can’t give property
in this way
4. Commencement of Action for Partition of Lands
○ Not sufficient
○ No court order
○ Intention to sever without an any other act is
not enough
○ Have to follow through with entire action and
get order
■ Even if she passes away in the middle
of it

Rights and Obligations of Co-Owners

● How do co-owners establish the rules that govern shared ownership?

● Great deal of discretion at common law
○ Contract (e.g., rental agreement in Sorensen)
○ Norms

Remedies

1) Ouster (common law)

● Liability to pay occupation rent when one co-owners unlawfully “ousted” another (denies to other co-owner)
○ Court says the other will have to pay rent to the co-owner for kicking them out of their property
2) Accounting (common law)
● Action against co‐tenant for receiving more than just share / disproportionate benefits
○ If one co-owner collecting money and doesn’t pay the other co-owner
3) Waste (common law)
● Co-tenants are liable to each other for waste / “unreasonable use of land”
 ○ If one co-owner destroying the property
4) Equitable Accounting upon Partition and Sale (equity)
● Accounting for e.g. joint liabilities, expenditures for reasonable upkeep of property, insurance, etc. where there’s partition and sale; when court
orders an end to the co-ownership
○ What Mrs. Sorensen tried to do (action that never finished)
5) Agreement
● Co-owners can sue for breach of contract

Regulating Property Ownership

*The past remedies now don’t make sense??

“Halifax approves new short-term rental regulations starting in September”

● What are the new regulations?

○ In residential areas any rental or lease has to be longer than 28 days
○ Has to be your primary residence
○ If separate basement apartment has to be long term
○ Can rent out room in house
● Arguments in favour? Arguments against?
○ Favour:
■ Free up like 1300 rentals as of September (rental units coming back on market during housing crisis)
■ Brings in economic benefit to areas that are seasonal property and would be sitting otherwise ?
○ Against:
■ Might result in people going underground
■ the single mum losing income
■ You can more regulate in Airbnb’s than in long term rentals (more control)
■ Targeting smaller enterprises rather than landlords that can buy units in commercial zone and set rent at whatever
● Targeting wrong person
■ “It’s my property I can do what I want”

Condominiums

● Form of land ownership wherein:

 ○ Individual own distinct parcel in fee simple, which is separately taxed, owned etc.
○ Collectively own common property
■ Entrance, elevator, hallway, etc.
○ Obligation to contribute to maintenance of common property
■ Signed condo agreement, condo fees
○ Possess voting rights in governing association
● Governing association (voted in by owners)
○ Manages and maintains common property
○ Creates and enforces rules
■ Condo fees, use fees to pay workers etc.
● Creature of statute (given power by statute)
○ In common law, a covenant to contribute to common property would not survive transfer

Condominium Act, RSNS 1989, c 85, ss 2, 23, 27-28

Purpose

2 The purpose of this Act is to facilitate the division of land into parts that are to be owned individually, and parts that are to be owned in common, to provide for
the use and management of such properties and to expedite dealings there with, and this Act shall be construed in a manner to give the greatest effect to these
objects.

- Bylaws
- Gives boards power to create bylaws etc.
- Every province has one

Condos

- More affordable in cities where no land

- Developers and gov love it because they bring in a lot of money
- People can own

Short Term Rentals

● Property Owners possess common law right to alienate property

○ This includes renting property to tenants
○ May be displaced by legislation or bylaws
■ Condo board can’t take away right to alienate from property

Ottawa-Carlton Standard Condominium Corp No 961 v
Menzies, 2016 ONSC 7699
*Short Term Rentals - Condos
Issue: Is imposing 4 month min rental term
restriction legal?
Facts:
● Residential condo building - 244
residential units
● Menzies are registered owners of one
unit and lease to management corp who
advertises unit on air bnb etc.
● Article 3.1 of condos declarations says
single family dwelling occupation only
(home office)
● All other visitors etc. are to adhere to the
act, bylaws, rules
● Came to condos attention that units were
being rented for short term basis
● Owners of units were allowing strangers
into building without consent of other
owners
● Hotel in residential complex
○ Like a hotel the owner offered
stays for single night, check in
and out, cancellation policy,
reviewed by guests etc.
○ Commercial enterprise
● Board said not constituting a bona fide
single family dwelling and nuisance -
liability as well
● Need tenancy over 4 months - circulated
this notice to owners
● Menzies said illegal and violating right to
alienate
● Board brought them to court - asked
court to make a declaration if this is
illegal or not
Decision: Yes → Legal to restrict
Reasoning:
Violation of Condo Declaration
*single family dwellings
- The condo act allows the declaration to contain such
terms with respect to occupation and use of units
- No doubt respondents are violating this
- Family is incompatible to concepts like check in and out
and cleaning fees → clearly a commercial use
Rules
- Act also gives the board authority to make rules of
common areas for the safety and security of owners
- Rules re short term rentals are not overly restrictive to
rights of owners → courts fine with this
- Year long rental can still be for single family dwelling
but short term cannot (commercial enterprise)
Notes:
- At what point does a short term rental become a short
term lease (argument of transitional period for a family,
family dwelling)
- Check in and out, cleaning fees etc.
- Condo Corp has amazing powers if you breach

Anti-Social Behaviour

● Property owners cannot be dispossessed for antisocial behaviour under common-law (anti the social behaviour)
○ Subject to legislation
 ■ Could call cops, bylaw officer etc. but really that’s what you’re limited to under common law
■ Under condo act there is more power
○ Other remedies exist in criminal law and tort
Metropolitan Toronto Condominium Corporation No
747 v Korolekh, 2010 ONSC 448
*Anti-Social Behaviour - Condos
Notes:
- Commentary whether or not this should be allowed
- Court outside of range?
- What’s reasonable
- What if they are mentally ill?
- However they have bought into the
ownership structure and agreed to terms
basically (don’t have to buy into it, they
chose it - usually not cheapest option)
- Still get money from sale (could be
unfavourbale market conditions though)
- Need to weigh benefits and risks of other
owners and their safety in severe cases
Issue: Power of the Condo Act
Facts:
● Half units on ground floor half on upper
floor
● Common courtyard space - nice gathering
space, utopia
● Respondent came in and alleged in wide
ranging and serious conduct (physically
assaulting other unit holders, acts of
mischief (through gravel at someone,
broke some windows, racist and
homophobic slurs, large music at night,
failing to clean up after dog, using dog to
intimidate other, egging units, interfering
with television services)
● If proven much of conduct would fall
within Criminal Code
Decision: Forced the respondent to sell under the
Condo Act
Ratio:
Gives court ability to enforce the condo act
(power under condo act that they don’t have in
common law)
UNIT XI - SERVITUDES
Reasoning:
- Court looked at S 117 of Condo Act → prohibits
conduct likely to damage property or cause harm to
other people
- Empowered board with broad remedial powers for
compliance with the act
- Based on evidence (15-16 sworn affidavits) judge
concluded BARD violated the act
Remedy
- Given the unique factual context of the case they are
going to order respondent to sell unit and vacate within
3 months
- Building is small
- Units share the courtyard and respondent violated the
courtyard
- Behaviour is extreme
- Board ordered her to cease conduct but ignored
warning and statutory duty to take warning → didn’t
change ways or intention to change ways
- Court said unpractical to try to court mandate her
behavior so going to make her sell it
- Can’t do under common law but can under
Condo Act
Easements
*neither a legal nor beneficial interest can barr the easement

What is an Easement?

● An incorporeal hereditament – e.g., an intangible and inheritable right attached to property

○ Can’t touch it, inheritable so can transfer it and it attaches to the property runs with the land

Two types:
● Positive easement – a privilege to utilize the land of a different owner
○ Most common
○ I.e., Right of way
● Negative easement – a right to prevent an owner from utilizing their land in a specific way
○ Less common
○ I.e., Away access to light i.e., can't build a huge tower and block light

Elements of an Easement

1. There must be a dominant and servient tenement

2. The easement must accommodate the dominant tenement
3. The dominant and servient tenements cannot both be in the hands of the same person
4. The easement must be capable of forming the subject-matter of a grant
○ This is the one that often becomes basis of litigation

1)Dominant & Servient Tenement

● Dominant tenement – Benefits from easement (gain access through parcel B)

● Servient tenement – Burdened by the easement (have to let parcel A through)
● “Easement in Gross” – An easement without a dominant tenement (in US you can)
○ Cannot exist unless provided for by statute
2)Accommodation

● The easement must enhance the dominant lands (benefit the dominant tenant somehow, otherwise not an easement)
○ Sufficient nexus must exist to enhance the normal use and enjoyment of the dominant property
○ Properties need not be adjacent
■ Just needs to be a nexus between them (use and enjoyment) i.e., accessing a park
■ Not next door to each other but still gaining the benefit from that
■ The easement gives them access to what that benefits them (can’t just be right of access to someone’s property)

3)Separate Holders

● Dominant and servient tenements must be held by different parties

■ If you hold Parcel A and Parcel B it doesn’t make sense to grant rights to yourself
○ Holder of fee simple already has the full bundle of rights
● Doctrine of Merger – common law doctrine states if holder of dominant tenement acquires servient tenement (or vice versa), the easement disappears
■ If you owned Parcel A and bought Parcel B the easement would go away because you are the only holder
 ○ Subject to legislation

Legislation

Land Registration Act, SNS 2001, c 6

63(3) Where dominant and servient tenement parcels are registered in the name of the same person, a right of way, restrictive covenant or easement referred to in
subsection (2) is not merged by reason of the common ownership.
- In NS it doesn’t merge (still easement) because what if the next day you sell Parcel A after you bought Parcel B

4)Subject Matter

● The easement must be capable of being granted (of forming the subject matter of the grant)

Four characteristics:
1. Grant cannot confer a right inconsistent with the possession of the servient owners
2. Right granted cannot be too wide or vague
● sufficiently definite so that the owner of the dominant tenement knows what they are allowed to do, and servient owner knows what they must
allow
3. Cannot place a positive obligation on the servient tenement
○ Can’t say you have to build a road for them etc.
4. Subject of the easement must be acceptable to the courts
● E.g., No right to a view over servient lands
● Do not want to make the law uncertain (want law to be certain)
● Accepted classes of easements: easements for light, passage (right of way), solar access, and beach use
○ No right to view i.e. (can’t build a fence because I want view of your land?)
● Classes not closed

Easements as Durable Property Rights

● Easements run with the land

Suppose I own a piece of land and you hold an easement over it. Then I sell the land. What happens to your easement? It stays, whoever buys the property still has
that easement.
- Most title docs will have easements (from gov to be able to run wires etc.)

Conveyancing Act
Conveyancing Act, RSNS 1989, c 97

13 Except where a contrary intention appears by the conveyance, […]

(d) a conveyance of any property right in land includes the buildings, easements, tenements, hereditaments, and appurtenances belonging or in any
wise appertaining to that property right.

- Can close it by agreement (talk to township etc.) but can’t by sale etc. → both dominant and servient tenants need to agree
- Except where a contrary intention appears - if you buy a piece of land, it all goes with it

Creating Easements

Four legal ways to create an easement:

1. Express (grant or reservation)

○ Sign a contract/make an agreement, then register it on the deed
2. Implied (grant, necessity, prescription)
○ Easement is fundamentally necessary for the land to exist as it does
3. Equitable estoppel
 ○ If a property owner allows me to build a road on their property, invest money to the road, rely on it and then turn around 180 and say no you can’t
do that
○ Equity might step in and say owner is estopped from doing that because it’s unjust
4. Statute (special case)

*Between 2 property owners

- Can be through 2 properties C → B → A (hiking trail to lake)
- C gets easement through B and A to access lake (need benefit)

Express: Grant and Reservation

● Express Grant: Severing land and want to create Parcel A and Parcel B and sell Parcel A. Expressly state selling Parcel A and Parcel A has easement through
Parcel B (can be implied) - “hey you can buy parcel A but dw there’s an easement so you can access it)
● Express Reservation: Severing land and want to keep Parcel A and want easement so will reserve it on Parcel B (contingent to sale basically) (cannot be
implied) “hey you can buy Parcel B but just know that there’s an easement”

*If wanted to move location of easement (i.e., to side of land vs middle) then would need both to agree to do so
Implied:

Grant
● A “quasi-easement” crystallizes into an actual easement upon transfer by implication in the grant of land
○ Fills a gap in the absence of an express grant
○ There must be a gap to be filled
○ Continuous and apparent (can see path/road)
○ Related to reasonable enjoyment
○ Owner uses them
● Rule (guideline) in Wheeldon v Burrows (1879)
1. “Quasi-easement” must have been used by the original landowner at the time when the land was severed into dominant and servient lands;
2. Use of the quasi-easement must have been continuous and apparent; and
3. The quasi-easement must be related to the reasonable enjoyment of the dominant lands.
● Can still establish implied grant, if it is necessary to give effect to common intentions of the party at the time of the grant
● Grantor cannot claim an implied reservation
○ Grantors are responsible for drafting the grants

Necessity

● More stringent than implied grants

Requirements:
● easement must be absolutely necessary for use of the dominant lands
○ Not merely more convenient or efficient
○ I.e., A cannot access land without going through B’s property
● necessity must have existed at the time of severing title
○ Very tough to prove

Nelson v 1153696 Alberta Ltd, 2011 ABCA 203
*Easements (Implied, necessity)
Notes:
- Right of easement to access his land includes
allowing public to access his land through it
- Maybe Nelson now has to pay money to Prosnik to
access it or invest in another way to do it
Result: town basically put their own road in and made an
easement because of good business for town
Issue: Is it a public highway? Whether the TJ erred
in declaring that the Road had been dedicated to
the public
Facts:
● 3 pieces of property
● Rabbit Hill Resort leases their land from
Don and in 1968 they constructed a road
● At time of construction the land was
owned by Don and Dale
● Dale agreed to road and when it was
done leased back to the resort
● In 1985 Nelson purchased property north
(bounded by land owned by Dal and Don)
and N Sask river
○ Only way to access land is via
that road
● Nelson obtained a dev permit to build his
Shalom Park subject to obtaining
approval from road owners
● Invested about $2M into site
● Not a party to lease of road but he used
the road and contributed to the cost of
maintaining it
● Tried to get a formal
agreement/easement from Dale to use
the road but Dale never signed on
● Dale was aware of dev and use of road
and attended events at Shalom Park
● 2005 Prosnik bought Dale’s land and tried
to bar Nelson, his guests, public etc. to
using the road
● Nelson sued that it was a public highway
or that Prosnik gained an implied
easement when he bought the property
Decision:
Appeal allowed. Found that there was not a public
highway and no easement (couldn’t Est necessity
at time of original severance)
Reasoning:
- Public highway can be created at common law by proof
and dedication to by the public for use of the land
(could be footpath)
Test:
1. Actual intention on part of owner to dedicate it as
public highway
2. Intention has to be carried out by the public highway
being thrown open to the public
Dale testified that he did not intend it as a public highway
TJ said it was implied as a public highway
CA: overturned this - no public highway
1. Have to look at totality of the evidence which includes
the negotiations of Dale not giving easement (if public
highway they wouldn’t be negotiating easement)
- Dale himself he didn’t intend it
- No public highway
2. Another problem is that the “highway” is land that is
subject to a lease
- Only an owner in fee simple can dedicate a
public highway
- That would interfere with leaseholders’
interest and cannot be dedicated as public
highway
Although negotiations between parties occurred no easement
was formally entered into
Easement of necessity found (implied)
- Necessary access
- Land grant has to be inaccessible or useless without
easement
- Dale said he could access by water → court said no not
in winter etc.
- Only way to access is through the road and public use
 Dissent: said an implied necessary easement (not determinative but helpful) otherwise public
would’ve used another way
- has to be necessary at time of severance
- 1890 Crown owned land
- Don: First severance happened in 1895 to Mr.
Lightkick
- Dale: 1897 to Mr. Street
- Even though missing piece of pie at CA level
they allowed some further evidence allowed in
- Easement by implication because of necessity

Nelson is trying to maintain access to the road and claims:

- easement for necessity
- public highway “dedicated” by Dale Stelter:
o intention to dedicate
o way “thrown open”
On Easement:
Nelson is author of his own misfortune – he just assumed he’d be able to use road
Doesn’t seem like there was intention to create easement
Easements by necessity (rigorous test):
1. Common ownership before severed
2. Absolutely necessary (land must be useless otherwise)
3. Necessity existed at time of severance
THIS CASE: No evidence of this
On Dedication:
To create a public highway by dedication requires:
1. Intention to dedicate on the part of the owner.
2. Intention carried out by way of being thrown open to and accepted by the public.
THIS CASE: no intention. Previous owner accepted annual payment for use by another resort
Prescription

● An easement acquired by use “as a right”

○ Without force, without secrecy, without (formal) permission
■ Owner knows and doesn’t kick off but doesn't give formal permission
● Similar to adverse possession (“squatters’ rights”)
● Must evidence use since “beginning of time”
○ Subject to doctrine of “lost modern grant”
○ 20 years of continuous, uninterrupted, open, and peaceful use

Real Property Limitations Act

Real Property Limitations Act, RSNS 1989, c 258

PRESCRIPTION IN CASE OF EASEMENTS

32 No claim which may be lawfully made at the common law by custom, prescription, or grant, to any way or other easement, or to any watercourse, or the
use of any water to be enjoyed or derived upon, over or from any land or water of our Lady the Queen, her heirs or successors, or being the property of any
ecclesiastical or lay person, or body corporate, when such way or other matter as herein last before mentioned has been actually enjoyed by any person
claiming right thereto without interruption for the full period of twenty years, shall be defeated or destroyed by showing only that such way or other matter
was first enjoyed at any time prior to such period of twenty years but, nevertheless, such claim may be defeated in any other way by which the same is now
 liable to be defeated and where such way or other matter as herein last before mentioned has been so enjoyed as aforesaid for the full period of twenty-five
years, the right thereto shall be deemed absolute and indefeasible, unless it appears that the same was enjoyed by some consent or agreement expressly
given, or made for that purpose by deed or writing

Scope of Easement

● An owner of the dominant lands cannot, without the consent of the servient owner, increase or expand the easement beyond the scope of the grant
● Excessive use of an easement is considered trespass
○ Matter of degree; type of use; foreseeability
● Issue can occur when use changes over time due to changing circumstances
○ E.g., A right of way that was once a country path is now a 4-lane highway

Laurie v Winch, [1953] 1 SCR 49
*Right of Way (Easement)
Issue: Decision: Right of way but just in yellow area
Was there a right of way or personal license
through lot 33? What did right of way include? Reasoning:
Facts: - No dominant tenement so personal license → court said
no there was dominant tenement so right of way
● Laurie owns 3 lots (including lot 33) and - Ambiguous where the right of way is (just using over
trying to stop Winch from passing over yellow part)
them (applying to court) - Intent of parties to construct it
○ Every single one of the lots has - Right of way was granted not personal license
to go through her lot - The fence reinforces that yellow is the only way to enter
○ Wasn’t an easement to John land (right of way was there but limited to yellow)
Smith but a personal license? - Farm lane is the only way to get to the road
○ If found to be an easement it is - No utility to go anywhere else on lot 33
limited to what it was at time of
conveyance (farm buildings not
dev) Intent:
○ By filing plan 320 and selling all - Agriculture
the lots the change inc - Only farmland but no reason to think it’ll be farmland
circumstances amounted to an forever
extinguishment of the easement - No circumstances restricting it for just farming land
● 1910 – Sheppard owned all the lands, - Even though at time of grant it was just farmland and
and registered Plan 103 to divide the now there’s all these lots (from it being subdivided)
property into lots. Lot 33 (green line) doesn’t matter
was intended to be used as a back lane - Still only right of way in yellow area
for the other lots. There was a wire fence
running along the eastern side of lot 33
● 1917 - Sheppard sold the farmland east
of the Plan 103 to Farmer Smith. Prior to
the sale and after sale, occupants of the
farm used Lot 17 to reach lakeshore road.
Smith subsequently bought Lot 17 from a
successor of Sheppard
● 1925 – Sheppard granted a deed to Smith
with the following wording “…I hereby
given to John Smith… his heirs executers
and assigns a perpetual right of way of
Lot 33….”
● 1944 - Winch purchase the Smith Farm as
well as lot 17 together with “a perpetual
right of way over lot 33” based on the
 purported grant previously given to
Smith
● 1946 - Winch registered Plan 320. Lots on
320 were sold with a right of way over
Lot 17 and Lot 33
 Facts:
Malden Farms Ltd v Nicholson, [1956] OR 415
*Easements
Decision: Appellant isn’t allowed to use Malden’s land for
● 1916 – Ledyard, Bulkley and Chappus camping, ROW not for anything beyond residential
owned a parcel of marshy land (which
Reasoning:
became Malden farms). They obtained an
express grant for a right of way from - Looked at language of right of way and grant
Charles Barron over a 20-foot strip of - Not only grant of N S right of way but also Malden’s
adjoining land to the east (the yellow ROW
- Based on language Nicholson’s use of right of way has
strip) gone much beyond the extent of the easement and
● 19?? – Charles Barron sold some of his needs to be estranged
land on both sides of the right of way to - The law says a grantee of the ROW is not entitled to
the predecessors of the defendant increase the burden of the ROW
- But the legal extent of ROW might allow him to
Nicholson, together with a right of way
??
over the right of way granted to Ledyard, - Motive use vs extent of use
Bulkley and Chappus - Just adding more buildings vs now using it as a
● 19??- Chappus bought out Ledyard and commercial road (can’t do this)
Bulkley and then purchased the rest of - Granted injunction
- Appellant isn’t allowed to use Malden’s land for
Barron’s land including the land subject camping, ROW not for anything beyond residential
to the right of way (the yellow strip)
● 19??- Malden farms acquired Chappus
property
● 1941 – Dayus (predecessor of defendant
Nicholson) arranged with Malden Farms
to shift a portion of the right of way north
300 feet. Malden Farms did not
relinquish its ownership of the fee simple
in land originally subject to the right of
way
● 1952 – Dayus threw open his lands as a
beach-resort and attracted large numbers
of patrons who flocked to the premises.
During picnic and camping seasons
hundreds of cars and patrons traveled up
and down the “new” right of way. They
also parked, picnicked, and camped on
 the right of way as well as on Malden
Farmlands which comprised of the
original right of way

Difference between two cases:

- Motive in first case hadn’t changed - still residential use
- In second change motive changed from residential use to commercial use

Restrictive Covenants

What is a Covenant?

● A promise, in writing, that has been signed, sealed, and delivered (no need for consideration)
○ Used to create rights enforceable by one landowner against another

Two types:
1. Positive covenants – requires party to do something or expend money in relation to the land
○ Generally, cannot “run with the land”
2. Negative covenants (restrictive covenants) – requires party to refrain from doing something
○ May “run with the land” under certain conditions

Origins

“It is said that the covenant being one which does not run with the land, this court cannot enforce it; but the question is, not whether the covenant runs with the
land, but whether a party shall be permitted to use the land in a manner inconsistent with the contract entered into by his vendor, and with notice of which he
purchased.”

-Tulk v Moxhay (1848), 2 Ph 774 (Ch)

 Tulk v Moxhay (1848), 2 Ph 774 (Ch) - Dylag Facts: Reasoning:

● P owned square (didn’t develop) and sold
to Elm (with covenant)
● House surrounding used it (owned by P)
● Covenant that the P would maintain the
ground and iron railing (open state) and
at own time
● Would grant tenants access to it on
payment of rent
● Elm sold to def and def plans to develop
it
● P brought application to court seeking
injunction to restrain def from building
on it
- Def said didn’t sign it so not bound
- If we allowed, you to do that it would be possible for
owner to sell part of their land and the new owner to
build something to make original owner land worthless
- Def said covenant doesn’t run with the land
- Judge said not issue if run with land or not - did you get
notice of covenant with sale of land? If so, you should
be bound by it (see quote above)
- Can’t build (def has burden
Note:
- Rule: A covenant can restrict future owners where the
future owners are given notice of said covenant

Modern Laws: Burden (Requirement to Attach)

*Need more than just notice

● Burden of a covenant cannot be transferred at common law

○ No privity of contract
● Burden of covenant can attach to land in equity. Requirements: (need all)
1. Covenant must be negative
2. Intended that burden run with the land
○ Continuous (not just between parties but with land)
3. Appropriate notice
○ Registration at the land titles office
○ If the person doesn’t know, isn’t there
4. Taken for the benefit of the dominant land and those lands must be sufficiently identified
*doesn’t need to be next to each other but needs some sort of proximity
*needing a dominant and servient tenant has been changed by legislation

Land Registration Act, SNS 2001, c 6

Effect of condition and covenants

 61 (1) Every successive owner of a parcel is affected with notice of a condition or covenant included in an instrument registered or recorded with respect to that
land and is bound thereby if it is of such nature as to run with the land, but a condition or covenant may be modified or discharged by order of the court on
proof to the satisfaction of the court that
(a) the modification or discharge will be beneficial to the persons principally interested in the enforcement of the condition or covenant;
(b) the condition or covenant conflicts with the provisions of a land-use by-law, municipal planning strategy or development agreement issued, made, or
established pursuant to an enactment and the modification or discharge is in the public interest; or
(c) the condition or covenant offends public policy or is prohibited by law.
(2) A registered owner may create, by grant or otherwise, a right of way, restrictive covenant, or easement for the benefit of the registered owner and that
right-of-way, restrictive covenant or easement may be recorded pursuant to this Act.
(3) Where dominant and servient tenement parcels are registered in the name of the same person, a right of way, restrictive covenant or easement referred to
in subsection (2) is not merged by reason of the common ownership.

Covenants to Restrict Competition

● Commonly used to prevent competing businesses buying neighbouring land

● Typically run into problems with fourth requirement
○ Dominant tenement must “benefit”
■ Norcross v James, 2 NE 946 (Mass SC 1885)
● Adjacent quarries. Can’t operate adjacent quarries. Covenant seen as benefiting business not land. Reluctant to give weight to this
● Dominant tenement must be proximate
○ Swan Properties Ltd v Irving Oil, 2004 NLSCTD 206
■ Lot could not be used for A&W and for Movie gallery because Irving operated a Big Stop restaurant in the same town
■ Successfully enforced covenant (A&W competing restaurant, movie theatre sold popcorn)
■ SCC allowed it (small town, A&W would take business away)
○ 880682 Alberta Ltd v Molson Breweries Properties Ltd, 2002 ABQB 771
■ Molson Brewery could not prevent another brewery 300 km away operating as a brewery
■ Court said no proximity (300km)
■ If enforced could enforce a restrictive covenant anywhere in the world

Act Amendments

An Act to Amend Chapter 385 of the Revised Statutes, 1989, the Real Property Act, to Eliminate Covenants that Restrict Access to Food or Medicine
*failed
Chapter 385 of the Revised Statutes, 1989, the Real Property Act, is amended by adding immediately after Section 10 the following heading and Sections:
RESTRICTIVE COVENANTS
10A (1) A restrictive covenant, however created, is void if it prohibits, whether absolutely or for a specified period, the use of land for
(a) a grocery store or supermarket;
(b) a convenience store selling fresh produce;
(c) a pharmacy or drug store; or
(d) a medical clinic.
(2) This Section applies to a restrictive covenant created before or after the coming into force of this Section.
Bill 60, An Act to Amend Chapter 385 of the Revised Statutes, 1989, the Real Property Act, to Eliminate Covenants that Restrict Access to Food or Medicine, 2nd Sess,
63rd Leg, Nova Scotia, 2018 (first reading 25 September 2018).

Modern Laws: Benefits (How to Attach a Covenant)

Modern law allows benefits to be transferred in three ways: (just one)

1. Assignment through express contract
● Benefit does not run with the land
2. Annexation through equity
● Benefit does run with the land. Requires:
a) Benefit must “touch and concern” the land; and
b) Benefit must be intentional (cannot imply a benefit)
3. Building Schemes
● Benefit does run with the land. Requires:
a) Title derived from a common vendor
b) The vendor laid out relevant parcels subject to restrictions consistent with a general scheme of development (i.e., can’t build commercial
properties vs can’t plant tulips)
c) The restrictions were intended for the benefit of all parcels; and
d) The affected parcels were purchased on the understanding that the restrictions would be to the benefit of all other parcels.

Building Schemes
 Issue: Part of existing building scheme
Berry v Indian Park Association, 174 DLR (4th) 511 (CA) Facts:
*Building Schemes ● sugar bush is a rural community built in 3
phases
● Phase 1-2 built cottages (near ski hill)
● Phase 3 modern residential community
● Def manage the community - maintain
rec centre, common areas and require
every resident to be a member of that
assoc.
● Bylaws that include restrictive covenants
of how they will use the land
● Berry reps people living in phase 3 and
don’t want to abide by covenants
○ Phase 1-2 have different needs
○ Phase 3 modern houses,
basements, all year round, etc.
1974: incorporated Assoc
…….
Reasoning:
- Valid building scheme that crystalizes once first lot is
sold (has to be valid before lot sold)
- Then vendor bound by the scheme and each of the
purchasers can enforce restriction upon each other
- Have to be derived from same owner, intend that these
restrictions be imposed on all the lots, intent by the
common vendor that all the lots benefit from it
- Not met
- No common vendor, phase 3 not a part of
general scheme in 1974 (not even
contemplated)
- Did not register agreement on title (Monica,
vendor

Conservation and Heritage Servitudes

● A set of agreed upon restrictions on the use and development of the property or land in question, in order to conserve or protect a valuable aspect of the
property or land
○ Typically used for environmental, historic, cultural, or heritage value
○ Generally, exist in perpetuity and “run with the land”
○ Creatures of statute
○ Why can they not exist in equity?
*Can’t exist in equity → run with statute
- Doesn’t check “Taken for the benefit of the dominant land and those lands must be sufficiently identified”
- Doesn’t benefit the land

Land Registration Act, SNS 2001, c 6

Dominate tenement may be unnecessary

61A (1) A person may, and is deemed always to have been able to, create, by grant or otherwise, in favour of

(a) the Crown or a Crown corporation or agency;

(b) a municipality;

(c) a public utility,

an easement, without a dominant tenement, for any purpose necessary for the operation and maintenance of the grantee’s undertaking, including a right to flood.

(2) To the extent necessary to give effect to subsection (1), the rule requiring an easement to have a dominant and servient tenement is abrogated.

Heritage Easements

Ontario Heritage Act, RSO 1990 c O.18

Easements and covenants

22 (1) Any easement or covenant entered into by the Trust may be registered against the real property affected in the proper land registry office,

Idem

(2) Where an easement or covenant is registered against real property under subsection (1), such easement or covenant shall run with the real property and the
Trust may enforce such easement or covenant, whether positive or negative in nature, against the owner or any subsequent owners of the real property and the
Trust may enforce such easement or covenant even where it owns no other land which would be accommodated or benefited by such easement or covenant.

Conservation Easements
“Offered in Alberta, Saskatchewan, Manitoba, and Ontario
Conservation easements are legal tools to help you protect the habitat on your land.
While maintaining ownership, you make a commitment to conserve the natural
integrity of the habitats agreed upon by you and DUC, by limiting the amount and
type of development that can occur”

https://www.ducks.ca/resources/landowners/conservation-easements/
“Conservation Agreements
Individual wetlands are legally protected with a conservation agreement. Landowners retain ownership throughout the process, and commit to conserving the land’s
natural integrity by limiting the amount and type of development. If the property changes hands, the conservation agreement stays with it.”

https://www.ducks.ca/our-work/landowners/

Nova Scotia Nature Trust

“You retain full ownership of your property. The Conservation Easement preserves the ecological value of your land by limiting the type and scope of development.
The specific terms of your easement are tailored to your property and to your wishes for the land.

You may keep your land, sell it, or pass the land along to the next generation. The Conservation Easement restrictions apply to all future landowners, and are upheld
by the Nature Trust in perpetuity.”

https://nsnt.ca/giving/leave-a-legacy/donate-land/

See: Conservation Easements Act, SNS 2001, c 28

*bound by a covenant, bound by an easement!

UNIT XII - PRIORITIES & TITLE REGISTRATION

Priorities at Common Law & Equity

Priorities
 ● Speaks to issue of whose legal rights takes precedence
○ In issue where two or more persons have (i) similar rights in respect of (ii) same subject-matter, and (iii) one person is able to exercise their rights to
the exclusion of others
○ Largely governed by statute
● Relevance areas of law:
○ Property law
■ Defect of title (e.g., fraud)
● Criminal organizations sold house while you were away (innocent parties)
○ Bankruptcy law
■ Legislation sets out who gets what money is what order
● Funeral fees (if deceased)
● Costs of declaring bankruptcy
● Trustee fees
● Lawyer fees
● Wages/salaries/commissions
● etc.
○ Creditor-debtor law
*Which creditor gets the money

Allocating the “Risk of Loss”

● Assume that A owns the legal fee simple, the only proof of which is a title deed document that A keeps in her sock drawer.
● Now imagine that this title deed is stolen by some unknown person and sold to C, who pays the thief (B) $200,000, but C has no knowledge of the theft.
○ Who should be entitled to ownership of the land?
■ A should get it
■ Not B’s to sell so C has not legal right
■ Did C do their due diligence
● Given $1M house for $200K - they should be investigating the thief
■ How much has C put into it
○ How would you justify your position?
○ What additional info might be relevant to your decision?
■ If C keeps property should they have to pay A for the value of property even if more than $200K?
■ If they knew where thief(B) was C could keep house, A gets money from B
 ● Most time the thief is not found
● OR A keeps house and C gets money refunded
■ Who could absorb the loss better (C first time home buyer and A is a millionaire)
■ Behaviour after the theft
● If A didn’t try to claim it for years afterward (C should keep it?)
○ Knew about theft but didn’t act immediately
● If A knew about theft and bought a new house (already dealt with loss)
○ How to fix this?
■ Electronic registration
■ Insurance (now that fraud is rising companies don’t want to insure)
■ Owner should take more steps to prevent against theft

Nemo dat quod non habet

“One cannot give that which one does not have”

● One cannot transfer title that is greater than that which is held
○ you can’t give what you don’t have
○ You can’t sell what you don’t have

Ranking of Priorities Under Law

● Priorities subject to both legal and equitable principles

○ Equity exists to fill the “gaps” in law
● Basic rule is first in time, first in priority
○ Whoever purchased property first generally gets it

● Issues:
○ Are competing rights equitable or legal in nature?
○ Does notice or lack of notice change priority?
○ Are there other relevant considerations that would impact priority?

Possible Combinations
(1) Legal Right vs Legal Right

● First legal right has priority and is enforceable against subsequent legal right
○ Someone has property sells to person A then to Person B
○ Both say they have right to it
○ Person A has right to it
● Notice, or lack of notice, of existing right is irrelevant (if Person B knows about person A or not)
○ Applies even if subsequent owner is innocent
○ Caveat emptor – “Buyer beware”
■ Go find thief and sue them (out of luck)

(2) Legal Right vs Equitable Right

 ● First legal right has priority and is enforceable against subsequent equitable right in most circumstances
○ Sell legal right to someone and set up trust on property for benefit to someone else
○ Owner can enforce their right against beneficial owner
● Only exception is if holder of the legal interest is by conduct “estopped” from claiming their right
○ If the P upon representation to the def and relying on those representations invested or lost money etc. then is estopped from making a claim
against them

(3) Equitable Right vs Equitable Right

● First equitable right has priority and is enforceable against subsequent equitable interest
● Subject to “clean hands” doctrine
○ One who comes to equity must come with “clean hands”
■ Lying, misrepresenting, dirty tactics etc. (Contextual and up to courts)

(4) Equitable Right vs Legal Right

● First equitable right has priority and is enforceable against subsequent legal right unless...
● …a bona fide purchaser for value is without notice of the existing equitable right
● Value - can pay money or non-money consideration
● Bona Fide – necessitates good faith
● Notice can be actual, constructive or implied
○ Actual –the legal right is in fact brought to the attention of the purchaser
■ Showed deed document for instance
■ Conversation
■ Letters
○ Constructive – Knowledge of the right is attributed to purchaser based on what a reasonable or prudent individual would have discovered while
investigating title
■ E.g. – A purchaser needs to make reasonable inquiries
● What would a reasonable purchaser have done
● Can’t just be willfully blind (i.e. failed to do any type of title searching)
○ Implied – Knowledge of the right has come to the attention of the purchaser’s agent (e.g., solicitor)
■ The purchaser can’t say they didn’t know because their solicitor knew (solicitor failed to tell them)

**Sell property but someone has a beneficial interest in it. Equity has first priority unless that legal right owner in good faith purchased the legal title for value and
was without notice of the equitable right

Title Registration

What is Title Registration?

● A system of conveyancing property by registering the transfer in a publicly administered record

○ Registration acts as proof of ownership
● Purpose is to facilitate property transactions by allowing a more efficient way of ascertaining title
● Particulars of registration seeks to balance security of title with ease of transfer

History of Conveyancing

*How do you prove ownership of land

Medieval era

● Livery of seisin
○ Most land owned by very few aristocrats (given by King William)

Early modern era

● Private “title searches”

○ Increased literacy
● Statute of Enrolments, 1536 (UK)
○ Transfer of land had to be certified by a justice of the peace
■ bring in state control
■ No one really followed this rule

Modern era

● Land Transfer Act, 1875 (UK)

○ Voluntary registration
■ tried to get people to register
■ Hardly anyone did it
 ● Land Registration Act, 1925 (UK)
○ Compulsorily registration
■
● Land Registration Act, 2002 (UK)
○ Modernizes the law

Land Titles Systems

Two models for land titles systems

1. Deed registration
● Nova Scotia adopted in 1752 (adopted very early)
2. Title registration
● Nova Scotia implemented in 2003 when Land Registration Act, SNS 2001, c 6 was proclaimed
● All counties in Nova Scotia transition by 2005
○ Only gets in the title registration system when it transfers (otherwise would be in old deed system)
● Most provinces have a title registration system

Deed Registration System

● Establish a registry offices where documents affecting title are deposited

○ Office records and catalogue transactions
○ Makes searches more efficient and easier
● Office does not guarantee title, nor legal validity of documents
○ Must still trace chain of title to ensure adequacy
○ Legislation limits how far back a search must go to prove “good root”
■ Lawyer only needs to go back about 20 years (anything older is not valid under the registration)

Impact on Priority

System qualifies common law rules of priority in three ways

1. Order of registration
● First registered in time, first in right (for purpose of ownership of right - not just execution)
● A registered interest can “leapfrog” over an existing unregistered interest
○ I.e., you execute the title but don’t register it therefore someone can leap over you to the person who registered it
 2. Timing of notice
● Adequate notice given after registration no impact
● Adequate notice given before registration, unregistered interest will prevail
3. Standard of notice
● Notice may include common law concepts of notice
○ Implied - notice of agent

Specific impact depends on legislation

Example

● Assume that the owner of Blackacre, mortgages their property to the Bank, but for some reason that mortgage isn’t registered. Next, a second mortgage for
the same property is granted to a Private Lender, who then registers that mortgage. At all times, the Private Lender was fully aware of the prior security
interest given to the Bank.
● Nova Scotia’s Registry Act, RSNS 1989, c 392, s 18: “Every instrument shall, as against any person claiming for valuable consideration and without notice
under any subsequent instrument affecting the title to the same land, be ineffective unless the instrument is registered in the manner provided by this Act
before the registering of such subsequent instrument.”
● Is the Bank’s interest effective?
○ Bank interest is not registered then not effective
○ Fact that the private lender has notice doesn’t seem to impact this provision (absent any other provision)
■ Does not have to give notice about registration to the bank
■ Bank doesn’t have an equitable estoppel argument

Title Registration Systems (“Torrens” System)

● Land that enters system is to be issued a certificate of title

○ Certificate of title is stored at a land titles office
○ All interests related to the land must be registered on the certificate (of title) to be effective
○ When property is transferred, the previous certificate is cancelled and a new certificate issued
○ Interests that continue will appear on the new certificate
*If not registered on certificate of title = not effective/doesn’t exist
● Certificate guarantees the title
○ Abolishes common law doctrine of notice
○ Simplifies transactions
 ○ Provides purchasers and lenders confidence
■ Can rely on title and exactly what you’re buying and no secret easement that comes out of woodworks
○ Sole exception is in cases of fraud
■ If title is acquired through fraud, then you may still be subject to previous rightful owner

Foundational Principles (of Torrens System)

● Mirror Principle
○ Certificate provides accurate reflection of all interests related to title
○ Until registered, no transaction relating to property creates an interest in land
■ If own property and says will give camping rights for $5K and they sign document, still no right of interest until its registered
○ State guarantees the certificate of title
○ “Mirror” reflects existing state of title
● Curtain principle
○ Only those interest recorded on the certificate bind subsequent owners
○ Do not need to “look beyond” certificate of title
■ Only needs to look at certificate of title, don’t need to go beyond this
○ Draws a “curtain” between registry and prior transactions

Doctrine of Indefeasibility

*Title cannot pass through fraud (not compatible with registration system, because system says what is on the title is true)
 1. Registration will not allow rogue to stand (steal land) → Purchased stolen land then title
2. The purchaser doesn’t possess good title, the original purchaser could come back
○ Original owner can make claim against intermediate purchaser but if the intermediate sells land to a new purchaser, then original owner doesn’t
have claim anymore

Immediate
- Did due diligence to see if it was legit
Deferred
- Didn’t do due diligence or was willfully blind

All the interest/property rights attached to the land: (have to be registered)

- Easements
- Convenance
- Mortgage
- Joint tenancies
- Tenancies in common
Immediate or Deferred?
 Facts:
Lawrence v Wright, 2007 ONCA 74
*Theft - immediate or deferred ● Lawrence owned a home in Toronto with
a $120K mortgage
● In Oct 2005 someone stole Lawrence’s
identity and impersonated them
● Retained a lawyer and sold house
● Imposter gave lawyer a forged title and
sold house to Mr. Wright for $318K
● Wright applied for a mortgage from
Maple Trust
● Maple Trust approved (did due diligence
and didn’t know fraud)
● Nov 2005 the money was advanced
● The old mortgage was discharged, and
Wright was registered on property
● Maple Trust registered mortgage for
$291K
● Gives $120K to old mortgage which
leaves $171K (takes away their fees and
real estate fees = $141K in trust account)
● Issues trust account and then takes the
trust account money and goes to
Bermuda (or somewhere like that)
● No Mr. Wright so can’t sue them
*Only one lawyer in picture (Maple Trust didn’t
need to get a 2nd lawyer)
Lawyer screwed over both Lawrence and Maple
Trust
Decision: Deferred indefeasibility makes more
sense - no final purchaser so goes back to
Lawrence
Ratio:
You can rely on title however a deferred
Reasoning:
- Maple Trust is innocent; they acquired their title in
good faith and no notice of fraud
- Is their interest valid and enforceable
- Immediate indefeasibility: Wright is the Rogue
and MT is innocent purchaser
- Once registered they have good title
- Lawrence is arguing common law (the courts had no
time for his argument
- Only true owner can grant interest in land
- Since Wright became owner through fraud
they could not grant title to MT
- Courts rejected this - contrary to purpose of
land titles system principles
- Would mean that someone from 50 years ago
could come around and say this is fraud
- Gov of ON - Deferred Indefeasibility
- MT (intermediate purchaser) did acquire in
good faith but because they have opportunity
to do due diligence and investigate the seller
and ask for identity, they are the ones that
should bear the burden
- Thus, registration of a void instrument does
not cure the defect for an intermediate owner
- No deferred owner so should go back to
Lawrence
- Courts say:
- Whether we interpret immediate or deferred
is driven by legislation
- Section 155 is our starting point that says “a
charge on the land that would be fraudulent
and void if unregistered remains fraudulent
and void”
- Subject to further provisions s 784: “an
instrument is deemed effective on
registration”
- S 681 “only a registered owner may dispose of
an interest in land”
- Both MT and Ontario’s argument could work
based on those
 indefeasibility (has to be one party in between
you and fraudster to be good title)
- If you look at section 784, they say that section
- Deferred is better for public policy
What is Fraud?
- Deferred
- Fraudsters never get good title but
also allows some reliance on registry
system because final purchaser can
rely on their good title
was added to legislation a little later than its
purpose was to make a small admin change
not completely change the theoretical
underpinning of it (imposing deterred not
immediate)
- Under immediate the original owner
has no action basically
- Against idea that property rights are
not fungible (not something you can
just replace with money)
- For a homeowner they should be able
to get their property back
- Mortgage company is fine with money
they should go to insurance to just get
money
- The homeowner has no opportunity
to investigate the fraudster, but the
mortgagers do
 Issue: Reasoning:
Holt Renfrew & Co v Henry Singer Ltd., [1982] 4 WWR
B knew that 1978 lease was not filed and did not TJ:
481 (Alta CA) advise Dickson of this and proceeded with sale. Is
*What does fraud mean? - B knew of lease but proceeded to buy prop without it
that fraud?
- B may have suspected that Dickson’s client would not
Facts: sell property if not subject to the lease (and didn’t know
that it wasn’t registered)
● 1950 the owner of property X had a - B and Henry Singer acted within their rights and
clothing business, sold business to Holt rejected idea that they lulled them
Renfrew then leased the property the - B acted in fraudulent manner, judgment for HR
business was on to HR (HR is the tenant,
X is landlord) CA:
● Given a lease, included was an option to - Agreed fraud but gave judgment for dif reasons
renew for 10 years and enforced and - More than knowledge of unregistered instrument
registered in land titles office (lease isn’t - Knew about it and didn’t tell Dickson - TJ said Fraud
registered, option to renew is) (don’t have obligation to fix other lawyers mistakes)
● 1969: HR wanted to spend $200K on - CA said not enough for fraud
leasehold improvements (the store). In - B made a representation to Dickson saying that the
order to do that they sought a new lease lease will not be a deterrent to my client purchasing
in 1973 (when their old lease expires) prop (he further emphasized that by reviewing the
until 1990 financials)
● Lease drawn up by lawyer and sent to - B never corrected Dickson’s reliance
head office in Montreal - ….?????
● Head office failed to file new lease or
caveat with land registry office
● 1978: lawyer for Edmonton (B)
telephoned X’s (owner) lawyer named
Dickson
● B had a buyer
● Dickson said send offer and said about
lease and B said that the lease wouldn’t
be a problem
● Information of financial statements and
lease were sent (1978 lease??)
● B thought his client won’t want the 1978
lease (didn’t tell Dickson)
● B gave offer of $800K for property
(included piece of paper that said
certificate of title) and said offer of $800K
only with conditions listed (only with
1950 lease not the 1978 lease)
 ● Land sold and B files caveat in land reg
office
● HR thought they had their lease
protected
● HR found out that caveat was never filed
● Henry Singer (owner that B is lawyer to)
said they registered first

Remedy

Land Registration Act, SNS 2001, c 6-2

Proceeding to correct registration

35 (1) A person who objects to and is aggrieved by a registration in a parcel register may commence a proceeding before the court requesting a declaration as
to the rights of the parties, an order for correction of the registration and a determination of entitlement to compensation, if any.

***

(6) In determining whether it is just and equitable to confirm the registration objected to, the court shall consider

(a) the nature of the ownership and the use of the parcel by the parties.
(b) the circumstances of the registration;
(c) the special characteristics of the parcel and their significance to the parties;
(d) the willingness of any of the parties to receive compensation in lieu of an interest in the parcel;
(e) the ease with which the amount of compensation for a loss may be determined; and
(f) any other circumstances that, in the opinion of the court, are relevant to its determination.