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					                                                                Property - Long Summary


Property – Basic Characteristics

NOTE: PRINT RPLA AND BRING TO EXAM
Property → A bundle of rights against other people to tangible and intangible things
(example: land and chattels)
    o Relationship among people in respect of objects
    o Rights of ownership that the legal system will enforce against others
    o There may be limits on property rights (i.e. treatment of animals)

Note: Property rights are relative and not absolute
Eligible Property Holders

o General Principle: Property can held by those with legal personality
  1. Natural persons (living human beings)
  2. Artificial persons (corporations)
  o Note: Unincorporated associations generally do not have property rights (the
     individual members or a trustee may own items instead of the group)

o Exception: Aboriginal title to land
o Delgamukkw v. BC (1999) SCC → aboriginal title is vested in the aboriginal nation
     - Aboriginal nation has social/political existence but is not a corporation
     - A grouping of natural persons but the title is vested in the nation as a group

Types of Rights

In Rem Rights → Rights with respect to a thing as against the rest of the work (ex.
property rights)
       -    Note: If a person enters a contract to buy land, they have in personam rights
            until the title is transferred (then have in rem rights)

In Personam Rights → Personal right is a personal right attached to a specific person (ex.
contractual rights)

Ownership and the Bundle of Rights

Ownership → Highest form of property right (i.e. better right to property than anyone
else in the world)
o Bundle of rights is associated with ownership (i.e. collection of rights that go with
    ownership) → though the rights may differ by thing
         - Note: other people may also have rights lesser than ownership (i.e. renter of a
             condo)

Bundle of Rights
1. Right of possession and to recover possession
       - Not always exclusive (i.e. footpaths on private land in the UK)



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2. Right of enjoyment and use → note: there can be a restriction on the right of use (i.e.
   land – zoning laws)
3. Right to derive income from property (i.e. rent, lease)
4. Right to alienate the property (sale and transfer of title or transfer of title by gift)
        - Right of alienation is not always present
5. Right to leave the property by will →note: some property rights end on death (ex. life
   estate)

Note: bundle of rights is implicit in the common law of property

Ownership and Possession

General Principle: The law presumes ownership upon possession unless a person can
show a better right to it. Onus on proof is on the non-possessor.
o Rationale → difficulty in proving ownership
o Law protects possession for it’s own safe

Nemo Dat Quad Non Habit Rule → original owner can recover where there is a
defective title.
o Ex. A person purchases stolen property. The thief can only pass on the title has
   which is less than the title of ownership.
        - Note: Exceptions → currency, open market place, land statutes etc

Real and Personal Property
o Note: Both are in rem rights

Real Property → Land and everything growing on or attached to the land (i.e. surface,
soil, subsurface, plants, airspace and attached home)
o Can be corporeal (i.e. has a physical existence such soil and building) or incorporeal
    (i.e. no physical existence easements)
o Both corporal and incorporeal is hereditament (inheritable)
o Limits to real property
          - Subsurface rights can be severed (ex. Crown often maintained mineral rights
             on the transfer of Crown land)
          - Airspace → subject to the right of others to use that airspace. Doesn’t
             prevent the owner from constructing on the land subject to zoning laws
          - Water → land owner has a riparian right of use of water subject to restrictions
             (and ownership of the bed of the body of water unless Crown owns as per
             Navigable Rivers Act - Ontario)

Personal Property → everything that is not real property and subject to property rights
o Tangible and intangible (known as choses in action → can’t be recovered by taking
   possession as they don’t have tangible characteristics)
o Note: fixtures can be excepted when home is sold and become personal property,
   when things are no longer attached to real property, they become personal property


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Chattel Real → A real property interest that is less than freehold or fee. Example:
leaseholds in land (note: lacks indefiniteness of time essential to real property)
.
Private Property, Common Property and State Property

Private Property → Rights to things that are vested in individuals or corporations

State Property → Property held by the government (Crown in right of
Canada/province/city/municipality)
o Administered by the government in right of the Crown
o Some state property has public rights (i.e. public access) → navigable waters, parks
o May be some public rights in relation to private property (i.e. UK footpaths)
o General rule: Public rights are NOT property because they are not vested in a legal
   personality. However, they are enforceable.

Common Property → creates an entitlement for all individuals, enforced by the state, so
that all individuals are subjects of the property interest and no one is excluded (i.e. fish –
they are a migratory resource and owned by nobody until caught)
    o Problem resulting is the tragedy of the commons → when things are left to public,
         wasted by overuse or under investment. Less incentive to care for them.
         Resources are depleted because people try to get as much as possible.
    o Carol Rose argues public access to common property (roads, waterways)
         increased its economic value by fostering commerce

Aboriginal Title to Land → another form of property rights

Constitutional Jurisdiction and Property

o Property rights generally fall under provincial jurisdiction (s.92(13) Constitution Act,
  1867)
o Exceptions (i.e. areas under federal jurisdiction)
      - Copyright and patent
      - Public debt and property of Canada including federal lands → s.91(1A)
      - Aboriginal lands → s.91(24)

Introduction to Property Claims

Victoria Park Racing and Recreation Grounds Co. Ltd. V. Taylor (1937), Australia

Facts: P owned a private racetrack on a piece of land and D1 – owned adjoining land,
D2 telephoned results to D3 who broadcast races and results on the radio. P had problem
finding appropriate cause of action.
o Claim was based on three issues
1. Claimed (private) nuisance (interference with right of use and enjoyment of land)


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2. Right of privacy
3. Property right in the information and spectacle

Majority
o Nuisance → D’s actions provided competing entertainment but the fact they made
  P’s business less profitable is not nuisance. Did not interfere with his activities on the
  land.
       - Categories of nuisance aren’t closed but need substantial interference with
           right of use and enjoyment (CJ and McTieran J)
o Right of Privacy → No authority cited to show a general right to privacy exists
o Property Right in Spectacle → “I find difficulty in attaching any precise meaning to
  the phrase property in a spectacle. A spectacle can’t be owned in any ordinary sense
  of the word” (Rich J)
      o Did not find the use of land unnatural (structure on land, didn’t focus on
          purpose)

Minority
o Nuisance → D’s use of the land was unnatural, interfered with use and enjoyment
   and a nuisance
      o Focuses on result of losing money and not action
o Right of Privacy → NC in class
o Property Right in Spectacle → NC

Differences between Majority and Minority
o Physical v. economic approach
o Natural v. non-natural use
o Minority was more willing to expand the law (esp. with nuisance)

THM: P’s claim usually must fall within a defined category to obtain a remedy, the
courts are reluctant to open new categories, no private property rights in a spectacle

Potential Approach of a Modern Canadian Court to Victoria Motors
o Canadian law today may provide a remedy based on unjust enrichment

Pettkus v. Becker, (1980) SCC
o Unjust enrichment arises and a remedy can be provided in these circumstances
    1. One person has received a benefit (generally an economic benefit)
    2. Another person has suffered a corresponding lost (linked to benefit of another)
    3. No juristic reason (i.e. no legal explanation of why this benefit received and loss
       incurred such as gift or contract)

International News Service v. Associated Press (1918), US Supreme Court

Facts: P (AP) sought injunction to restrain competitor D from “copying” news from early
AP East Coast newspaper editions and selling it to customers of INS on the west coast.



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Majority
o Fundamental principle in fair competition is trade and violated by appropriation of
  news
o Decision was NOT based on property argument (even though labour/money expended
  to create)
       - Pitney J → News itself is not subject to copyright but the written form of
           news in articles is distinguished as “quasi property” because there is a
           competing right against competing news service but not against the public
           because it is common property in that regard (news of the day) – problematic
           to prof
o WAS IT BASED ON QUASI PROPERTY AND FAIRNESS or just fairness?

Minority (Brandeis, J)
o Essential element of property is the right of exclusive possession and use
o Copyright prevents other people from reproducing but does not apply here
o Policy issues → public interest in the news is more important than any private right
   the news gatherer might have in the information
o Concern about usurping the legislative function

CCH v. LSUC → currently before SCC
o Case brought by three legal publishers against the LSUC
o Is photocopying done by LSUC a violation of copyright? FCA says yes.
o Is there copyright in the published judgment (head note and editing)?

The Importance of Policy in Property Judgments

Mobo v. Queensland (1992), High Court of Australia
o Mobo’s claimed aboriginal title to the Murray Islands
o Prior to this decision, no findings of aboriginal land rights in Australia but claiming a
  right existed would create a conflict with private property rights because much of the
  land was inhabited via grant from Crown as private property
o Holding → any grants prior to 1975 extinguished title
      o Note: Racial Discrimination Act passed in 1975 and interpreted by court as
          preventing aboriginal title from being extinguished
o Professor feels this decision violates legal principles and is based on policy
  considerations (wrote an article on this decision)

Note: General rules: Crown can’t legislate without authority of legislature and Rule of
Law (executive is subject to rights and can’t without legislative authority). Property
rights can only be removed with legislative authority (i.e. Income Tax Act)

Property and the Human Body

Three issues
1. Property rights in dead bodies and body parts



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2. Property rights in living tissues and the products of living tissues (inc. reproductive
   material)
3. Genetic material (extracting cells)

Moore v. Regents of UCLA (1990), Supreme Court of California

Facts: P had spleen removed and Dr. used tissue samples in research and developed
valuable cell line because P had unusually rich chemicals. P was unaware D had intent to
develop his cell line. UCLA awarded patent and made money. P sued on the basis of
    1) Breach of fiduciary duty → majority found for Moore
    2) Conversion based on a finding that he had proprietary interest in his bodily tissues.

Majority (Issue #2)
o Majority rejects the argument that he has a property right in his spleen
1. No precedent in this context
2. Statute places restrictions on what one can do with a body part and is not alienable.
   As a result, is not property.
3. Policy issues → important to encourage research (esp. innocent researchers)
4. Best left to legislature

Minority (Issue #2)
o Case of first impression and the court needs to make a decision
1. Rejects notion that can’t be property because does not have a full bundle of rights.
   Full bundle not required for property rights (ex. Aboriginal title)
2. Innocent 3rd parties can be dealt with in other ways (i.e. exclude liability for innocent)

Note: US law has developed since Moore
o Hecht v. Superior Court (1993) → deceased interest in frozen sperm is not property
   but an interim category and allowed direction in will to destroy sperm
o Miles Inc v. Scripps Clinic and Research Foundation (1993) → P had property right
   to commercialization of a cell line but claim on conversion failed. Claim accepted
   was breach of contract or patent law.
o US. v. Arora (1994) → Action of conversion accepted where D destroyed materials
   relating to a new cell line (both professionals)
o What should be subject to property law and how should this relate to human life?


Canadian Position
General Position: No property rights in dead bodies or body parts

Dead Bodies
o Executor/administrator of an estate has right of possession of the body for the
   purposes of burial/cremation (not wishes of dead are not enforceable by law)
       - Not a property right but is an enforceable right of possession
       - Criminal code (s.182) imposes obligation on executor with respect to burial



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Body Parts
o Ontario → Human Tissue Gift Act 1990 governs inter vivos gifts of human tissues
   and organs for transplants and medical research
o Renamed Trillium Gift of Life Network Act in 2000 → incorporates HTGA and
   creates a corporation that co-ordinates transplants

Key Sections of Trillium Gift of Life Network Act

S.4 → “Any person 16 years of age or older can donate his/her body parts to be used after
death for therapeutic purposes, medical education or scientific research” (note: consent
before death)

   o Note: in actuality, the wishes of the relatives supercede those of the deceased. If
     the family doesn’t want donation, will not occur even if person consented. (Prof
     feels FD relationship between dr/pt gone upon death)

S.5(2) → Provides that where consent has not been given before death or can’t be given
by reason of injury or disease, other persons may give consent (in this order):
spouse/same sex partner, a child, parent, sibling, next of kin, a person lawful in
possession of the body (executor or administrator of estate but not hospital)

S.5(3) → Consent shall not be given by other persons if there is reason to believe the
person who died would not have given consent (however, there are evidentiary problems
with this)

S.10 → Sale of any tissue/body/body part other than blood is illegal if for the three
purposes in s.4 (blood can be sold)

S.2 → inter vivos donation of blood and tissues (i.e. from living persons) – makes them
alienable by gift

S.3 → donor has to be 16 or old, competent to give consent

Are these Property Rights?
o Given the right to transfer body parts/tissue by gift in certain circumstances
o However, the right to alienate is limited and missing a number of other rights in the
   bundle

Museums and Human Remains
o Movement to have remains returned (often remains of aboriginals)
o US enacted Native American Graves Protection and Repatriation Act (1990)
o Canada → relationship between museum/tribe but unclear who has the right to
  demand returns (i.e. difficult to id the group)
o Common law recognizes possession where there is no property right (enforceable
  right of possession)


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Is the Sale of Blood a Contract or Property?
o If blood is property, is it property prior or after extraction?
o Three potential arguments
    1. Blood donor doesn’t own blood but consents to extraction. Upon extraction, it
        becomes property [WHO OWNS IT].
    2. Blood is owned by the donor before extraction. Ownership is transferred by
        gift/sale
    3. No property in the blood. Red Cross has a right of custody/possession that is non-
        proprietary in nature.



Reproductive Technologies (Canada)
o Royal Commission on New Reproductive Technologies (federal) recommended
   against property rights for reproductive materials
       - “Commodifying human beings and their bodies for commercial gain is
            unacceptable because this instrumentalization is injurious to human dignity
            and ultimately dehumanizing”
o Bill C-47 → would have made it illegal to sell reproductive material but the bill was
   never passed
o Mossman → notes parallels with slavery (WHERE?), reproductive tissues have more
   issues than body parts because new life can be generated

Testators Direction and Public Policy

Re Wishart Estate (1992)

Facts: Will states to have 4 horses shot by RCMP. RCMP refuses.

Court: Right to destroy property may be viewed as part of the bundle of rights but the
direction in the will (after death) is void because of public policy. Public policy places
limitations on disposition of property rights.

THM: Property rights may be limited by public policy. Testator’s direction can’t be
performed where to do so is contrary to public policy.

Possession

o   General Rebuttable Presumption: Ownership is presumed from possession
o
o   Possession is within the bundle of property rights (in rem right)
o   Distinct from ownership → may have possession without ownership
o   Possession may be rightful or wrongful against someone (i.e. relative) but is protected
    by the common law for it’s own sake



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        -   Ex. Thief’s possession is wrong vis a vis the owner but may be rightful
            against everyone else (i.e. proprietary interest based on possession)

Types of Possession
1. Possession in fact → actual physical possession (may not be recognized by law)
2. Possession in law → possession recognized by the legal system, enforceable
o Exception: Employer/employee situation. Employee drives delivery truck and
   assigns possession in law to employer and possession in fact is employee.

o Possession in law usually follows from possession in fact but can be divided
o Joint tenants/tenants in common share one possession (don’t each have possession)

Origins of Property Rights in the Common Law and First Possession

o General Rule → Person who takes 1st possession of an owned thing becomes the
  owner
o Most property rights are derivative (i.e. derived from someone via
  sale/gift/inheritance)
       - Exception: squatters title is an original title based on possession (not
           derivative)
o Feudal system and the doctrine of tenure established first possessor
o Doctrine of Tenure (Land) → Provides that all land is held of the Crown who grants
  land to individuals. Original owner was the Crown (via feudal system) and all other
  rights are derivative.
       - Applicable to land only
       - Exceptions → life estate, adverse possession, decision in Delgamuukw
o Personal Property → Property rights originate from 1st possession of the thing
      Note: Combination of materials can transform from personal property to real
         property (i.e. building house on land) OR lose identity as property (mechanic
         puts part on car, part loses separate piece of property and becomes part of the
         car)

1. First Possession
o First possession is the root of title

Principle of the Relativity of Title → Property interests are relative and not absolute
o P who can establish a right based on possession that is prior in time to the D’s claim
   can succeed in an action against the D, even if there is a “true owner” (a person with a
   better title)
o D usually cannot rely on the right of a third party (jus tertii) who has a better claim
   than the P

Pierson v. Post (1805) NYSC
o Post was hunting a fox and an interloper appeared, killed the fox and took it
o Post sued for the value of the fox on the basis his pursuit of the fox established a
   property right


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o Court → person who kills, mortally wounds or catches the animal brings the animal
  within “certain control” and establishes possession and a claim to ownership
o Note: custom did not play a role in this decision (dissent wanted evidence of a
  custom)

Swift v. Gifford (1872) US
o Whale got away with a harpoon attached and was subsequently caught by another
   whaler
o Court relied on custom to determine the first to harpoon the whale is entitled to it
o Custom used to override rule in Pierson v. Post

2. Possession and the Finders of Lost Objects

Note: Applies only to personal property

Intention and Possession
o Relevant in a number of ways in defining interests in the law of finders
1. Principle entitling an occupier of a building to claim possession of a lost chattel is
   whether the occupier had manifested intention to exercise control (Parker)
2. Finders intentions are relevant in determining the right to possession in joint finding
   cases
3. Issue of intention in defining rights to possession is relevant to disputes between a
   finder and someone who subsequently interests with the finders possession of a
   chattel (Bird)

A. Finders and First Possession

Who may have a better claim to the item than the finder?
o True owner
o Agent of the owner
o Employer (if found in the course of employment)
      - Employee can have possession in fact but the possession in law belongs to
         employer

Armory v. Delamirie (1722) UK
Facts: P found a jewel and took it to D’s shop. D’s apprentice took out the stones, tried
to buy them from P who refused. D returned the item without the stones. P sued in
trover (can only get damages back).

Court
o A person who finds an item and takes it into possession acquires a better right to title
  as opposed to others in the world (except for the true owner)
o Damages assess as the value of the best quality jewels that would have fit into the
  piece
o Action lies against master and not apprentice – master has liability for employee’s
  actions (see p.101)


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Parker v. British Airways Board (1982) UK CA
Facts: P finds gold bracelet in BA lounge. Gave to BA official and asked, if owner not
found, to return it to him. BA did not find owner but sold bracelet and kept proceeds. P
awarded damages at trial and BA is appealing.
o P’s claim is based on finders rights
o D’s claim is based on occupier of land has rights over lost chattels whether or not the
   occupier knew of it’s existence

Court

Rights and Obligations of the Finder
1. Finder can only obtain rights when the item meets two criteria
       a) Lost or abandoned (i.e. owner has given up all rights and first possessor is
            new owner, requires clear intention of abandonment, not a form of alienation)
       b) Takes item into care or control (note: also requires an intention to possess
            which is not noted in judgement)
2. Finder acquires limited rights it he takes care/control with dishonest intent (ex. does
   not attempt to find the true owner) or in the course of trespass (i.e. so do not benefit
   from wrongdoing
3. A finder does not acquire absolute property or ownership in the item but does acquire
   a right to keep it against all but the true owner or his agent or a person who can assert
   a right at the time the finder obtained the item (i.e.. a prior possessor or finder) →
   reaffirms Armory v. Delamirie
4. Unless otherwise states, a person who finds an item in the course of employment does
   so on behalf of his employer. Employer acquires finders rights.
5. A person with finders rights must make a reasonable effort to find the true owner and
   care for the item in the meantime.

Rights and Liabilities of an Occupier
1. An occupier has rights superior to those of a finder over items in or attached to the
   land. An occupier of a building has similar rights in respect of items attached to that
   building. Occupier does not need to be aware of the item.
2. An occupier of a building has superior rights to a finder over items in (but not
   attached to) the building ONLY IF before the item is found, the occupier has
   manifested an intention to exercise control over the building and the things which
   may be upon it. (This is the ratio of the case)
3. An occupier who manifests an intention to exercise control over a building and the
   items in it so as to acquire rights superior to a dinner is under an obligation to try and
   find the true owner and care for the items in the mean time.
       a. Manifestation of intention may be explicit or implicit from the circumstances.
           Ex. the occupier manifestly accepts or is obliged by law to accept liability for
           chattels lost upon his premises such as a carrier liability
4. An occupier of a chattel (ship, car, aircraft etc..) is treated as an occupier of a building
   for these rules




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Application to the Case at Bar
o P was not a tresspasor, took bracelet into care and control with honest intentions →
   prima facie finders rights and obligations (which he discharged)
o P’s prima facie finders rights were not displayed in favour of an employer
o D did not have any manifested intention to control over the lounge and things that
   might be in it
       - No evidence they searched for articles
       - Limited access in area is not sufficient to exercise control (need more strict
           control like a private home or a bank vault)
       - Note: Disclaimer signs are intention not to control and signs alone are not
           sufficient

Elwes v. Brigg Gas Co (1886)
o Gas co had 99 year lease on the property
o Boat discovered embedded in the clay by a lessee gap company in the course of
   routine excavations
o Lessee and land owner claimed proprietary rights
o Owner’s awareness of boat’s existence was not required and was not part of the
   leasehold transferred to the co → P (owner) had proprietary interest

B. Joint Finders

Keron v. Cashman (1986) NJ (p.118)
Facts: Five boys found money when a stocking they were playing with broke open and
displayed the bills. X stated he found the stocking and another child took it from him.
The others said he threw it and they all played. Police were unable to find the true owner,
X clamed all the money. The other boys are asking for an equal division.

Court
o Stocking, which contained the money, broke open when they were all playing with it
o Boy who first picked it up had physical possession but did not have intention to
  possess
o Intention to play with the stocking but not possess contents
o Also no reason to expect it would contain money (i.e. not a purse) – if he could,
  would support possession for intention
o Boys are all legal finders of the stocking – property “found” at the time it broke open
  and, at that point, they were all playing with it

Edmonds v. Ronella (1973) SC (p.119)
Facts: Two boys found envelope containing money. Ronella picked up the bag and her
parents called the police who gave her a receipt as the sole finder of the bag. The boys
denied she had any claim to the money.

Court
o “… to be a legal finder, an essential element is an intention or state of mine with
  reference to the lost property.”


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o Lost property was not found until they removed it from the parking lot → intention to
  possess formed at this point (and formed for all three)
o Possession jointly obtained and they were entitled to an equal share

Note: Possession is single and exclusive – do these decisions conflict with this principle?
   o The single possession is divided amongst joint finders. It is one possession.

Bird v. Fort Francis (1949) Ontario
Facts: P took possession of a can containing money he found under a pool hall on
private property. It is unclear if he had the right to be there. He took some of the money
home and gave it to his mother. He was questioned by police and his mother handed over
the money at their request. The police took it and finding no owner, gave it to the town
treasurer. Executor of the estate which owned the building did not make a claim for the
money.

Court
o The court has three options in classifying the nature of the boy taking the money
  1. P was a true finder → a person who found something, was not trespassing and had
      an honest intent (i.e. intended to try and find the true owner)
  2. Wrongful finder (civil) → a person with no right to take the money either because
      they were trespassing or because they did not have intention to try and find the
      true owner.
  3. Wrongful finder (criminal) → Theft (mens rea etc)
o Court held this was not true finding for P (doesn’t say if it was criminal or civil)
  - P may have been trespassing and had no right to remove the money
  - Money was not truly lost – it was being hidden and was in on private lands with
      limited access
  - No intention to find the true owner (he was hiding and spending the money)
o What about the taking of the money by the police?
  - Police had no right to take the money but didn’t act wrongly because the mother
      willingly gave him the money
  - However, refusing to give back the money was wrongful because they had no
      right to retain from the boy
  - Police and town did not have a better right than the boy
o Did the boy have possession when his mother handed it over?
  - Mother’s possession was in fact (i.e. better claim than the police officer) BUT
      boy’s possessory right wasn’t lost because it was a bailment (transferred property
      to someone else without giving up property rights – i.e. like a loan – bailee can’t
      refuse to give it back)
o THM: Possessory rights can continue after possession in fact has been lost. Wrongful
  possessor can have better rights than others.

Clark v. Maloney (mentioned in Bird)
o Logs were found and the first finder lost it. Subsequent finder got the logs.
o Court found the first finder had a better right (both were honest finders)



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o General rule: Earlier possession will trump later possession, depending on the
  circumstances (i.e. not if alienate the property)

Buckley v. Gross (UK)
Facts: Fire burned down warehouse. Towel melted and flowed into the Thames river.
Someone found it and was arrested while carrying it down the street. Acquitted of
possession of stolen property and brought an action to recover the value of the goods
from the police.

Court
o Court refused to award value of goods
o Dishonest finder
o Court found his possession was “bare naked possession” and once the possession was
  lawfully taken away from him, he had no further right
  - I.e. Right to the item was lost when removed
o THM: Honest finder has superior rights to a dishonest finder – a dishonest finder
  acquires limited rights in the found item

R. v. Christie (1978) N.B.S.C.A.D.
Facts: After a car accident, police found pot in the trunk of the car. Accused told police
she had discovered drugs and, fearing her children were involved with drugs, she became
panicked. She was acquitted. On appeal, the judge examined the issue of intention.

Court
o Legal possession for criminal purposes requires intent to exercise control
o In this case, she did not have intent to exercise control (thought she had a right of
  control)
  - Mens rea
o Right of control relates to civil possession – possession in fact


A.G. of Canada v. Brock (1991) BCSC (p.129)
Facts: Car driver arrested for discrepancy between vehicle and registration and the
police find $300k. The man denied possession and the next day, claims possession on
behalf of offshore clients. Man dies and estate makes a claim of possession.

Court
o Resumption of ownership from possession is rebuttable and, in this case, it was
  rebutted
o He was not exercising exclusive control over the vehicle which would have given him
  exclusive control of the content
o Note: this is a wishy-washy move of the court who did not want to give him the $$

Moffat v. Kazana (1969) HC
Facts: D purchased a bungalow. After many years, money was found in chimney. The
money was turned to police and then to D. Original owners claims the money.



                                            14
                                                                 Property - Long Summary


Court
o In order for the original owner to have lost ownership, they must have alienated their
  property (i.e. abandoned, sale or gift)
o In this case, forgot about the property
o Abandonment of property is conscious → person claiming abandonment must prove
  it can be assumed the property was abandoned
o Plaintiff gets money since never gave up ownership

Extinguishing the Rights of the True Owner

Statutory Provisions


C. Extinguishing Rights of the True Owner

Abandonment of Personal Property

R. v. Pace (1965) Nova Scotia Supreme Court
o Accused was a cook in the RACF mess and took home a leftover cake. Charged and
    convicted of theft. D claimed he believed the discarded cake was of no value to
    RCAF.
o Court → Cake was not abandoned (not in the garbage). Action can be fraudulent
    despite belief the item was of no value. In this case, no evidence the cake was
    abandoned (i.e. no in garbage)

Williams v. Phillips (1957) UK
o Facts: Garbage collected charged with theft after taking some of the garbage and
   selling it. Agreement between union and city that anything of value would be sold
   and divided between city and garbage collectors. The GC’s knew it was wrong and
   was advised they would be prosecuted.
o LJ → “The first point that is taken here is that the property was abandoned is on the
   fact of it untenable. Of course, that is not so. If I put refuse in my dustbin outside my
   house, I am not abandoning it in the sense that I am leaving it for anyone to take
   away. I am putting it out so it may be collected and taken away by local authority…
   until then it is my property.”
        - Prof finds this statement disturbing → using personal experience that is not
             fact or law. Judge is making decision on personal views. Note: does not
             changed what we learned earlier.

Limitation Periods
o As of Jan 1, 2004, there are two limitations act: Limitations Act and Real Property
   Limitations Act
o Personal property falls under Limitations Act
       - S.4 → An action may be brought for a claim for two years from the date of
           discovery (applies to personal property)



                                            15
                                                               Property - Long Summary


        -  S.5 → The claim is discovered on the earlier of the day in which the person
           first knew the loss occurred or the day on which the person first ought to have
           discovered (and known who to claim against)
       - S.15 → Limits to a total of 15 years from the day of loss
3. Possession in Relation to Land – Adverse Possession

General Principle → Rebuttable presumption the person in possession is presumed to be
the owner.

Adverse Possession →
o Adverse possession can be transferred by gift, sale or inheritance
o AP doesn’t have to have a good title before transferring possession (Asher v.
  Whitlock)
o Gap in adverse possession re-starts the limitation period
o Parts of Ontario are covered by the Land Titles Act which bars acquisition of title
  through adverse possession but areas not covered by the Land Titles Act may have
  adverse possession (s. 51.1, p.153)
o Possessory Title → DEFINE
o Three issues related to adverse possession
  1. When does the limitation period begin to run?
  2. What is the quality of possession required for the running of the limitation period?
  3. Relevance of the intention of the possessor and the true owner.
          Note: more recent case law is concerned with intention of true owner

A. Possessory Title
Asher v. Whitlock (1865) UK
Facts: Man enclosed parcel of land in 1842 and 1850. There is a 20 year limitation
period and he is an adverse possessor. He builds a cottage and dies in 1860. He is an
adverse possessor (i.e. does not have good title) and leaves the land by will to his wife
until her death or re-marriage with remainder to the daughter. 1861, widow remarries
and the couple lives on the land with the daughter. In 1863, the daughter and wife die. P
inherits the land and D (new husband who is in possession) sues.
        - By 1863, the 20 year limitation period on the first piece of land has passed and
            the Lord’s title is extinguished. Lord still has title to second piece.
        - Rights of the jus tertii (Lord) is not relevant to this case between P and D.

Court
o P wins because P has better title.
o TW’s possession gives him an interest he can leave by will and can pass on intestate
  despite his adverse possession.
o Title of an adverse possessor is good against the rest of the world except the true
  owner

Perry v. Clissold [1907] Privy Council
Facts: Man adversely possess land for 10 years and the limitation period is 20 years. He
does not have a good title but he is an adverse possessor. The Crown expropriated the


                                           16
                                                                 Property - Long Summary


land for schools via statute which provides compensation must be given for the land.
Estate of man sues for compensation. D claims that he did not have good title and
doesn’t deserve compensation.
    o Note: Clissold leased the land and paid taxes on the land.

Court
o Estate must be compensated for the land because he had a good interest based on
  possession
o Good title against all the world but the rightful owner → possessory title
o THM: Possessor has a good title except all against the rest of the world. The
  government has to treat him as owner because he is in possession and govt’ can’t rely
  on third party right.
o Note: If true owner comes along before limitation period begins, h would have been
  able to get land back.

B. Limitation Periods
o Limitation period limits the ability of the true owner (i.e. paper holder) to bring an
   action to recover possession (against an adverse possessor)
        - Note: Limitation periods are based on statute and NOT common law.
o After the 10 year limitation period expires, the right and title of the owner gets
   extinguished (Real Property Limitation Act, S.15) and they are unable to bring an
   action (s.4)
        - Note: Personal Property has a limitation period of two years
o The Act does NOT transfer title → adverse possessor title is based on possession
   (which ripens into ownership) because the true owner can’t contest.
o Limitation period begins at the time of dispossession or discontinuance of true
   possession by the owner (s.5)
        - Interpreted to include the last time the rents/profits were received
o As of January 1, 2004 the old limitations act was split into two
   1. Limitations Act → relates to legal actions
   2. Real Property Limitations Act

Rationale for the Limitation Period
o Efficient use of the land
o Ease of transaction (don’t have to trace title all the way back) → not such an issue
   where there are Torrens Land Title Systems
o Note: Thought most Torrens LTS preclude claims based on adverse possession, the
   Alberta Land Titles Act permits the continuation of these claims***
o Note: If registered on the LTS, can rely on certificate of title.

Key Sections of the Real Property Limitations Act

o S.2 →
o S.4 (p.153) → Time period of 10 years to bring an action
       - “No person shall make an entry or distress, or bring an action to recover any
          land or rent, but within ten years next after the time at which the right to


                                            17
                                                                  Property - Long Summary


             make such entry or distress, or to bring such action, first accrued to some
             person through whom the person making or bringing it claims, or if the right
             did not accrue to any person through whom that person claims, then within
             ten years next after the time at which the right to make such entry or distress,
             or to bring such action, first accrued to the person making or bringing it”
o   S.5(1) (p.154) → Where the person claiming an interest in land was formerly in
    possession and was dispossessed or has discontinued, possession, the right to bring an
    action to recover the land shall be deemed to have accrued at the time of
    dispossession or discontinuance of possession
o   S.5 → tenancy at will
o   S.5(11) →
o   S.8 → Re-entry is not sufficient to require possession.
         - No person shall be deemed to have been in possession of any land within the
             meaning of this Act merely by reason of having made an entry thereon.
o   S.11 →
o   S.13 → Offer to purchase in writing/signed, statutory limitation period stops running
o   S.15 (p.148) → Provides for the extinguishment of the title holders rights to bring an
    action to recover possession
         - “At the determination of the period limited by this act to any person for
             making an entry or distress or bringing any action, the right and title of such
             person to the land or rent, for the recovery… might have been made or
             brought within such period is extinguished.”
         - Note: Right of distress is related to rental properties – landlord can size
             furniture for non-payment of rent
o   S.28 → concealed fraud. In the case of AP hiding facts that would have let the
    owners know there was an AP, the time begins to run from when it is first known or
    discovered or should have been discovered with reasonable diligence.

Provisions in the RLPA for Persons under Disability
o Persons under disability → mentally incapacitated or minors under the age of
   majority
o S.36-39 of the RPLA
o Persons have a limitation period of either 5 years from the time the disability ceases
   or from the time the AP begins, whichever is longer to a maximum of 20 years
   (regardless of the disability is still on-going)
        - AP begins and two years later the person turns 18 → total limitation period
           are 2+10 = 12

C. Acts of Possession – Commencement of the Limitation Period

o FIRST question in adverse possession cases → Did the person claiming possession
  actually have possession? The time period begins to run when they get possession.
o What causes the right of action or the right of entry to accrue?




                                             18
                                                                Property - Long Summary


o Older cases → mainly based on faculty possession. Sometimes intent of the AP was
  relevant in terms of intent to possess as owner (i.e. do things on the land a normal
  owner would do)
o Recent cases concerned with two questions
  1. Did the person who is claiming AP intent to exclude the true owner?
  2. What was the intent of the person who had been allegedly dispossessed?

Piper v. Stephenson (1913), Ontario CA
Facts: P fences in her 6 lots in 1901 and accidentally fences in two belonging to her
neighbor. She farms the lots and erects two buildings to live there in 1905. In 1912, her
neighbor commenced an action for trespass. Limitation period was 10 years.

Court
o P was in adverse possession from the time she fenced them in
o Treated land as an owner throughout the time period
o P’s actions constituted dispossession as of 101 and continued exclusive possession
  throughout
o P gets land
o Note: no discussion of intent → not a big concern in these days

St. Clair Beach Estates v. McDonald (1974), Ontario
Facts: Appellants claim to have acquired good title of the land by adverse possession and
statutory interpretation. Appellants committed a number of acts on the land consistent
with ownership without the owners permission (seeded and cut grass, skating rink,
storage etc…). Owners not completely excluded from the land (came to pick apples etc..).
Appellants made offer to purchase land in 1966 and 1969.
    o Note: Important to distinguish if had a license (permission to use without
        possession), had permission to possess (tenant at will) or an adverse possession

Court:
In order to show title by adverse possession, three things must be proven:
1. Actual possession for the statutory period by the AP
2. Adverse possession was with the intention of excluding from possession the owners
    or persons entitled to possession
3. Discontinuance of possession for the statutory period by the owners and all others, if
    any, entitled to possession


Case at bar
o Appellants lacked intention to exclude owner (#2) because made an offer in writing
   twice to sell
o If offer of purchase is made, admitting the other party has title (note: s.13 RPLA)
o No disuse by the owners (#3) → came on the land, picked fruit etc..

Lutz v. Kawa (1980) Alta C.A.



                                            19
                                                                    Property - Long Summary


 o Examines intention in the context of the Torrens registration statute but Alberta
   statute permits continuation of such claims (often, these system preclude AP claims)

 Court
 o Do not need to exclude true owner if one doesn’t know there was a true owner.
 o If it was a situation where one had to know there was a true owner, it would mean a
   conscious wrongdoer would be in a better position than persons who made an honest
   mistake
 o Because she didn’t register the title, the subsequent purchasers defeated her title
 o THM: In a case where the person does not realize they are in adverse possession,
   don’t need conscious intent to exclude the true owner because don’t know there is a
   true owner

 D. Possessory Claims, Adverse Possession and Co-owners

 Two Types of co-owners
 1. Joint tenancy → right of survivorship
 2. Tenant in Common → no right of survivorship

 o In a situation of co-ownership, either is entitled to possession of all the land
 o If one person is on the land and in possession and the other does not make use of the
   land, the situation is covered by s.11 of the RPLA
        - If one or more owners are in possession and there are one or more owners
            who are not in possession, the possession of those on the land is not deemed
            to be possession for those NOT on the land
        - Result → Joint tenant 1 can be adverse to joint tenant to and end up with
            complete title to land.

 Paradise Beach and Transportation Co Ltd. v. Price Robinson (1968) PC
o Siblings willed land by family and two sisters remained in possession
o AP can be acquired without the intention to exclude the other co-owners
o Statute interpreted to require only possession to begin limitation period (see. P.162)

Tenancy at Will

Tenancy at Will → Person is in possession with the owner’s permission and is not
paying rent (usually arises in a family situation)
 o Possession via tenancy at will becomes adverse after one year and the limitation
    period begins to run from that date

McLean v. Reid (1978) NS SC AD (VERIFY)
Facts: Brother 1 inherits the property and Brother 2 lives on the property for 33 years as
tenant a will. Brother 1 sells the property and seeks an order to get him to vacate the land.
#2 claims adverse possession.
Court: Brother 2 in possession via tenancy at will (limitations period runs one year from
start of tenancy at will). Brother 1’s title is extinguished via statute of limitations. Statute


                                               20
                                                                  Property - Long Summary


also provides mere entry is not sufficient to reclaim possession. Brother 2 is entitled to
the land.
 - McLean acquires nothing because Brother 1 did not have a good title to sell (nemo
     dat rule)

RE: O’Reilly (No. 2) (1980) Ontario
o Farm left to siblings but only a few siblings remained on the land for 33 years
o Court used the equitable doctrine of latches to bar a claim by the beneficiaries who
  were not in possession
      - Note: S.2 of RPLA states claims under equity are not barred

Dispossession of a Leaseholder (but not the owner)
o Limitation period runs against the leaseholder until the end of the lease
o Landlord has no right of possession while the lease is in force and does not run
   against landlord at this time
o Example of a lease with NO on-going payments (on-going payments are a different
   situation) → 20 year lease begins in 1970. AP begins in 1972. 1982 Leaseholders
   title is extinguished. 1990 lease ends. 2000 landlords title is extinguished.

Fairweather v. St. Marylbone Property Co Ltd. (1963) HL
   o Leaseholder gets an AP and the limitation period expires vis-à-vis the leaseholder.
      However, the leaseholder surrenders the lease to the landlord.
   o Limitation period against AP begins to run again vis-à-vis the landlord who is
      now entitled to possession
   o A lessee whose own title had been extinguished by adverse possession could by
      surrendering the lease to the landlord and enable the lessor to evict the squatter.

E. The Element of Intention and Adverse Possession

What relevance does intention of the true owner have on adverse possession claims?

Keefer v. Arillotta (1976) OCA
Facts: Keefer’s had residential easement on the land for limited purposes and used land
for other purposes. The owners allowed the use of the land for easement and used it for
limited business purposes (were also out of town in the winters). P is claiming possessory
title based on the fact the use exceeded the easement.

Court
o A person claiming possessory title must establish ALL three criteria
  1. Actual possession by the statutory period by themselves and those through whom
      they claim
  2. Possession was with the intention of excluding from the possession the owner or
      persons entitled to possession
       - Note: In Canada, this is the subjective intention of the person claiming the AP
  3. Discontinuance of possession for the statutory period by the owner and all others,
      if any, entitled to possession


                                             21
                                                                Property - Long Summary


        -   Intention of the owner must be looked at according to the OCA. If the owner
            doesn’t intend to use the land, there is no discontinuance.

o Must examine the owner’s intention → Possessory title can’t be acquired by
  depriving the owner of property uses they never intended to have
o Person acquiring possessory title MUST intend to exclude the owner from uses the
  owner intended to make of the property.
o Apply Inconsistent Use Test → Was the owner precluded from uses they wanted to
  make of the property?

Case at Bar
o Fails test #2 and #3
o No effort to prevent owner to make use of land, owner did not intend to use land more
   and was just accommodating neighbor (see p.175)

Note: Professor McNeil prefers the House of Lords approach

Masidon Investments Ltd. v. Ham (1982) OCA
Facts: D rented 100 acres of land from previous owner. Half was used for residential
purposes and half as an airstrip. The owner lost the land and it was purchased by P. D
was able to rent residential 50 acres but not the airstrip 50 acres. P was holding it as
investment and D continued to use the land as airstrip without their permission. D sued
for declaration they owned lands and damages in trespass.

OCA
o Owner did not intend to use the land therefore, not dispossessed
o He did not meet the test articulated in Keefer


Pye Oxford Ltd. v. Graham (2002) House of Lords – does not apply do mutual mistake

Note: This is an alternative approach to situations where the owner has a specific future
use of the property and the AP’s possession has not interfered with that use that can be
mentioned on exams in conjunction with Ontario law.

Facts: D had lease or license to use four enclosed pastures for their animals. Agreement
was in place for a year. D wanted to renew and P refused. D continued to use the land
without permission beyond the limitation period (12 years). D was holding land for
investment purposes (didn’t enter land and didn’t intend to use it).
   o Case law in UK prior to this decision had it’s own version of inconsistent use test
       (intended future use that isn’t interfered by AP)
   o HL felt P was acting in good faith by trying to renew the agreement and being
       willing to pay
   o Note: Registered land

House of Lords


                                            22
                                                                 Property - Long Summary


o Even if the original agreement was a license, use of the lands has gone beyond the
  original agreement
o Two tests
  1. Was this D in actual possession?
  2. Did the D have intention to possess [i.e. intention to possess and exclude the
      world at large including the owner]? This is not the intention to own.
o HL → intention of the owner is irrelevant
o Case @ bar → #1 is met because had a gate key, used land for many situations etc.,
  #2 is met
o Court also mentioned policy issues → offered to pay and acted honorably throughout.
  P’s actions were reasonable in the circumstances.
  o Unregistered land → can be justified as avoiding uncertainty.
  o Registered Land → More difficult to see a justification for the rule because it
      compels a seemingly unjust result and there is no compensation (Bingham LJ is
      not happy about this)
o Grahams get title to land. Pye’s rights extinguished by statute in 1996.

B. Bucknell, “Two Roads Diverged: Recent Decisions on Possessory Title” (P.177)
o Contrasts the decisions in Piper v. Stephenson and Masidon v. Ham
o ADD IN
o Do we need to mention Boudain?

F. Mutual Mistake → The Relevance of Intention

Wood v. Gateway (1990) Ontario Trial Division
Facts: P enjoyed exclusive use to 2 acre parcel of land believing they owned it for 18
years (and treated it like an owner). Previous owners of land also believed P owned the
land for 17years. Land was sold to D and a new survey showed the land was not owned
by P (owned by D).

Issues:
    1. When a mutual mistake exists, is it legally possible for the party seeking
        possessory title to establish the intent to exclude the true owners from possession?
    2. When mutual mistake exists, it is legally possible for the party seeking possessory
        title to establish effective exclusive of the true owners from possession?

Court
o P’s need to show that for an uninterrupted period of 10 years three conditions were
  met
  1. Actual possession of the land
  2. Intended to exclude the true owners from possession
  3. True owners were effectively excluded from possession (Inconsistent use test)

Issue 1
o Evidence of mutual mistake may justify an inference the party seeking possessory
    title did intent to exclude others (including true owner)


                                            23
                                                                  Property - Long Summary


        -   Note: In absence of evidence to the contrary, mutual mistake can alone justify
            these findings.
Issue 2
o Inconsistent Use Test does NOT apply to mutual mistake (also ruled in Tice v. Town
    of Ancaster p.217 by OCA)
    - Does not apply inconsistent use test because in a situation of mutual mistake, the
        P could never win
    - Note: Consistent w. Lutz v. Kawa
o In cases of mutual mistake, the party claiming possessory title can establish effective
    exclusion of the true owners from possession
o Note: Court makes a distinction between innocent mistake and wrongdoers but they
    may be encouraging willful blindness
o NOTE: HOW DO THEY ESTABLISH IN A CASE OF MUTUAL MISTAKE?


G. Quieting Titles Legislation
o See p.217
o In cases where a person can show a title based on possession an application may be
   made to register such an interest under legislation traditionally known as “quieting
   titles” legislation, in Ontario this application is made pursuant to the Courts of Justice
   Act
o

H. “Tacking” of Periods of Possession
o Periods of possession by a continuous succession of persons may be added together to
   create the statutory period of possession (referred to as tacking)
o If there is any gap before the limitation period runs out, the limitation period starts
   over

o Two types of situations (see Feb 6 notes for details)
  1. AP’s claim under one another (i.e. Asher v. Whitlock)
  2. Series of AP who don’t claim under each other

I. Framework to Analyze an Adverse Possession Problem

1. Is the property registered under the Ontario Land Titles Act?
        a. If yes, not possible to get title through AP by statute.
2. Is there a possibility the limitation period has run out?
        a. Verify against RPLA
        b. Are there any gaps? If so, can they be tacked?
3. Did the person claiming AP actually acquire possession as against the true owner or a
   person entitled to possession?
        a. Was the person there with permission from the owner as a licensee or tenant at
           will (TAW → after one year possession becomes adverse and the limitation
           period runs. They are in possession if TAW?)?
        b. Is this a situation of joint tenants and tenancy in common?



                                             24
                                                                   Property - Long Summary


          c. If the person had a license or easement for a limited purpose, did they exceed
               that purpose. If yes, may have a claim for possessory title.
4.   If AP has been acquired, at what point did it start? At this time, the limitation period
     begins to run.
5.   What is the limitation period?
          a. Most cases it is 10 years (S.4 of RPLA)
          b. Exceptions →
                    i. Crown land (30 years, s.3 of RPLA, no AP if waste, vacant land or
                       Road allowance of Crown)
                   ii. Tenancy at will (limitation period runs after a year, s.5(7) RPLA)
                  iii. Persons under disability (s.37, max is 20 years)
                  iv. Concealed fraud (s.28 – runs from the time discovered or ought to
                       have been discovered with due diligence)
6.   Has the limitation period been interrupted?
          a. Note: S.8 RPLA states mere re-entry isn’t sufficient to regain possession.
               True owner needs to go on land do something the owner would do on the land.
7.   Assuming the person has had adverse possession for the limitation period, what is the
     actual areas of the land?
          a. AP is usually what is occupied by the AP even if just a small part of the land
               (Walker v. Russell, 1965, Ontario – got path, cabin and walkway to cabin).
               No constructive possession over a larger parcel unless the AP is there under
               color of title (i.e. thinks they have a good title to the land)
8.   Is it a situation of mutual mistake or does Keefer apply?


Real Property (Property Interests in Land)

There are five ways in which interests in land can be fractured:
1. Doctrine of tenure
2. Doctrine of Estates
3. The Trust (Legal and equitable interests in land)
4. Co-ownership
5. Leases and licenses

Note: Split between legal and equitable interests

1. Doctrine of Tenure

o All land is held in tenure (except for Crown land)
o No land can be held allodially (absolutely) except for Crown land

Origins of the Doctrine of Tenure
o Origins from William the Conqueror
o Feudal system where the holders of land would retain land through loyalty and the
   provision of services → interest in land was held “of the Crown”
o Concept became “tenure” from the Latin word meaning “to hold”


                                             25
                                                                 Property - Long Summary



Original Structure in the Feudal System
o For any parcel of land, there could be a large number of people with concurrent
   interests in the land
o Crown granted land tenant-in-chief (held immediately of the Crown) in return for
   services.
o Tenant in chief parceled the land to mesne lords (immediate lords) who provided
   services for the tenant in chief
o Actual occupant of the land was known as tenant in demesne.
       - Would retain interest as long as rendered a service to the mesne lord
o Note: Rights of men and women were not equal. It was rare for a woman to have
   interests in the land.
o Subinfeudation was the process by which new levels could be added to the pyramid.
   The practice was abolished in 1290 by Quia Emptres (statute)

Classification of Tenure
o Tenancies can be classified as free or unfree
o Unfree Tenure → Most onerous form of tenure. Services for the lord were not
   predetermined and subject to the lord’s discretion. Abolished in 1922 (aka. Copyhold
   tenure). Failure to comply results in loss of tenure. Generally for common labourers.
o Free Tenure → Services required were specified in advance and were “certain.”
   Entitled to retain tenure as long as perform service and landlord is not allowed to alter
   or terminate without cause. Generally landed proprietors and independent farmers.
o In addition to tenurial services (i.e. army, office in royal court, spiritual services),
   there were other obligations knows as incidents of tenure
        - Applied mainly to tenants in chivalry (knight services and sergeanty) and
            tenants of socage (agricultural services)
2. Incidents of Tenure (valuable sources of revenue but whittled by inflation)
   1. Wardship and Marriage → Affected heirs to the land and could be sold, bought
        and bequeathed by the Lord..
            a. Wardship → Lords right to manage for his own profit the lands of a
                tenant who left his heir a male under 12 or a female under 14 (or 16 if not
                married before inheriting the land(.
            b. Marriage → Lord’s right to select a souse for any tenant in wardship and
                to find the tenant for declining a suitable spouse or marrying under age
                without Lord’s license.
   2. Relief → Death duties payable (one year’s income) were payable on descent of
        the land to an heir.
   3. Aids → Lord’s right to call for financial contribution in exceptional
        circumstances (ex. Lord is imprisoned and ransom is required).
   4. Escheat → SURVIVES TODAY
            a. When a tenancy comes to an end (i.e. interests in the land end), the land is
                escheated back to the lord (i.e. Crown today)




                                            26
                                                              Property - Long Summary


Note: ONLY escheat remains today (see. S.47(&) of the Succession Law Reform Act
on p.229).

Seisin
o Person “seised” of the land was the person against whom feudal services could be
    enforced
o It was always essential to know who was seized of the land at any given time, as this
    determined the distributions of the burdens and benefits of the feudal system.
o Thus, the common law detested “abeyance of seisin” – that is, any period of time
    during which it might be unclear who was seized of the land.

Alienability of Interests in Land

o Two types of alienation available to a tenant
  1. Alienation by substitution → Tenant conveyed the entire estate to another party
     who becomes solely responsible for all the incidents of tenure owed to the lord.
     - Originally required the permission of the Lord given the personal nature of
         tenancy but by 13th C. the tenants could do this without permission
     - Quia Emptores provided that land is freely alienable by substitution without
         permission of the lard
  2. Alienation by subinfuedation → Tenant (B) decides to become a “lord” himself
     by alienating his interest in exchange for tenurial duties. B continues to owe
     duties to the Lord and new tenant owes duties to B.
     - If B dies, the Lord only acquires the incidents from C because that is B’s only
         remaining interest in the land.
     - Deprived Lord from right to reclaim in escheat
     - Removed by the statute of Quia Emptores (1290)

Tenure and Reception of English Law in Canada

o British colonial law divided all the Crown colonies into two broad categories
  1. Settled colonies → In the view of the British crown, there was not a sovereign in
      place. Acquired territory by settlement (sort of like 1st possession). English law
      applied automatically.
         o Note: In many cases, people did live there but the Brits didn’t recognize
             them as sovereign.
  2. Conquered or ceded colonies → Territories where it was acknowledged there was
      an existing sovereign. Brits conquer or enter into treaty where sovereign cedes
      the land.
         o General rule was existing property rights continued though Crown gets
             paramount lordship (thought not ownership)

Application in Canada
o Practice of the Doctrine of Tenure isn’t important in Canada with two exceptions:




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                                                                Property - Long Summary


   1. Aboriginal land rights in Canada → If a group can prove aboriginal title to the
      land, it has exclusive use/occupation of the land and the Crown has the underlying
      title under the doctrine of tenure (Case??? ,SCC)
   2. Escheat remains where a person dies without heirs

Note: In Australia, Milirrpum (1971) was a trial decision that used the doctrine of tenure
to deny rights (no title from Crown = no land rights). Rights recognized in Mobo (1992).

Key Times in Canada
o Parts of Canada were colonized first by France and were acquired by conquest and
   cession. The rest is regarded as settled (N. Ontario, N. Quebec, BC etc..)
o Royal Proclamation of 1763 → Introduced English common law to the ceded territory
   (includes laws of Equity and common law)
       - Inhabitants were disturbed because the system was foreign
       - Note: Would still maintain property rights
o Quebec Act, 1774 → reintroduced the French law (not civil code because wasn’t
   created until Napoleon. Law was known as the custom of Paris) and maintained
   English criminal law system
o Imperial Constitutional Act, 1774 → Divided Canada into Upper and Lower Canada.
       - Upper Canada abolished French law in Property and Civil Rights Act, 1792
o October 15, 1792 → Property and Civil Rights Act brings English law into Upper
   Canada. Cut off date for reception of English statues!!!!
   English statutes enacted after this date do not apply to Canada unless they
      were explicitly made to apply to Canada
   The bill also introduced the Doctrine of Tenure to Ontario with the theory of
      Crown as lord. Lands would only be granted in free and common socage (no
      services or incidents).

   ADD NOTES FROM FEB 13/06

2. Doctrine of Estates

o Doctrine of estates permits any number of people to hold interest in the same piece of
   land but the holders of estates enjoy possession of the land in succession
o Estate → interest in land measured over time
o Maitland → Proprietary rights in land are projected upon the plain of time. The
   category of quantity of duration is applied to them
o Flexible → Many people can hold different estates in the same parcel of land and
   some have no present right of possession.
o Estate may be classified as freehold or leasehold
  - Freehold → Duration of the estate is uncertain
  - Leasehold → Duration of the estate is for a maximum and fixed time
           Common method to divide interests in land over time
           Includes tenancy at will



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                                                                 Property - Long Summary


A. Freehold Estates
Three types of freehold estates
1. Fee simple
2. Fee tail
3. Life estate

Note: Reversion and Remainder
o Reversion → reversion interest is retained by the grantor after conveying an estate
   less than the grantor held
o Remainder → remainder interest transfers to another grantee (i.e. away from the
   grantor)

1. Fee Simple
o Originally created by a grant of land to “A and his heirs” and continued as long as a
    had direct descendants (children, grandchildren etc…)
o Statute of Wills (1540) enabled the land to be left to any heir and, in effect, fee simple
    became potentially eternal
o Largest estate known in common law and will continue as long as there are heirs
o Depends on how long the person lives and any heirs

2. Fee Tail
o Obsolete in Ontario since 19XX
o Created by a grant to “A and the heirs of his body” → can only be passed to
    lineal/direct descendants
o Depends on how long the person lives and any direct descendants

3. Life Estate
o An estate held only for the duration of a specified persons life (usually the possessor)
o Life Estate Pur Autre Vie → A life estate for which the measuring life is someone
    other than the life tenant

B. Capacity to Hold Estates in Land
o Legal persons may hold estates in land (individuals and corporations)
o Historically, the common law placed restrictions on certain individuals and
   corporations to hold and convey estates in land
   1. Aliens → Common law prevented foreign citizens from passing land on descent
      and by death it escheated to the Crown. By statute, they may now acquire, hold
      and alienate real property in the same manner as Canadians. [Note: provinces may
      have restrictions on non-residents]
   2. Married women → Husband obtained title to personal property and leaseholds
      upon marriage. The wife retained title to real property and the husband got the
      benefit.
              - 18th C - equity allowed women to put property in trusts prior to
                  marriage




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                                                                 Property - Long Summary


               -   19th C – statute enacted to enable women to maintain property on
                   marriage however, most property held by men [inequality dealt with in
                   the Family Law Act]

Children
o Minors may hold an estate in land but are restricted in disposition/alienation
o Statute gives the court discretion to order sale/disposition of a minor’s interest in
   property where required for maintenance or education of the child

Mentally Ill
o Capacity to hold property but with stringent restrictions on disposition
o Statute provides for management of disposition of property under supervision of the
  public trustee or a designated power of attorney

C. Creating Freehold Property Interests

o Common law created strict wording requirements to create an estate, and these rules
  have been modified by statute
o Transfer can occur by two forms
  1. Inter vivos conveyance (between living persons) → grant
  2. Devise
o Common law wording requirements differed in conveyance and devise
o Grant → inter-vivos transfer of an estate (a.k.a. conveyance)
o Devise → transfer of real property by will (note: bequest only relates to personal
  property)

   C1. Common Law Position

NOTE: DOES NOT APPLY IN ONTARIO TODAY

Common Law Position with respect to Grants
o Common Law Default Position → failure to use precise wording resulting in the
   creation of a life estate only (regardless of the intention of the parties)
1. Fee Simple → “Grant to John and his heirs”
       - The use of the term “and his heirs” denotes a fee simple
       - Entire term required for fee simple or get default

2. Fee Tail → “Grant to Mary and the heirs of her body”
      - The use of the term “and his heirs” denotes a fee simple
      - Entire term required for fee simple or get default

3. Life Estate → “To Bill for life”
       - Note: If not worded properly for other types, defaults to life estate in the
          common law with respect to grants

Note: Statute has changed the strict common law requirements****


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                                                                  Property - Long Summary



Common Law Position with respect to Wills (Devise)
o Common law interpreted provisions in a will more generously based on intention of
  testator
o Courts willing to give effect to testator’s manifest intention, even if failed to use the
  precise words
o Example → “To x forever”, “to X and his issue” conveyed intention to give a fee
  simple estate
o Absent evidence of intention, default position in a will would only convey a life
  estate

Note: Statute has changed the strict common law requirements****

Words of Purchase and Limitation
o Words of Purchase → Indicate to whom an interest is being conveyed
      - Example: “To X’
o Words of Limitation → Define the nature of the estate conveyed to the grantee (i.e.
  fee simple, life estate)
      - Example: “and his heirs” or “and the heirs of his body”
      - The heirs are not getting an interest in the land. The term is used to define the
         nature of the estate being given.


   C2. Current Position in Ontario – Statutory Law

Conveyancing and Law of Property Act, RSO, 1990 (p.252)
o 5(1) → In a fee simple, it is not required to use the word heirs (as the word of
  limitation)
o 5(2) → Words of limitation can include “in fee simple” or other words indicating the
  limitation intended
o 5(3) → Where no words of limitation are used, the entire estate gets passed (i.e.
  default is fee simple or best interest held by the testator)
o 5(4) → 5(3) only applies if there is not a contrary intention indicated elsewhere in the
  document
o 5(5) → Applies to conveyances made after July, 1886
o Default is fee simple unless there is contrary intention in another part of the
  conveyance (i.e. after X dies, land goes to Y)

Ontario Succession Law Reform Act (p.252)
o S.26 → Except where a contrary intention appears by the will, where real property is
  devised to a person without words of limitation, the devise passes the fee simple or
  the whole of any other estate or interest that the testator has to power to dispose of by
  will in the property.

Fee Tail Estate in Ontario


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                                                                 Property - Long Summary


o Note: Fee tail estate abolished in Ontario as of May 27, 1956
       - S.4 Ontario Conveyancing and Law of Property Act (p.253)
       - Applies to conveyance (grant) and devise (will)
o If the traditional fee tail wording appears, the person will acquire a fee simple interest.
o Legislation did not apply to existing fee tail estates so some remain but there are NO
  new fee tail estate
o Existing fee tail estates maybe alienated/sold

D. Variations on the Fee Simple Estate (Qualified and Absolute)

o Estates in fee simple may be absolute or qualified
o Absolute fee simple estate → Terminates on the death of a testator without heirs
o Qualified fee simple estate →Terminates on the death of a testator without heirs (as
  all fee simple estates do) OR one the happening of some specified event at which
  point the estate can be recovered by the grantor (conveyance) or testator’s estate
  (devise).
       - I.e. restrictions
o Three types of qualified fee simple estates
  1. Condition Precedent
  2. Condition Subsequence
  3. Determinable Limitation

1.   Condition Precedent
o    Condition of acquisition
o    Condition that must be met for the person to acquire the estate
o    Example: John devises to Mary in fee simple if and when she turns 21


2. Condition Subsequent
o Created by the addition of a condition to the grant/devise, which may terminate the
   estate at the instance of the grantor
o Condition of retention
o Independent clause added to the fee simple absolute [NOT part of the limitation
   itself]
o Purpose is to compel compliance with the condition
o Example: X to A in fee simple on condition that A does not marry Y OR John to M
   on condition she does not become a lawyer
o Grantor retains “right of entry for condition broken” → grantor has a choice to end
   the estate if the condition is broken (does not have to end it) and must re-enter to end
   the estate.
       - If the grantor fails to do so, the estate continues and A will acquire fee simple
           absolute eventually after 10 year limitation period expires (RPLA)
       - Note: If devise, right of re-entry can be given specifically or in a residual
           clause to the residual beneficiary
o Condition ends when the inheritor/grantee dies because the condition is personal to
   her


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                                                                 Property - Long Summary


o Key words → “on condition that”, “provided that”, “but if”

3. Determinable Limitation
o Similar to condition subsequent in the sense it is related to retention BUT the
   condition is part of the words of limitation
o Possibility of Reverter → grantors interest (possibility the estate will revert back to
   the grantor upon the determining event), however when the possibility of the event is
   ended (i.e. A dies), X does not retain possibility of reverter and has no interest in the
   land (i.e. possibility of getting the estate back)
o Grantor does not need to reclaim, will end automatically on the breaking of the
   condition
o Purpose is intended to only give land for a stated use, and when this use has ended, it
   goes back to the grantor/estate
o Key words → “so long as”, “during”, “while”, “until”
o Example → X to A while the CN tower stands


Void Conditions

1. Condition Precedent → may be void for uncertainty (does not require conceptual
    certainty) or public policy
2. Condition Subsequent → may be void for uncertainty (conceptual uncertainty),
    repugnancy or public policy
3. Determinable Limitation → may be void for conceptual uncertainty public policy
1. Certainty
o Condition Precedent requires certainty but not conceptual certainty
o Conceptual Certainty → requires ability to define the term
        - Applies only to Condition subsequent and Determinable Limitation
        - Rationale based on the idea that as it is a condition of retention, the person
            must be able to know what will make them lsoe the property
        - Example: “College” → no conceptual certainty because it is not clear what the
            word college means
        - Example: “Lawyer” → conceptually certain because we know must be called
            to the bar to be a lawyer
2. Repugnancy
o Applies only to a condition subsequent [VERIFY]
        - Note: Does not apply to condition precedent because the person does not have
            the land yet and in DL, the condition is part of the limitation itself
o A condition may be “repugnant” to the interest granted, if the grantor has attached a
    condition inconsistent interest being given [i.e. fee simple is regarded as alienable]
o Restrictions that substantially take away from the power of alienation is likely found
    to be void
        - Total prohibition on sale of mortgage of the land
        - Provision the land can only be sold to one person or held for the heirs of the
            grantee


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                                                                 Property - Long Summary


       -  Provision that the land can’t be alienated without the consent of another
          person
      - Sometimes provisions that are too narrow (i.e. can only sell to siblings) are
          void
o Partial restraints on alienation are valid
      - Prohibition of alienation to a particular person or a particular class of persons
          providing it’s not so broad as to be a general restraint
o Note: This is different than a protective trust?

3. Public Policy
o Public policy changes over time
o Applies to all three
o Example. Absolute restraint on marriage, anything that interferes with parental
    obligations (child’s maintenance, education or residence), stating someone can’t be an
    MP because it’s political and same with armed forces
o More dubious areas is that of religion
o Contrary to public policy if the state has an interest in the non-performance of the
    condition

Re: Fox Estate Case Ontario C.A.
o Father died and left property to wife and, in trust, for his sons. His wife was trustee
   and had discretion with respect to the trusts. The son married a section time, to a
   non-Jewish woman. The mother disinherited him.

Issue: Was it against public policy for the trustee to exercise her disapproval of his new
wife/religion by disinheriting him?

Court
o This type of limit is against public policy
o Obiter – it would be invalid in the case of the will

4. Rule of Perpetuities
o Rule of Perpetuities → complex system of rules to limit the extend land interest may
    arise in the future (such as the possibility of reverter)
o Using this rule, the right of entry may be eliminated if it was too far in the future and
    the fee simple subject to condition subsequent can become a fee simple absolute
o Does not apply to possibility of reverter (i.e. determinable limitation) at common law
o However, statute provides the possibility of reverter is subject to the rule against
    perpetuities if created on or after Sept 6, 1966 (p.258)


Effect of a Void Condition

o Condition Precedent → If void, the condition can’t be satisfied and the grant/devise
  will fail



                                            34
                                                                 Property - Long Summary


       -  Courts try to uphold condition precedents (this may be a reason they do not
          require conceptual certainty)
o Condition Subsequent → If void, only the condition fails. The qualified estate will
  be transformed into an absolute estate.
      - This is why conceptual certainty is required. If it can’t be known from the
          moment of creation, precisely and distinctly what events will cause forfeiture,
          the courts will strike down the condition.
o Determinate Liability → If void, the entire grant fails because the determining event
  is void and part of the entire grant (i.e. not tacked on).
      - As a result, courts often try to classify it as a condition subsequent instead of a
          determinate liability.

Re: Essex County Roman Catholic School Board (1977) Ontario
Facts: Qualified estate in question contained a 1925 conveyance deed. It was unclear if
the qualified estate was a determinable fee simple or subject to condition subsequent.
However, if characterized as a determinable fee simple the possibility of reverter would
cloud it forever because the deed was made prior to statute.

Court
o Was it a condition subsequent, determinable limitation or a option to purchase with a
  right of first refusal?
      - Determined not to be an option to purchase with a right of first refusal
o Court decided is was condition subsequent → “superadded condition upon a grant of
  a fee simple rather than an integral part of the very limitation of the estate created in
  the School Board”
o Court had discretion under the education act and by removing the condition, required
  the application school board to offer to sell the property to respondent at fair market
  value.

Determining Which Condition Applies

o It is not always easy to tell what type of condition/limitation has been put in a will

Re: Down (1967), Ontario CA (Note: Affirmed by SCC)
Facts: X to A when he reaches 30 provided that he stays on the farm

Issue: Is this a condition precedent or a condition subsequent?
Court
o A must reach the age of 30 before the devise can take effect which signals condition
    precedent
o Language of “providing he stays on the farm” is problematic
o Must A be on the farm at the time he is 30 (CP) OR must he continue to stay on the
    farm as a condition of retention (CS)
o Court determines it is a condition subsequent




                                            35
                                                                 Property - Long Summary


       -  Influenced by desire to give effect to the testator’s intent to benefit two sons
          equally AND a the principle of interpretation that attempts to give effect to the
          interest
o Clause is void for uncertainty and he gets an absolute share in the estate
o Note: Test of conceptual certainty (for CS and DL) quotes on p.274 → “where a
  vested estate is to be defeated by a condition on a contingency that is to happy
  afterwards, that condition must be such that the Court can see from the beginning
  precisely and distinctly, upon the happening of what event it was that the preceding
  vested estate was to determine”
      - Rationale → need to know from the outset what will bring the estate to an end
          therefore, require conceptual certainty

E. Life Estates
o A life estate is granted for the duration of the lives of on or more persons
o If a life estate is based on two or more lives, it is measured by the person who lives
   the longest
       - Example: To A and B for as long as either of them live
o Recall: Common law requires specific wording with the Conveyancy and Law
   Property Act states where there are no words of limitation, a fee simple passes
o Qualified life estates have some issues
       - General problems with qualified estates (uncertainty, against public policy)
o Did the testator or grantor intent to create a qualified life estate or personal
   license[contractual right granted by the owner for a specified purpose] to occupy the
   land for a period of time
       - A license does NOT create an estate (it’s a contract)

Impact of Striking Down a Qualified Life Estate
o Condition Precedent → the entire grant or devise will fail if struck down for
   uncertainty
o Condition Subsequent → If a condition is void for uncertainty, the condition will be
   struck down, converting the estate into an absolute life estate
o Determinable Limitation →the entire grant or devise will fail if struck down for
   uncertainty

Re: Waters (1978) Ontario HC
Facts: Testator granted life estate to Ms. Jones “for as long as she lives” or until she
remarries or gives written notice that she no longer needs and desires the use of the
property. Upon these conditions, the house becomes a residual part of the estate. The
counsel for the residuary beneficiary contends it is a license. Ms. Jones wants to rent the
property and the residual beneficiary does not want her too.

Issue: Do the terms of the will create a life estate or a license? Is there a CS or DL?
o Note: License is to occupy and can’t rent the property.

Court
o Language “for as long as she lives” sufficient to create a life estate


                                             36
                                                                   Property - Long Summary


o There is no condition barring her from renting the property → therefore she can rent
  it
o “until she re-marries, or gives…notice” → Is this a condition subsequent or
  determinable limitation → use of “until” is found to be a determinable limitation
o Is there a public policy issue with re-marriage? The case does not examine this issue.
       - Professor feels that if the intention is to prevent her from re-marrying it is
          against PL but if it was just to provide a place for her to live until she
          remarries, then it is probably ok.


Re: McColgan (1969) Ontario HC
Facts: McColgan’s will provided “to hold my property as a home Mary until her death
or until she is not residing therein personally, whichever shall first occur and thereafter to
Carrie until her death or until she is no longer residing therein personally whichever shall
first occur” and remainder to the residual beneficiary.
o Trustee has applied for a determination if Mary has a life estate.

Issue: Does Mary have a life estate? Has it been terminated by her absences (6 months)?
Can she rent the house? Is there a CS or DL?

Court
o Life estate based on the words “until her death”
o “Or until she is not residing personally, whichever shall first occur” as a condition
  subsequent
o CS is void for uncertainty because it is unclear what is meant by not residing
  personally (i.e. on vacation, in the hospital for treatment)
o Note: Professor thought it would be a DL but that would result in striking out the
  interest. Classification of a CS and void results in an absolute life estate.

Moore v. Royal Trust (1956) SCC (p.285)
SCC: Personal license to occupy was created by the wording “permit my son X and wife
Y as long as either of them shall occupy the same to have the use and enjoyment of my
property Z”

F. Pur Autre Life Estates

There are two types of life estates
1. Pur sa vie → when a life estate is created to last the life of the recipient
2. Pur autre vie → a life estate created to the for the life of another person

Two scenarios under which a pur autre vie life estate can be created
1. To A for the life of B
2. To A for her life and by deed A conveys the life estate to B
      - Note: The nemo dat rule applies and A can only give as good a title as she has

Pur Autre Life Estate and Inheritance


                                              37
                                                                 Property - Long Summary


o The general principle is that a life estate is not an inheritable interest but this has be
  dealt with by statute
o If B predeceases A, B’s interest may pass onto an heir under s.2a of the Succession
  Law Reform Act
o If A dies before B and there is no heir, the life estate goes to the person who holds the
  fee simple in reversion or remainder

Third Person and Life Estate
o Third person has no interest in the land but is the measure of the estate
o What happens if they we do not know their whereabouts.
o Conveyancing Law and Property Act (s.48, 49 and 46) → court can order a person be
   produced in a case where it is believed a body is being concealed
o S.46 → If the person has left the jurisdiction and is away for more than 7 years, it is
   presumed s/he is dead. This presumption is rebuttable.
       - Example → To A for the life of B with the remainder to C in fee simple. The
           court can order A to produce a witness who can testify B is alive. If A fails to
           do so, the court presumes B is dead and C is entitled to fee simple.

G. Life Estates and Successive Interests in Land

o Person holding the life estate has the right to possess, use and benefit from the land
  during his/her life but no real ownership
o Restrictions are placed on the life tenant that do not apply to fee simple holders
o Law has concern to prevent property from falling into disuse and repair because the
  remainderpersons/reversion’s interest in preserving the land for the future

The Doctrine of Waste
o Governs what the life tenant or leaseholder can do to alter physically the real
   property in order to ensure they won’t substantially reduce value or damage the
   property
      - Note: Life tenancy is a form of freehold estate but leasehold is not
o Protects the person with fee simple in reverse of remainder

Four Types of Waste
1. Ameliorating Waste → act that enhances the land (i.e. improves it/increase value).
       - Courts generally do not impose liability because it creates value for
           remainder/reversioner.
2. Permissive Waste → passive inaction. Damage resulting from failure to preserve or
   repair the property.
       - Unless something in the original deed making the life tenant liable for repair
           and maintenance of the property, the individual doesn’t have a legal obligation
           to maintain/repair and the courts won’t hold him/her liable.
3. Voluntary Waste → conduct that the life tenant does to reduce value of the property
   such as mines or removing trees. Anything through the active actions of the tenant.
       - Court will hold a life tenant liable for voluntary waste



                                            38
                                                                  Property - Long Summary


4. Equitable Waste → severe and malicious destruction by the life tenant. Acts a prudent
   person would not do in the management of his or her own property. Life tenant is
   liable

o The grantor can make a term in the deed stating the life tenant will be
  “unimpeachable for waste” which means they are NOT liable for the first three types
  of waste (ameliorating, permissive and voluntary).
o This term does NOT include equitable waste unless the clause reads “not be
  impeachable for waste whether it be voluntary or equitable” (s.30 Conveyancing and
  Law Property Act)
o Note: Remedies are injunction or damages

o Other responsibilities and limits on the life tenant include:
     - Current expenses included property taxes and interest on the mortgage
         (remainder person/reversioner is responsible for the principle of the mortgage)
     - NOT required to insure the premises
     - May NOT make a claim against the remainder person or reversioner for any
         improvements or repairs taken unilaterally

Settled Estates Act, Ontario
o Settled estate → land that has been settled with a succession of interest (i.e. life estate
    with the remainder to someone else)
o The Act provides life tenants with more authority than the common law
o The life tenant may rent the property for up to 21 years and this will be biding on the
    remainder/reversioner provided it is for the market rate and the can include a clause
    for impeachment of voluntary and equitable waste [VERIFY](s.32, Settled Estates
    Act)
o The court may extend the rental period past 21 years (s.2, Settled Estates Act)
o Court has discretion to authorize a mortgage for the property for the purpose of
    raising money for repairs, building on or improving the land [s.13(1)(a)]
o Court has discretionary power to order a sale of the property within the life estate
    [s.13(1)(b)]

H. The Rule in Shelley’s Case

Distinction between the Words of Purchase and Limitation
o Words of Purchase → Indicate who is receiving the estate
       - Example: “To X’
o Words of Limitation → Define the nature of the estate conveyed to the grantee (i.e.
   fee simple, life estate). What type of estate is the person getting.
       - Example: “and his heirs” or “and the heirs of his body”
       - The heirs are not getting an interest in the land. The term is used to define the
           nature of the estate being given.

Historical Background



                                             39
                                                                 Property - Long Summary


o Lords made money by the incidents of relief, where the heir had to pay the Lord to
  receive inherited land
o Relief only applied when the heir took the land by inheritance and NOT an inter-
  vivos transaction
o Landowners invented a grant to seize on this rule and avoid relief → “X to A for life,
  remainder to the heirs of A in fee simple”
      - Appears A is acquiring a life estate only but because of the rules of
          primogeniture in effect at the time of death, B would get an interest in fee
          simple. Lords could not get $ because it stemmed from an inter-vivos
          conveyance.
o Rule in Shelly’s Case ended the practice (i.e. can’t evade relief)



Rule in Shelly’s Case
o If a freehold estate is granted or devised to a person, and by the same instrument, an
   estate is limited by way of remainder to his heirs or the heirs of his body, whether the
   remainder immediately follows his estate or follows an immediate remainder, the
   word “theirs” is contracted as a word of limitation and not purchase.”
        - I.e. the heirs do not receive the fee simple estate in remainder – they just
            indicate the size of the estate given to the grantee
o Result of this rule → A gets a life estate and a fee simple for the benefits of A. The
   life estate is swallowed by the fee simple and A just gets the fee simple.
o The rule ONLY applies where the heirs refer to the whole inheritable issue over
   generations but not if has a specific heir in mind (or a limited group of heirs).
o The rule applies if there is an intermediate remainder → X to A for life, then to B for
   life, remainder to A’s heirs HOWEVER, in this case, A’s life estate and fee simple
   won’t merge because of the intervening life estate
o The rule does not apply if the life estate and remainder interest are not of the same
   kind (i.e. both need to be legal interest and both need to equitable interests)

Example → X grants/devise to a for life, remainder to A’s heirs
1. Free hold estate is granted or devised → “for life” indicates a life estate which is a
   freehold estate
2. Same instrument, granted to the persons heirs or the heirs of their body → “remainder
   to A’s heirs” is contained in the same instrument
3. “Heirs” is deemed to be a word of limitation (not purchase) → the effect is that A’s
   heirs do not get the fee simple. A gets a life estate and a fee simple for the benefits of
   A. The life estate is swallowed by the fee simple and A just gets the fee simple
   absolute.

Example 2 → To A for life, then to B for life, reminder to A’s heirs
o Rule in Shelly’s case is applicable with different implications because of the
   intervening life estate




                                             40
                                                                 Property - Long Summary


o A obtains life estate in possession, then remainder to B of a life estate and then the
  final remainder is treated as a word of limitation.
o A gets the remainder in fee simple → the life estate and fee simple for A can’t merge
  because of B’s intervening life estate
o When A dies, B’s life estate vests in possession and fee simple passes by inheritances
  to A’s heirs

Note: This is a rule of construction and not of law. It applies regardless of the intention
of the grantor. However, there is a preliminary issue of construction to determine if the
word heirs is the whole line of succession (rule applies) or those alive when A dies (rule
doesn’t apply).

Conditions for Application of the Rule
1. Rule of law and not construction. However, preliminary issue of construction for the
   word heirs.
       - Rule applies where the term heirs refers to the entire line of succession but
           does not applied where the term heirs refers to specific individuals or limited
           group (i.e. those alive when A dies)
       - Note: There will need to be something more in the will to show the testator
           intended this to mean whoever was entitled to inherit at A’s death.
2. Rule applies only when giving the remainder to the entire succession of heirs (see
   Reynard)
3. Granted or devised estate must be a freehold estate.
       - The rule does not apply to leaseholds. Ex. To A for 10 years, remainder to
           A’s heirs. A is not receiving a freehold estate.
4. Rule applies only to real property.
5. Both estates must be granted/devised in the same deed or the rule will not apply.
6. The estates must both be legal or equitable. If one is legal and one is equitable, it
   won’t apply.
7. Rule applies only where person receives a life estate and the remainder in fee simple
   is being granted to the heirs of the person
       a. Example → X grants to A for life, remainder to the heirs of A’s body

Re: Reynard (1980), Ontario Court of Appeal (p.296)
Facts: Will made in 1933. Testatrix, Margaret Rynard left estate in trust to her husband
(who passed) and two sons. See clauses 3+4. One son (Kennedy) entitled to use the land
subject to the payment of annuities on his death and after he dies, a payment goes to his
brother and the balance to the “heirs of my son Kennedy.” Clause 5 also excludes any
right for Kennedy to sell or mortgage the property and if creditors go after the land, the
interest comes to an end [note: this is a DL that is a protective trust].
        - Note: All issues left under a trust are equitable.

Issue: What is the meaning of the word heirs in this case? Does the rule in Shelly’s case
apply? (i.e. is the word heirs a word of purchase or limitation?)

Court (VERIFY)


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                                                                  Property - Long Summary


o If the word “heirs” is a word of purchase (i.e. rule doesn’t apply), then Kennedy gets
  a determinable life estate
o If the words “heirs” is a word of limitation (i.e. rule does apply), he gets a fee simple
  life estate
o Rule in Shelly’s case applies in Ontario but whether it’s applicable is dependant on
  the preliminary question of construction with regard to the word heirs
o Court considers the intention of the testator and the clauses indicate she meant heirs
  living at her sons death
o As a result, the rule does not apply

Avoiding the Rule in Shelly’s Case
1. Make it clear that it does not apply to the entire line of inheritance
      - Example → To A for life, remainder to A’s heirs living at the time of A’s
          death in fee simple
2. Make it clear that it does not apply to the entire line of inheritance in a simpler
   manner
      - Example → X to A for life, remainder to A’s heir and his or her heirs
      - Note: Heir is at the time of A’s death is a word of purchase and “his or her
          heirs” is a word of limitation
3. Grant to A for life, X keeps fee simple in reversion and makes a trust to grant to heirs
   who aren’t in fee simple. Equity and common law therefore, rules does not apply.
      - Example → G to A for life, to trustee in fee simple (reversion) in trust for A’s
          heirs
      - Trust can be created by will or grant – trustee holds legal title and fee simple
          but the beneficial interest under the trusts are equitable

I. Common Law Reminder Rules and Background

Present and Future Interests at Common Law
Note: This is applicable to current Ontario law.

Future Interests → An interest in property in which the right to possession and
enjoyment of the property is postponed until sometime in the future
Note: The owned of a free simple absolute can divide the estate into lessor estates.
 - A to B for life, A retains fee simple in reversion → the fee simple in reversion is a
    future interest
 - To be for life, remainder to C in fee simple. → Remainder to C in fee simple is
    future interest
 - Note: B and C still have present interests they can convey to third parties and can
    prevent A from doing certain types of waste.
 - B and C’s interest is vested in interest at the time of the grant but wont’ vest in
    possession until A dies

o    If the grantor grants an estate less than a fee simple absolute, the grantor retains the
    reversion (i.e. it will revert back to grantor if A dies). A reversion is implicit and
    always applies whenever there is a grant less than a fee simple.


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                                                                 Property - Long Summary


o Right of entry and reverter in conditional grants also are future interests (only vest in
  possession when condition broken for reverter and condition broken/chooses to enter
  in the right of entry).
o Future interests are restricted by common law remainder rules

Vested and Contingent Remainders

o Vested → an estate may vest in interest and/or possession.
   - Example: X to A for life, B in remainder in fee simple
   - A acquires immediate possession, B has an interest at the time of grant but does
       get possession until A dies
   - B had a vested remainder, vested in interest at the time of the grant
o Interests vest when we know who has the interest and nothing needs to be done to
  acquire the interest
o Note: Where remainder has not been granted, reversion is with grantor

A vested remainder has three elements
1. Limited to a person who is in existence (note; for the rule in Shelly’s case not to
   apply must be particular persons and not the whole line of succession)
2. Limited to a person who is ascertained
3. Not subject to a condition precedent
    - Note: If the CP is never met, the property will revert back to grantor in fee simple
       upon A’s death
    - Note: Condition subsequent in which the grantor has retained right of entry isn’t
       considered vested


Contingent Remainder
o Contingent remainder → remainder that does not vested in interest because it is
   contingent on something (i.e. subject to a condition subsequent, condition precedent)
   or it is uncertain who will get the interest. This is an unvested remainder
o Note: Possibility of reverter isn’t regarded as a contingent interest
    - Possibility of reverter is the interest that remains in a grantor who conveyed a
        determinable fee simple – regarded as vested in interest at the time of the grant or
        devise
o Example 1→ A grants to B for life, remainder in fee simple to C’s eldest son
    - C has no kids at the time so it’s can’t be vested. It’s a contingent remainder.
    - Note: At common law, the remainder is destroyed if C’s wife isn’t pregnant with
        his child because there can’t be a gap unless it’s for gestation.
o Example 2 → A grants to B and C for their lives and remainder in fee simple to the
   survivor of B and C (contingent because do not know who the survivor is until they
   die)
    - Note: Does not vest upon their deaths but at the time the people are identified
o Example 3 → A grants to B for life, remainder in fee simple to B’s first oldest
   daughter to turn 21



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                                                                 Property - Long Summary


    -   B has a vested life estate, remainder is contingent (unvested) until the condition
        precedent is met
    -   Note: If the devise is held in trust, the trustee has the remainder until the
        daughter turns 21


J. The Common Law Remainder Rules

o “Abeyance of seisin” → any period of time during which it might be unclear who
  was seized of the land.
o Only apply to common law conveyances
o Note: There is no remainder after a grant of a fee simple interest because there is
  nothing left
o Common law remainder rules apply only to interests created and enforced by the
  common law
      - Common law interests are known as legal interests in property
      - Different from equitable interests and legal executory interest (from the
          doctrine of Equity)
o Reversion and vested remainder were permitted at common law because neither
  raises the possibility of the abeyance of seisin

Common Law Remainder Rules
1. No remainders after a fee simple
2. No springing freeholds
3. Timely vesting
o Note: ONLY apply to common law conveyances (nothing equitable including wills)

1. No Remainders After a Fee Simple
o Once a grantor has disposed of a fee simple, s/he has nothing left to grant and can’t
   give a remainder
o The rule also applies if the fee simple is made subject to a CS or a DL
o Example → Grantor grants to A and his heirs, remainder to B and his heirs
       - A gets a fee simple and nothing left for B. B receives nothing because it
           violates the legal remainder rule.
o Example: A and his heirs until A goes bankrupt and then to B and his heirs
       - Remainder is invalid because can’t have a remainder after a fee simple
       - The DL is still valid on A’s estate –A gets fee simple in possession subject to
           DL and the grantor retains the possibility of reverter
o Example →Grantor to A and her heirs on condition A does not go bankrupt and
   remainder to B
       - Condition is not invalid, grantor contains right of re-entry for condition
           broken but the remainder is invalid

2. No Springing Freeholds




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                                                                Property - Long Summary


o Prohibits creation of an estate that “springs up” in the future by itself (i.e.
  unsupported by a prior particular estate). The rule requires an immediate passage of
  seisin from grantor to grantee.
o Example → To A for life, remainder to first born child in fee simple (unborn)
      - There is livery of seisin and this is valid
      - Vested and contingent remainder (goes in reversion to grantor if no first born
          at the end of A’s life)
o Example → To A for 10 years, remainder in fee simple to A’s first born child
      - Invalid because A has a leasehold (not a freehold estate) and there is no livery
          of seisin to A
      - Contingent remainder can’t be supported by a leasehold
o Example → To A for10 years, when A turns 21
      - Valid because there is no seisin involved . G retains freehold/seisin and A
          gets leasehold.
      - In a leasehold, seisin remains with the freeholder therefore, in this case seisin
          remains with the grantor at all times and the rule is not offended.



3. Timely Vesting
o This rule provides that there can’t be a gap in seisin (i.e. seisin must be continuous).
   Where there is a gap in seisin, it’s valid.
       - Exception with the rule in Reeve v. Long and s.45 of the Conveyancing Law
          Property Act
o Rule in Reeve v. Long (codified in s.45 of the Conveyancing Law Property Act) →
   allows for a gap in seisin during a period of gestation when a remainder is given to a
   man’s issue. [Allows for gap in seisin for an unborn child to get a fee simple
   remainder].
o Rule in Festing v. Allen → situation where G grants a contingent remainder to a class
   of people (class closing rule)
       - G to A for life, remainder to A’s children who turn 21 (none are 21 yet)
       - The first child turns 21 in A’s life has the fee simple vested in remainder
       - Continues to vest in those children who reach 21
       - Those children who don’t turn 21 in A’s life, lose out on the remainder
o Example → To A for life in one year after A’s death, remainder to B in fee simple
       - A one year gap in seisin that violates the rule because the passage of seisin
          isn’t continuous
       - Remainder to B is invalid
       - A gets a vested life estate in possession and grantor gets fee simple in
          reversion
o Example → X to A for life, remainder to B when B turns 21
       - Contingent remainder that requires “wait and see”
       - If B turns 21, when A is alive then the remainder is valid
       - If A dies before B turns 21, the remainder is invalid




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                                                                 Property - Long Summary


K. Equitable Estates
o Common law remainder rules only applies to the common law
o Conveyance of equitable estates did not require livery of seisin (because equity does
   not require seisin)

Doctrine of uses
o Doctrine of uses is equitable and designed to avoid incidence of tenure by enabling
   one party to hold the land legally and permit the use of another (i.e. X holds
   nominally not intended to have the right to occupy and use the land)
o Use is the old form of trust
o Legal title conveyed by seisin to trustee (feoffee of uses) and held it for the benefit of
   the grantor and whom he designated as his heir
o Allowed for shifting and springing uses unlike the common law

Before 1535 and The Statute of Uses
o Example → To A and his heirs to the use of B and her heirs
       - A becomes the feoffee of uses and gets the legal fee simple (common law)
       - B receives an equitable fee simple (which does not care about seisin)
       - Both have a fee simple interest – A’s in the common law and B’s in equity
o Both the legal and equitable estates can be divided into lesser estates
o Example → To A and his heirs to the use of B for life and the remainder to [the use
   of] C and her heirs
       - A has the legal interest in fee simple
       - B has the equitable life estate
       - C has the equitable remainder in fee simple

How did we avoid rule #2 in equity prior to the statute of uses?
o Grant to Feofee and her heirs unto the use of A when A turns 21
o Would have violated a legal remainder at common law but valid at equity
o When A meets the condition, the equitable fee simple will vest in A. Until the
  contingent is met, it’s an equitable executory interest
         - Note: This is not called an contingent remainder because this is an attempt
             to create an interests to start in the future which can’t be done in common
             law
o The grantor has the “resulting use” of an equitable fee simple until A turns 21 at
  which point it springs from G to A
o F has the legal fee simple and A as the equitable fee simple [note: same as trust
  today]
o For A to obtain the legal fee simple, F must transfer it and seisin would pass to F.

How do we avoid rule #3 prior to the statute of uses? {VERIFY}
o Grant to Feofee and her heirs to the use of A for life and the reminder to B and his
  heirs when B turns 21 (B is 18 now)
o F receives legal fee simple as feoffee of uses
o A holds a vested equitable life estate



                                             46
                                                                 Property - Long Summary


o B (the remainder rule does not apply) and B gets an equitable fee simple at age 21
  vested in interest (does not get possession until A dies) AND resulting use springs
  from grantor to B
o Until B turns 21, he has an equitable executory interest
o The resulting use is with the grantor of the equitable fee simple and springs to B when
  he turns 21 (grantor has no further interest in the land when B turns 21)
         - Note: Resulting use is equitable beneficial ownership
o If A dies before B, the resulting use goes to the grantor until B is 21 when B’s
  executory interest becomes an equitable fee simple
WTF IS A RESULTING USE

Executory Interests → equitable interests that have yet to be executed or carried out (i.e.
future interests that have not vested and will only do so in the future, if at all)

The Statute of Uses

o Purpose to eliminate the doctrine of uses to enable Lords to gain incidence of tenure
o Goal to reunite legal and equitable title by removing the legal title from the feoffee

Statute of Uses, 1535
o Where a person is sized of the land to the use of another person or corporation, the
    person or corporation shall be deemed to be seized of the estate that would otherwise
    be held for his/her use
o ONLY applies where a person is seized of the land to the use of another

Effect of the Statute of Uses
o In every interest to which it applies, the statue has the following effect
   1. Eliminates the feoffee (executes the feoffee)
   2. Changes an equitable estate to a legal estate
o In the creation of a use, the feoffee is the first person named (i.e. To A and his heirs)
o Where on person (A) is seized to the use of another person or corporation (B), the
   legal interest held by A will be “executed” and the interest will be transferred to B
o Result → B is seized of the land (liable for incidents of tenure) and has the same
   rights as before. However, the equitable interest is converted to a legal interest.
o Note: Statute of Uses applies in Canada because it was received in the common law

Example → Granted to B and his heirs for the use of C and her heirs
o A’s interest is executed and transferred to B [A is no longer in the picture]
o B is seized of the land (as of the moment of feoffment) and the entitlement is
   transferred to a legal interest (rather than an executory interest)
o B has a legal fee simple

Example → Granted to A and his heirs to the use of B for life, remainder to C and her
heirs
o A’s interest and executed and A drops out of the picture
o B gets a life estate vested in possession and is seized of the land


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                                                                Property - Long Summary


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

Situations where the Statute of Uses Does NOT Apply
1. Where the feoffee is a corporation.
          - Statute does not apply where the feoffee is not a natural person
          - Can avoid the statute by granting to corporation has an its successors
Example → Granted to A and his successors to the use of B for life, remainder to C and
her heirs
o Corp A has legal fee simple
o B has equitable life estate vested in possession
o C has equitable fee simple vested in interest

2. Statute does not apply if the use held is a leasehold interest
          - Only applies where the feoffee is seized of the land which can only occur
              in a freehold interest
Example → Granted to A for 99 years and then to the use of B for 99 years.
o The land is not seized → statute of uses does not apply. The grantor retains fee
   simple in reversion (i.e. retains seisin)
3. Feofee has active duties to perform in the grant (avoid making him/her a bare trustee)
          - Ex. Manage the property
          - Feofee requires legal title to fulfill their responsibilities
Example → Granted to A and his heirs to the use of B and her heirs. A must manage the
property and turns profits over to B.
4. Statute does not apply to personal property

The Statute of Uses and Legal Executory Interests
o If there is a single conveyance to uses executed by the statute, the previously
   equitable executory interest held by B becomes a legal interest
o Therefore, can create executory interests in land recognized and enforced by the
   courts of common law (because they become legal interests)
o Executory interest → springing and shifting interest that may never vest
o Two benefits
   1. Legal remainder rule 1 can be avoided
   2. Legal executory interest can be created

Example → Granted to B and his heirs to the use of C and his heirs until C becomes a
lawyer and then to D and his heirs
o In the common law, this violates the first legal remainder rules (no remainder after
   granting a fee simple)
o Prior to 1935, the legal remainder rule could be avoided via equity but the statute of
   uses eliminates this
o What happens in this case?
          - B is executed via the statute of uses (drops out of the picture)
          - C gets a legal fee simple subject to a determinable limitation



                                            48
                                                                 Property - Long Summary


           -   D gets a legal executory interest (his previous equitable executory interest
               is eliminated)

Example → Granted to B and his heirs to the use of C turns 21
o Prior to the statute of uses
          - B has legal fee simple
          - C has a equitable executory interest until age 21
          - A has an executory resulting use until it springs to C at age 21
o Post statute of uses
          - B’s interest is executed
          - C gets a legal life estate vested in interest
          - Prior to C turning 21, it is a legal executory interest
          - When C turns 21, the fee simple and seisin spring to C
          - In the meantime (until C is 21), A has the legal fee simple until C meets the
             condition at which point the fee simple and seisin spring to C
Note: Allows you to avoid a legal remainder rule

Example → Granted to B and his heirs to the use of C for life, remainder to D and her
heirs when D turns 21
o Prior to the statue of uses
          - B has legal fee simple
          - C has equitable life estate
          - D has an equitable executory interest (C may die before D turns 21 and he
              still interests)
o After the statute of uses
          - B’s interest is executed
          - C obtains a legal life estate
          - Legal remainder rule applies to D because of the Rule in Purefoy and
              Rogers (1671)
          - The rule makes D’s interest a contingent legal remainder which will be
              destroyed if D does not turn 21 in C’s life

Note: The effect is the class closing rule applies.
Example → SEE March 17 notes

The Rule in Purefoy and Rogers
o Applies to contingent remainders contained in a conveyance to uses
o Rule → if a legal executory interest can comply with common law remainder rules, it
   must. A legal executory interest will be void if it can comply with the common law
   remainder rules, but fails to do so.
o Note: Law suggests it does not apply to common law devise

Example → X to A and his heirs to the use of B for life, and then to B’s first child to turn
21 years of age. (B has no children).
o A’s interest is executed
o B obtains a legal life estate


                                              49
                                                                          Property - Long Summary


o Contingent remainder interest to B’s first child to turn 21.
o This child is unascertained and the remainder is subject to a condition precedent. If
  this is not met, it will be void. (i.e. if the 1st child doesn’t turn 21 during B’s life)
o The child’s interest can’t take effect as a legal executory interest if it turns 21 after
  B’s death because it COULD have complied with the common law remainder rules,
  yet failed to do so.
o Valid if child turns 21 in B’s life.

Method to Avoid The Rule in Purefoy v. Rogers
Example → X to A and his heirs to the use of B for life and then to the use of B’s first
child to attain 21 either before or after B’s death

o Grants provides there may be a gap in seisin which violates common law remainder
  rules
o However, the rule does not apply here because the interest contemplates and
  executory springing interest that can’t comply with the legal remainder rules
o If B dies before 21, the child’s interest is a legal executory interest that springs up at
  attaining 21
o If child turns 21, the interests vests in interest and legal vested reminder vests in
  possession on B’s death

General note: Common law remainder rules do not apply to wills so they can have
shifting and springing interests without a use.

Exhausting the Operation of the Statute of Uses
o In addition to corporation as feoffee and active duties to avoid the statute of uses with
   freehold conveyances, additional techniques were developed.

1. Use upon a use
o Example → Granted to A and his heirs and to the use of B and his heirs to the use of
   C and his heirs
         - Legal interest held by A is executed
         - B acquires legal fee simple AND the operation of the statute is exhausted
             at this point
         - C gets equitable interest in fee simple (known as a trust)
o The operation of the statute is ended after the first use is executed
o Effect of a trust

2. Unto and to the use of
o Effect of evading the statute of uses and able to create equitable interests in property
o Creates a trust and avoid the legal remainder rules (because equitable)

Note: G grants unto and to the use of B and his heirs, in trust for D and her heirs.
       B gets legal FS as trustee, D gets equitable FS under the trust

Specific language is very important



                                                50
                                                                    Property - Long Summary

      “to B in trust for C” does not create separate estates – SU would apply

Example → Granted unto and to the use of A and his heirs in trust for B when B turns 21
   o A holds the legal fee simple as trustee
   o Until age 21, B has the equitable executory interest
   o B obtains the equitable fee simple when B meets the condition precedent
   o Until B turns 21, G has a resulting trust – what used to be called a resulting use. –
      of the equitable fee simple
   o When B turns 21 the equitable f.s will spring from the grantor to B

Example → G unto and to the use of A and his heirs in trust for B for life
   o Fee simple results to the grantor

Example → G unto and to the use of A and his heirs in trust to B for life and the
remainder to B’s children who turn 21 and their heirs
   o A has legal fee simple as trustee
   o B has an equitable life estate
   o G has a resulting trust of equitable fee simple that springs when the first child
      turns 21
   o B’s children have equitable executory interests until age 21 (when they get an
      equitable fee simple)

L. Future Interests Under Wills
o Devises do not need to comply with common law remainder rules and, therefore, can
    have shifting and springing interests
o Most wills are drafted to create trusts, however s.2(1)of the Ontario Estates
    Administration Act creates trusts in all wills (made or intestate)
           - S.2(1) → Creates a statutory trust in favour of the beneficiaries by
               specifying the personal representative (administrator or executor) holds the
               property of the estate in trust for the beneficiaries
o Executory interests can be created in a trust without use or devise because it happens
    to be put in a trust by statute (both real and personal property)
o The interests of all beneficiaries under the will are equitable
o Note: Robson(1916) held that interests in a will do not become subject to destruction
    when the trustee conveys the interest to the beneficiaries (i.e. they transfer from
    equitable to legal) AND held the legal remainder rules, Purefoy v. Rogers and rule
    from Festing v.Allen do not apply
      Not tested in Canada but UK law is persuasive


Example → Testator devises to B for life, remainder to B’s children and their heirs who
turn 21
o The interests of all beneficiaries under the will are equitable
o Trustee is administrator or executor
o B gets an equitable life estate
o Remainder to B’s children is an equitable executory interest until they are 21


                                              51
                                                                 Property - Long Summary


o If they reach age 21 (at any time), they get a share of the equitable fee simple
o Until one child reaches 21, the equitable fee simple (resulting trust) is held by the
  residual beneficiary
    Note: If no residual clause, it goes intestate.
o Note: Purefoy v. Rogers does not apply because it only applies to legal interests
o Note: Resulting Trust → arises whenever a beneficial interest hasn’t been fully
  disposed of, in which case there will be a resulting trust in favour of the grantor or, if
  deceased, the grantor’s estate

M. Concurrent Interest

o Concurrent interests → more than one person holds interest in a property at a time
  and shares possession
o Forms of co-ownership
  1. Joint tenancy
  2. Tenancy in Common
  3. Coparcenary
  4. Tenancy by entireties
  5. Aboriginal title to land → if site specific right is property, it would be another
     form of co-ownership with a right less than title. Title is vested in the community
     but the members have right to enjoy and it’s governed by an internal group.
     Communal title and joint possession.

1. Joint Tenancy
o Right of survivorship → when one joint tenant dies, the interest of the deceased
   tenant is extinguished.
          - Result is that the interest goes to the surviving joint tenant(s) [i.e. can’t be
              devised by will to others]
          - Eventually will have one remaining title holder with the entire interest
o Two or more corporations OR a corporation and an individual are capable of holding
   property as joint tenants (s.43, Conveyancing and Law of Property Act)
o Where a corporation holds property subsequently dissolves, the property devolves on
   the other joint tenant (s.2, Conveyancing and Law of Property Act)

2. Tenancy in Common
o NO right of survivorship → each persons share is devisable (i.e. can be willed or
   intestate)

Note: If two or more joint tenants die at the same time or circumstances rendering it
uncertain as to the order of death, each person is deemed to be a tenant in common
UNLESS a contrary intention appears in the will. (Succession Law Reform Act, s.55(2).
There will be NO right of survivorship so the will of both is carried out.


Distinguishing between Joint Tenancy and Tenancy in Common



                                             52
                                                                 Property - Long Summary


Joint Tenancy
o A joint tenancy has four unities
1. Unity of time → all interest must vest initially at the same time
            - John conveys to A for life, remainder in fee simple to B and C when they
                 turn 21 (contingent remainder if they turn 21 in A’s life) → they will not
                 be joint tenants unless they are twins because the interest will vest at
                 different moments
            - John conveys to A for life, remainder in fee simple to B and C as joint
                 tenants [this will work]
2. Unity of interest → the co-owners will get their interest from the same instrument or
    title (will or deed)
            - To A, B, C in fee simple as joint tenants. [this will work]
            - If A, one of the joint tenants, conveys to D. D hold’s A’s interest but is a
                 tenant in common. B and C remain joint tenants with each other but vis-à-
                 vis D, it’s a tenancy in common.
3. Unity of title → All tenants must have the same interest. There can’t be unequal
    shares.
4. Unity of possession → All are entitled to possession of all the land that is co-owned.
Other features
o Right of survivorship
o No words of severance (i.e. to A and B in fee simple equally) – equally is a word of
    severance because it suggests shares
o Comes to an end by death of all but one, severance, patrician or sale
o Favored by the common law HOWEVER, statute has changed this to a presumption
    of tenancy in common
            - S. 13, Conveyancing and Law of Property Act, where any land is granted
                 after July 1834 to two or more persons other than executors or trustees, it
                 will be assumed that such persons take as TIC unless there’s sufficient
                 intention show for joint tenancy

o Summary → To create joint tenancy require 4 unities, no words of severance and
  clear intention to create a joint tenancy.
o Language to be used → “Grant to A and B as joint tenant and not tenants in
  common”

Tenancy in Common
o Only unity of possession is required
o All owners are entitle to possession of all the land that is co-owned even if they have
   different shares

Other features
o No right of survivorship
o Words such as equal shares, share and share alike, to be divided between them
   equally
o Favored by equity and in statute (see above, s.13 CLPA)



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                                                                 Property - Long Summary


McEwan v. Ewars and Ferguson (1946) Ont HC (p.634)
o The following phrases indicate severance and create a tenancy in common
        - “equal share”
        - “jointly” and “equally”
        - “equally”
        - “to be divided”
        - “share” or similar words suggest tenancy in common

Aboriginal Land Rights


Crown Sovereignty and Aboriginals

Note: Based on lecture and “Aboriginal Sovereignty and European Colonization of
Canada” - McNeil

o Professor questions the legitimacy of Crown sovereignty
o Crown has underlying feudal title according to the doctrine of tenure but acquired all
  lands not settled at the time of sovereignty (i.e. land was terra nullis – vacant in the
  sense of not being under the jurisdiction of a sovereign recognized as such by the
  Crown)
o Courts have said little on the issue → taken for granted Crown has sovereignty (see
  quote in Sparrow p.6 of SM book)
o Standard view → Canada was acquired partly by conquest and partly be cessation by
  France. Areas where aboriginals lived were considered settlement because they were
  viewed as terra nullis (were not organized as European systems and not accepted
  despite own legal, governmental and cultural systems – ignores aboriginal system)
o There is a classic problem of Colonialism because today the Crown is sovereign and
  it’s difficult to dispute that fact however, there is a distinction between the existence
  of Crown sovereignty and its legitimacy

o Is Crown Sovereignty legal and legitimate? There are four potential frameworks to
  analyze this situation.

1. Aboriginal Law
      - Two types of relevant law → internal law of the aboriginal people whose
          territory was colonized and inter-national laws between aboriginals
      - Internal law → unlikely to allow for sovereignty to be lost/transferred to
          another party by settlement because this implies they had no jurisdiction (i.e.
          assumes terra nullius)
      - Inter-nation law → a body of inter-nation law assumes sovereignty for both
          nations. Inconsistent for a mode of settlement that would require denial of
          existence of sovereign capacity




                                            54
                                                                Property - Long Summary


       -   Crown would also have the onus to identify the rules of law for each to show
           it had provision for the acquisition of territory → has not been established so
           have to assume no claim based on aboriginal law
2. British Imperial Law
       - British courts developed with respect to colonies (ceded/settled)
       - Problematic to use the legal system of colonizing country to determine the
           sovereigns of another country BUT the legal system can’t apply until
           sovereignty (i.e. no jurisdiction)
       - Australia has dealt with this by terming this an act of state (executive act
           beyond he jurisdiction of the court) – therefore, can’t review crown
           sovereignty. Also no acknowledgement of aboriginal self-governance.
       - Canada – has not applied the act of state but has been less forthcoming
           regarding how sovereignty was acquired.
                Delgamuukw said sovereignty was acquired with the Oregon treaty in
                   1846 binding US and Canada but not applicable to the aboriginals (like
                   a contract and not binding on non-parties)
                Note: Delgamuukw assertion of sovereignty is discussed (not
                   acquisition). Like saying assertion and acquisition are the same.
3. International Law
       - International law isn’t until formation of UN and de-colonialisation of
           Asia/Africa
       - Prior to this, it was a body of law/custom developed in Europe used to
           colonize the world (i.e. divvy them up between the European countries)
       - Calling the law international is a misnomer
4. Inter-societal Law
       - Between aboriginals and European powers
       - Relations were mainly economic and partially political
       - Body of norms was developed through these relationships and form the only
           legitimate basis to evaluate Crown sovereignty
       - Treaties were part of inter-societal law where negotiated under this law but
           requires interpretation based on the inter-societal law
       - Non-treaty parts of Canada CS is illegitimate because inter-societal law was
           avoided

Note: Courts say little/nothing about this in their judgements. Rather ignore the issue
altogether and assume Crown Sovereignty.

Treaties

o See page 21 → treaty map
o Albany Treaty (1664) → Treaty signed in upstate NYC between aboriginals and the
  British Crown. Peace and friendship treaty (not land).
o Maritime Treaties (NS and NB post 1725) → Peace and friendship treaty (not land).
  However, did include hunting and fishing rights.
o Southern Ontario (1764) → land surrenders. Corwn entered into negotiations with
  Idnians for these land cessations and then granted them to individuals/corporations.


                                            55
                                                                 Property - Long Summary


o Procedure and Requirement to sign these treaties was established in the Royal
  Proclamation, 1763 (see Slattery article)
o In the absence of a treaty of cessation, the Crown took away the land
  unconstitutionally. Constitutionally, aboriginal title is a property right in land and
  Crown can’t take away settled land since Magna Carta. Therefore, aboriginal title
  wasn’t legally surrendered and Crown grants of land are a problem (esp. where
  granted by provinces because there is a problem with legitimacy regarding the
  division of powers)

Chippewas of Sarnia
o Leave to appeal to the SCC was denied
o Court of appeal held that private land interest in that particular case prevailed against
   a claim of aboriginal title and treaty
o Crown grants were not void but McNeil feels they are unlikely to overturn land
   holdings that have been in place for many years
o Australia High Court has ruled has dealt with the specifically and held that all Crown
   grants are valid (i.e. not invalidated because aboriginal title)
       - Reasoning isn’t sound but there are policy reasons

Williams Treaties (1923)
o Treaties signed because some lands had been missed in earlier treaties but nothing
   signed after this

Aftermath
o In BC, the province refused to acknowledge aboriginal land rights and the land was
    taken by crown lands.
o This was further complicated by the fact that in 1927, Indian Act was amended to
    make it illegal for anyone to raise money or pay to pursue aboriginal land claim.
o Provision changed in 1951 and Calder went to SCC – agree there is aboriginal title in
    BC but split if been extinguished (7th judge said need permission from Crown to sue)
    but in reaction, Trudeau began a comprehensive land claims policy and negotiations
    (Nunavut and James Bay)
o Note: Surrender provision common in all treaties however SCC says that written and
    oral agreements count – Calder says oral evidence is good evidence in aboriginal
    cases (not subject to hearsay)

Three Potential Sources of Aboriginal Land Rights
      1. Aboriginal Laws and Customs (Australia)
      2. Practice, customs and traditions (Canada)
      3. Exclusive occupation of land (Canada)

1.Aboriginal Laws and Customs (Australia)
o Examine the time of Crown sovereignty to see what rights people had under their own
   laws and customs at the time.
o High court of Australia has taken this approach but its difficult for a number of
   reasons



                                            56
                                                                  Property - Long Summary


       1. Difficult to prove laws and customs at that time (1788 – Australia)
       2. Oral societies lack documentation
       3. Yorta Yorta, 1922 → High Court found rights and interests were lost because
          for a period of time did not follow their own laws and customs (due to
          colonialism and cultural assimilation) –like a gap in seisin.
       4. Problems of translating and understanding Aboriginal cultures. They may not
          a) be able to translate or b) be able to understand these cultural concepts from
          the perspective of aboriginals
       5. What about rights they didn’t use at the time but should be allowed? Example
          – oil, minerals and gas.

Canada has Two Approaches to Land
2. Integral to distinctive culture test → Practice, customs and traditions (Canada)
o Any practices, customs or traditions engaged in at the time of contract, or if Métis at
    the time the Crown was starting to effectively exercise jurisdiction, are recognized as
    aboriginal rights
o Based on the time of contact with the Europeans – need to prove they engaged at
    practices at this time and they were integral to cultural identity (Van Der Peet)
o If the rights relate to land, they are site specific (related to a certain practice, custom
    or tradition in a certain place)
        o For example, Gladstone has a right to take herring spawn from kelp on the
            coast of BC and harvest for commercial purposes because met the test
o This is not aboriginal title because must prove each distinctive use and it’s limited
    where aboriginal title is all inclusive
o Example – at the time of contact, did you engage in the exchange of Salmon for
    commercial purposes and was it integral to your distinct society?
o Note: For Métis (Powley), they had to prove integral to distinctive culture test in a
    time frame for the particular area because there is no date of European contact for the
    Métis. Elected 1850, Sault St. Marie

3. Aboriginal Title to Land - Exclusive occupation of land (Canada)
o Aboriginal title to land → a right of exclusive occupation and use of land that can be
   used for many purposes (don’t need to prove each right)
o Defined in Delgamuukw
o Was there exclusive occupation at the time of Crown sovereignty? No requirement to
   prove integral to culture.
o The date is set at 1846, the Oregon bounty treaty.

Delgamuukw (1997), SCC
o Aboriginal title does not rely on the Royal Proclamation but on common law
o No actual decision but recognize right to trial
o Oral history has the same value as documentary evidence
o Aboriginal title is the right to land itself, exclusive right to use and occupy the land
   and isn’t limited to traditional uses (see p. 50, para 111)
o It is a common law title and does not rely on the aboriginal legal systems in Australia
o It is a sui generis rights (unique features)


                                             57
                                                                    Property - Long Summary


o It is a property interest because it is a right to land itself and subject to certain
  restrictions that other property rights are not subject too (i.e. not fee simple)
o Full beneficial interest so a property right

Sui Generis Aspects
                                Aboriginal                       Regular Estates
Source                          Occupation of land prior to      Mainly Crown grant (1st
                                Crown sovereignty                possession) and later
                                                                 alienation
Communal                        Title vested in whole            Can only be held by natural
                                aboriginal group                 persons and corporation
                                (exception) [note: prof feels    (legal personality)
                                aboriginal law will need to
                                govern titled lands and this
                                supports right to self-
                                government
Inalienability                  Only by surrender to the         Freely alienable (unless
                                Crown – paternalistic            condition)
                                [Note: AT must decide to
                                alienate – support SG]
Inherent Limit                  Can’t use the land in ways       No inherent limits except
                                that would be incompatible       for those barred by
                                with the original connection     condition, statute.
                                to the land they relied on to        o If life estate, can be
                                obtain title (i.e. strip mine            barred by the
                                and exclusive hunting                    doctrine of waste
                                ground)                                  which can be opted
                                    o Notion is to preserve              out of via statute
                                         land for future
                                         generations (similar
                                         to doctrine of waste
                                         for life tenants but
                                         more restrictive
                                         because go back in
                                         time to Crown Sov.)
                                    o Who has standing to
                                         take this to court?
                                    o Paternalistic


Proof of Aboriginal Title
o Proved by showing exclusive occupation at the time of Crown Sovereignty – SCC
   appears to have accepted 1846 as the date (but in Bernard and Marshall – the date was
   1713)
o Oral traditions and histories treated as documentary evidence




                                              58
                                                                  Property - Long Summary


o Other evidence includes gov’t, historical writings, experts, linguists, archaeologists
  and anthropologists
o Aboriginal law can assist
o Proof seems to involve jurisdiction – either using the land or keeping other people off
  of it

Self Government
o SCC did not deal with this in the case
o Communal aspect of aboriginal title suggests necessarily for internal legal system
    which necessitates self governance
o Implicit finding in some cases according to Prof
o In Earlier Marshall decision, SCC said fishing rights are subject to decision making
    authority by the community that holds them – in relation to AR they say the rights are
    communal but we need a mechanism for determining their distribution – that’s SG
    according to prof
o Campbell (BC) v. BC – challenged self gov’t provision in the Nishka treaty – went to
    BCSC (trial court) and trial judge said “no, the self gov’t provisions are constitutional
    because the Nishka have an inherent right of sg.” [note: not appealed because he
    became Premier]




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