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CANS – PROPERTY LAW - UBC Law Students

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					                                                      CANS – PROPERTY LAW


Contents
1.      THE LEGAL CONCEPT OF LAND ............................................................................................................. 5
     Airspace..................................................................................................................................................... 5
        Kelsen v. Imperial Tobacco co. .............................................................................................................. 5
        Bernstein v. Skyviews ............................................................................................................................ 5
        Air Canada ............................................................................................................................................. 5
     Fixtures...................................................................................................................................................... 5
        Re Davis ................................................................................................ Error! Bookmark not defined.5
        La Salle ................................................................................................. Error! Bookmark not defined.5
     Water ........................................................................................................................................................ 5
        Johnson v. Anderson ............................................................................................................................. 5
        Schillinger .............................................................................................................................................. 5
        Steadman .............................................................................................................................................. 5
2.      PRINCIPLES OF LAND LAW .................................................................................................................... 6
     Basic Principles of Land law ...................................................................................................................... 6
3.      ACQUISITIONS OF INTERESTS IN LAND ................................................................................................. 7
     Crown Grant .............................................................................................................................................. 7
     Inter Vivos Transfer ................................................................................................................................... 7
        Ross v. Ross (1977) ................................................................................................................................ 7
        Zwicker v. Dorey.................................................................................................................................... 7
        MacLeod v. Montgomery (1980) .......................................................................................................... 7
     Wills or Intestacy....................................................................................................................................... 8
     Proprietary Estoppel ................................................................................................................................. 8
        Willmott v. Barber (1880) .................................................................. Error! Bookmark not defined.10
        Trethewey-Edge Dyking District v. Comiagas Ranches (2003 BCCA): ................................................... 8
        Zelmer v. Victor Projects Ltd. ................................................................................................................ 8
4.      THE FEE SIMPLE..................................................................................................................................... 9
        Tottrup v. Ottewell Estate ..................................................................................................................... 9
        Re Walker .............................................................................................................................................. 9
        Re Shamas .......................................................................................... Error! Bookmark not defined.11
                                                   CANS – PROPERTY LAW

        Cielein v. Tressider ............................................................................. Error! Bookmark not defined.11
5.      THE LIFE ESTATE .................................................................................................................................. 10
     RIGHTS OF A LIFE TENANT ...................................................................................................................... 10
6.      CO-OWNERSHIP AND CONCURRENT ESTATES.................................................................................... 11
     Types of Co-Ownership ........................................................................................................................... 11
     CREATION OF CONCURRENT INTERESTS................................................................................................. 11
     RELATIONS BETWEEN CO-OWNERS ........................................................................................................ 11
     Termination: Severance of Joint Tenancy ............................................................................................... 12
        Stonehouse v. British Columbia A.G ................................................................................................... 12
     Termination – Partition ........................................................................................................................... 12
7.      FUTURE INTERESTS ............................................................................ Error! Bookmark not defined.15
     VESTED AND CONTINGENT INTERESTS .................................................. Error! Bookmark not defined.15
        Browne v. Moody [1936] ................................................................... Error! Bookmark not defined.15
        Re: Squire ........................................................................................... Error! Bookmark not defined.15
        Re: Carlson ......................................................................................... Error! Bookmark not defined.16
     TYPES OF FUTURE INTERESTS ................................................................ Error! Bookmark not defined.16
8.      Conditional and Determinable Interests............................................................................................. 12
     Doctrine of Uncertainty .......................................................................................................................... 12
        Noble v. Alley [1951] - SCC .................................................................................................................. 12
     Restraints on Alienation.......................................................................................................................... 13
     Human Rights Legislation........................................................................................................................ 13
        Canada Trust Co. v. Ontario Human Rights Commission (1990) Ont. CA ........................................... 13
9.      Aboriginal Rights ................................................................................................................................. 14
        St. Catherine’s Milling Case (1888 Privy Council)................................................................................ 14
        Calder v. A.G. of B.C. 1973 S.C.C ......................................................................................................... 14
        Guerin v. The Queen 1984 S.C.C. ........................................................................................................ 14
        R v. Sparrow 1990 S.C.C. ................................................................................................................... 14
        Delgamuukw ....................................................................................................................................... 14
     General Features of aboriginal title at common law .............................................................................. 15
     The Content of Aboriginal Title ............................................................................................................... 15
     Proof of Aboriginal Title .......................................................................................................................... 16
                                                  CANS – PROPERTY LAW

  Infringements of Aboriginal Title: Test of Justification ........................................................................... 16
  Aboriginal Title: Post-Delgamuukw......................................................................................................... 18
      Duty to Consult: Haida Nation ............................................................................................................ 18
      R. v. Bernard; R. v. Marshall ................................................................................................................ 18
      Tsilhqot'in Nation v. BC ( 2007)........................................................................................................... 19
10.      Registration of Title ......................................................................................................................... 20
      Ziff: Elements of Torrens Title System: ............................................................................................... 20
  Basic Scheme of Registration .................................................................................................................. 22
      The Legal Fee Simple ........................................................................................................................... 23
      Charges................................................................................................................................................ 23
      McCaig et al v. Reys at al. (1978) ....................................................... Error! Bookmark not defined.31
      Royal Bank v. BC (1979) BCSC ............................................................................................................. 25
11.      REGISTRATION: THE FEE SIMPLE..................................................................................................... 26
  The General Principle of Indefeasibility .................................................................................................. 26
      Creelman v. Hudson’s Bay Insurance co. ......................................................................................... 26
  Indefeasibility and Adverse Possession .................................................................................................. 26
  Statutory Exceptions to Indefeasibility ................................................................................................... 26
      Forgery ................................................................................................................................................ 27
      Gibbs v. Messer [1891] PC .................................................................................................................. 28
      Frazer v. Walker [1967] NZPC ............................................................................................................. 29
      Notice of an unregistered interest ...................................................................................................... 29
      McCaig v. Reys .................................................................................................................................... 30
      Hudson’s Bay Co v. Kearns and Rowling ............................................................................................. 30
      Central Station Enterprises v. Shangri-La Estates Ltd. ........................................................................ 30
      Woodwest Developments v. Met-Tec Instalments ............................................................................ 31
      Greveling v. Greveling ......................................................................................................................... 31
12.      Registration of Charges ................................................................................................................... 31
  Meaning of Registration ......................................................................................................................... 31
      Dukart v. Surrey (1978) SCC ................................................................................................................ 32
  Indefeasibility of charges ........................................................................................................................ 32
      Credit-Foncier Franco v. Bennett (1963) BCCA ................................................................................... 32
                                                  CANS – PROPERTY LAW

      Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA) ......................................... 33
  Priority as between charges.................................................................................................................... 33
13.      Failure To Register .......................................................................................................................... 34
  The General Principle .............................................................................................................................. 34
      Sorenson v. Young [1920] SCC ............................................................................................................ 34
  “EXCEPT AS AGAINST THE PERSON MAKING IT”..................................................................................... 34
      Judgments ........................................................................................................................................... 34
      Other Interests .................................................................................................................................... 35
      L&C Lumber Co. v. Lundgren............................................................................................................... 35
      Prohibited Transactions ...................................................................................................................... 35
14.      Land Title System and Aboriginal Title ............................................................................................ 37
      Skeetchestn Indian Band..................................................................................................................... 37
                                    CANS – PROPERTY LAW

1.      THE LEGAL CONCEPT OF LAND
Airspace
Kelsen v. Imperial Tobacco co.
Ratio- Usque ad coelum

Bernstein v. Skyviews
Ratio-What constitutes airspace is ordinary use and enjoyment

Air Canada
Ratio-Airspace is not owned by anyone, the maxim does not apply

Fixtures
> two part test:
       (i) determine the degree of affixation: if so slight as to indicate to the reasonable man that it is
            a chattel, it will be deemed as such
       (ii) determine purpose of affixation: if the article was affixed to better enjoy the article, then it
            is a chattel, but if the article was affixed to better enjoy the land, then it is a fixture. (Davis)

Water
Statute has overtaken riparian rights

Johnson v. Anderson
Water Act amended in 1925 –Not an offence to use unrecorded water for domestic purposes.
Favourable and protective attitude to riparian rights.

Schillinger
Riparian rights exist only for person lawfully entitled to use water. Riparian rights can only be granted
under the Act – can only be protected by statute.

Steadman
Water can’t contaminate with rights of others. s. 41 and 42 of Water Act: P had right to unrecorded
water and that he was using it lawfully for domestic purposes. Attitude is favourable but also considers
riparian rights to be fragile...there is a ‘’favourable, but...’ type of undertone
                                   CANS – PROPERTY LAW

2.       PRINCIPLES OF LAND LAW
Basic Principles of Land law
1.       Tenure – based on principles of feudalism

2.       Corporeal/Incorporeal Interests in the Land

             a. Corporeal – in theory only the Crown owns land (underlying theory of property law)
                      i. Fee simple
                     ii. Fee tail – as long as there are lineal descendants -no longer possible in BC
                    iii. Life Estate – upon death of the holder estate comes to an end: A to B for life
                    iv. Estate Pur Autre Vie – type of life estate measured by life other than the holder
                     v. Leasehold Estate a time in the land of fixed duration
                    vi. Future Interests –condition triggering transfer of possessory ownership.
             b. Incorporeal Interests – do not confer the right to a possession of the land
             a) Development of the Use –holder of a legal title holds the interest for benefit of another
             b) Statute of Uses –taking out the middle man
             c) Emergence of Modern Trust – 3 aspects of the trust:
                      i. Legal title always remains with the trustee
                     ii. Interests that can be created in Equity correspond to those created at CL
                    iii. A trustee, being the legal owner, may transfer legal title to a third party

3 types of trust:

                Express trust: A transfers property to B for C’s benefit
                Resulting trust: A transfers property to B with no payment (gratuitous transfer); B
                 presumed to hold property in trust for A. No consideration. For A’s benefit.
                Constructive trust: Court imposes trust to redress injustice


3.       Mechanics of Transfer

        Recording system - All documents relevant to a particular parcel of land are on file
        Title registration/Torrens system - Title is determined by the register; potential transferee only
         needs to examine title to ascertain what interests in land exist with respect to that particular
         parcel.

Equitable Doctrine of Notice: protects beneficiary as C’s interest is vulnerable

        x can’t buy property from B knowing that property is supposed to be held for C – equity would
         say that if you knew then you are out of luck
        Express or actual notice: what the transferee really knows
        Implied notice: what the transferee’s agent knows
        Constructive notice: what a transferee ought to have known if s/he had made the type of
         inquiries that a reasonable person ought to have made.
                                   CANS – PROPERTY LAW

3.        ACQUISITIONS OF INTERESTS IN LAND
Crown Grant
4 principal rights reserved by Crown:

Inter Vivos Transfer
Four issues:

1.        What are the requirements for enforcing a contract relating to land?

Three requirements in Law and Equity Act 59(3)(a):

2.        Through what form is the transfer effected?

Land Title Act s. 39 provides that an instrument sufficient to pass or create an estate or interest in land is
registrable unless the use of a prescribed form is required.

3.        When is the transfer operative?

         At common law, the rule was fairly straightforward-- a deed had to be “signed, sealed and
          delivered” in order to take effect.
         Torrens system, based on registration
              o Unregistered instrument does not pass estate
              o 20(1): Instrument dealing with land does not operate to pass an interest, either at law or
                  in equity, unless registered in compliance with the Act.

s. 20. - words “except as against the person making it” tell us: between transferor and transferee,
registration is not necessary for the interest to pass. It doesn’t tell us when that interest does pass.

(1)       Common law test of delivery: Ross v. Ross and Zwicker v. Dorey

(2)       Torrens test of delivery: MacLeod v. Montgomery.

Ross v. Ross (1977)
Ratio – In the case where a deed is signed and sealed but not physically delivered, Proper execution of
a deed is a sufficient evidence of delivery unless there is proof of contrary intention.

Zwicker v. Dorey
Rule – there was no intention for the deed to pass title, that deed is invalid. COMMON LAW TEST FOR
DELIVERY: intention on the part of the transferor to be immediately and unconditionally bound by the
terms of the transfer.

MacLeod v. Montgomery (1980)
Reasoning: No delivery until the recipient had all the documents necessary to register the transfer.
                                   CANS – PROPERTY LAW

4.       What happens in the case of a transfer to a volunteer?

S. 19(3) of the Property Law Act: (don’t use CANS for this!!)

              o   A voluntary transfer need not be expressed to be for the use or benefit of the
                  transferee to prevent a resulting trust.

Wills or Intestacy
Ss. 3 & 4 of the Wills Act set out the basic requirements for validity of will with regard to form. (B.C. has
stricter requirements than almost any other jurisdiction.)

Proprietary Estoppel
         [Equity] will prevent a person from insisting on his strict legal rights…. when it would be
         inequitable for him to do so having regard to the dealings between the parties

Trethewey-Edge Dyking District v. Comiagas Ranches (2003 BCCA):
         o Newbury J.A. noted elements in Willmott had been overtaken by a broader and less
            literal approach.
         o Cited Halsbury’s: “[T]he true test is that the facts must be such that the owner of the
            legal right has done something beyond mere delay to encourage the wrongdoer to
            believe that he does not intend to rely on his strict rights, and the wrongdoer must have
            acted to his prejudice in that belief.”

The Wilmott test was not the appropriate test to take in the Zelmer case. When representing P, the
broad approach would be easier, if D, go with Wilmott.

Zelmer v. Victor Projects Ltd.
Crabb test –A to knowledge of B acts to his detriment in relation to his own land in the expectation,
encouraged by B, of acquiring a right over B’s land, such expectation arising from what B has said or
done, court will order B to grant A that right

        Defence of estoppels – acquiescence – this can amount to fraud if following elements are
         proved
             o P must make mistake as to legal rights
             o P must have expended money on faith of mistaken belief
             o D must know of his existence of his own right
             o D must know of P’s mistaken belief in his rights
             o D must have encouraged P in expenditure of money
        P has to establish that he is being taken advantage of

Ratio-equitable doctrine of proprietary estoppels has been established (although in a case like this, it
is open to interpretation)
                                   CANS – PROPERTY LAW

4.       THE FEE SIMPLE
Common Law:

        Words of purchase: the words used to describe the individual or individuals who take an
         interest. (to B)
        Words of limitation: the words used to describe the literally, the “limits” of that interest.
        At common law, default position was that a transfer created a life estate; now its fee simple

Statute: Property Law Act s. 19(1) reversed common law, makes it unnecessary to use “and his heirs”
wording in order to transfer an estate in fee simple.

Problems of Interpretation—Repugnancy:

Cases fall into two classes:

1. Gift to the person first named prevails and the gift over fails as repugnant. 2. The person first named
takes a life-estate only and gift over prevails (fee simple to those who are named second in the will).

Tottrup v. Ottewell Estate
Their insertion is no longer necessary to confer an absolute interest in realty… but this circumstance
does not alter their character or effect. Ratio – words of limitation – an estate in Fred if he were alive

Re Walker
 When testator gives property to one and adds this gift over to heirs at his death, he is endeavouring to
do that which is impossible. Court must then try to give effect to wishes of testator. Words “undisposed
of” do not refer to testamentary disposition by the widow but a disposal by her during her lifetime. Gift
to her must prevail, gift over is void. He can’t take property back after she dies and then give it away.
                                   CANS – PROPERTY LAW

5.      THE LIFE ESTATE
RIGHTS OF A LIFE TENANT
1.      Occupation, Use and Profits: Life tenant is entitled to possess and use the property, and/or
annual income arising from the property (e.g. rental income, or interest arising from investment.

2.      Transfer Inter Vivos - The holder of a life estate can assign full interest to a third party, but only
to the extent of that interest.

3.     Devolution on Death -With ordinary life tenancy, rights of the life tenant over the property end
when that person’s life ends. Thus, he or she has no power to dispose of the property by will.

Obligations of life tenant to those entitled in reversion/remainder:

1.      Waste:

a.      Permissive Waste - damage that results from a failure to maintain the property. Life tenant is
not responsible for upkeep unless expressly stated.
b.      Voluntary Waste - damage that results from the activities of the life tenant. Anything that
causes permanent damage to the land, or changes the nature of the land in any way, for better or for
worse. Potential harshness qualified by the doctrine of “ameliorating waste” or “improving waste” -
c.      Equitable Waste - choosing to make the life tenant “unimpeachable for waste”—in order words,
removing the restrictions that would be imposed by the doctrine of voluntary waste.

Vane v. Lord Barnard
A father had given a life estate in a castle to himself and the remainder to his son; had a falling out with
the son and proceeded to strip the castle. Court ordered that castle had to be repaired. Basic principle
is that equity will not allow individuals to make unfair use of their legal rights.

2.      Liability for Taxes, Insurance, etc life tenant under no obligation to insure for the benefit of
those entitled in remainder/reversion. In Mayo v. Leitovski, court held that a life tenant is obliged to pay
the annual taxes at least up to the annual value of the property.
                                    CANS – PROPERTY LAW

6.       CO-OWNERSHIP AND CONCURRENT ESTATES
Types of Co-Ownership
Tenancy in Common: Only requires unity of possession.

Joint Tenancy: Two or more people together own the same interest.

        Right of Survivorship: On the death of one joint tenant, the surviving joint tenant automatically
         becomes absolute owner of the undivided interest.
        The Three Unities: Unity of possession is the defining characteristic of all forms of co-ownership.
         3 other unities must exist to create joint tenancy. If they do not, tenancy in common is created.

(i)       Unity of Title: interests of co-owners must arise in the same document.
(ii)      Unity of Interest: interest of co-owners must be identical.
(iii)     Unity of Time: interest of co-owners must vest at the same time, except (if the other unities
exist): (1) In case of a will –vests at time of respective births. (2) In case of an inter vivos grant to uses

CREATION OF CONCURRENT INTERESTS
Common Law: if the four unities were present, there was a presumption that a joint tenancy was
created. If the grantor wanted to create a tenancy in common, could do so expressly

Equity: Had to start with the same presumption as the common law, but preferred the TOC.

Statute: s. 11 of the Property Law Act, p. 11-13, provides that they are tenants in common unless a
contrary intention appears in the instrument.” In Robb v. Robb, court accepted argument that s. 11
covers four specific types of transactions. Best interpretation is that it covers ALL types of transfers.

Transfer to Self and Co-Ownership: At common law, could not transfer property to oneself. S. 18(1) of
the PLA now provides that a person may transfer land to himself/herself in same way as to another;

RELATIONS BETWEEN CO-OWNERS
A co-owner who has not been in possession will generally not be entitled to “occupation rent” against
the co-owner in possession except in a case of ouster OR where the co-owner in possession is claiming a
contribution. Co-owners are entitled to a share of the profits arising from property.

Spelman v. Spelman
Illustrates exception to this rule that applies where one co-owner has to work to generate a profit.

Bernard v. Bernard
Because of her contributions over the years and the amount still owing on the mortgage, Ms. Bernard
       was arguing that Mr. Bernard’s interest should be cancelled out. iii. Court unhappy about what
       the result would be if this were done; Ms. Bernard, who had sole occupation for ten years,
       would have the full benefit of the increase in value of the property. Partition.
                                   CANS – PROPERTY LAW

Termination: Severance of Joint Tenancy
Severance can take place during lifetime of joint tenants: By unilateral act of one of joint tenants
(William and Hensman), By joint agreement (explicit or inferred by a pattern of conduct), Transfer of
title by one tenant by sale or gift – mere communication of intention not sufficient, Fully executed and
delivered transfer – to 3rd party or oneself, Mutual agreement, Lease, commencement to partition,
Declaration of trust (positive act) Registration not required

Acts that don’t sever: Will/after death, Discontinued/incomplete action for partition, Lease by one
tenant for a lifetime of other, Declaration of intention to sever tenancy not communicated or w/out act,
Mortgage from one joint tenant to another

Stonehouse v. British Columbia A.G
w/ out telling her husband (P), wife conveyed all interest in property to her daughter from previous
marriage. This severed JT and converted it to TC. Therefore no interest remained w/ her which could
pass by right of survivorship.

Termination – Partition
On the face of statute a co-owner is entitled to an order for partition. However, room for discretion.
BCCA in Harmeling v. Harmeling: “there is a prima facie right of a joint tenant to partition and sale
and....Court will compel such partition or sale unless justice requires that order should not be made.”


8.       CONDITIONAL AND DETERMINABLE INTERESTS
Consequences of invalidity:

        Condition subsequent invalid: gift is absolute. To A, but if….
        Condition attached to determinable interest invalid: gift fails. To A until…
        Condition precedent invalid: gift fails. To A if…

Influence on approach taken by courts to interpretation:

        CS: courts willing to subject conditions to strict scrutiny, because it will not destroy the gift.
        DI: courts more flexible—presumably it is preferable to subject the transferee to questionable
         conditions than to leave him or her without any interest at all.
        CP: courts have been quite lenient; valid “unless the terms of the condition or qualification are
         such that it is impossible to give them any meaning at all.”

Doctrine of Uncertainty
Noble v. Alley [1951] - SCC
Note Clavering v. Ellison – “a 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 estate was to
determine.” The uncertainty here is fatal to validity of the covenant.
                                   CANS – PROPERTY LAW

Restraints on Alienation
1) As a matter of principle, restraints on alienation ought to be invalid, and courts ought not to extend
restrictions that have already been accepted. 2) As a matter of pragmatism, courts should be asking:
does this represent a substantial restriction on alienation?

Human Rights Legislation
       B.C. Human Rights Code provides that one cannot discriminate (on a number of enumerated
        grounds) in situations involving the acquisition of property interests.
       Land Title Act s. 222: prohibits discriminatory covenants

Canada Trust Co. v. Ontario Human Rights Commission (1990) Ont. CA
Facts-In 1923, a trust was established to provide educational scholarships, containing provisions
restricting the scholarship to those of white race, British nationality and Christianity

This case should NOT be taken as authority for proposition that all restrictions amount to discrimination
and are therefore contrary to public policy – each case has to be looked at with respect to individual
circumstances

Ratio-only where trust is a public one devoted to charity will restrictions contrary to public policy render
it void
                                   CANS – PROPERTY LAW

9.       Aboriginal Rights
Royal Proclamation of 1763
    One of the purposes was to protect indigenous lands from agricultural settlement, but it granted
       a monopoly to the Crown for the purchase of these lands. Recognized that lands could not be
       taken without their consent.
    Represents continuing dilemma of Aboriginal title – on the one hand it grants Crown sovereignty
       but on the other hand enforces idea of consent

St. Catherine’s Milling Case (1888 Privy Council)
      “The tenure of the Indians was a personal and usufructuary right (right to use), dependent upon
        the goodwill of the sovereign.” P.C. implies that aboriginal rights of possession were solely due
        to the Royal Proclamation of 1763.

Calder v. A.G. of B.C. 1973 S.C.C
    The Nisga’a were asking for recognition of their pre-existing title as a legal right arising out of
       their prior occupation or the Royal Proclamation, and for a declaration that extinguishment
       required explicit government action that had never taken place in B.C.
    Decided against the Nisga’a on a procedural ground: they had not obtained permission to sue
       the provincial crown which you had to do at the time.

Guerin v. The Queen 1984 S.C.C.
    Aboriginal title is inherent in the prior occupancy of first nations peoples, rather than being
       granted to them by the Royal Proclamation.

R v. Sparrow 1990 S.C.C.
    Independent source of aboriginal rights is again recognized. SCC begins to explicitly refer to and
       import into Canadian law the First Nations perspectives on their own way of life.

Delgamuukw
    Claim to “ownership” of and ‘jurisdiction” over 133 individual territories amounting to 58,000
      square kilometers of northwestern British Columbia.
    Virtually all the elders of both nations came and speaking through translators in their own
      languages, recited the sacred stories, the adaawk and the kungax, that tell the history of the
      relationship between specific families and pieces of land.
    At trial, B.C. government argued that all aboriginal land rights were extinguished by the laws of
      the colonial government before it became part of Canada in 1871, when authority to pass laws
      in respect of Indians was transferred to the federal government as part of the BNA Act.

Trial Decision of McEachern C.J.

        “It is the law that aboriginal rights exist at the ‘pleasure’ of the Crown, and they may be
         extinguished whenever the intention of the Crown to do so is sufficiently plain and clear.” The
         Crown had clearly and plainly exercised its power.
                                    CANS – PROPERTY LAW

        Although McEachern C.J. admitted the evidence of oral histories, he said that he was
         fundamentally unpersuaded by all of the evidence given by the elders

Delgamuukw at the Supreme Court of Canada

Five main issues:

        does the fact that the case was re-framed on appeal mean that the court cannot rule on the
         substance of it? (in earlier times, the case might have ended there)
        What is the ability of the Court to interfere with factual findings made by the trial judge?
        What is the content of aboriginal title, how is it protected by s. 35(1) of the Charter, and what
         is required for its proof?
        Did the appellants make a substantial claim for self-government? (dealt with quickly)
        Does the province have the power to extinguish aboriginal rights?

General Features of aboriginal title at common law
1.       Two aspects to sui generis nature:

         a.      Must be distinguished from "normal" proprietary interests, such as fee simple.

         b.      Must be understood by reference to both common law rules of real property and rules
                 of property found in aboriginal legal systems.

2.       Idea that aboriginal title is sui generis is the unifying principle underlying the various dimensions
         of that title:

       a.      Inalienability: Lands held pursuant to aboriginal title cannot be transferred, sold or
surrendered to anyone other than the Crown.

          b.      Source: Arises from prior occupation of Canada by aboriginal peoples, which is relevant
     in two different ways: Physical fact of occupation, Relationship between CL and pre-existing systems
     of law.

        c.       Communal: cannot be held by individuals, collective right to land held by all members
of an aboriginal nation, collective decision-making

The Content of Aboriginal Title
1.       Aboriginal title encompasses the right to exclusive use and occupation of the land held
         pursuant to that title for a variety of purposes, which need not be aspects of those aboriginal
         practices, customs and traditions which are integral to distinctive aboriginal cultures.

2.        Subject to Inherent limit: those protected uses must not be irreconcilable with the nature of
         the group's attachment to that land.
                                   CANS – PROPERTY LAW

a.      Derives from: i. Recognition of the importance of the continuity of the relationship of an
        aboriginal community to its land over time. ii. The relationship between an aboriginal
        community and its lands, based on view that the land has an inherent and unique value in itself.

b.       If aboriginal peoples wish to use their lands in a way that aboriginal title does not permit, must
        surrender those lands and convert them into non-title lands to do so.

c.      Not a limitation that restricts the use of the land to those activities that have traditionally been
        carried out on it.

Aboriginal Title under s. 35(1) of the Constitution Act, 1982
1.     Aboriginal title at common law is protected in its full form by s. 35(1).
2.     Aboriginal title is distinct from other aboriginal rights.
3.     Aboriginal title confers the right to the land itself.

Proof of Aboriginal Title
In order to make out a claim for aboriginal title, the aboriginal group asserting title must satisfy the
following criteria:

1.       Land must have been occupied prior to sovereignty.
2.      If present occupation is relied on as proof of occupation pre-sovereignty, must be continuity
        between present & pre-sovereignty occupation.
3.      At sovereignty, occupation must have been exclusive.

Infringements of Aboriginal Title: Test of Justification
Aboriginal rights, including aboriginal title, are not absolute. Those rights may be infringed, both by the
federal and provincial governments.

1. However, s. 35(1) requires that those infringements satisfy the test of justification, which has two
parts.

        a. First, the infringement of the aboriginal right must be in furtherance of a legislative
           objective that is compelling and substantial:

The one aspect of this that you can’t question is the sovereignty of the Crown.

        b. The second part of the test of justification requires an assessment of whether the
           infringement is consistent with the special fiduciary relationship between the Crown and
           aboriginal peoples.

            i.   Requirements of the fiduciary duty are a function of the "legal and factual context" of
                 each appeal. Fiduciary duty does not demand that aboriginal rights always be given
                 priority.

            ii. Questions to be addressed, depending on the circumstances of the inquiry:
                                     CANS – PROPERTY LAW

                   (a) whether there has been as little infringement as possible in order to effect the
                       desired result;
                   (b) whether, in a situation of expropriation, fair compensation is available;
                   (c) whether the aboriginal group in question has been consulted.
            iii. In addition to variation in the form which the fiduciary duty takes, there will also be
                 variation in degree of scrutiny required by the fiduciary duty of the infringing measure
                 or action.

Justification and Aboriginal Title
a. The range of legislative objectives that can justify the infringement of aboriginal title is broad, e.g:

            i.     development of agriculture, forestry, mining, and hydroelectric power
            ii.    general economic development of the interior of British Columbia,
            iii.   protection of the environment or endangered species
            iv.    building of infrastructure
            v.     settlement of foreign populations to support those aims


b. The manner in which the fiduciary duty operates with respect to the second stage of the justification
test will be a function of the nature of aboriginal title.

            i.     Three aspects of aboriginal title are relevant here:

                   (a) right to exclusive use and occupation of land

                   (b) right to choose to what uses land can be put, subject to the ultimate limit that uses
                       cannot destroy the ability of the land to sustain future generations

                   (c) Lands held pursuant to aboriginal title have an inescapable economic component.

            ii. The exclusive nature of aboriginal title is relevant to the degree of scrutiny of the
                infringing measure or action. (I.e. broad right being claimed; less scrutiny).

            iii. Other aspects of aboriginal title suggest that the fiduciary duty may be articulated in a
                 manner different than the idea of priority:

                   (a) Right to choose to what ends a piece of land can be put suggests that the fiduciary
                       relationship between the Crown and aboriginal peoples may be satisfied by the
                       involvement of aboriginal peoples in decisions taken with respect to their lands.

                       (i) There is always a duty of consultation. (ii) Nature and scope of the duty of
                           consultation will vary with the circumstances.

                           (A) Occasionally it will be no more than a duty to discuss. Must be in good faith,
                               and with the intention of substantially addressing the concerns of the
                               aboriginal peoples.
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                       (B) In most cases, it will be significantly deeper than mere consultation.

                       (C) Some cases may even require the full consent of an aboriginal nation

               (b) Economic aspect of aboriginal title suggests that compensation is relevant to the
                   question of justification as well. In keeping with the duty of honour and good faith
                   on the Crown:

                   (i) Fair compensation will ordinarily be required when aboriginal title is infringed.

                   (ii) The amount of compensation payable will vary with the nature of the particular
                        aboriginal title affected and with the nature and severity of the infringement
                        and the extent to which aboriginal interests were accommodated.



Aboriginal Title: Post-Delgamuukw
Duty to Consult: Haida Nation
    SCC: duty to consult arises “when the Crown has knowledge, real or constructive, of the
       potential existence of the Aboriginal right or title and contemplates conduct that might
       adversely affect it.” (para. 35) – leading case on scope and duty to consult
          o Equitable doctrine of notice
          o In this case logging affected the Haida’s entire way of life and would have significant
               impact
    Duty to consult grounded in the “honour of the crown”

R. v. Bernard; R. v. Marshall
     2005 decision: SCC held that Mi’kmaq people did not have a treaty right to harvest timber for
        commercial purposes, and that aboriginal title had not been established at the locations
        asserted. Significant for how it discussed proof of aboriginal title.

Exclusivity:

       Need not require proof that the aboriginal group physically excluded others from the lands in
        question – test: did they have the ability to exclude others if they chose to do so?
       Question is whether a nomadic people enjoyed sufficient physical possession to give them title
        to land.

Continuity:

       Need to establish a connection with the pre-British sovereignty group upon whose use and
        occupation of the land the aboriginal title claim is based.
       Can be done by showing that the group has maintained a substantial connection with the land
        since the assertion of sovereignty.
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Tsilhqot'in Nation v. BC ( 2007)
Overall approach of judge: The roots of multiculturalism go back to the relations between the First
Nations communities. Displays deep respect for traditions.

Facts: P seeks declaration of Aboriginal rights to hunt and trap, also declaration of Aboriginal title

Decision: While the court cannot make a formal declaration of Tsilhqot’in Aboriginal title, will assist the
parties to achieve a fair and lasting resolution of the issues, which must be found to achieve a
reconciliation of all interests.

Reasoning-

       Tsilhqot’in people were semi-nomadic and moved with the seasons over various tracts of land
        within their vast territory. It was government policy that caused them to alter their traditional
        lifestyle and live on reserves

Infringement: The impact of forestry activities on the plaintiff’s Aboriginal title is disproportionate to the
economic benefits that would accrue to British Columbia or Canadian society generally.
       Three aspects of Aboriginal title are relevant when assessing whether or not the Crown’s duty
        has been discharged in any given instance: the right to exclusive use and occupation of land; the
        right to choose to what uses the land will be put; and, the inescapable economic component”:
       the failure of the Province to recognize and accommodate the claims being advanced for
        Aboriginal title and rights leads me to conclude that the Province has failed in its obligation to
        consult with the Tsilhqot’in people.



Reconciliation: he concern over the Williams case is the way the Private lands issue is back on the table –
is there any reason that they shouldn’t be on the table? This issue opens up a political can of worms.
What principled basis is there for declaring that private lands are in a category on their own?
                                   CANS – PROPERTY LAW

10.     Registration of Title
4 Foundational Principles of Torrens System
1) The Registration Principle: S. 20 Land Title Act; transfer only occurs when the document purporting
to transfer the interest is registered. Exception: except as regards to owner / person making transfer;
once they’ve signed transfer doc interest has left them, but as against rest of world, interest not
transferred until registered (i.e. 1st person still legal owner). Note that it’s not required for person to
register…there are some circ’s where person wouldn’t want to register


2) Indefeasibility Principle: S. 23(2) LTA; an indefeasible evidence in law and equity that person named
entitled to estate in fee simple; means once registered you acquire something called ‘indefeasible title’
(for fee simple interests only) which amounts to conclusive proof that you do in fact hold that interest.

3) Abolition of Notice: S. 29(2) LTA; what is registered is all that counts. Actual, imputed or
constructive, notice of an unregistered interest irrelevant. Except in cases of fraud.
        - From before: legal interest may take priority over equitable interest if acquired by bona fide
        purchaser for value w/out notice. This section says notice doesn’t matter anymore. Even if one
        knows about unregistered interest, it doesn’t affect title. Exception is fraud.

4) Assurance Fund: S. 20 (ss. 295-307) LTA; fund established in event that one is fraudulently deprived of
one’s interest in land or mistake in registry that results in person being deprived of interest in land. This
is way to placate people who may lose title b/c of way system set up.



Ziff: Elements of Torrens Title System:
     The Register is everything – one can examine abstract of title and see all interests in the land
         listed. The failure to register alters the priorities that would otherwise exist over the title
     Idea of curtain being brought down on past dealings is principle of indefeasibility that is pivotal
         to T system

The main difference between a common law title and a Torrens title is that a member of the general
community, acting in good faith, can rely on the information on the land register as to the rights and
interests of parties recorded there, and act on the basis of that information. A prospective purchaser,
for example, is not required to look beyond that record. He or she does not need even to examine the
Certificate of Title, the register information being paramount. This contrasts with a common law title,
which is based on the principle that a vendor cannot transfer to a purchaser a greater interest than he
or she owned. Accordingly, if a vendor's common law title is defective in any way, so would be the
purchaser's title. Hence, it is encumbered on the purchaser to ensure that the vendor's title is beyond
question. This may involve enquiries and an examination of the "chain of title".



The Torrens system works on three principles:
                                    CANS – PROPERTY LAW

       Mirror principle - the register (Certificate of Title) reflects (mirrors) accurately and completely
        the current facts about a person's title. This means if a person sells an estate, the new title has
        to be identical to the old one in terms of description of lands, except for the owner's name.

       Curtain principle - one does not need to go behind the Certificate of Title as it contains all the
        information about the title. This means that ownership need not be proved by long complicated
        documents that are kept by the owner, as in Private Conveyancing system. All the necessary
        information regarding ownership is on the Certificate of Title.

       Insurance principle - provides for compensation of loss if there are errors made by the Registrar
        of Titles. Note that this is not relevant to oil companies due to maximum claims.

What Can be Registered? Generally one may register incidents of title to land, not use of land.

Some CL/equitable interests cannot be registered:

        i. s. 33: equitable mortgage by deposit of duplicate indefeasible title.

        ii. s. 180(1): particulars of a trust.

        iii. s. 200: sub-agreement for sale.

S. 33: Equitable mortgage by deposit of duplicate indefeasible title
Note that this does not mean that equitable mortgages cannot be registered!

What is a mortgage?

A$B AMTGB (mortgage is security for the loan)

       At common law, this involved an actual transfer of legal title to B; B had “legal mortgage”. – A
        does not actually have legal title until the mortgage is paid off.
       A had what came to be called the “equity of redemption.” Equity intervened b/c common law
        took very technical and narrow view of common law: if you couldn’t pay the mortgage, you
        would lose your property and the money invested (A would get nothing)
            o This is now looked at as the equity in one’s home – what you would get if the property
                was sold and the money you get

Where does s. 33 kick in? What if the equity doesn’t cover the whole mortgage? A can borrow more
money:

A$C AMTGC (A can no longer transfer legal title, instead A offers a portion
of his equity of redemption as security). This is now referred to as an equitable mortgage: simply a
guarantee against the borrower’s equity of redemption.

BASIC POINT: THEY ARE ALL REGISTRABLE.

So what is an “equitable mortgage by deposit of duplicate indefeasible title”?
                                    CANS – PROPERTY LAW

A$M ADEPOSITS DUPLICATEM A cannot do anything with property because
duplicate is outstanding. Ie. Macleod v. Montgomery

Different type of security for M. M holds onto duplicate title, so it can’t be taken to Land Title Office.

S. 180 (trusts)
     S. 180(1): “particulars of a trust… must not be entered in the register.” Conforms to class
        Torrens approach- details of trust can’t appear on title.
     S. 180 (3): following name and address of trustee, an endorsement containing the words “in
        trust” with a number that corresponds to the trust document
     S. 180(4): trust document must be filed along with application for registration of title.

S. 200: sub-agreement for sale
     A, reg’d FS owner, enters into agreement for sale with B (payment to be made over time).
     A remains registered as FS owner; B’s interest under agreement for sale registered as charge.
     Suppose under agreement B is paying $2500 per month. Value of property goes up; B enters
        into sub-agreement for sale with C—C pays $3000 per month.
     C in turn could grant sub-sub-agreement…etc.

Registration of Non Common Law Interests

Some interests not recognized at CL or in equity can be registered pursuant to LTA:

        i. Caveats
        ii. Certificates of Pending Litigation
        iii. Judgments


Basic Scheme of Registration
Draws a distinction between:

a. The Legal Fee Simple: Legal FS owner is owner of surface, strata lot or air space parcel.

        (i) Clear title means that the land is owned outright, with no charges upon the land.
        (ii) Good title means that the ownership is free from litigation.
        (iii) Marketable title means a title which a court of equity could force upon an unwilling
             purchaser, (i.e. grant specific performance).


b. Charges: all other registrable interests. defined in broad terms as “estate or interest in land less than
fee simple” -anything registered as charge under s. 179, encumbrance (another broad definition)

Land Title Act, s. 169 (initial application only)
> To register the surface of the land the registrar must be satisfied that:
       (i) the boundaries of the land are clearly defined, usually by survey, and,
       (ii) that a good safe holding and marketable title in the fee simple has been established.
                                   CANS – PROPERTY LAW

          (iii) the applicant must ensure all documents are attested and executed, make a statement as to
               citizenship, and file a completed real property transfer record, (form 42)
> the registrar must issue a duplicate certificate of indefeasible title; it cannot be issued if the title is
  subject to a registered mortgage or an agreement for sale
> > once title is registered, it is “conclusive evidence in law and in equity that the person named in the
  title is indefeasibly entitled to the estate in fee simple”


The Legal Fee Simple
Transfer Inter Vivos

        i.      Registrar must ensure land properly described and that person seeking to register has
                “good safe holding and marketable title in fee simple” (s. 169/ s. 187).
         iii.   When documents presented at LTO, stamped with date and time.
        iv.     Application examined; registration takes place in due course if there are no problems.


Transmission on Death

        i.      Title vested in personal representatives as who hold in trust.
        ii.     Executor or administrator registered as owner.
        iii.    Transfer then made to person entitled to take under will or on intestacy.

Charges
       i. Must first find fee simple interest against which to register charge.
       ii. Must amount to interest in land and “good safeholding and marketable title.” (s. 197)
       iii. S. 180 has been interpreted as providing another way to register a charge
  a charge received less protection than that of a legal fee simple … the legal fee simple is against the
   whole world, whereas a charge simple provides a presumption.

Caveats: Part 19, ss. 282-294.
(a)   What is a caveat? Notice of potential conflict for person interested in purchasing property)

        (1)       Relatively informal way for an individual to protect his/her interest in land.

        (2)       Limited duration: if lodged by individual expires after two months. (And note that
                  person against whose title caveat is lodged can shorten this to 21 days). Person lodging
                  caveat can commence litigation within the two month period; if s/he does so, able to
                  preserve date of caveat.

(b)     Who can lodge a caveat? (1) s. 282 Person not on register. (2) s. 283 Registered owner. (3)s. 285
        Registrar (4) s. 284 Court

(c)     What is the effect of a caveat?

        (1)     s. 288(1) lodging of caveat freezes registration process (note that s. 282 provides that
                caveat can prohibit registration of a dealing with land either absolutely or in the manner
                or to the extent expressed in the caveat.)
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        (2)     Applicant may take subject to claim in the caveat. However, 288(2) provides that this
                cannot be done if the claim of the caveator, if successful, would destroy the root of title
                of the person against whose title the caveat has been lodged.

Certificates of Pending Litigation: ss. 215-217
(a)     s. 215: if Plaintiff has commenced litigation or is a person involved in litigation claiming an
        interest in land, CPL may be filed in same manner as a charge.

(c)     Exceptions to this general rule set out in 216(2). 216(2)(a) and (b) offer the possibility to
        anybody who has application in to register to proceed to registration subject to C.P.L. Note that
        216(3) specifies registration does not imply a judgement as to the validity of the claim.

(d)     S. 217 deals with effect of CPL if a prior application is pending; Registrar MAY, despite s. 216,
        complete registration if an application was made prior to the application to register CPL.

        (1)     If applicant named as defendant in litigation, registration is subject to outcome of the
                litigation.

        (2)     If applicant not named as defendant, CPL cancelled. Rationale: litigation does not call
                into question applicant’s interest in the land.

CPL takes formal priority against other interests.

Judgments: ss. 210-214
(a)   Money judgment can be registered against judgment debtor’s registered interests in land;
      judgment that affects title will result in change to title. Will take back seat to previous charges.

(b)     Manner of Registration - LTA s. 210: judgment registered in same manner as a charge.

The Assurance Fund
1.     Policy rationale: to compensate those who might be deprived of an interest in land due to
       operation of system of title registration but not anyone with an interest in land.

2.      Requirements for successful claim against the Fund (apart from basic requirement of showing
        deprivation of land or an interest in land): (Be very familiar with s.296 for exam.)

        a.      Fraud or wrongful act in respect of registration of a person other than the claimant as
                owner of the land [294.2(2)(a) (ii)/ 296(2)(a) (ii)]

        b.      Conclusive nature of operation of the Act prevents claimant from recovering
                [294.2(2)(a) (i)/ 296(2)(a) (i)]

        c.      Had Act not been in existence, P would have succeeded. [294.2(2)(a) (i)/ 296(2)(a) (i)]

3.      McCaig v. Reys illustrates application of third requirement to defeat claim against the Fund;
        holder of unregistered option to purchase would not have been successful even in absence of
                                   CANS – PROPERTY LAW

         the Act because option to purchase was an equitable interest and purchaser (Jabin) was bona
         fide/for value/without notice.

4. Other basis for claim against Fund under s. 294.22 and s. 298 —loss/damage caused solely or
   partially by omission (etc.) of the Registrar. This is new--previously provided (s. 298 in the materials,
   at p. 5-40) that the loss or damage would have to have been caused solely by fault of the registrar.

5. Royal Bank case suggests that one may draw a distinction between mistakes of procedure and
       mistakes of substance, and that “it may well be that no case can be founded on procedural error
       on the part of the Registrar” (p. 5-43, lines 39-40). Does anything in the Act indicate such a
       distinction was intended? No...

Royal Bank v. BC (1979) BCSC
Analysis: registrar owes no duty to P, and it is absurd to suggest otherwise
        S. 47 of Act expressly states that the holder of an equitable mortgage does not entitle the holder
         to registration. Those who seek to rely on equitable mortgages must accept the inherent risks
        (iii) the loss did not flow naturally and directly from the mistake of the registrar but required he
         Scotiabank to inform P of Walsh’s actions



6.       Limitations on liability of Fund covered in s. 294.6 and s. 303. Note in particular s.
         294.6(f)/303(f)--fund not liable for compensation for loss (etc.) “in respect of the proportion of
         the loss... caused or contributed to by the act, neglect or default of the plaintiff.”

7.       S. 294.61 and s. 304 set limits on what can be compensated: can recover no more than value of
         the land at the time of the loss, damage or deprivation. Value of buildings or other
         improvements made subsequent to that time must be excluded.
                                    CANS – PROPERTY LAW

11.     REGISTRATION: THE FEE SIMPLE
The General Principle of Indefeasibility
a. S. 23, s-s (2). An indefeasible title, as long as it remains in force and uncancelled, is conclusive
evidence at law and in equity, as against the Crown and all other persons, that the person named in the
title as registered owner is indefeasibly entitled to an estate in fee simple subject to exceptions.

In other words, indefeasible title is where land cannot be taken away. If a defect in title should appear,
the indefeasible title holder will retain the land, and the party whose interest was defeated will receive
damages only. Subject to exceptions, once title is registered any bona fide purchaser who acquires
property from a registered owner will hold indefeasible title notwithstanding that 3rd parties might have
invalidated title.

Torrens legislation contains number of principles:

       Conclusiveness of certificate
       Priority of interest according to time of registration rather than date of execution of instrument
       Lack of necessity to look behind existing certificate

Creelman illustrates effect of indefeasibility...

Creelman v. Hudson’s Bay Insurance co.
R:    (i) registrar has granted P (Hudson’s Bay) indefeasible title which is “conclusive in law and
        equity” P now owns the land under the Land Title Act


Indefeasibility and Adverse Possession
Acquisition of title based on long-standing occupation (squatters rights). A can establish a claim based
on adverse possession, where owner (B) can no longer come forward and claim rights to ownership and
kick A off. (we don’t have this in BC now)

In sum, a claim to adverse possession can only be made if:

        the claim is against unregistered land AND,
        if there was 20 years of possession as against a private party or 60 years of possession as
         against the Crown AND,
        if the right was acquired before 1975.

Fairly recent example: Re: Land Title Inquiry Act and Canadian Pacific Railway Company (BCSC 2002):
CPR succeeded in claim based on adverse possession.

Statutory Exceptions to Indefeasibility
Indefeasibility is subject to a series of exceptions set out in s. 23(2). Protection of title provided in
Torrens system is subject to specific exceptions including fraud, prior certificate of title, statutory
exceptions and adverse possession.
                                      CANS – PROPERTY LAW

a.       Section 23(2)(d): Leases

i.       S. 1 clarifies that this means lease for term of 3 years or less. Rationale: preferable not to clutter
up LT system by registering large number of short-term leases.

In other words, purchaser is out of luck if there is an existing lease on the land that they didn’t know
about, that is less than 3 years in length.

b.       Section 23(2)(g): Charges and Other Entries

         i.         Not a general exception to indefeasibility; instead, allows for operation of other
                    legislation.

c.       Section 23(2)(h): Boundaries

i.        Title not a guarantee as to boundaries of the land. Need to check through survey. Winrob v.
         Street holds that a lawyer does not have a duty to check through survey unless explicitly
         instructed by client. Imposes burden on lawyer otherwise.

d.       Section 23(2)(i): Fraud -Indefeasibility subject to “the right of a person deprived of land to show
         fraud, in which the registered owner has participated in any degree.” If a title is acquired by
         fraud, it is not indefeasible.

However, knowledge alone of an unregistered interest is not sufficient to constitute fraud. Only arises
      when purchaser is aware of dishonest activity and ignores or actively participates in it. Title also
      won’t be indefeasible in the case of a gift, purchaser has to take title bona fide and for value.

Forgery
Section 23(2)(i):

        Indefeasibility subject to “the right of a person deprived of land to show fraud, including forgery,
         in which the registered owner has participated in any degree.”
        Seems to apply general Torrens exception to indefeasibility to forgery: no indefeasibility if the
         registered owner herself or himself has acted fraudulently.

Old Section 297(3): preferred deferred indefeasibility approach

                A person taking under a void instrument is not a purchaser and acquires no interest in
                 the land by registration of the instrument. This codifies Gibbs v. Messer. note:
                 difference between a VOID instrument (a forged instrument) v. Voidable … ok … but can
                 be nullified later.]
        Seen as reflecting deferred indefeasibility approach. Repealed in 2005, and replaced with
         2005 Amendments:
            o New Section 25.1: seems to treat forgery different than other fraud
                                  CANS – PROPERTY LAW

            o    (1) Subject to this section, a person who purports to acquire land or an estate or interest
                 in land by registration of a void instrument does not acquire any estate or interest in the
                 land on registration of the instrument.
            o (2) Even though an instrument purporting to transfer a fee simple estate is void, a
                 transferee who:
                       (a) is named in the instrument, and
                       (b) in good faith and for valuable consideration, purports to acquire the estate
            o is deemed to have acquired that estate on registration of that instrument. Qualifies
                 s.1
            o (3) Even though a registered instrument purporting to transfer a fee simple estate is
                 void, a transferee who:
                       (a) is named in the instrument, and
                       (b) is, on the date that this section comes into force, the registered owner of the
                          estate, and
                       (c) in good faith and for valuable consideration, purported to acquire the estate
            o is deemed to have acquired that estate on registration of that instrument.
       According to a LTSA information bulletin, the amendments “ensure immediate legal certainty of
        land title for a person acting in good faith, who unknowingly acquired a fee simple interest in
        the property through a forged transfer, provided the individual did not participate in the fraud.”
        We can read this as taking an immediate indefeasibility standard in relation to fee simple
        interests. Current assumption?

Gibbs v. Messer [1891] PC
Facts: Cresswell is the rogue, Messer owns land, C creates a fake person - Cameron. Trial judge said C
assumed identity. Gibbs is the registrar.

Analysis:

       However, the protection offered by the statute, to persons transacting on the faith of the
        register, is limited to those who actually deal w/ the proprietor whose name is on the register.
        (ie. those who transact with a forger as opposed to the fee simple owner do not transact of the
        faith of the register). Further, they cannot by registration of a forged deed acquire valid title in
        their own persons, although the fact that they are registered means that they will be able to
        pass a valid right to third parties who purchase in good faith for value
       Statute says: If you’re dealing w/person on title, then you can rest assured that that person’s
        title is good and you’re safe. So if Hugh had been real, this would be exactly the situation the
        Act designed to protect, but here, the McIntyre’s weren’t dealing w/the person on title. It’s the
        purchasers responsibility to make sure they’re dealing with the person on title. Here they
        weren’t, so McIntyre’s were exposed

Rule: although forged transfer, void at common law, will become root of valid title, there is no
enactment which makes indefeasible the registered right of transferee or mortgages under null deed
                                   CANS – PROPERTY LAW

Frazer v. Walker [1967] NZPC
Decisions: A’s claims dismissed. Valid title transferred to R.
Analysis:
       A argued that forged mortgage could not be validly registered, so title never transferred
       Act is description of immunity from attack by adverse claim to land or interest in respect of
        which he is registered. Does not say that reg prop is protected against any claim whatsoever.
       Although mortgage of fee simple does not take effect as transfer of fee simple, it does create
        charge on land which Act treats as interest in land
       They can distinguish Gibbs on its facts, where Cam is not a real person and therefore it was not
        possible to transfer title
    Rule: immediate indefeasibility standard is justified here. t

Examples
X steals A’s certificate of title, which A kept in her desk drawer, forges a transfer from A to himself, and
gets himself registered. X then transfers to B, a bona fide purchaser for value. A later discovers the
facts. The whereabouts of X are unknown. Can A claim against the fund?

-under common law, X could not have transferred title b/c of nemo dat therefore A could claim against
the fund

A, registered fee simple owner of Blackacre, agrees to sell Blackacre to B, the transaction to be
completed in three months time. Before completion, A sells and transfers the fee simple to C, who buys
bona fide and without notice of the agreement with B. C secures registration \as the fee simple owner.
B sues C. Will B succeed? If not, will B succeed in a claim against the Fund?

B will not succeed in suing C, who is protected by bona fide purchase w/out notice. A committed fraud,
Act also prevents recovery b/c of B’s inability to sue C, and C would still be protected at common law,
therefore B still wouldn’t have succeeded w/out the existence of the Act. Therefore B could not claim
against the fund.

Notice of an unregistered interest
In relying upon register, purchaser is not affected by actual, implied or constructive notice of
unregistered instruments b/c they are deemed to have notice of the contents of the certificate of title.

LTA Section 29(2): Except in the case of fraud in which he or she has participated, a person contracting or
dealing with or taking or proposing to take [a transfer or charge] from a registered owner...is not,
despite a rule of law or equity to the contrary, affected by a notice, express, implied, or constructive, of
an unregistered interest affecting the land or charge…

       Abolition of the equitable doctrine of notice is one of the fundamental features of a Torrens
        system. Despite clear wording of s. 29, the courts have been reluctant to allow the statute to be
                                   CANS – PROPERTY LAW

        used as an instrument of fraud--in other words, to allow purchasers to “hide behind the statute”
        in order to defeat unregistered interests.

Does s. 29 go far enough? Should it say that mere notice does not give rise to allegations of fraud?

Series of issues/themes that arise in the cases:

(1) What is the effect of the timing of the notice?

Generally, the earlier the notice comes, the more likely it will be that you will have to respect it. In the
minds of the judges , it often turns on the date of the contract itself.

(2)     Does notice in and of itself constitute fraud if purchaser seeks to disregard unregistered
        interest OR must there an element of dishonest conduct that goes beyond mere notice?

Did Y do anything dishonest (such as assure X that s/he would respect Z’s unregistered interest?)

(3)     Must notice be express or can it be constructive?

Does Y have to have actual notice of Z’s unregistered interest, or is it sufficient if the circumstances were
such that a reasonable person would have made inquiries?

***Although these cases stand for major principles, they all turn on the facts. For preparing for exam,
start with s. 29, and concern with fraud. Be familiar with basic outline but not major details of cases.

McCaig v. Reys
Express notice prior to K, plus dishonest conduct is fraud.

Hudson’s Bay Co v. Kearns and Rowling
R:    (i) CA reasons that whether there was constructive notice or not does not matter b/c:
                 (a) there was no express knowledge
                 (b) purchaser must be guilty of conduct equivalent to fraud to deny him s. 29
      (ii) court is fully prepared to hold that a purchaser w/ express notice of an unregistered interest
      might be estopped from claiming the benefit of s. 29 (ie. constructive notice is insufficient)1
      (iii) policy of the Land Title Act is to free purchaser from the imputation of constructive notice
      and in the absence of actual notice or fraud a later registered deed takes priority over an
      unregistered interest


Central Station Enterprises v. Shangri-La Estates Ltd.
F:      A buyer (D) became aware of an unregistered lease to P after entering into the agreement for
        sale but before the application to register.

H:      Judgment for D; he is entitled to s. 29 protection even though he had notice.

R:      (i.) When? = s. 29 protection afforded where notice before time that a binding contract is formed
              (rather than before registration, which may occur later).
        (ii.) to strip a purchaser of the protection of s. 29 as against unregistered interests requires actual
               notice before “completion” as opposed to before “registration”
                                   CANS – PROPERTY LAW

Woodwest Developments v. Met-Tec Instalments
F:      P purchased the property from a Realtor after knowing (b/c of Realtor’s fact sheet) that there
        were two leases on the property. One of the leases was a 5 year lease to D. Upon registration P
        gave D notice to vacate. When D refused, P sued for possession.

I:      Whether P can use the provisions of s. 29 of the Land Title Act to refute the unregistered interest
        of D despite the fact that he had express knowledge of the interests prior to the sale?

H:      Judgment for D; P’s express knowledge couple w/ factual circumstances amounted to fraud.

R:      (i.) A purchaser with knowledge of an unregistered interest may be guilty of fraud if he/she were
        to seek the protection of the LTA (s.29), but this does not mean that he/she must be found to be
        fraudulent. fraud cannot be assumed and must be inferred, carefully, based on the facts only.

     The Legal TEST in WOODWEST – notice before binding K, good evidence that it’s enuf to take subject
     to unreg’ed interest …. BUT … the facts show that notice was (a) pre-negot and (b) this was
     obviously notice-plus.

Greveling v. Greveling
F:     Mrs. Greveling was a registered fee simple owner and drew up and transferred her interest to
       her husband. This transfer was not registered. Then sold the property to Blackburn who
       registered his interest. The lawyer who acted for Blackburn was also Mrs. Greveling’s lawyer.
       He knew of the transfer to Mr. Greveling.

H:      Mrs. Greveling and Blackburn both guilty of fraud.

R:      (i.) Solicitor’s knowledge = imputed knowledge = actual notice.


12.     Registration of Charges

Meaning of Registration
At least 2 ways to register a charge:

a.       Under s. 197 (manner intended by LTA drafters—dealt with under Chapter V.)

b.       Under s. 180, which deals with trusts, as a result of the SCC decision in Dukart v. Surrey. (Recall
that s. 180 provides that trustee becomes registered owner. No particulars of the trust, but “in trust”
notation with a number referring to trust document on file in LTO.

Dukart v. Surrey Policy Implications:

Pro: Why shouldn’t this be regarded as having been registered, given that anyone can see it should
they choose to inspect title? This allows us to think of registration in a more flexible and open-ended
way.
                                   CANS – PROPERTY LAW

Con: Doesn’t this represent a shift towards a registration of deeds system as opposed to registration
of title? Deeds system requires filing of all documents relating to land, less efficient than Land Title
System.

Dukart v. Surrey (1978) SCC
Facts: R acquired foreshore reserves at tax sales (what happens when property sold b/c taxes not been
paid-purges title of all interests except easements etc.), A sought injunction.

Analysis: 3 possible interpretations:
       in a tax sale, if property is held by trustee, any easements that appear in the trust document are
        in fact deemed to be registered and survive the tax sale. (narrow reading)
       **Middle ground interpretation is more consistent w/ later cases: s. 180 of LTA dealing with
        protection/treatment of trust documents does provide for alternative form of registration-but
        still can’t register particulars of a trust can’t be registered, causes controversy.
       Broad interpretation: any time you have a document on file in relation to piece of property, ie.
        Option to purchase, all interests created would be deemed to be registered. This would take us
        towards the idea of registration under a deeds system, and not as plausible. Doesn’t s. 180 still
        seem to narrow this away from the broad interpretation?
Ratio: Clear from this that Act contemplates different kinds of registration.

Indefeasibility of charges
Validity of documents
Credit Foncier v. Bennett: authority for the proposition that you cannot assume validity of the
        documents on the basis of which registration of a charge took place. Authority for
        interpretation for s. 26, still good law.

Court: s. 197 tells about process of registration not consequences of registration. Consequences of
registration found in s. 26, which provides that registered owner is deemed to be entitled to interest.
Contrast with s. 23, (strong language indicating immediate indef) indicates that s. 26 is rebuttable
deeming provision. This allows one to go behind the register. Effect of Credit Foncier seemed to be that
in the case of charges had to do old fashioned common law search of title.

Credit-Foncier Franco v. Bennett (1963) BCCA
Analysis: Why wasn’t CF protected since they were dealing with the registered charge? Court looked at
language – shall be deemed in s. 26 could be interpreted in one of two ways: Either irrebuttable
presumption, or presumed until contrary is proven. This was critical – they thought leg intended to have
lesser degree of protection applied to charges than they did to fee simple, based on the less strong
language in s. 26. Ratio: the presumption is in favour of B. You have to put limitations on the inquiry that
you will take in relation to s. 26.
    -   How did the Island Realty case deal with the problem Credit Foncier created?
           o The court in Island Realty focused on the fact that the holder of the 3rd mtg. was dealing
               with the registered owner
                                   CANS – PROPERTY LAW

            o    In Credit Foncier, the registered FS owner had never actually granted the mtg. The
                 original mtg. was a forgery so there was no connection between the assignee of the
                 mortgage and the Bennetts
            o    So the court effectively limits Credit Foncier, they disagree that CF should go so far that
                 every time we have a dispute, we should go behind the register to determine who holds
                 title, the court decided that this wasn’t necessary given the land registration system
            o    The bottom line is: if you are dealing with the registered FS owner, you are protected
            o    But of course registration of an interest does not guarantee the validity of the interest,
                 validity of interest can be challenged

Canadian Commercial Bank v. Island Realty Investments Ltd. (1988) CA)
Result: you can assume validity of documents and can rely on protection afforded by indefeasibility if
you trace them back to the fee simple owner (this was NOT the case in CF). At CL, Almont would not
have taken priority but this does not determine the outcome here.

Should there be legislative reform in this area as well?

Analysis: Here however, discharge released PM even if it was fraudulent and cleared their interest in
land. Almont did NOT take under void instrument. Cannot apply rule in CFF either – even though s. 23
says owner of fee simple is conclusively presumed to have title, where s. 26 does not offer this same
type of protection to chargeholder (rebuttable presumption).
Ratio: where mortgage is valid, bona fide purchaser will be protected.

Validity of the interest
Registration of charge does not constitute a determination by the Registrar that the interest was validly
created. Open to subsequent purchaser to convince court that this is not a valid interest.

Notice of terms and conditions
If a document that is filed at the LTO provides certain terms, does purchaser have to take these into
account? S. 27 provides that registration of a charge gives notice of any supporting document on file in
LTO—i.e. content of instrument creating the charge.

BUT note S. 27(1)(b) provides that this is so far as it relates to that registered interest. If a document
creates 2 interests (e.g. a lease with option to purchase), each must be registered separately.

Priority as between charges
S. 28 provides that when 2 or more charges registered, as between those charges, priority is determined
by dates of applications to register. Reverses common law which determined priority on the basis of
date of the creation of the interest.
                                    CANS – PROPERTY LAW

13.      Failure To Register
The General Principle
     -   S. 20 sets out basic principle that an unregistered instrument is not effective to transfer title
         (except as against the person making it). i.e., Registration is required to transfer an interest in
         land, however, as between transferor and transferee registration is NOT required, so what IS
         required? At what stage does the interest pass? (The section doesn’t tell us this)
     -   Example: Sorensen v. Young (plaintiff, who had reserved a right of way when making a transfer
         of an adjoining property but failed to register, could not enforce that right against a third party.)
             o NOTE: After this case the public was outraged at the “unfair” result. The LTA was
                  amended, placing an obligation on the registrar to register any unregistered interests,
                  however, at a later time it was amended again and placed this obligation on the person
                  creating the interest. The person creating the interest is responsible for registering his
                  interest to protect it.

Result of the opening words of s. 20 is that an unregistered document, provided it is valid, is effective
as between parties to that document.

Sorenson v. Young [1920] SCC
Analysis: D has indefeasible title in fee simple. Land by definition of s. 2 includes easements. It is argued
that deed creating easement is registrable, even if ROW is not, however to accept this would be to
violate s. 104

Ratio: if it’s not registered, as a fee simple, it doesn’t have to be respected

“EXCEPT AS AGAINST THE PERSON MAKING IT”
1.       Unregistered document may allow a transferee to take priority over a registered judgment
         creditor. (Section on judgments)

2.       Unregistered document may under certain circumstances allow a 3rd party to claim an interest
         in land as against transferor. (Section on other interests)

3.       Unregistered document may be effective as between parties to the agreement even if it involves
         a transaction seemingly prohibited by the LTA itself. (Section on prohibited transactions)

Judgments
a.    Rules prior to 1979 were extremely favourable to judgment creditors; modified so as to be
      somewhat less so.

b.       S. 210: must register judgments in same way as registering a charge:

         i. Must find actual piece of property owned by defendant (can register against multiple
         interests, but have to do so individually)
                                  CANS – PROPERTY LAW

c.      Effect of registration of a judgment: s. 86 of Court Order Enforcement Act preserves general CL
        principle that a judgment creditor can take no more than judgment debtor actually owns. (nemo
        dat)

        i. Judgment forms lien or charge in same way as if debtor had actually granted lien or charge.

        ii. S. 86(3)(c): subject to the right of a purchaser who, before the registration of the judgment,
        acquired an interest in the land in good faith and for value under an instrument not registered
        at the time of the registration of the judgment. Judgement creditor’s interest is subject to
        unregistered transfer to purchaser in good faith and for value.

***this only affects judgment, any other charge would have been enforceable. This is an EXCEPTION to
the rule, not a consistent application of the principles.

Examples
1. A was the registered owner of lands which he transferred to a company in June 1935. The company
never registered the transfer. In July 1943 and March 1944, A’s wife (judgement creditor) registered
two judgements, which she had obtained against her husband in 1939 and 1944. What is the priority as
between the unregistered transfer and the two registered judgments? The unregistered transfer would
take precedent. This is different than a lease, where the leaseholder can rely on the register.

2. A is the registered owner in fee simple of Blackacre. He makes a gift of it to B, who does not register
the transfer to her. C registers a judgment against A’s title. Does the judgment take priority over B’s
unregistered interest? Yes the judgement takes priority – it was a gift, and therefore not a purchaser for
value so the rule does not apply.

Other Interests
a.     L&C Lumber Co. v. Lundgren: BCCA held that “reasonable restrictions” must be read into
       “irrationally wide provisions” of s. 20.

b.      Real purpose of the Act to protect 3rd parties that are bona fide purchasers for value without
        notice.

L&C Lumber Co. v. Lundgren
Facts: A had sold right to come onto property to take timber, it was then sold to 3rd party who did not
    register. Wife said no, you can’t come onto land b/c of LTA. Right not regd, although could have
    been. Lundgrens do not allow L & C onto land & claim they have no right since not regd.

Analysis: Real purpose is to protect 3rd parties AND to allow them to rely on the register. It does NOT
allow transferor to escape from obligations that they have taken on. Ratio: Result is that a person
making a transfer will be affected even if interest is unregistered.

Prohibited Transactions
a.      International Paper Industries v. Top Line Industries (“Top Line”), controversial 1996 BCCA
decision that considered effect of s. 73(1) of LTA, (except in compliance with the Act a person must not
subdivide land for purposes of selling or leasing). Lease was struck down.
                                   CANS – PROPERTY LAW

        i.      Prior to Top Line, assumption that this provision did not prevent transactions regarding
                un-subdivided land from being valid as between 2 parties. Court said transaction
                ineffective even as between parties.

Bases on which it had been assumed that these leases valid:

       S. 73 itself sets out the basic consequence: s-s (6) provides that there is no right to register.
       Ss. 111 and 112 again deal with consequences if no plan of sub-division is deposited as required
        by the Act; would-be tenant can get order to rescind the lease, and there can be monetary
        penalty for transferor.
       S. 20 itself: unregistered instrument effective as between the parties.

BCCA looks at this and dismisses idea that there is any kind of case precedent. Looks to policy – why do
we have s. 73 of LTA?

        (a)     Need to give municipalities power to control development – ie. Person has 20 acres of
                land and wants to divide it into one acre lots...normally person has to seek municipal
                approval. Therefore s. 73 in place to control this type of subdivision.

        (b)     Integrity of the land title system-Torrens system could be undermined if you could look
                at title and not be able to tell that there is a long term lease. P. 19: public benefits of
                Torrens system are too obvious to need elaboration.

This makes sense...if basic principle of Torrens is to allow people to see what is on the register,
unregistered interests obviously present problem.

Cactus Café, another decision of BCCA, turned on the interpretation of s. 73(3), which provides that
73(1) does not apply to a subdivision for the purpose of leasing a building or part of a building:

2007 Amendments to the LTA: Lease of part of a parcel of land enforceable

73.1 (1) A lease or an agreement for lease of a part of a parcel of land is not unenforceable between the
parties to the lease or agreement for lease by reason only that

(a) the lease or agreement for lease does not comply with this Part, or

(b) an application for the registration of the lease or agreement for lease may be refused or rejected.

Before Top Line decision, leases were unenforceable as between parties. 73.1 takes us back to it being
enforceable. What happens to leases that pre-date this provision? Can they still be challenged in some
way? It is possible that in between CA decision in TL and the 2007 amendment, there is some
uncertainty and lease could be void. However this is highly unlikely.
                                   CANS – PROPERTY LAW

14.     Land Title System and Aboriginal Title
Skeetchestn Indian Band
Facts: appeal from dismissal of A. Registrar refused to register CPL (under authority of s. 168) against
lands held by Crown Grant in fee simple to predecessors of Kamlands Holdings Ltd., which holds lands
under certificate of indefeasible title. A is claiming aboriginal right to lands
Issue: are those who hold CIT subject to claims of Aboriginal title?
P’s argument: transfer to D is of no force or effect. Exercise of Crown’s fiduciary obligations in respect of
P’s title is illegal and exercise of unlawfully delegated power. P’s descendants occupied land prior to
Crown sovereignty and has maintained substantial connection, therefore title was not lawfully
extinguished. Also, K’s title was not registered as BFPFV. D has also refused to consider any of P’s
proposals.
Register’s claim: P’s claim is not registrable under the Act. Point to Delgamuukw decision to note that
there is a limit on the content of aboriginal title
Decision: appeal dismissed, trial judge was correct
Analysis:
       Matter of statutory interpretation to be addressed in historical context
       Leaves it to SCC to decide what Delgamuukw tells us about CIT
       S. 37 LTA – CIT is conclusive evidence of fee simple ownership w/ some exceptions
       There is nothing in the legislative history of this Province, up to and including the enactment in
        1978 of the statute now in issue, to warrant the conclusion that the Legislature intended the
        claims put forth here by the appellants to be registrable. Therefore, A has no right to
        registration under s. 215
       Uukw v. British Columbia (1987), 16 B.C.L.R. (2d) 145. The judgment of the court delivered by
        Macdonald J.A. held that the Torrens system of registration enacted by the Land Title Act does
        not contemplate registration of aboriginal rights.
Ratio: the content of Aboriginal title is not marketable, and charges against the land will not be
registrable

				
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