Table of ContentsThe Nature of Property.......................................................................................................... 3

The Properties of Property: Defining the Beast......................................................................3Approaches to Defining New Property Rights.........................................................................4Felix Cohen, “Dialogue on Private Property” – Single Variable Essentialism...............5Property and Culture....................................................................................................................... 6

Property in Perspective........................................................................................................ 7Basic Divisions of the Law of Property.......................................................................................9Property and the Constitution....................................................................................................10

Expropriation and “Regulatory Taking”........................................................................10

The Concept of Possession................................................................................................. 12Acquisition of Title by Possession.............................................................................................13Finders – Relative Title................................................................................................................. 13Gifts – Transfer of Title through Delivery...............................................................................14

The Doctrine of Estates....................................................................................................... 16Fee Simple Absolute....................................................................................................................... 17

Ss. 19(1) and 19(2) of the Property Law Act....................................................................................17Ss. 24 of the Wills Act...................................................................................................................................17

Fee Tail............................................................................................................................................... 18Life Estate ( and Estate per Autre Vie).....................................................................................18Repugnancy problem:................................................................................................................... 19

Re Walker – Ontario Supreme Court (1924).........................................................................................19Re Taylor – 1982.............................................................................................................................................19

Rights, Powers and Obligations of Life Tenant.....................................................................19Estates by Operation of Law........................................................................................................20

Aboriginal Title..................................................................................................................... 22Recognizing Aboriginal Title.......................................................................................................23

Delgamuukw v. British Columbia (SCC 1997)....................................................................................23R. v. Bernard; R. v. Marshall (SCC 2005)..............................................................................................25Meares Island....................................................................................................................................................26Haida Nation v. BC (Minister of Forests) (SCC 2004)......................................................................26

Equitable Interests............................................................................................................... 26Historical Development of Uses.................................................................................................26Resulting Trust................................................................................................................................ 27

Pecore v. Pecore – SCC (2007).................................................................................................................28Constructive Trust.......................................................................................................................... 29

Acquisition and Transfer of Land....................................................................................31

Mortgages................................................................................................................................ 33

Qualified Transfers and Future Interests.....................................................................34Vested and Contingent Interests and Conditions Precedent............................................34Reversions and Remainders....................................................................................................... 35

Stuartburn (Municipality) v. Kiansky – Man 2001.........................................................................36Defeasible and Determinable Interests..................................................................................36

Caroline (Village) v. Roper – Alberta (1987).....................................................................................37Precatory Words and In Terrorem Conditions......................................................................37Transferability and Registration...............................................................................................37

State Limitations on Private Power................................................................................38

Licenses, Leases, Sales, Bailments...................................................................................40Leases v. Licenses............................................................................................................................40

Fatac Ltd. v. Commissioner of Inland Revenue – New Zealand CA (2002)..............................41

Shared Ownership................................................................................................................ 424 Types of Common Law Co-Ownership..................................................................................42Severing a Joint Tenancy.............................................................................................................. 44Resolving Concurrent Ownership Disputes...........................................................................45Shared Ownership through Marital Property Law..............................................................46Matrimonial Property on Reserves..........................................................................................48

Priorities and Registration................................................................................................ 50Deeds and Titles.............................................................................................................................. 52Indefeasibility (and its qualifications)....................................................................................54

Servitudes over Property................................................................................................... 58Easements.......................................................................................................................................... 58Covenants.......................................................................................................................................... 60

THE NATURE OF PROPERTY

The Properties of Property: Defining the Beast

What is property? A property right is a right that is good against the world Useful to think of in terms of Cohen’s right to exclude – single-variable essentialism

Property as a Bundle of Rights Possession, management and control; income and capital; transfer; protection under

law; and exclusion – also liabilities and disabilities: liability to seizure and prohibitions on harmful use

No one right is more important than others, may have some or all, its still property No core ingredient or element, can still have property if you don’t have all the rights Bundle is severable (owner has some, renter has others…)

Distinguish between rights which are:a) in rem – enforceable against the world – propertyb) in personam – enforceable against a person/parties to it - contractual

Forms of Ownership:- Public Property

o Owned by the state, allowed on conditions enacted by the state- Private Property

o Owned by individual, owner has rights within certain limits- Common Property

o Nobody owns it, but everybody has access to it (air or ocean outside international lines)

- Collective/Communal Property o Private property that is owned by a group, all members cannot be excluded

but non-members can

Theories of Property – Ziff- Nominalism

o Property is just a nameo Legislature and courts decide what fits within that name

- Essentialismo Multivariable Essentialism

Definition of property depends on several criteriao Single Variable Essentialism

One thing that a phenomenon has to have to be property

Yanner v. Eaton- Highlights challenges that arise when defining property - Majority – modern approach; fluid; property is a variable bundle of rights (crown

can license the hunting of fauna but does not have absolute right to stop others from hunting – did not prevail over aboriginal hunting rights)

- Minority – single variable essentialism – if Crown has the right to exclude then they have absolute property rights (aboriginals lose right to hunt without lisence)

Approaches to Defining New Property Rights

Issues- Deciding which interests are legally protected and which are not

o Conservative – core elements constitute property rightso Adaptive – contextual assessment

- Possession vs. Ownershipo Moore did not possess cells, did he own them?o Vic. Park possessed advantages of land, did it own them?

- Courts are reluctant to expand definitions of propertyo Easier to expand property rights than contract them

- Role of Judges vs. Role of Legislatureo Legislature has more resources and information availableo Courts can act more quickly

← Victoria Park Racing and Recreation Grounds Ltd. v. Taylor (1937)- (raised platform on land adjacent to race track)- No precedent for the creation of spectacle = creation of property- Distraction from avails of property has no remedy in law – unlike nuisance

Tapling v. Jones- Dissent

o Property rights are bounded by the rights of adjacent property ownerso Infringement on the fundamental rights of ownership

International News Service v. Associated Press- (Pirating of News – INS from AP)- Majority establishes a property relationship with respect to news existed between

the news agencies (but not between news agencies and the public)- “Quasi-Property” – news has some property rights of exclusion, but not others

o This concept is never used again in Supreme Courto Courts are generally wary of creating new property rights

- Dissento Property does not necessarily arise from valueo Property necessitates rights to exclusion – against the worldo Not the court’s place to formulate new property laws

Moore v. The The Regents of the University of California (1990)- (medical waste used in production of profitable cell line)- Moore retained no property rights in medical waste – he abandoned them- No authority existed for continued claim for interest in cells- Privacy right cases are insufficiently analogous- Dissent

o No specific court cases reject such a claimo Scientific use does not eliminate property rightso Deferring to legislation for guidance is unseemly – Court has a jobo No practical difference between Moore’s cells and patented cell line

o Policy – protecting research initiative outweighed by protecting personal sanctity and individual rights to consent

← Monsanto Canada Inc. v. Schmeiser (S.C.R. 902, 2004)- (Schmeiser cultivates Monsanto Canola which blew on to his farm)- Schmeiser actively “used” Monsanto’s patented gene and thus infringed Patent Act- Monsanto did not patent higher life form – just “roundup ready” gene- Using something with patented part = using the part directly- Active use - used it for commercial purposes – not an “innocent bystander”

Felix Cohen, “Dialogue on Private Property” – Single Variable Essentialism

Definition of Property- Wherever there is power to exclude others with gov help of some activity then we have

private property- Private property is the right, good against the world and backed by the state, to exclude- Cohen puts this definition forward as useful, not as static and definitive - Cohen rejects nominalism the idea that the term “property” is so vague it can apply to

anything- Essentialism: there must be a core of attributes to property

o Multi-variable essentialism must have all or most of the properties on the list

o Single-variable essentialism one core idea that must be there to have property

For Cohen, this variable is exclusion

Principles in Cohen- Rejection of Materialism

o Property is more akin to a right than a thing - Property as Social Relations

o Property is a bundle of rights between two people (exclusion is the key)- Property ≠ Economic Value

o There can be valueless property or wealth that is not property- Use is not Essential

o Corporation can own song, but not sing ito Charging for something doesn’t mean you own it

- Property ≠ Right to Alienateo You can sell services but not own them

- Property is a Creation of Lawo Property inconceivable without a legal systemo Ideas of property are inextricable from cultural context Calder

- Property vs. Contracto Rights in contract are between two parties – property rights are good

against the world

o Single variable essentialism (Cohen is obsessing over right to exclude)- Role of Lawyers

o Lawyers as peace-makers – mediating both sides of an argumento “law as a window upon life”

Harrison v. Carswell - (woman picketing in mall is barred by owner)- Property rights (exclusion) vs. labour rights (right to picket)- Right to exclude is a fundamental property right – in this case it is upheld despite the

plaintiff’s labour rights

Property and Culture

Principles- Ideas about property are culturally dependant Calder/Suddenly a Gate

o Equality: differences in wealth alter perception of commodificationo Dignity: anti-commodification movement is intuitively powerfulo Personhood: at what point of removing body parts do you cease to be a

persono Commodification: regarding things as being subject to, or part of, the market

Commodification anxiety: intuitive unease about commodificationo Liberty:

negative (freedom from state interference) positive (negative freedom as useless, want systems in place that

contribute to human flourishing)o Market discourse: language of buying and sellingo Relational autonomy: being able to decide for yourself what to do with your

body

“Suddenly a Gate”- Property rights are culturally contingent (ownership vs. right to use)- Farmer and Aboriginal family had different concepts on fence as a boundary and

method for delineating property

Calder v. Attorney General (1973)- (judges debate whether Aboriginal titles are part of Canadian property laws – 3 yes, 3

no, swing vote cast on technicality)- Judges attempted to discern whether aboriginal property rights were commensurable

with Canadian Common Law rights:o Alienationo Exclusive possessiono Complete control – right to destroyo Defined boundarieso Inheretance

- many of the rights were similar, though property was matrilineal and communally owned (though with right to exclusivity)

- Held : Nishga’a do not have title

o Could be single-variable essentialism because the only one not met is alienation (though Cohen said the single-variable was exclusion…)

PROPERTY IN PERSPECTIVE

History of Property Law (England)

Feudal Land Law“The flesh has fallen off but the skeleton remains”

Tenurial Holdings vs Allodial Ownership Allodial: outright ownership Tenurial: “to hold”, Crown → Tenants in Chief → Tenants

o No one owns all the rights in the bundle, more of a contractual relationship

o Most people in chain are both lords and tenants

Free/Unfree Tenures & Incidents Free Tenures – service to the lord was certain and precise in advance;

evolved into the doctrine of estates Military – provide knights, gradually changed to socage ($

instead) Spiritual – say prayers for lord Free and common socage – people who usually had no one

below them in the chain, ex: ploughing the land (survived!)o Seisin tenant had occupation of land and Lord had the tenants

service Unfree Tenures – service to lord was uncertain, unknown of in advance,

really at their mercy (ignored by common law until 16th century) Incidents

o Wardship – tenant dies, lord takes control of lands and heir until he becomes of age

o Marriage – like the stock market, people would pay big $ to marry into dynastic family with lots of land

o Escheat – when you die with no one to inherit your land it reverts to the lord (survived! This is what happens when you die w/out a will)

o Forfeiture – doctrine of corruption of the blood, when you commit treason or felony you forfeit your land to the lord.

Feudal “Pyramid” King is everybody’s lord and no one’s tenant. Gets no benefits when the

system becomes complicated and tenants are able to avoid payments. King tenant in chief tenants servants

Gradual Commodification of Land 1066: Norman Conquest; declaration that the Lord Paramount conquered all

land; could transfer land to “tenant in chief”; King gave protection for service; when tenant died, land would go back to lord

o Gradually services began to decline, most were ceremonial and of no economic value (except for free and common socage)

o Originally, only substitution was allowed lord would grant the land to someone else and increase the feudal chain; lords would be a fee when this occurred

o Tenants would get around this by subfeudination making yourself “lord” of the other tenant instead, we’re adding another layer here by creating an “artificial” lord with only one tenant

Drove the lords at the top crazy – expanding chain meant they ended up with less services and incidents

1290: Quia Emptorus – Alienationo Allowed tenants to sell their land without consent and prohibited

subfeudination, gradually the pyramid collapses (escheat still there – reverts back up the chain)

o Now have “fee”: your heir will get your lando Even after 1290, you still couldn’t write a will; sell land or it

descends to your family 1540: Statute of Wills - now you can will land to whomever you want

o Altering the usual rules of law to choose who gets your lando Now land was a commodity

1660: Statute of Tenureso Parliament accepted the fact that the feudal system was obsoleteo This statute reduced the available tenurial formso Left two incidents in tenure (socage): escheat (if you don’t leave

anyone the land when you die, it goes to the Crown) and forfeiture (if felony committed, land goes to Lord)

o Today the forfeiture part doesn’t apply and there’s an act about escheat in BC

Doctrine of Estates You are not buying the land itself, but a time in the land (freehold estate

for indefinite duration)a) Fee simple: longest time possible (no limit), goes to any

descendantsb) Fee tail: your direct descendants onlyc) Fee life estate: your life only

o You could also have a leasehold an estate that would expire

Reception of English Law

Conquered or Cededo British common law said that legal system of conquered/ceded territory

stayed in place until Crown decided otherwise Settled

o When land is considered unoccupied - Rule of British common law considered to be brought by English colonists

o Terra nullius: “unoccupied land”, colonizer concluded that indigenous inhabitants had no legal process then it was considered terra nullius

o Issue – how do you decide when lands considered vacant are actually vacant (issue in Canada and Australia)

Aboriginal title is a dance between those who think Aboriginal titles/legal systems were abolished and those who disagree

Reception Statuteo Explains the extent to which English law applies in Canadao Specific date that English law is brought over, English laws that existed prior

to this time are imported but not those created since.o Laws can be inapplicable if they are so inappropriate to the colonyo Colony Laws Validity Act: if imperial parliament wants to make new laws

apply to colonies then they have to explicitly say so (however English case law remained very influential in Canada common law) ex proprio vigore: “of their own force”; imperial laws that could affect Cnd

*Law and Equity Act – s.2: civil laws in England, as they existed on Nov 19 1858, are in force in BC, but not those that are inapplicable from local circumstances. They can be modified and altered by all legislation that has the force of law in BC or any former colony

Basic Divisions of the Law of Property

- Note: property rights can affect people outside of a contract (difference between prop rights and K rights)

- Note on mortgages: bank allows you to register fee simple against their mortgage; if you default, they get fee simple

I. Real Property (realty)o Largely land, heirloom, keys to a house – usually land and things

affixed to the lando Hereditaments: on death, descends to the heir

1. Corporeal – A right to physical posession2. Incorporeal - Property right w/o possession, less than possession (ex. right

of way, easement, “mineral rights”)

II. Personal Property (personalty)1. Chattels Personal

o Choses in Possessiono Personal property that you hold (physically), tangibles

o Choses in Actiono Items of personal property that one can only enforce through

court, intangibles (trademark, copyright, shares in company)

o Things you can’t physically possess 2. Chattels Real

o A lease (it’s a K, but its also property b/c you can enforce it against the world)

o Remember, originally leases were outside the feudal system (therefore not in realty)

III. Sui Generis “Of its own kind”1. Aboriginal title – historically used to defend the fact that aboriginal rights

are not property rights2. Other

Property and the Constitution- Property rights are not constitutionally protected! Abs title is the only one (s.35(1))- Two elements of Canadian Constitutional Framework that affect property

o Division of powers Note that although the prov. has “property and civil rights”, feds have

some rights from areas like “trade and commerce”; authority over the environment is shared

o Charter limits S. 15 doesn’t allow for discriminatory property entitlement S. 8 is protection against search and seizure S. 7 is protection of life, liberty and security of the person (except when

PFJ’s apply) – taking away someone’s property would take away his/her security…

Note: before the Charter was the Bill of Rights (1960) o s.1(a): the right of the individual to life, liberty, security of the person and

enjoyment of property and the right not to be deprived thereof except by due process of law

EXPROPRIATION AND “REGULATORY TAKING”

Expropriation – government removes property from owner – entitled to compensation

Regulatory Taking – “De Facto Expropriation” – government action infringes on property rights to the point where it is de facto taken – compensation is owed despite no transfer of property

o Regulatory Taking has entrenched definition in USA, not in Canada (property rights entrenched in US constitution)

Note: 1982 Constitution specifically protects existing Aboriginal land rights – expropriation may not even be possible

In Canada- No “Regulatory Taking” – infringement of property rights has never been held to be

sufficient to constitute expropriation- Crown grants are irrevocable unless specifically specified

- Real or personal property cannot be taken without compensationo To take without compensation – clear and exceptional legislation would be

necessaryo Almost every jurisdiction has a specific Act governing expropriation and

compensation

In the USA- Doctrine of “Regulatory Taking” is more fully articulated- Penn Central Test

o (1) what is potential economic impact of the state action?o (2) what extent does it interfere with reasonable investment-backed

expectation?o (3) what is the character of the governmental action?

Pennsylvania Coal Co. v. Mahon (US)- (Penn Coal has right to coal under house – mining would damage house)- While property may be regulated to a certain extent – if regulation goes too far it will be

recognised as taking- Government’s power to redefine range of interests included in the ownership of

property rights must be constrained by constitutional limits

Lucas v. South Carolina Coastal Council (US)- (state legislation prevented building on waterfront property)- Followed precedent in Mahon- Definition of when regulation becomes taking is hazily defined

o When owner looses all economically beneficial use – taking has definitely occurred

o State may resist compensation if it can prove that economic advantage was not part of the property to begin with

Mariner Real Estate Ltd. v. Nova Scotia- (statutes restrict uses of beach property) - No “Regulatory Taking” in Canada – compensation only flows from expropriation- Canadian law considers only:

o (1) valid legislation or action taken lawfully may very significantly restrict an owner’s enjoyment of private land

o (2) Courts may order compensation for such restriction only where authorized to do so by legislation (Expropriation Act)

- Loss of economic value ≠ loss of land under Expropriation Act

Canadian Pacific Railway Co. v. City of Vancouver (2006, SCC)- (Van passes legislation which restricts use of Arbutus Corridor – CPR wants to sell)- Potential requirements for de facto taking in Canada:

o (1) acquisition of a beneficial interest in the property or flowing from ito (2) removal of all reasonable uses of the property

- No taking – City has not acquired beneficial interest and has not removed all reasonable uses

- Also – legislation in Vancouver Charter protects Van against claims of Regulatory Taking

Metaclad Corp v. United Mexican States (2000)- (NAFTA tribunal holds that Mexico indirectly expropriated Metaclad’s investment)- Ramifications of international treaties on actions of regulatory taking- Expropriation under NAFTA = an open, deliberate and acknowledged taking of

property, as well as covert and incidental interference with property use is expropriation

THE CONCEPT OF POSSESSION

“Possession is such a large part of the bundle of rights that it is prima facie proof of ownership. An owner who seeks to defeat the claim of someone in possession bears the onus of establishing a prior possessory right.”

o Intent to possess + physical controlo relativity of title—a possessor may assert his possessory rights against

everyone except the person with a superior title.

- 3 Theories of Possession – Carol Rose Article “Possesion as the Origin of Property”

1. Labour Theory- mix your labour to create it, its yourso Who says you really own your own labour?o Problem with mixing one’s labour with someone else to create ownership

(ex tomato juice in the ocean – do you own the sea?)2. Theory of Consent – rest of humanity gave original owner title by consent

o Huge administrative costso How does everyone get together to consent to the division of things among

individuals?3. Theory of 1st occupation or possession – basis of common law – purpose: having a

clear ruleo What counts as possession?o Why is this the basis of a claim to title?

Popov v. Hayashi- (argument over who owns Barry Bonds homerun ball)- Possession = intent to possess + physical control- Total possession is not completely necessary- Popov had a “Pre-Possessory Interest” in the ball – proceeds were split despite

Hayashi possessing the ballo “Pre-Possessory interest” a newly created legal interest? o Will the courts stick with this right?

Acquisition of Title by Possession

- Adverse Possession: Common Law Summary

o This rule allowed title to reflect what the world actually looked likeo If you are in adverse possession for a specified period, can extinguish paper

title (like prescription, but prescriptive rights don’t involve possession)o Rationale for this rule comes from the statute of limitations: if paper title

owner refuses to take action against a trespasser, after a certain time they will be unable to.

punishing the “sleeping owner” – rewarding the “working possessor” Criticisms

Too harsh a penalty Means of avoidance are minimal Creates excess cost for landowners Potentially faulty presumption that land left unused is not

being “maximized”o Trespasser does not get title, but only person who can kick them off is

unable to do so (practical title gained by fact of possession)o With individuals the time frame is 20 yrs, the Crown it is 60 yrs

***Abolished under Torrens system (land title registration)***Don’t want off-title claims muddying the waters in Torrens system

- Note: when a paper titleholder does not enforce his or her rights in 20 years (or 60 for the Crown) there is no transfer of title from one to the other

o All that happens is the rights of the paper titleholder are extinguished and the land is left to the person with possession

o Land Title Act s.23(4) – can give exceptional dispensation for claim of title by adverse possession

Asher and Wife v. Whitlock (1865)- (W enclosed land – left to widow – widow died – daughter sues widow’s second

husband who is living on land)- Possessory title is a relative title – even without full adverse possession W had a

better right to land than any interloper (not as good as the Lord)- Relativity of title —a possessor may assert their possessory rights against everyone

except the person with a superior titleo No longer true with land – true with chattels (largely because they are not

registered)

Finders – Relative Title

Principles- Priority of Entitlement

o The finder of chattel acquires a right to that title enforceable against the entire world except the true owner – or continuing antecedent claim

o Personalty can be abandoned – removing prior claim- Felonious Finder

o In certain cases even a trespasser or felonious finder will have legally enforceable property interests (Bird v. Fort Francis)

o However – it is a struggle to bring suit as a felonious finder (ex turpi causa non oritur actio) “an action cannot be founded on wrongdoing)

- If chattel is imbedded in soil, the occupier of the premises will usually prevail over the finder

o Status of chattel analogous to a fixtureo Application of cujus est solum

- Public landso Basic rules regarding finders apply to state – with some exceptions:

Legislation may require goods found on public parks by handed in to authorities

Crown may claim a treasure trove wherever it may be found Historical property may be similarly claimed by the state

- Jus Tertii defenceo In property disputes, the law is concerned only with ascertaining the

relative rights of the parties in the contesto The existence of a better third party claim is immaterialo Hannah v. Peel

(second principle – things found by employee during course of their employment generally go to employer)

o Exception: if a plaintiff is suing not for disruption of possession but for a right to possession than the existence of a better third party claim could invalidate the plaintiffs claim

Parker v. British Airway Board- (contest over watch found in lounge at Heathrow airport)- unknown presence of an object alone cannot transfer rights on landowner- must be area over which there is “manifest intention to exercise control- Board in this case lacked the requisite “manifest intent”

Charrier v. Bell- (archaeologist finds artifacts – Tunica-Biloxi claim ownership of ancestors’ artifacts)- Tunicas have possessory right despite lack of “perfect chain of title”- The fact that ancestors had buried items did not constitute abandonment

o Intent to abandon must include intent to let the first person who happens along claim possessory rights

Gifts – Transfer of Title through Delivery

- 3 elements to ideal gift

o Intention to donate desire to divest oneself of title voluntarily must have capacity to appreciate nature of transaction

o Acceptance understanding of transaction and desire to assume title

o Sufficient act of delivery must be effective delivery of the property or some substitute analogous to “consideration” in contract allows donors chance to change their minds without suffering

legal consequences “courts will not perfect the imperfect gift”

- Types of gifto Testamentary gift

only takes effect on death, specific legal principleso Inter vivos gifto DMC Donationes mortis causa (deathbed gift)

Special type of hybrid gift – does not apply until death (like testamentary) does not have to comply with Wills Act (like inter vivos gift)

- Only applies to personalty – not to realty

- Exceptionso Occasionally gift will be seen as valid without act of deliveryo Declaration that land will be thenceforth held in trust for donee will be

bindingo “Contracts” under seal do not need consideration to be held to be legally

bindingo A purported gift, left unperfected, will be enforced in equity if the donee

is named in the donor’s will and the intent to make a gift continued until the donor’s death Strong v. Bird

- Factual concessionso Transfer of possession does not need to be contemporaneous with the

expression of intent to donateo Constructive delivery will sometimes be enough (if goods are unwieldy

or donor is unable to deliver) If donor retains means of control If all that can be done has been done to invest title in donee

Thomas v. The Times Book Co. Ltd. (1961)- (Cleverdon could keep original copy of manuscript if he could find it in the pub)- Onus is on ∆ to prove gift was made- Gift needs intention and effective delivery- Delivery can be effected even if donor does not physically give gift to donee (in this

case telling Cleverdon where to find the manuscript was enough)

Schoppel v. Royal Trust Company (1970)- (Beaumont “gifts” Schoppel Discovery Island for being chore boy)- Where a gift rests on a promise or unfulfilled intention it is incomplete and

imperfect – court will not complete the imperfect gift- Improperly made testamentary gift will not have effect – illegal will

MacLeod v. Montgomery (1979)- (grandmother did not send duplicate certificate of title to transfer land to

granddaughter)- To complete a gift effectively the donor is obliged to do what can be done

(reasonably)- DCT was not sent – gift was incomplete- “Equitable Owner”

o once gift is complete but before registrationo donee has rights against donor – but not against the worldo vulnerable to innocent third party

THE DOCTRINE OF ESTATES“A time in the land, or land for a time”

The Doctrine of Estates only applies to real property- It enables the law to cope with successive interest in land over time

Estate is “time in the land or the land for a time”- Freehold: indefinite time- Leasehold: definite time- Fee: inheritable

Fee Simple Absolute

- Closest approximation to absolute ownership – is of potentially infinite duration and contains largest bundle of rights

Fee simple: “to A and his heirs” – at CL this phrase was required for FS (no longer necessary)

- When this phrase originated it wasn’t even true: possibly it was about the hope of the tenants that their heir would be put in their place when they died by the Lord (for services)

- At the next stage of history, it became true (except “heirs” would have to be singular)

- This all changed with alienationo When substitution began, you no longer needed the Lords permission to

grant land to someone else, so “a” dropped out of the pictureo With subinfeudation, “a” remained but “b” came below him on the

pyramid

Legislation Creates Presumption of FS; Reverse the CL approach (s. 19(1) and 9(2) of the PLA)- Reversal of CL; now you must be careful if you want to create life estate- Don’t need particular formula to pass in FS anymore, and if you don’t use a formula then

we presume that you granted full interest you had (unless contrary intention)- By “full interest”, we mean a “fee simple absolute”

o “fee” inheritanceo “simple” any heir qualifies for inheritance

If there’s no heir, the land escheats back to the Crowno “absolute” no conditions

Ss. 19(1) and 19(2) of the Property Law Act 19 (1) In the transfer of an estate in fee simple, it is sufficient to use the words "in fee simple" without the words "and his heirs".(2) A transfer of land to a person without words limiting the interest transferred, or to a corporation sole by his or her corporate designation without the words "successors" passes the fee simple or the greatest estate or interest in the land that the transferor has power to transfer, unless the transfer expressly provides that a lesser estate or a particular interest is being transferred.

Ss. 24 of the Wills Act 24 Unless a contrary intention appears by the will, if real property is devised to a person without words of limitation, the devise passes the fee simple or the whole of any other estate that the testator had power to dispose of by will in the real property.

Thomas v. Murphy

- (plaintiffs worried that FS interest had not been secured – absence of word “heirs”)- Strict imperative of using specific “magic words” no longer necessary- It is sufficient to use “fee simple” Property Law Act (s.19)- Intent of the grantors is paramount

Fee Tail

- Estate in fee tail devolves only to lineal descendentso Origins in dowery – “marriage gift in law”o Fee tail can be curtailed to pass only to female or male descendents, or

only descendents by two certain parents, etc.o Created as a way for the original grantor to retain a measure of control

over the further treatment of lando Legislation eventually destroyed all but traces of fee tail estate in

Canada

Life Estate ( and Estate per Autre Vie)

Principles

A life estate may be created to last: o For the life of the recipient – life estate per sa vieo For the life of another (when a life tenant sells their life estate, buyer

owns life estate determined by the life of the seller) – per autre vie- Person designated as the measuring life – the cestui que vie

Life estate is created under a will or conveyance by carving this limited freehold interest out of a larger fee simple

No special terminology is necessary for the creation of a life estate at common law

o Also – failed attempt to confer fee simple can result in life estate- Rights and Responsibilities – law must balance rights of the life tenant with those of

future titleholders

Repugnancy problem: When the wording of an endowment seems to confer both fee simple and life

estateo Ie. Gifted to someone “absolutely and forever during her lifetime”

Methods of resolving the conflict:o (1) First gift is absolute and the second stipulation is discarded as being

“repugnant” (Walker)o (2) Cut down the absolute gift to a life estateo (3) First gift is a life estate to which the power of encroachment has been

added – meaning the person can mortgage, lease, or sell the property (Taylor)

Re Walker – Ontario Supreme Court (1924)Example of a strict reading of the will – gave an absolute gift and found the gift over repugnant (first option) NOT THE STANDARD PRACTICE ANYMORE (SEE TAYLOR)

Re Taylor – 1982Move away from the strict reading of the will to looking for the intent of the testator – finds a life estate but with a power to encroach (third option)

Christensen v. Martini Estate (1999, Alta. CA)- (Testator gives duplex to Martini “for her use” and to Christensens when she “no longer

needs it”)- In interpreting a will, the court should try to give effect to the testator’s intent- Courts should endeavor to reconcile apparently conflicting provisions in a will – not just

ignore or arbitrarily find one valid- In this case – court said testator gave Martini a life estate with a power of encroachment

Rights, Powers and Obligations of Life Tenant

Rights: Life tenant can use the property, can transfer it (creating a life estate pur autre vie) Can enjoy the property, but remainder person has a right to the property in the same

condition as when it was given to the life tenant.

Upkeep: Life tenant is liable for all current expenses/daily maintenance

o This even includes property taxes and mortgage interesto This includes expenses (upkeep like lawn mowing) but not repairs (like a roof)

But the remainder person is responsible for repairs and the principle of mortgageo Life tenant can be compensated for money paid for mortgage capital if they pay

that at the same time as paying the interest

Waste: Law of waste limits the extent to which a life tenant may alter the physical complexion of real property.NOTE: can contract out of the first three waste principles, but not the “equitable” principleNOTE: a future life estate (i.e. the second person in: to ___ for life, then to ____ for life, remainder to ____) can prevent the current life estate holder (the first person in the list) from waste Four types:

i) Ameliorating- enhances value of land, courts reluctant to prohibit/punish- remainder person may or may not have issues with this; life tenant usually

liable UNLESS there’s an express provision stating the contrary- becomes an issue when the life tenant makes an improvement but the

remainderperson sees it as a detriment ii) Permissive

- damage from failure to preserve or repair property; ordinary deterioration- ordinary wear and tear, life tenant not responsible for paying this UNLESS the

life estate says something to the contrary (express provision)iii) Voluntary

- life tenant’s conduct that diminishes the value- courts are strict about enforcing this- life tenant usually liable – the remedy would be an injunction to cease the

activity or damagesiv) Equitable

- severe and malicious destruction- courts step in when they feel like they should right a wrong - can’t contract out of this- can’t undertake equitable waste unless there’s an express provision (see s. 11

of the Law and Equity Act)

Law and Equity s.11An estate for life without impeachment of waste does not confer right to commit equitable waste, unless express intention otherwise

You can’t undertake equitable waste unless the instrument says you can

Estates by Operation of Law

- A life estate may arise through a rule of law that can override the intentions of the property owner:

o Used to be: (abolished by s.95 Estate Administration Act) Dower

Life estate in one third of husband’s land Abolished 1925 – stood in the way of the free alienability

of land Courtesy

Abolished 1925o Now

Homestead Land Spouse Protection Act Provides a means for the non-titled spouse to go and file

a lean against the title of the land at the land title office Prevents the sale of that house out from under the non-

title spouse and prevents title spouse from giving it away by will

Remedial – (can be used to rectify unjust enrichment) These are life estates granted by courts to remedy an

injustice (i.e. unjust enrichment) I.e. if you have two spouses that are separating, one

spouse could be given a life estate as a remedy to provide for that person’s interests

Estate Administration Act ss. 83-85, 95, 9683) If you have a spouse, under this section your spouse gets your estate84) If you have children, it’s split between your children (if one of the children dies, it’s split between their children)85) If the estate is worth $65,000 or less, it goes entirely to the spouse

If the estate is worth $65,000 or more, only $65,000 goes to the spouse and the rest to the children

95) Abolished homestead protections96) Spouse gets a life estate in the spousal home, if not registered on title, when the spouse who is registered on the title dies

But spouse can’t sell it (Khan)

Land Spouse Protection Act s.2-4 Spouses can register liens (charges) on the title if they believe they have an interest in

the title Any dispositions are void without the consent of that spouse

Personalty and the Doctrine of Estates

Doctrine of estates is inapplicable to personalty – chattels can be owned outrighto Land is not owned allodially

Generally – inter vivos gift of a chattel for any amount of time is understood to be absolute

Exceptionso Bailment – specifically granting a temporary interest in chattel (book

from library)o Time-limited gifts of personalty o Dividing of the legal title to personalty under a will is valid

ABORIGINAL TITLE

Sovereignty Once British conquered, their law applied and they did have sovereignty Allodial title of King (synonym for sovereignty) remains – owns it outright In BC, no conquest occurred aboriginal land NOT conquered – notion that aboriginal

lands were conquered is a legal absurdity Left with myth of sovereignty –What does this mean??

o Queen was sovereign, BUT people with pre-existing property rights do not give those up

Extinguishment – Before 1982 Delgamuukw 1. By unilateral act of Parliament

o Requires “clear and plain intent” – onus on Parliamento Provincial title is subject to aboriginal title and jurisdiction to extinguish ab. Title

if solely federalo Provincial title is subject to aboriginal title pursuant to s. 109 of the CA, 1867

(first laid down in St. Catherines Milling) and jurisdiction to extinguish it is federal, not provincial: “lands reserved for Indians under s. 91(24) includes aboriginal title lands

2. Purchasing aboriginal title through treaties (this is the main method)o Very few treaties in B.C. o Surrender of lands – bilateral process in which Aboriginals cede land to Crowno Can aboriginal title exist if the gov’t didn’t acknowledge it through treaty? Was it

extinguished by act of Parliament? Calder case held that: ab title exists w/o acknowledgement of gov’t (pre-

existing right). o Can it be extinguished implicitly and unilaterally?

Court split on this issue3. Chippewas of Sarnia may have established 3rd route

o Letters Patent issued in 1853 for land on basis of imperfect transfer in 1839; BUT by the time Chippewas made claim, land had passed through several bona fide purchasers

Post 1982- s.35 Aboriginal rights enshrined in constitution- Aboriginal title cannot be extinguished

Changes throughout history:o 1849-1871: colonial period didn’t need to be discussed hereo 1871-1982: pre-s.35 feds could have extinguished ab titleo 1982 on: s. 35 even the feds couldn’t extinguish ab titles (although justified

infringement was allowed)

Recognizing Aboriginal Title

Calder- Shift away from personal, usufructury (right to use someone elses property) characterization

of aboriginal interest – determined that this statement was not helpful- Not a personal right, more akin to proprietary right – sui generis

o This was helpful for those who wanted to defend and expand aboriginal interest to a property right against gov’t arguments that ab interest did not conform to indicia of property rights

o 6 SCC judges said that Aboriginal title was part of the property laws that make up Canadian law of property (3 said they still existed, 3 said extinguished, 1 judge decided on other grounds)

o BUT sui generis is a double-edged sword It allows aboriginals to claim they have property rights It allows the court to decide what it is because the court gets to rule on

anything that’s “unique”

Delgamuukw v. British Columbia (SCC 1997)- The Pleadings:

1. Ownership and jurisdiction vs. aboriginal title and self-gov’t Delgamuukw convinced to abandon claim for outright ownership and sovereign

jurisdiction when case finally went to trial; kept claim for aboriginal title and self-gov’t

2. House claims vs. national communal claims originally each House was claiming a particular parcel of land at the BC Supreme

Court For purposes of claim they abandoned House claims and territories and moved to a national communal claim

Establishes The Content of Sui Generis Aboriginal Title:

Principles:

Inalienable except to the Crown o First nations people may transfer land among aboriginal people but they cannot

sell it outside of the aboriginal nation other than to Crown Sources: Historical Possession and Pre-Existing systems of Aboriginal Law

o Physical occupation is based on the common law notiono Recognition of relationship between common law and pre-existing, aboriginal

systems of landholding o Good decision if your aboriginal system has a concrete system for land-holding;

less beneficial to more nomadic communitieso Source predates the assertion of colonial sovereignty (1846)

Held Communally by members of Ab nationo Pleadings error in this case – communal claim required; re-trial ordered but never

occurredA Right to the Land Itself:

Aboriginal Title is a real, full-fledged property righto “aboriginal title means a right to the land itself” first time in Canadian

Limitations on Use:

- (1) Exclusive use and occupation for purposes that go beyond the exercise of particular aboriginal rights (116-118, 24)

- (2) Subject to the inherent limit that the land not be used in ways that sever the traditional bond between land and people: equitable waste analogy

Ownership of land is tied to occupancy based on a specific cultural use, new use of land cannot destroy it for the purposes of its historic use

Lamer also says that if Aboriginals want to use the land for another purpose, they can sell it back to the Crow and then buy it from them and use it for whatever they want this is where he gives the analogy

Test to Establish Aboriginal Title:

- 1. First Occupancy

o Occupation prior to sovereignty - 1947o Good example of sloppy language – Lamer J. sets out test as date of assertion of

sovereignty BUT then refers to 1846 – date that British sovereignty was established (NOT date that it was asserted)

o Federal gov’t wanted earlier date to make it harder to prove aboriginal titleo Take a narrow view: any practices that were the product of European interaction

could not be aboriginal rights- 2. Continuity between pre-sovereignty occupation and present occupation (substantial

maintenance of connection) o Used Australian test set out in Mabo caseo Loose standard (fluid) – occupation can have been disrupted from time to time

- 3. Exclusive occupation o Includes shared exclusive occupation: trespass example o Shared exclusive ownership is not a new notion; makes sense to recognize it hereo Trespass example – trial judge ruled that if you find someone on your territory

it’s not your territory – strange finding; if we find a drunk driver doesn’t mean we don’t have laws against drunk driving – changed

o This is applied with caution b/c it favours a common law definition and proof of occupancy

o Allowing people on your land actually supported the claim that you had exclusive occupancy because you had to allow them onto the land

Test to Justify Government Infringement:- Background: Sparrow (1990) developed jurisprudence around s. 35 of the Constitution – if

abs can establish a right, it is constitutionally protectedo Can a right, once established, be regulated or limited at all?

Unlike Charter defence, there is no justification clause under s. 1 or override clause under s. 33.

o In this case, court decided to establish a limitation clause for aboriginal rights (basically a built in s. 1 for s. 35 of the Constitution Act, 1982)– once right had been established, Aboriginal person holding right had burden to show that there had been a prima facie invasion of right (courts since have found this NOT to be a heavy burden)

o SCC said: “if government proves it has a pressing and valid legislative objective and if it’s infringement of the aboriginal right respects the honour of the Crown and reflects its fiduciary duty, the rights can be limited” this is how they created a s. 1

- Test Need to establish whether limit on right is: o (a) reasonable,

o (b) does not impose undue hardshipo (c) does not prevent right-holder from exercising their preferred means of exercising

righto s. 35 only protects existing rights – in this case, there was no pre-existing righto Distinguish between extinguishment of rights protected under s. 35 and

regulation. Extinguishment is contrary to s. 35. BUT, is regulation (short of extinguishment) of right justified?

o Intention needs to be clear and plain (1) Crown has to show that the legislative objective is compelling and substantial

(examples in para 165 – most of these are areas of provincial jurisdiction) (2) The infringement must be consistent with the special fiduciary relationship

between the Crown and Ab peoples (always requires consultation, may require compensation, occasionally might require consent)

Lamer’s Famous Last Paragrapho Notes that this was an issue for the government to deal with, not the courtso “The Crown is under a moral, if not a legal duty, to make negotiations in good faith”

Post- Delgamuukw: At time of decision, most people were surprised by how liberal the decision was in terms

of aboriginal title Led to meaningful bargaining regarding the treaty process btwn gov’t and aboriginal

groups BUT gov’t said that Delgamuukw only applied once aboriginal title was PROVEN. Until

then, only Crown land. Treaty process went sideways for 2 years, Campbell’s treaty referendum continued that

process Marshall and Bernard narrowed test for aboriginal title

o Not enough to show that it was traditional territory – must be establish regular and exclusive use by aboriginal people

o Mix of common law and ab. title Alternative Options

o 1995 Haida “honour of the Crown” depending on prima facie strength of case, gov’t came under obligation

to negotiate, consult, and accommodate ab groupso Meares Island

Interim injunction can be granted during trial process provided: Ab. Group proves that irreparable harm would be done to the land

claimed in the meantime Note: Oral history:

o is accepted most of the time now (since Mitchell)o The court has to talk about the ability for effective control of the evidence

Fiduciary Obligation: Impossible to say that gov’t is always under obligation to act in best interests of

aboriginal people b/co 1. They are under obligation to act in all people’s best interestso 2. Interests of different aboriginal groups may conflict

Honour of the Crown Applies pretty much throughout relations between both levels of gov’t and ab people

R. v. Bernard; R. v. Marshall (SCC 2005)- “Tightened up the definition of aboriginal title”

(Both men were arguing they had a right to log on Crown land that used to be part of their land - They were arrested but they argued they had an aboriginal right and shouldn’t have been arrested)

- Held (McLachlin wrote): o they weren’t entitled to log on the land because they didn’t meet the requirements to

have title to ito Test for aboriginal title: regular use of defined tracks of land; not occasional

use; not undefined

Meares Island- Court can grant interim injunction against action taken to land (in this case logging) once a

lawsuit has begun if the aboriginal group can show:o Balance of convenience is in favour of injunctiono That is to say – land would be irreparably damaged by allowing logging, and logging

company’s interests would not be so damaged by preventing logging

Haida Nation v. BC (Minister of Forests) (SCC 2004)- “Honour of the Crown”

(There were arguments between the government and First nations about the result of Delgamuukw and what obligations the government had in the interim period after Delgamuukw in terms of aboriginal titles)

- Court ruled in favour of the Aboriginal peopleo Duty to Consult

When an aboriginal group is in the process of asserting or proving its claim to land the “honour of the Crown” dictates that while the Crown can continue to manage the land and resources under the auspices of sovereignty, it must consult with and reasonably accommodate aboriginal interests during the pending claim when:

The Crown has knowledge, real or constructive, of the claim and they’re about to embark on some activity that could affect the claim

Knowledge of a credible but unproven claim suffices to trigger duty to consult/accommodate

o Scope of the Duty Proportionate to prelim. Assessment of the strength of the case supporting ab.

Title and the seriousness of the potential effecto This was a good step in terms of procedure because the old test wasn’t goodo Aboriginal don’t have veto power

EQUITABLE INTERESTS

Historical Development of Uses

Emergence of “uses”:

- Devise under which the legal title was granted to one person to hold for the benefit of another -- “from A to B and his heirs for the use of C”

o Put legal title in B, and beneficial title in C. o B holds the land for the use of C

- Why? desire to control inheritance or avoid paying taxes to the lord- Common law does NOT recognize uses – the cestui que use had no enforceable claims

under CL.o The Court of Chancery (equity) recognized these claims.

By the 15th: almost all land was held in uses, lots of taxes being avoidedStatute of Uses (1535):

(King Henry wanted to be able to tax tenant lords/profit from feudal institutions) Executes the use = puts the legal title and equitable title in ONE person

o The cestui que use gets legal and equitable title; feeoffee gets nothing. Methods were created to escape the impact of the Statute, so that purely equitable

interests could still be created. o Doesn’t apply to corporate trusteeso Does not apply to “active uses” – if document imposes real and onerous

obligations on trustee (law does not punish people who really want trustee to look after infant child)

o Exhausting X grants B to the use of C to the use of D (eventually this was held to be repugnant)

o (These post-statute uses = trusts – name just changed somehow over time)

Ways of getting around the statute and creating a modern trust: 1. Avoiding the Statute of Uses:

a) Grant a leasehold: “to A for 99 years for the use of C”b) Grant to a corporation: “to B Ltd. For the use of C”c) Grant it to yourself for the use of someone else: “to A for the use of A”

o Note: this gives the grantor both legal and equitable titled) Grant management duties (imposition of active duties): “to B to manage for use of C”

2. Exhausting the Statute of Uses:a) Statute only applies to the first use

o “To B for the use of C for the use of D” – D gets equitable interest, C gets legal interest.

NOTE: statute only applies to land, not to personalty. Can still put money (personalty) in a trust/use – basically another way to get around the statute.

Statute was ABOLISHED in England in 1925.

Law and Equity Act s.2BC received English laws before 1858SO: the Statute of Uses may still apply in BC.

Law and Equity Act44) Equity prevails if common law and equity are in conflict7) Mandates that courts must take notice of equity

Express Trust

Express, intentionally created trusts

Resulting Trust

Intention is the main consideration

Can arise in three ways.1) Incomplete or Ineffective Transfer (when the trust fails)

o If some of the beneficial interest has not been transferred, or it has not been properly transferred, it results back to the settlor.

o I.e. “to Bernie Trust Company for 99 years” after 99 years, resulting trust goes back to the settlor

2) Gratuitous transfer (when there’s a gratuitous gift)o The general rule = presumption of a resulting trust.

Ie: if A buys property, buys the title in the name of B – presumption that A holds equitable title.

B will be the bare trustee (subordinate equitable interest to A)o This presumption can be REBUTTED by showing that a gift was truly intended

(on a balance of probs) = no trust arises, legal and equitable titles held by B.o Sometimes the presumption is reversed, and there is a presumption of

advancement = presumption of a gift. When it is a gift from father to child (and mother to child – Pecore) When it is a gift from husband to wife (and wife to Husband –

Pecore)3) Common intention (when there’s a common intention of the parties)

o Resulting trust in cases where one party on title intended that another person (not on title) share a beneficial interest; therefore can only really arise in situations where there’s just one person on title.

o There must be a common intention that the non-titled person share a proprietary interest

o Was used as a way to give property interests to the non-titled spouse – reward for non-monetary compensation

Pecore v. Pecore – SCC (2007)Presumption of advancement for gifts from parents to minors and from spouses to spouses.No presumption of advancement for gifts from parents to adult dependent children.

Facts: Daughter has joint account with Dad. After Dad’s death, her marriage broke up. Dad’s will left residuary benefits to herself and her husband. She maintained that her joint account with Dad was a gift to her and upon his death she gets 100% and it forms no part of his estate. her husband (Michael) should not get any part of joint bank account in divorce settlement.

Principles: Presumptions of resulting trust when there is a gratuitous transfer

o When NO consideration is given, there is a presumption of resulting trust – but this presumption can be rebutted by showing the intention of a gift

Presumptions of advancement when one person is a minor child who is dependent – provide certainty for people who set up joint accounts

o Common law recognizes a presumption of advancement for gifts from parents to minors and spouses to spouses

Presumption of advancement does NOT apply to gifts from parents to adult, INDEPENDENT children

There is NO presumption of advancement for gifts from parents to adult DEPENDENT childreno It would be difficult to know what level of dependency would be required.

In this case, there is a presumption of resulting trust (since daughter was an adult, dependent child) but she rebutted this presumption by showing it was intended to be a gift, because:

Father did not put the joint account in his will – must have thought it already went to his daughter

o Closeness of the relationship btw the father and the daughtero The daughter was dependent on the father

(Note: this was the outcome even though the father wrote a litter to the Bank stating the joint account was not a gift – this was just for tax avoidance purposes.)

Constructive Trust

Principles:- a trust imposed by equity- “Good Conscience” Equity will Construct a trust when fairness requires it regardless

of the parties’ intentions

2 Main Kinds of Constructive Trust: (Remedial and Constructive – Standard real estate transactions possible 3rd category)

1) Institutional Constructive Trusts:- Original constructive trust (arose in England)- Arise in specific circumstances when equity wishes to respond to various modes of

unconscionable conduct (more expansive than Remedial which deals with Unjust Enrichment) “Good Conscience”

i. Wrongful acquisition of property (i.e. where an express trustee wrongfully profits)

ii. Protect relationships of trust and the institutions that rely on those relationships

o Relationships of agency: someone is authorized to act on the behalf of someone else (ie: real estate brokers - Soulos)

o Fiduciary relationships: someone alters their position based on your advice/actions because you are a professional

- Test – 4 things you must show for Constructive Trust: (Soulos)o (1) ∆ is under equitable obligation in relation to the activities giving rise to assetso (2) assets in the hands of ∆ must be show to have resulted from the breach of the

equitable obligation to πo (3) π must show legitimate reason for seeking proprietary remedy (personal or

need to ensure that others like ∆ do their duty)o (4) No factors exist that would render imposition of constructive trust unjust

(interests of innocent 3rd parties) (policy concerns)

Solous v. Korkontzilas

Example of imposing constructive trusts to police relationships of trust (agency). Four part test for finding a constructive trust when people are holding property wrongfully.

(Real estate broker (defendant) bought a house he was negotiating for on behalf of his client – did not respect the agency relationship. Π did not lose money, no unjust enrichment

Court attempts to combine old notion of constructive trust with newly developed remedial CT basically corresponds to situations where there is unconscionable conduct (in this case punishing breach of fiduciary duty)

“Good Conscience” is the main consideration Test for establishing constructive trust in absence of unjust enrichment

2) Remedial Constructive Trusts:- Developed in the 1970’s, in response to unjust enrichment claims (not adopted in

Britain)- Remedial CT’s don’t necessarily address wrongdoing, they are ultimately an

equitable response that a court can administer to correct an imbalance between two parties (to combat unjust enrichment)

- It is more flexible than the institutional CT’s – can be used in more situationso We only discussed them in the family context, but they can be used in other

contexts (i.e. business)- Mostly used in cases of matrimonial division of property to compensate for unpaid

household labour. In the 1970’s, there was a recognition of the importance of domestic labour and the “feminization” of property

For Remedial Constructive Trust, must establish:- Unjust Enrichment (minority in Rathwell, SCC in Becker)

i. Enrichment to one partyii. Corresponding Deprivation to the other party

iii. No juristic reason to not find unjust enrichment and award a CT. (policy concerns)

o P bears the burden of showing that no previously recognized juristic reason to deny recovery applies to the present case.

Established categories of juristic reasons: prior contract, intended gift, statutory or common law intentions. If the pl can show that none of these are present, this third requirement is prima facie met.

o In order to rebut this prima facie case, D bears the burden of showing that a novel juristic reason should be found – look at al the circumstances, the reasonable expectations of the parties, other policy considerations.

- When there is unjust enrichment, the remedy can be either a constructive trust or monetary compensation.

- If you want more than monetary restitution (Constructive Trust) you must show: (Peter v. Beblow)

i. Monetary damages are inappropriate/insufficient (court should consider whether the monetary award will actually be realized)

ii. There is a direct link btw the person who suffered from unjust enrichment and the property involved

Peter v. Beblow

First time a constructive trust is awarded for ordinary domestic labour. Also sets out criteria for when a CT is an appropriate remedy.

- (woman in CL relationship w/ man for 12 years – woman did domestic duties w/o compensation – couple divorced)

- Unjust enrichment establishedo She did not intend to make a gift of her services (domestic services not “par

for the course”)o Just because legislature had not addressed this does not mean it should not be

addressed in equity (precisely in unfair situations w/no legal remedy that equity steps in)

- Monetary damages found to be inadequate remedyo Concern she might not get paid out of spite or because partner was poor

- Judgment – partner holds 100% of property in trust for Mrs. Peter

Note: Constructive Trusts not always created in response to unconcsionability- I.e. Standard Real Estate Transactions

o Vendor in standard real estate transaction assumes position of a constructive trustee prior to the closing of the transaction

o Purchaser acquires equitable interest IF the court would be prepared to grant specific performance for sale of the property

ACQUISITION AND TRANSFER OF LAND

4 Basic Ways to Acquire and Transfer Interest in land:- Crown Grant

o Letters Patent or Order in Councilo Crown Grants are irrevocable unless the original grant contains the

right to revoke it (Executive cannot revoke grant – legislature can take land back

through legislation, but may be required to compensate expropriation)

o Every Crown grant implicitly carries provisions from Land Act (s.50) unless otherwise expressed:

o (Crown keeps some of the sticks in the bundle of rights) Reserves certain rights for govt. on Crown Grant land Right to resume up to 1/20th of land for public works Right to raise gas/minerals Right to water privaleges and access Right to take materials for public works Crown grants convey no interest to minerals/oil/highway

- Inter Vivos Transfer- By gift or by contract of sale

1. Gift:o Need the various elements of a complete gifto Cannot make DMC’s for real estate

2. Contract:o This is a contract of purchase and sale for property: need the

elements of contracts (offer, acceptance and consideration) + the 3 P’s

o 3P’s = parties, property, price Need to understand who is selling, who is buying,

description of land, and the price If any one is missing, the contract can fail

o Two stages to the K transfer: signing and conveyance. The moment the K is signed, the buyer is the owner in

EQUITY. LEGAL title is transferred upon actual conveyance.

o 2 Steps: (1) Agreement – enter into contract between buyer/seller which

provides for closing (2) Closing – actual transfer of money/title

o Valid Contract respecting land is not enforceable unless: (Law and Equity Act 59(3))

There is writing signed by party to be charged that there is an agreement, and the writing is a reasonable indication of the agreement OR

Party to be charged has done an act that indicates that there was a contract OR

Person alleging the contract has relied upon the contract to their detriment in a way that can only be avoided by enforcing K

o Contract of Sale Law – before and during K, vendor has fee simple Equity – before K, vendor has fee simple the moment a valid

contract exists, fee simple is in the purchaser (vendor becomes a trustee in equity for the purchaser)

o Semelhago – Real Property Pre-Semelhago real property treated as special, damages are not

enough Semelhago Sopinka declares that real property is not particularly

special, onus is on purchaser to prove that the property is special before equity is engaged

- By Will or Upon Intestacyii. If you want to make a will it has to comply with Wills Act

iii. If you don’t, it will descend as per Estate Administration Act1. This is the act that states how to deal with estates after death by will

or through intestacy2. Note: probate process of administering an estate under a valid will3. All of it goes to personal representatives (who are deemed by the

executor) and they then have duty to distribute everything from the estate

Wills Act, s.3-5- A will is only valid if in writing, signed by the testator (or in his name at his

direction) and has two witnesses- Exception : military or mariners can sign by themselves Estate Administration Acto 77) Personal representatives deal with the property IF there are no survivorso 78) Personal reps hold the property for people beneficially entitled to it

o 79) Personal reps can convey real estate devised by will or when people are entitled to it

o Part 10: deals with intestacy rules; clarifies priority for estate when a person has not left a will

No children everything goes to the spouse Children Property distributed per stirpes (if one child dies, then

their children take their share) If the estate is worth $65,000 or less, it all goes to the spouse If the estate is worth $65,000 or more and there’s one child, it’s split

50-50 between the spouse and the child If the estate is worth $65,000 or more and there is more than one

child, 1/3 is given to the spouse and the rest to the childreno 98) You are not considered a spouse anymore if you lived apart for one year

and intended to live aparto 92) Provides a mechanism for accounting – if part of the estate was advanced

while the testaor was still alive, can sue for this by showing it was intended to be dealt with in the will

o 96) ***If spousal home doesn’t go to the spouse under the will, people entitled to the home must hold it in trust for spouse in a life interest

- Proprietary Estoppelo Easements can be created through proprietary estoppel

When A to the knowledge of B acts to his detriment in relation to his own land in expectation of acquiring a right over B’s land – such expectation arising from what B as said or done – the court will order B to grant A that right

o (I.E.) Adams v. Loughman (Man buys property relying on representation that a lane was set

aside for the use of the owner of that property) Grantor was estopped from preventing the purchaser from using the

lane as a right of way, despite later change in lane use plansCapacity:

- almost anyone can own land (except minors and people with severe mental illness)- Exception – Non-residents

o Land Act – people who are not citizens or residents cannot get title through Crown grant

MORTGAGES

Development of the Mortgage:- Pledge (earliest form of a mortgage)

o Security under a pledge is obtained by lender acquiring possession of some object

o Earliest mortgages were pledges of land- Form

o Borrowing money to buy propertyo Mortgagor (Borrower) confers an interest in property to the Mortgagee

(Lender) for the purpose of security

- Developed in conjunction with the loano Loan – creditor has only right of action against borrower (right can become

valueless if borrower becomes insolvent)o Mortgage – mortgagee has right to land

- Mortgagor – The “Spoiled Child” of Equityo Insulated be equity from full force of legal rights of the lendero Contractual Redemption if you were in breach of contractual obligation to

repay the mortgage by a certain date – equity would grant you an extra period of time to repay

Equitable remedy developed to deal with “time is of the essence” clause

- Consequenceso Higher level of judicial protection for insolvent buyers = higher lending rates

to for “Poor Risks”o Availability of equitable relief for mortgager had “ill consequence” of

rendering it more difficult to obtain a mortgage loano Hence, Equitable Remedy for Mortgagor Foreclosure

Modern Mortgages in BC- In Torrens System

o No transfer of title to mortgagor when mortgagee takes out a loano Mortgagor keeps fee simple mortgage is registered as a first charge

against your land at land registry Note: Bank does not actually own land, but can own first charge

against land for up to 95%- Second Mortgage / Equitable Mortgage

o Mortgage against the equitable interest in the property – first mortgage puts a charge only on the legal fee simple

o (How does this get registered?)

QUALIFIED TRANSFERS AND FUTURE INTERESTS

- Lots of people want to make gifts on conditions – but the law limits/regulates how people control future gifts and “rule from the grave” in order to provide certainty to donees (people getting gifts)

- Tension: between allowing people to give gifts to who they want and trying to create certainty in the law

Vested and Contingent Interests and Conditions Precedent

Vested interests: No condition or limitation stands in the way of enjoying the interest – it is certain that the

interest will accrue. NOTE: the natural termination of a life estate is NOT a condition

o “To Ernie for life, to Bert in fee simple” – both have vested interestso Vested in possession = whoever can use the property now (Ernie)

o Vested in interest = whoever gets the property later (Bert); it must be certain that this person will get the property in the future

Contingent interests: Grantor will give the grantee something, but only if they fulfil the conditions If you don’t fulfil the condition grant is VOID Vesting is delayed either:

o (1) pending the occurrence of an event X grants Blackacre to A for life then C, if and only if C marries D

(hinges on an event) X Retains possibility of reversion – if condition precedent is not

fulfilled blackacre will revert to Xo (2) or because the person’s identity is not ascertained.

X grants to A and B for life, remainder in fee simple to the survivor (not sure who the person will be)

The happening of that event is NOT inevitable Condition precedent = the event that must happen before the contingent interest is

vested; this is not a type of interest

Contingent interest or vested interest? Matter of construction Presumption of early vesting – courts prefer vested interests over contingent interests

(Hayes / McKeen) Presumption against intestacy – courts try not to find than an estate flows in intestacy

Both these presumptions can be REBUTTED by showing contrary intention

Mckeen v. MckeenVested interest or contingent interest? Illustrates the court’s presumptions of early vesting and against intestacy.- (testator said that Harry McKeen’s will said the entire estate was to be held in trust for his

wife for life, and on her death, the trustees were directed to divide the residue of the estate equally btw his sisters if they were both alive at the time of the death of him and his wife; if only one sister was alive after his wife’s death, she would get the entire estate; both sisters died before the testator’s wife.) Court says must look at the actual and subjective intent of the testator. However, if

this isn’t clear, courts must rely on presumptions. o Presumption that the testator did not intend to die w/intestacyo Presumption of early vesting – courts more inclined to find an interest has

already vested, rather than contingent. Court held that The moment the testator died, his widow got a vested interest in the estate

and the sisters got a vested interest in the residue, subject to the life estate of the widowo Presumptions favour this findingo Wife was ill, Harry did not think she would outlive his sisters

The rest of the will was really detailed/precise – clear intention that Harry did not want anything to pass in intestacy

If Harry did not deal with this situation it was unintentional – his intention was to vest remainder interest in sisters

Reversions and Remainders

Remainders and reversions = Present rights to future enjoyment.

Reversion: When you have an incomplete gift (aka the words of the gift haven’t dealt with the entire

estate) the interest will revert back to the donor “From Ernie to Bert for life” – when Bert dies, the fee simple reverts back to Ernie.

Remainder: “To Ernie for life, to Bert in fee simple” Bert has the remainder; a present right to future enjoyment NOTE: Bert’s remainder is vested in interest; Ernie’s right is vested in possession A remainder in fee simple is ownership (Stuartburn)

Stuartburn (Municipality) v. Kiansky – Man 2001← A remainder in fee simple = ownership. Thus, a vested interest, but not vested in possession, is still ownership.

Facts: Stuartburn municipality trying to get Kiansky disqualified from holding office bc he does not meet requirement of being an “owner of land” in the municipality - after he was elected, he sold his farm, now all he has is remainder in Grandma’s property.

Court held that remainder interest is a present right that co-exists with a life estate – even though possession and enjoyment are postponed.

Owner of a remainder interest is an owner.

Defeasible and Determinable Interests

Defeasible Interest/Conditions Subsequent: This is a way to hold land with a “dark cloud over a property interest” Interest may be brought to a premature end on the occurrence of a specified event (the

condition subsequent) Allows the donor a right of re-entry – if the event occurs, the donor can claim back the

property interest. A fee simple subject to a condition subsequent is a VESTED INTEREST The right of re-entry is a CONTINGENT INTEREST. WORDS that indicate a condition subsequent = “but if”, “on the condition that”, “if it

happen that” Example: “to Ernie on the condition that he ceases to host the Sesame Street street

hockey league in the front yard” says “on the condition that” therefore condition subsequent; Ernie’s fee simple is vested in possession subject to a condition subsequent

Determinable interests: A way to hold land with a possessory interest Fee simple is subject to a determinable limitation – if the event occurs, the property

automatically goes back to the donor’s estate There is a “possibility of reverter” The determinable interest is a VESTED INTEREST The possibility of reverter is a VESTED INTEREST.

WORDS that indicate a determinable interest = “while”, “during”, “so long as”, “until” Example: “to Ernie while he uses the front yard to host the neighbourhood street hockey

league” says “while”; Ernie’s vested interest lasts until he stops hosting

If a condition subsequent is found to be void the gift is absolute, the limitation no longer exists.If a determinable interest is found to be void the gift fails, the property reverts back to the donor.

Caroline (Village) v. Roper – Alberta (1987)← A condition subsequent is found – but court looks at the intention of the donors and uses its equitable jurisdiction to correct the grant.

Facts: Ropers granted the land to the community; “land shall revert back to the Ropers if used for other than a community centre”; the land was later transferred to the Village of Caroline who wanted to use the land for commercial purposes; Village of Caroline argues that the condition is void because it violates the rule against perpetuities

Signals:o Some words presumptively signal Determinable (but if)o Some words presumptively signal Defeasible (until)

Court holds that the words “if used” create a condition subsequent, and since the condition is void because it violates the rule against perpetuities, the gift passes absolutely

HOWEVER: the court looks at the intent of the Ropers and apply rare equitable remedy – they intended to preserve their rights – rectifies the document to say that the community received the property as trustees, the land was to be used as a community centre

Precatory Words and In Terrorem Conditions

Precatory words: words that fall short of establishing conditions or limitations, or any kind of binding obligation

- Do NOT impose any requirements in a grant- Merely hopes or wishes that something will happen.

In terrorem conditions: conditions attached to grants of personalty that are just idle threats - Not intended to lead to a loss of interest

Transferability and Registration

- Interests vested in possession and vested in interest are fully alienable.

Property Law Act ss. 8 and 10(4)8) even contingent interests are alienable

- You can dispose of future interests, condition interests, and rights of re-entry- The right of re-entry has to be exercised in a certain amount of time

10(4) A possibility of reverter or a right of entry for condition broken may be registered under the Land Title Act against the title to the land affected in the same manner as a charge

Land Title Act ss. 172 and 180172) First owner of estate of inheritance will be title holder, but title will make it clear that it’s

only remainder interest, everyone else registered as a charge according to their priority- Essentially allows two or more people who have an interest in land to be registered on

title- People with interests will be registered as “chargers on title” in order of priority; the

person who holds fee simple will be registered as the “holder of the fee simple”180) If land vests in a personal rep or trustee, that person’s title may be registered. BUT particulars of a trust created or declared in respect to that land must not be entered; identification of trustee and words “in trust” must follow!

Wills Act s.22) a person may devise, bequeath or dispose of all property including: estates pur autre vie, contingent or other future interests in property, and rights of re-entry

- Enables us to pass different types of interest by will and a variety of different estates

Perpetuity Act s. 2323) if there’s a possibility of a reverter or a resulting trust, then the rule against perpetuities applies as it would against a condition subsequent or a right of re-entry and they have to manifest within the period of a life + 21 years (you don’t have the right of –retry forever)

STATE LIMITATIONS ON PRIVATE POWER

Uncertainty:- A condition or limitation may be void for uncertainty- “Conceptual Uncertainty” articulated in Hayes

o “condition that is so vague that it should be struck down for not making any rational interpretation or application possible”

o condition is only valid if the court can see from the beginning, rationally and distinctly, upon what event the divesting of the conditional state would occur Hayes

- Void condition has different effect on different giftso Condition precedent – invalidity voids the gift

Court will treat conditions precedent more leniently than conditions subsequent because invalidating them voids the gift

Example Tucks Estate1

o Conditions subsequent (Defeasible and Determinable) – invalidity makes the gift absolute

H.J. Hayes Co. v. MeadeCourt finds conditions to be subsequent consistent with presumption of early vesting, conditions are also void for uncertainty, gift to son becomes absolute(testator gives land to son if son should “remain on land and cultivate it” – if not then to brother “if he should pay $1000)

- son has fee simple title to land- “remain on land and cultivate” was a condition precedent – thus land vested when

testator died (consistent with testator’s desire to give son land)- condition void for uncertainty, defeasible interest becomes absolute

Public Policy:- Ownership rights are always subject to the qualification that a private act will not be

treated as valid if it offends the prevailing state policies- Importance articulated in Leonard Trust

o Recognizes “lure of property” and potential for harmful useo Proprietary freedom must be measured against other values that the law

wishes to promote- Issues to consider

o Property Law promotion of alienability/certainty in property dealings/efficiency

o Broad Social Policy policy concerns on who you can marry, who you can give property to based on race, religion, gender, etc.

o Court will look to Charter and Human Rights Cod to inform it on relevant public policy concerns Leonard Trust

1 Clause that british aristocrat couldn’t inherit land unless he married another jew – court wants to uphold, and thus finds condition to be a condition precedent and treats it more leniently

- Wills Variation Act allows for BC courts to change conditions of wills that are counter to public policy

Re: Leonard Foundation TrustTrust violates public policy – Court uses equitable doctrine of cy-pres to rewrite trust and eliminate policy concerns while keeping it as close as possible to testator’s wishes(scholarship trust established only to be given to people of British decent, no other races or religions, not more than ¼ to woman, for “maintenance of Christian kingdom”)

- Trial judge erred in not taking recitals (opening passages) into account – only looked to operating passages and found no violation of human rights code

- Court uses Human rights code to assess public policy violation – looks at entirety of the trust

- “The concept that any one race or any one religion is intrinsically better than any other is patently at variance with the democratic principles governing our pluralistic society”

- (concurring judgment) – agrees, but wants to make it clear that this is a very rare case

Restraints on Alienation:- The Law generally leans toward letting you do what you want with your property- Normally, cases are a person arguing that giftor has put too many restrictions on their

ownership, effectively not giving them property- 3 Types:

o Forfeiture In defeasible or determinable interest – element of forfeiture if you

breach a termo Promissory

Contractual restraint on alienationo Disabling Restraint (most controvercial)

Restraint put on property that completely restricts owner from alienating in a certain way or to a certain person

- Doctrine: A condition that would take away the necessary incidents of fee simple estate (like the power to alienate) is void as repugnant Trinity College (in relation to disabling restraint)

o Test is often said to be “whether the condition takes away the whole power of alienation substantially”

Trinity College School v. LyonsRight of first refusal is struck down as a repugnant restriction on alienation because it was exercisable by Trinity College without the permission of the daughters – court will not allow conditions that take away necessary elements of fee simple(lyons sell land with right of first refusal to school, option to buy land for $9000 upon death – Lyons gift land to daughters without telling school, both spouses die, school wants to use option)

LICENSES, LEASES, SALES, BAILMENTS

Possession Title

License X XSale Yes YesBailment Yes X

License : Permission to do something that would be unlawful without the permissionSale : purchasor gets both possession and titleBailment : Bailor parts with possession but retains title (renting)

Bailment Issues that arise:1. Is an arrangement a bailment or a sale/transfer of goods?

o When the arrangement gives the bailee the option to return the very goods bailed or to substitute others, this transaction is sale – not a bailment (Crawford)

2. Is someone acting as a bailee or do they have a license to use the property?a. Important distinction, because the bailee assume obligations that are more

extensive that those applicable to a licensor

Crawford v. Kingston and JohnstonBailment = possession is entrusted to bailee on condition that bailee returns property at some point, transfer of cattle in this case was a sale(cattle transferred to bro on condition that he will at some point return the same # of cattle, cattle seized as part of bro’s debt, π argues that cattle were bailment and could not be seized for debt)

- transfer of cattle was a sale, not a bailment- when π agreed that specific cattle did not have to be returned he was selling cattle- consideration in sale was potential for more cattle to be returned

Leases v. Licenses

Lease = EXCLUSIVE OCCUPATION of land is conferred by a landlord on a tenant A leasehold interest is an interest in land – not simply a charge on land Landlord retains a reversionary interest – the landlord’s right to possession is suspended

during the period of the tenancy, but it kicks in when the tenancy is over. Remember (other points about leases from earlier in the term): (1) the indefeasibility of

title is subject to leases less than 3 years (they don’t have to be registered); (2) if you lease your joint tenancy it’s severed because it changes your interests

Five kinds of leases: 1. Fixed term lease = there are set commencement and end dates

o The dates of start and end must be certaino It is only the maximum duration of the lease which must be certain – a lease with

a stated fixed terminal date, but which may be ended prematurely on the happening of a specified event, is valid

o Note: a lease “for life” is not governed by that requirement because at CL, this is a freehold life estate.

o There have to be set dates: i.e. cannot be a lease for “duration of marriage” 2. Periodic tenancy = enjoyed for some recurring unit of time (ie: month by month) that

continues until terminated by notice3. Tenancy at will = no set term, continues only so long as both the landlord and tenant wish

o Either may bring the tenancy to an end by notice

o The tenancy can arise by implication (ie: when a tenant remains on the premises after the expiration of a previous tenancy w/ the landlord’s consent) and can terminate by implication (ie: the notice to terminate need not be express)

4. Tenancy at sufferance - arises when a tenant remains on the premises w/out permission of the landlord (arguably not a will at all)

5. Perpetual lease(Lease for Life)= CL saw it as freehold life estate with rent Sorenson

To create a lease, in perfect world, need identification of: The parties The property The term The date of commencement The rent (if any) to be paid Words of exclusive occupation

Words of process of termination

License = permission to use the property (or an aspect of the property) A license does not create an interest in land (no exclusive possession; no interest in land –

just a right to use it) It is not binding on a purchaser of the land (unless equity requires it)

Distinguishing between leases and licenses- Landlords often argue that arrangement is license not lease, leasehold interest is more

strongly protected than license- Tenancy Test : Exclusive Possession is the benchmark for a leasehold interest

o Fixed Term helpso Rent is a good indicator of intent to be legally bound, but not necessaryo Limitations on what tenant can do WILL NOT change lease into license

- Court will NOT find lease where o No intention to enter into legally binding relationshipo Tenancy is precluded by statuteo Occupier’s right to possession is terminated for reasons extraneous to

occupation (i.e. occupation pursuant to employment relationship then employee is fired)

Fatac Ltd. v. Commissioner of Inland Revenue – New Zealand CA (2002) Test for distinguishing between leases and licenses is exclusive occupation. (Puhinui granted Atlas the right to operate in a quarry on his land. Atlas was granted a twelve year license, renewable for a further three years. In 1996 Puhinui looked to sell the property to Mt. Wellington)

Issue: Is this agreement a lease (then the goods and services tax apply) or a license (then no GST payable)?

Held: Court held that the agreement was a license, no GST payableo Original Test for determining whether an agreement is a lease or a license: is

there exclusive occupation? o Common law had departed from this approach – considered the intention of the

parties to be the most important considerationo Court reverts back to the original exclusive occupation test – lays out the test

In this case, there was no exclusive occupation

Use of the word “license” is immaterial – the focus is not on the terminology, but instead on the exclusivity of Atlas’s occupation

As the owner could still come onto the quarry, still had access, there was no exclusive occupation.

The agreement is a license

SHARED OWNERSHIP

Examples of Communal property regimes:- Aboriginal communal ownership- Corporate shareholding- Religious groups communal landownership- Family property (BC Family Relations Act)

4 Types of Common Law Co-Ownership

2 are obsolete:- Co-Parsinary triggered when landowner died and heirs were daughters (all

daughters shared ownership of land as co-tenants)o abolished by s.83-94 of the Estate Administration Act

- Tenancy by the Entireties applied to husband and wife (because wife’s legal identity subsumed by husband)

o abolished by s.12 of the Property Law Act

2 Still Exist Joint Tenancy and Tenancy in Common

Joint Tenancy: each tenant owns the whole property; each has the right to possess the entirety at any time.

Requires Four Unities + intention to create a joint tenancy1. Unity of possession – each co-owner has an equal right to possess the whole of the

property and an equal interest in every piece of the property2. Unity of title – interests must arise from the same instrument/act (deed/will/grant)3. Unity of time – interests must arise at the same time

o Exceptions when interests are created by a will – i.e. remainder to children of A as joint tenants – they are still joint tenants even though their interests will arise at different times (when they are born)

4. Unity of interest – interests of the tenants must be equal in nature, extent, and duration (no weighted ownership; must have equality between all joint tenants)

Defining Characteristic Right of survivorship (the jus accrescendi): Once a joint tenant dies, their interests passes to the other joint tenant – occurs

automatically Right of survivorship takes PRECEDENT over wills and intestacy

Tenancy in Common: Each tenant has a distinct share in the property, does not have to be an equal share.

No right of survivorship! There’s an undivided interest (you can own half, but it’s undivided)

Preference for Tenancy in Common- (historically, Common Law presumed Joint Tenancy)- However, Equity presumes Tenancy in Common over Joint Tenancy in Realty

(equity hates joint tenancy – does not want to confer right of survivorship)o CL still presumes JT for personalty

- Courts will look for “words of severance” (which suggest some type of division) which are evidence of intent to create Tenancy in Common Sorenson

o “equally” / “share equally” / “share and share alike”- BC Property Law Act S.11 Law now presumes Tenancy in Common- Land Titles Act s.177 register has to expressly state if parties hold as Joint

Tenants

Re: Bancroft, Eastern Trust Co. v. Calder et. al.Application of the presumption of joint tenancy at common law for personalty(Sam dies; he leaves his property to his wife Clara in a life estate and the remainder to his three surviving children and the two grandchildren of his dead daughter; one of the grandchildren (Paul) dies before Clara did the grandchildren hold property in joint tenancy)

- Common law presumption of Joint Tenancy (because estate was personalty) - no contrary intention could be found, so estate went to joint tenancy- Right of survivorship meant that dead grandchild’s share was flows to surviving

sister- Common Law Presumption of Joint Tenancy Remains for Personalty

Severing a Joint Tenancy- Creates a Tenancy in Common

Three Ways to Sever: Sorenson- (1) Valid Unilateral Act of Severance

o one tenant must do something that destroys one of the 4 unitieso Things that will Sever:

Partial alienation Lease considered a property interest Trust severs legal and equitable ownership (Sorenson) Conveying title to yourself (s.18 Property Law Act) Conveying title to 3rd party Life estates Executed but unregistered transfer severs equitable interest

(effective as against person who made it)o Things that WILL NOT sever:

Charges (mortgage/covenant/easement) does not effect unity (Sorenson)

Unilateral Wills (Sorenson) Pending partition action (Sorenson) Unilateral Declaration

- (2) Mutual Agreement to Severo Only recognized in equity since severance has not actually happened yet

- (3) Course of Dealingso Also only recognized in equityo Dealings that would make it inequitable to continue JT – courses of dealings

that lead the courts to believe the parties no longer intend to have joint tenancy

(i.e. if people are dividing up property after divorce)

Stonehouse v. BCExample of Unilateral Act of Severance(Mr. and Mrs. Stonehouse Joint Tenants, Mrs. Stonehouse gives documents transferring interest to daughter (not to register until she dies), she dies and daughter claims that she and Mr. Stonehouse are now Tenants in Common, Mr. Stonehouse argues that interest passed to him the moment she died through Joint Tenancy)

- No real change against the world could be made by unregistered title, BUT transfer of documents was good as against the person who made it (Mrs. Stonehouse) remember McLeod

- Mrs. Stonehouse had divested herself of all equitable interest as against the daughter – this severed Joint Tenancy (daughter had equitable title, father had legal title)

Sorenson v. SorensonExample of Unilateral Act of Severance (and also canvassing of many acts which do not sever Joint Tenancy)(husband and wife were joint tenants, divorced, wife tries to sever joint tenancy, wife dies and husband claims entire estate under joint tenancy)

- Many things were not effective to sever joint tenancy (charge, will, pending action)- Execution of declaration of trust severed joint tenancy

o She held property in trust for her sono Son had equitable interest – severed unity of title

Resolving Concurrent Ownership Disputes

1) Financial issues: - Issues over how the property is used – court has power to make allowances that are just

and fair under the circumstances - Originally, CL did not require co-tenants to “act in balance” Equity held that joint or

common tenants should not profit or suffer out of proportiono Basic ideas:

only right that joint tenants or tenants in common have to profits (or liability for losses) are to the extent that they derive from the land

JT and TiC have equal right to occupy the whole of the land the simple act of occupation or use (if the other tenant is not on the land) does not lead to a larger share of profit or payment

Unless co-tenants make an agreement for unequal sharingEstate Administration Act s.71 developed from equitable principles

- Permitted joint tenants and tenants in common to sue each other for profits and rents- Do not owe rents to other as being sole habitant - Profits generated by individual business activities of tenant are not shareable, but if

profits are rent earned on account of being owner then they are shareable- Expenses, repairs are shareable (mortgage and taxes)- Improvements are not, but also won’t get added profit from these when sold

Property Law Act13) co-owner is called upon to pay for more than his share can apply to the court to recover.14) court can order that applicant has a lien on the land for the amount that is owed

2)Termination of the shared ownership- Transfer of one person’s interest to the other- Transfer by all the co-owners to a third party- Co-owner can invoke judicial power to order the partition (physical division of the land)

or sale of the land (Originally, at common law):

no remedies of partition and sale – tenants were left to sort it out for themselves

presumption that a joint tenant had the right to terminate the relationship. Courts could not refuse orders of sale/partition.

Now, courts have discretion to refuse orders of partition/sale of land – they must order partition/sale UNLESS justice requires otherwise (Harmeling) Statutes developed allowing courts to order the partition and sale of land

*Partition of Property Act – joint tenant may be compelled to split or partition the land

Harmeling v. HarmelingCourts have discretion to deny order of partition/sale. This case is still good law; recently cited in Waugh v. Waugh. The scope of this discretion = courts must order partition/sale unless there’s a sufficient reason not to do so or justice requires otherwise. (husband and wife separated and wife was granted an order for partition and sale, husband appealed)

- prima facie right of joint tenant to partition and sale but s.3 Partition of Property Act gives court right not to order partition where it would cause injustice

- In this case – partition and sale would be inequitableo Husband primarily bought houseo He was over 70 and his half of sale proceeds would be insufficient to provide him

with similar accomidation

Shared Ownership through Marital Property Law

Historically:- At common law, married women’s property was merged with the husband’s under the

doctrine of marital unity- When women started entering the economy, this became a problem – women made

money, all the money went to the husband – movement in the 19th C to protect women from the effects of CL.

- Development: o Women’s property legislation

Land Spouse Act – untitled spouse can put a lien on property Estate Admin. Act – where no children – surviving spouse entitled to

estate of a spouse that dies intestate (applies to married and CL)o Equitable Protection

Separate Use – father bestows some property to marriage union held in separate trust for the wife

o Abolishment of Marital Unity Married Women’s Property Act: initially gave women their property

when they were deserted by their husband. Evolved, and eventually gave women control over their own property and wages allowed women to hold separate property

BC Today Under Statute

Equal Sharing:- Family Relations Act Established system of deferred legal sharing

o Only applies to married couples, not common lawo Rules of separate property continue to apply until some event denoting marriage

breakdown (divorce, death, separation)o Most assets are considered family assets and the presumption is that each spouse

owns a ½ interest in the property as a tenant in common (s.56)o Although there is a presumption of equal sharing, there is judicial discretion to

re-apportion based on the circumstances (s.65) o Exception: business asserts are not considered family assets unless there was a

direct/indirect contribution by the other spouse (s.59) NOTE: an indirect contribution can include effective management of the

household and taking care of the children (s.59(2)) Onus is on the spouse claiming it is not a family asset to show that it was

used for business purposes, not family purposes (s.60)o Irrespective of a triggering event, court can determine possession, ownership, or

division of property (s.66)o If there is a conflict between any acts regarding division of matrimonial property,

the Family Relations Act prevails (s.69)

Wills Variation Act- 2(1) if the testator fails to make adequate provision for the proper maintenance and

support of a surviving spouse and children, the court may order the provision from the estate that it considers "adequate, just and equitable in the circumstances"

o if testator has not provided support for surviving spouse or children that is "adequate, just and equitable in the circumstances" – judges will have an equitable discretion to re-structure a will

**NOTE: if CL spouses want to get a division of property and statutes don’t apply, they can rely on: (1) a constructive trust, or (2) the Partition of Property Act

Tataryn v. TatarynCourt changes a will under s.2 of the Wills Variation Act – this Act gives Courts broad discretion, analysis should be based on legal and moral norms(T’s married for 48 years, marital assets in Mr. T’s name, they had two sons – John and Edward; evidence that Mr. T did not like John; Mr. T dies; his will excludes John, leaves a life estate in the matrimonial home to Mrs. T with remainder to Edward; he leaves everything else to Edward, held in trust for Mary.)

- Testator under legal and moral obligations when he made his will - Analysis of what is “adequate, just and equitable” should be based on two current norms: legal norms and moral norms

- Legal normso Wills Variation Act – “adequate, just and reasonable” provisionso Maintenance and provision for wife’s basic needs not sufficient

- Moral normso There is a strong moral obligation to provide for the family if size of estate

permits and absent of extenuating circumstances- Note: there are often conflicting claims – thus if an estate is not big enough to

accommodate all claims, legal obligations trump moral obligations- Note : court should only interfere with a will when it falls below legal and moral

norms- Under the Family Relations Act and the Divorce Act, Mrs. T would have been entitled to

more than she was given. She also has moral claims to money for her retirement. Court gives her ½ title of the matrimonial home, life estate in rental property, and the entire residue of the estate after paying $10,000 to each son

o However: John does not have strong moral or legal claims, as he is an independent child. Court awards each son a payment of $10,000 and after Mrs. T’s death, John gets 1/3 of remainder in rental home and Edward gets 2/3

Nova Scotia v. WalshDeferred property sharing regime applies to married couples and not CL spouses – does not contravene s.15 of the Charter(S and W common law – Walsh asked court to declare her relationship was subject to Family Property Regime in Nova Scotia and thus under presumption of 50/50 division of interests; she challenges regime and claims it contravenes s.15)

- not discriminatory- “Special Status” of marriage:

o difference between two groups reflects difference in relationships regarding personal autonomy

o choice of the partieso marriage is a special legal contract

- Common Law spouses can opt to register domestic partnership which provides similar rights to married couples

- L’Heureux Dube (dissent): o When people enter into a relationship, they are not thinking about ordering their

affairso It should not be about the choice made at the beginning of the relationship – it

should be about the end of the relationship, having regard to all the circumstances.

Matrimonial Property on Reserves

S.91(24) of the Constitution Act: Indians and Indian land is federal jurisdiction Indian Act: mechanism by which the federal gov’t deals with Indians and Indian land

o s.20: occupation and possession of land on reserveso s.24: any transfers have to be approved by the Ministero s.88: provincial laws of general application apply to Indians

Family Relations Act: provincial jurisdictiono s. 56: give a 50/50 split

o s. 65: the ability for judicial reapportionment if the 50/50 split isn’t fairo s. 66: irrespective of an action under the FRA, the court can determine division

when someone applies for it; it doesn’t have to be an action with other proceedings; this is an independent right of application to the court

Partition Act and Family Relations Act do NOT apply to land on Reserves (conflict with Indian Act and s.91(24)) (Derrickson and Paul)

Hole in the matrimonial property regime – equal division of property does not apply to Indian reserves

Problem b/c certificates for land were traditionally given to men – forces women to live off the reserve, away from culture and support

To address this, federal govt introduced Bill C8o Family Homes on Reserves and Matrimonial Interests and Rights Acto But this has not gone anywhere

Derrickson v. DerricksonDivision of property under the Family Relations Act does not apply to Indians on Indian reserves. Court uses s.66 of the Family Relations Act to compensate the wife. (Mr. and Mrs. D members of Indian band; each held certificate of possession on the reserve under the Indian Act; Mrs. D brought an application for divorce and division of family assets under the Family Relations Act – wanted ½ of the certificate of title)

o Family Relations Act does not apply to Indian lands – it is provincial legislation regulating property, if it applied to possession on Indian reserves it would infringe federal jurisdiction

o Family Relations Act cannot apply to Indians through s.88 of the Indian Act – it deals with a matrimonial property regime – the Indian Act already has a matrimonial property regime, the two would conflict – the Indian Act is federal legislation, it is paramount.

o BUT: the court can compensate Mrs. D in another way, under s.66 of the Family Relations Act – if division of property is not possible, court can make an order re-apportioning assets over all.

Court cannot give ½ interest in the certificate, but can order that she gets money

Paul v. PaulFamily Relations Act does not apply on Indian Reserves for orders of occupancy(Mr. and Mrs. P are members of an Indian band - Mr. P has the certificate of possession; they separated, Mrs. P applied for interim possession of the matrimonial home under Family Relations Act)

- Indistinguishable from Derrickson – same analysis as Derrickson

PRIORITIES AND REGISTRATION

Tension in Principles (who amongst innocent parties should bear the loss?)- Nemo Dat (Common Law) you cannot sell what you do not own

o Under CL, buyer had to determine whether title was goodo This slowed the transfer of land (deeds system)

- BFP (Equitable Interest) protection of innocent 3rd party commercial transactionso If purchaser has no notice of another’s interest and if they pay full value for the

property, they become owner even if the title is not goodo (1) Must have paid value (not gift - equity will not aid volunteer)o (2) Must have lacked any type of notice:

actual notice (you read the documents) constructive notice (ought to have known/asked more questions) imputed notice (notice should have been conveyed by agent)

Old System Four Common Law Priorities Rules (no longer apply in BC)(1) 2 Legal Interests

a. someone sells you Blackacre without proper titleb. earlier legal interest trumps subsequent legal interest

(2) Equitable Interest followed by Legal Interesta. A holds land in trust for B, but sells to C b. If C is BFP, then the subsequent legal title prevails over B’s equitable interest

(3) Legal Interest followed by Equitable Interesta. Legal interest prevails, if there is no moral difference between them (first in time,

first in right)(4) 2 Equitable Interests

a. Priority based on chronology (first in time, first in right)

Chippewas of SarniaExample of attempt to use Nemo Dat principle, defeated because Aboriginal title is not completely a legal right (sui generis) and equitable remedy was denied(band claimed land back, crown had sold land to BFPs, Chippewas argued that patent transferring land was void because their aboriginal title was a prior legal interest that trumped the later interest)

- Aboriginal title should exist more or less outside of the Torrens system – not quite a legal interest

- Band is seeking an equitable remedy, and as such are vulnerable to equitable defenceso subsequent purchasers are BFPs

o Laches (Acquiescence) – person who stands by while their rights are infringed cannot make claim (allowed in this case because band had waited 150 years)

**NOTE: how is it that equity, a principle that arose in theory at the time that Ontario came into confederation, trump an aboriginal right that pre-dates it for hundreds of years? Unsatisfying.

Deeds and Titles

Deeds Registration (Common Law System)- central registry established for people to register their legal conveyances (notice against

the world – public record)- Registration generally treated as “equivalent to actual notice”- Government did not guarantee the validity of the deeds in the deed registry validity of

documents remained open to challenge- Essentially existed to cut down on legal work – but still much work must be done to

establish “good title”

TITLE REGISTRATION Torrens System

Background- Traced back to Robert Torrens (Australia – 1958)- Purpose to facilitate transfer of land, allow for simplicity and certainty, reduce cost of

conveyancing- Only 1 title for 1 piece of property, lists all owners and interests- Land Act s.54 any Crown Grant or new private property (post-1968) needs to be

registered to the LTO o Certificate of Indefeasible Title

Benefits and Problems with TorrensBenefits

- facilitates sale of land and reduces cost of transactions- Faster- Assurance fund protects people in case something goes wrong- Prevents fraud or misrepresentation of ownership/interests in land- Certainty

Problems- people who would not have lost title under CL can under Torrens (instead of protecting

legal estate owner at all costs, Torrens system sometimes favours BFP) - Assumes that there are not many rogues in the world

Main Principles- basic interest is registered as fee simple, subject to any charged registered

Mirror- Titles registered are said to reflect all of the rights in relation to the land- Will show who fee simple owner is, and all other interests as charges

Curtain- With registration, “curtain” is brought down over past dealings- Registration certifies title, no need to look behind to see if there is good title

Net- Torrens sacrifices some of security enjoyed by the CL owner (favours BFP)- Thus, assurance fund “net” provides monetary compensation when the system wrongfully

divests an owner (betting that there are few rogues out there)

Principles in BC(1) Compulsory Registration

a. Interests only acknowledged when registered (not legally required but have to be an idiot not to)

b. Reflected in S.54 LA, s.20 of LTA(2) Creation of Indefeasible title in the registered owner

a. Registered title is good against the worldb. 23(2) LTA

(3) Certainty of title and proof of titlea. Certificate of indefeasible title is conclusive evidence of good titleb. 23(2) LTA

(4) Doctrine of notice is abolished when dealing with fee simplea. Title gives you all the notice you need b. 29 LTA notice of unregistered interest does not affect transfer (maybe)

(5) Assurance Funda. Compensates persons wrongfully deprived of land through the operation of the

LTA

LegislationLand Act s.54- Any Crown grant or new private property needs to be registered to the land title office.

Land Title Act:1) Definitions

- Charge: an estate or an interest in land that is less than fee simple; includes encumbrances

- Encumbrance: includes mortgages, judgments, liens, crown debt- Highways: includes a public road, street, path, trial, lane, bridge, etc.

20) Interests only pass upon registration, except against the person transferring the interest23(2) Indefeasible title is conclusive evidence of fee simple against the word, notwithstanding any common law or equity rules mirror/curtain principle the effect of registering a fee simple title is that it is conclusive evidence that it is good title. (NOTE: there are exceptions)24) Abolishes title by prescriptions

- Prescriptions is a CL doctrine if you used the land for hundreds of years to get somewhere, court can find there is a public easement for public use of the private property (different than expropriation because the land could only be used for that single purpose)

26) Registered owner of a charge less than a fee simple is deemed to hold a valid interests this creates a rebuttable presumption that the person who holds that charge has a valid interest. 27) Notice is given by registration29) Except where there is fraud in which he has participated in, anyone taking a transfer of land or charge is not affected by any type of notice of an unregistered interest. 169) Registrar is required to register title if he is convinced or satisfied that the boundaries are well enough explained and that the applicant has established good safe-holding and marketable title. BUT: if there is a caveat on title or a certificate of pending litigation, registrar must wait until its dealt with to do anything with the registration. 171) Abolishes title by adverse possession; it’s basically not allowed in BC179) Owner of the surface is the owner in fee simple. Owners of land above or below the surface can only register an estate as a charge or interests against the fee simple I.e. a right to minerals could be an interest or charge

197) If a registrar is satisfied the applicant is entitled to be registered as the person holding the charge, the registrar must register the charge

Creelman v. Hudson Bay InsuranceExample of the curtain, court would not “raise the curtain” to look behind the title and see if HBC should have had title in the first place(appellants defaulted on mortgage payments to HBC, argued that company should not have been eligible to hold the land in the first place)

- registered title is proof of indefeasible title (mirror)- HBC had title, no other investigation necessary

Indefeasibility (and its qualifications)- title cannot be vitiated by some antecedent act that might undermine the validity of

current rights- Title registration system provides protection for registered owner – lowers the curtain

on any past transactions curtain principle- This is an exception to the nemo dat rule – it allows title to pass wrongfully through

the incorrect registration of a defective transfer.- The title reflects/mirrors all interests associated with the land mirror principle

Immediate v. Deferred Indefeasibility- Deferred

o indefeasibility waits for one full transfer, first transfer is governed by CL rules

o if Rogue forges A’s title and sells title to B, A can claim title back through CL principle of Nemo Dat, curtain does not fall until 2nd transfer

- Immediate o title vests immediately; once you are on the register, you have

indefeasible title

We have Immediate Indefeasibility in BC LTA- 23(2) the person named is indefeasibly registered on title- 23(2)i subject to the person deprived of land using fraud in which the new owner

participated** Basically, the curtain falls as soon as you register title, subject to fraud in which you participated (or other qualifications)

Important Qualifications1. Indefeasibility of fee simple title is subject to a number of things listed in s.23(2) of LTA:

a) Original conditions of the grant (i.e. Crown grant)b) Federal and municipal taxes (if you owe taxes, they can take your property)c) Municipal charge, rate or assessment at the date of the application for registration

imposed on the land d) Lease not exceeding three years when there is actual occupatione) Public easements (ie: highway)f) Right of expropriation (you take your fee simple subject to the ability of the

government to take your property if it’s in the publics interests)g) Caveats, charges, judgments, pending court proceedingsh) Someone else showing the boundaries are wrong

i) Right of someone to show fraud in the registration and that the registered owner participated in the fraud (you take subject to the registered owner having participated in fraud)

j) Restrictive condition, right of reverter, or obligation imposed on the land by the Forest Act, that is endorsed on the title.

2. Indefeasibility principle only applies to fee simple titles. Lesser interests (ie: charges) are not protected by the principle of indefeasibility – they can be challenged based on past transactions/acts

o Charged cannot be based on a void instrument (though BFP can get indefeasible title through one)

3. Personal (in personam rights) may still remain available and may lead to the return of the property – these are personal claims that relate to some right of action between the parties – no third parties involved.

o Irrespective of registration, parties may have other avenues to assert their rights and rectify title – can sue in contract.

o Examples: rectification b/c of error in the transfer document, mutual mistake4. Indefeasible title is subject to overriding interests - some rights are allowed to be outside

the system yet still binding on subsequent purchasers – register is not a true mirror (see s. 23(2))

5. Indefeasible title may be subject to aboriginal titleo In BC, there are lots of aboriginal claims on the land – many groups rely on a

pre-existing right to the lando In Tsilhqot’n Nation v. BC (BCSC 2008), the court held that if aboriginal title

was found, provincial regulation was irrelevant it does not matter that interests are registered under the provincial registration system.

This casts doubt on a lot of people’s indefeasible title!- However, aboriginal title exists outside of the Torrens system, and does not allow for

a caveat to be placed on the titleo Reasons:

In one decision, because interest claimed was not interest in land In one decision, because aboriginal title is not marketable In on decision, because aboriginal title is inalienable

o Note: this is pre-Delgamuukw, might change with duty to consult/accomidate

Caveat:- primary means of providing protection for rights that are not amenable to registration- essentially a warning does not create its own right, simply preserves presence of

another interest in the land- Example : Lis Pendens

Gratuitous Transfers:- Donee receives interest held by the donor, and nothing more- Example: Kaup

o Mrs. Kaup transferred title to herself to try and “fill in” missing interest equity does not protect volunteers, cannot get more than you give in donation

Substantive Validity:- An interest is not validated in all respects by registration- Example: Easements

o 4 elements necessary to make an easement, if those elements are not met the interest is void regardless of whether it is registered or not

Misdescription and prior certificates of title:

- In some Torrens systems – curtain will not be drawn to prevent assertions that the land has been misdescribed in the title

- Boundary errors can be rectified later subject to BFP

Fraud (LTA 23(2)i)- purchaser contaminated by fraud does not acquire indefeasible title - no set definition (leaves courts open to deal with it however it occurs)- Includes fraud perpetrated by the purchaser or simply fraud that the purchaser was

aware of- Exception to curtain principle can go behind register and look at past transactions

to show fraud (LTA 23(2))When does an action constitute Fraud?

- Woodwest under the BC land registry system, a purchaser who takes with knowledge of a prior unregistered interest MAY be found fraudulent – but it does not follow that this must be found in every case, as this would effectively repeal the LTA

- Holt Renfrew Fraud requires something more than mere knowledge of an unregistered interest

- McCulloch if it is based on knowledge of a prior unregistered interest, knowledge must be used for an unjust or inequitable purpose

o Note: Using the transfer for the purpose of defeating the interest you had knowledge of is enough to constitute fraud McCulloch

Woodwest Developments v. Met-Tec InstallationsExample of fraudulent title transfer, purchaser knew about unregistered interest and fraudulently used title transfer to attempt to destroy interest (however – simply knowing about interest will not always be fraudulent)(M has unregistered lease, W attempting to get M off land, argues that unregistered lease does not bind the title owner, judge found that W had express notice of interest before deal was done)

- W had express notice of unregistered interest (had seen lease)- W conduct had been unethical – using LTA to defeat the unregistered lease within

days of acquiring title- (potentially mattered that W had acted as though the lease would not be a problem –

led M to believe they were safe)- Fraud cannot be presumed, must be inferred from the particular facts of the case:

o Has person done something we are uneasy with?Note: Is this basically judicial activism? Judges doing what they want despite statutory authority?

Holt Renfrew v. Henry Singer Ltd.Example of known about unregistered interest defeated by transfer, Fraud requires more than mere knowledge of an unregistered interest(purchasor has actual knowledge that Tenant has unregistered lease, buys property and files for priority over T)

- No element of dishonesty or “sharp practice” in this caseo Offers were not drafted to misleado Last offer showed that purchaser intended to be encumbered only be

registered interestsNote: Lingering issue, what is “sharp practice”? What does purchaser have to do to show bad faith?

Alberta v. McCullochExample of transfer void for fraud – knowledge of unregistered interest is fraud if used for unjust purpose

(man purchased land subject to govt. caveat, caveat mistakenly cancelled, man transferred property to himself to defeat unregistered interest)

- transfer of land was done for inequitable purpose (no other reason than to make the curtain fall)

- Suggests that even if actual prior notice of unregistered interest is not enough – knowledge of the legal effect of transfer of that title on the interest (and acting upon that knowledge) might be sufficient to find fraud tension with Holt Renfrew

Personal Claims- even in jurisdictions with immediate indefeasibility, transfer of title may still be

affected by claims that exist between transferor and transfereeo Basic – in personam interests may be enforced on title until the person

against whom the claim is held sells the land to a BFP – even in system of immediate indefeasibility, the person on the title has not “relied on the register”

- the in personem claim must be based on a recognized cause of action and not expressly eliminated by statute

o Examples : Right of Rectification – based on document error / claim for rescission based on mutual mistake

Re: Pacific Savings v. Can-Corp DevelopmentsExample of in personem interest, as between the transferor and the transferee the curtain does not fall until title is relied upon by BFP - as long as the rights of 3rd parties are not implicated, wrongdoers cannot hide behind registration courts can step in and correct the register(PS foreclosing mortgage on CC, CC misses payment, PS gets indefeasible title back, CC applies for a gets more time (motion to re-open order absolute), PS sells property to BFP later that day)

- CA overturned Trial court and held that PS did not have proper title to the property when they “sold” it to BFP CC still had equitable title

- Torrens system is for protection of BFPs, not registered ownerso S.23(2) says: “indefeasible title is good as long as it is in force” - this

indicates that courts have discretion to decide when title is in force – can re-open title and correct errors or rectify the register

Note: also remember McCulloch no innocent 3rd party, Torrens system does not protect the two parties to the land deal

Reform Ideas:- Model Land Reforming and Registration Act (opts for deferred indefeasibility with

assurance fund) not adopted in BC but might be good alternativeo Allows for people who were defrauded not to loose their land, but BFPs who

were tricked by rogue to make claim against the Land Title Insurance- Title Insurance

Trying to make headway in Canada, arguing that it is inexpensive, and addresses:

Boundary errors in Torrens Risks taken by lenders

SERVITUDES OVER PROPERTYRights to use over property that belong to someone else

- operate like metaphysical fixtures, can be attached to and pass with transfer of realty- usually attached as a charge on title- Substantive Validity just because servitude is registered does not mean it is valid

EasementsNature:

- (an “incorporeal herediment”)- essentially taking a contractual right and making it a property right- Must be a right or advantage “known to the law” – something capable of applying

whether one had notice or not Phipps (Denning)

4 necessary elements Ellenborough Park (1) Must have a Dominent and a Servient Tenament (to easements in gross)

a. Dominent enjoys the benefit of the easementb. Servient burdened by the easement

(2) Easement Must accommodate the Dominant Tenamenta. Easement must BENEFIT the dominant property itself, NOT just the owner of

the property (if it benefits only the owner, it looks more like a contract that will not pass with the land)

(3) Dominant and Servient Tenament cannot both belong to same persona. Cannot have an easement over your own landb. Note: if you own land but it is leased out, you can register an easement on the

leased land(4) Easement Must be capable of forming the subject matter of a grant

a. Must be reasonable proximity between the properties though they don’t have to be right next to one another Ellenborough

b. Must be sufficiently precisec. Must not result in substantial deprivation of the rights of the owner of the

servient tenamentd. Must be more than a right to mere recreation or amusement

Easements CANNOT:- include possession- be a right to “mere” recreation or amusement- confer right to possession or control of the servient lands to the extent that it

substantially abrogates the property rights of the servient owner- force the servient owner to spend money

2 Types of Easement Phipps - Positive Easement

o Owner has a right himself to do something on or to his neighbour’s lando i.e. right of way

- Negative Easemento Right to stop a neighbour from doing something on his own lando i.e. right of lighto Phipps (Denning) law is cherry of negative easements, does not want to

unduly restrict neighbour’s enjoyment of land

Phipps v. PearsCourt will not recognize new negative easement, right to implied easement of support, not to protection from the weather(house demolished, left house beside it exposed, unfinished wall suffered weather damage, argued implied right to negative easement of protection from weather)

- no new negative covenants (not analogous to right to a view (Bland) or right to wind (Webb))

- statutorily implied easements exists (support), but protection from weather is not one- do not want to unduly restrict neighbour’s enjoyment of land

Ellenborough ParkElements of Easement defined, right to enjoy the park was a valid easement(πs lived near E park, had easments of enjoyment of the park, park requisitioned for military use during war, people who owned park were repayed, πs argued they should be repayed too for appropriation of easement interest)

Other ways to create Easements(1) Proprietary Estoppel

a. “When A to the knowledge of B acts to his detriment in relation to his land in the expectation, encouraged by B, of aquiring a right over B’s land (such expectation arising from what B has said or done) the court will order B to grant A that right” Zelmer

b. Example: Adams v. Loughman Representation made that lane would be set aside for use of land in sale, development plans later changed, grantor was estopped from preventing use of lane as easement

(2) Prescriptiona. Easement may arise from continuous useb. Law essentially pretends that easement was granted as evidenced by long,

uninterrupted, continuous usec. Distinct from adverse possession

i. works to recognize a right, AP takes a right away (right to expel possessor)

ii. applies to non-possessory right, can be established with something less than possession

- Some statutory regimes eliminate creation of prescriptive easements, save by 2 ways:o (1) Claim extended back to time immemorialo (2) Lost modern grant (continuous use for specified period – usually 20

years) law basically pretending the easement was granted but went missing

(3) Statutea. Special easements can be conferred by statuteb. i.e. Strata Property Act

i. There is an assumption of easements for all the owners in the strata; everyone has an easement against everyone else for common systems and the ability to enter your unit to fix those common systems

c. i.e. Statutory Right of Way (s.218 of LTA):i. NO requirement of a dominant tenement

ii. Usually in favour of a public authority (ie: government) and gives the public authority ability to get easements and provide services anywhere - without having a nearby dominant tenement

Profit A Prendre Tener v. BC- right to go onto land that you do not own to extract something- basically a license coupled with a non-possessory interest- can be granted in gross (does not need dominant tenament)

“Servitude-Like” Rights- To public spaces- Charter rights to free speech and assembly give limited right to go on public property

to exercise those rights Committee for Commonwealth of Canada o Michellin this right only deals with public property (quasi-public property

like car dealerships will not yield to Charter rights in the same way)

Covenants

Covenant = restriction on the use of the land; allow a contractual relationship between parties registered on title to endure on property once the original owners are gone

Covenants arose at common law in Tulk v. Moxnay (1848): Normally, contracts only bind those who are party to the contract SO: although there is a contract btw owners of properties, when one property is sold,

future owners are not bound by the contract Court recognized that some agreements should continue in force, even when the original

parties to the agreement are gone created covenants Covenants allow a contractual agreement between two owners to endure with the

property when those two owners are gone. Examples:

Can be used to create a planned community Can be used to regulate commercial practices among tenants in a shopping centre

Can be used to regulate the nature or quality of construction in residential developments – can be used to create an economic ghetto, where the wealthy can live apart from those who cannot afford the houses that a covenant might require.

Restrictive covenants may be used to repel those living alternative lifestyles, prevent building of an AIDS hospice, a youth shelter, etc…

Requirements for common law covenants: (reinforced in s.221(1) of the LTA ): 1. There must be a dominant tenement and it must be identified in the covenant

o Must be clear who benefits from the covenant 2. Must burden a servient property

o Also must be clearly identified in the covenant3. Covenant must be negative

o LTA 221o Compliance must be possible be doing nothingo Must only restrict what the owners do with the property – cannot impose

obligationso Courts are unwilling to enforce positive covenantso Note: courts sometimes hold that covenants are negative even though they seem

to impose positive duties i.e. Tulk: covenant to keep garden uncovered as a “pleasure ground”

4. Defendant must have taken title with notice of the restrictive covenanto Ie: BFP’s without notice of the covenant would take the land and NOT be subject

to the covenant Only the person who benefits from the covenant may enforce the covenant Any action brought in pursuit of a legal remedy may be maintained only against the individual who is regarded as the subject of the burden of the covenant

Problem covenants can be used to restrict personal freedom and to restrict members of a race or class from certain propertySolution court can strike down covenants that are contrary to public policy Re: Drummond Wren

You can’t impose a positive duty on someone else on their own land, no matter whatIf you want to restrict someone from doing something, probably have to have a covenant (no new negative easements)If you want to have a right to do something on someone’s land, probably want an easement