airspace conveyance deed garage

Document Sample
airspace conveyance deed garage Powered By Docstoc
					                              Property Law Semester II -- Summary                        Page 1 of 1


                                     Natural Resources

    AIRSPACE
•   Rights to airspace may be severed from the surface and alienated separately.
•   Contrary to the maxim Cujus Est Solum Ejus Est Usque Ad Coelum Et Ad Inferos, property
    rights are limited to a reasonable height above the ground – that which can be used or
    occupied.
•   In most jurisdictions statutory rules will limit height of ownership.
•   Any intrusion by land based structures will be a trespass

Bernstein v Skyviews – limits of property rights to airspace
Aerial photographs of Bernstein’s house. The balance between the rights of the owner to enjoy
the use of his land against the rights of the general public to take advantage of all that science
now offers in the use of air space, is struck in our present society by restricting the rights of an
owner in the air space above his land to such height as is necessary for the ordinary use and
enjoyment of his land and the structures upon it.

Didow v Alberta Power -- Overhanging Permanent Structures
Cross arms on power poles hanging over plaintiffs land, though not interfering with use of land.
Court finds that “The weight of authority favours the view that a direct invasion by a permanent
artificial projection constitutes a trespass.” “A land owner is entitled to freedom from
permanent structures which in any way impinge on the actual or potential use and enjoyment of
his land.”

Atlantic Aviation v NS Light & Power – permanent structure
Towers built wholly on NS Light and Power land but interfering with Flight school’s use of their
own land (runway). Court says not a nuisance. Where the structures are for a legitimate and
normal use of land it’s okay. Where the building of a structure is done in order to obstruct use of
your neighbour’s land it can be considered nuisance.

Critelli Ltd v Lincoln Trust – Permanent Structure
Case of snow from 9 storey building falling onto 6 storey building next door. “You can build on
your own land for your enjoyment, but at same time you must consider the direct effects on your
neighbour.

Earl Putnam Organisation v Macdonald – Right To Light
Macdonald built a privacy wall that blocked light to the plaintiff’s window. “The law is clear
that a landowner may so build on his land as to prevent any light from reaching his neighbour’s
window, unless the neighbour has acquired an easement by way of prescription or by an express
implied grant.”




                                   Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                             Property Law Semester II -- Summary                      Page 2 of 2


   FREEDOM FROM SMELLS

Desrosiers v Sullivan – Freedom from smells
pig farm – smells and noises are actionable. It is a common law principle that you cannot
interfere substantially with your neighbours use of his/her property.

   SUBSURFACE RIGHTS
At common law the owner of a fee simple owned everything under his land. This is all subject to
legislation. Owner of sub surface can sell of rights to the sub surface i.e. mineral rights.
Where there is conflict between severed owners of surface and sub soil there are three standard
alternatives:
        i) negotiate a right of way to cross the surface subject to some type of fee
        ii) litigate – either through special tribunals or regular courts
        iii) legislation usually tips the scales in favour of the sub surface owner but with the
            requirement that the surface owner is compensated for the crossing of surface.

Edwards v Sims
Two land owners fighting over ownership of cave with entrance on one property, and greater part
of cave on another property. The owner of the property that contained the greater part of the cave
succeeded in preventing the neighbour from using those parts of the caves.

Pugliese v National Capital Commission – underground water rights
Does owner have a right to the support of water beneath his land, not flowing in a defined
channel?
       1) an owner of land does not have an absolute right to the support of water beneath his
          land not flowing in a defined channel, but he does have a right not to be subjected to
          interference with the support of such water, amounting to negligence or nuisance.
       2) Such an owner does have a right of action
               a) in negligence for damages resulting from the abstraction of such water,
               b) nuisance for damages for unreasonable user of lands in the abstraction of such
                  water.
• Ontario Statutes limit the common law rights to percolating waters

Petrofina Canada v Moneta -- Right to Support of surface
Old mine entrance filled in by previous owners (current subsurface owners) caved in.
“The right of natural support arises by implication upon the severance of his estate by an owner,
unless the deed or instrument of severance shows the contrary.”




                                 Principles Of Property Law
CML 1208 B April 1998                                                   Professor Brad Morse
                                     Property Law Semester II -- Summary                                  Page 3 of 3


Gallant v Woolworth – Right to Lateral support of surface
Building next door disturbed surface causing problems with plaintiff’s building.
“Land owner has a right, independent of prescription, to the lateral support of the neighbouring
land owned by another, so far as that is necessary to uphold the soil in its natural state at its
normal level, and also to compensation for damage caused either to the land or to buildings upon
the land by the withdrawal of such support.”

     RIGHTS TO WATER
1)       Surface Water in a defined Channel (not a river) – lower land owner must accept that
         water. She can’t dam it up to stop it from flowing through her property. Lower owner
         can also insist on receiving the flow. The upper owner can be stopped from damming.
2)       Surface Water Not in a Defined Channel – lower owner may put up barriers. Lower
         owner cannot insist on this water coming to them. Upper land owner is not liable for
         such surface with no channel flowing form his land
3)       Artificially Collected Water – if you artificially collect water and subsequently that
         causes damage to the property of others, you are liable.
4)       Water Diverted to Artificial Channel – Okay provided it doesn’t damage your
         neighbour’s land.
5)       Altered Land – if you alter your land in a way that prevents water from being absorbed,
         you are liable for any damages to neighbour flowing from that alteration.

Loring v Brightwood Golf and Country Club
Golf Club removed a stone wall on its property which, according to neighbours, caused basement flooding
Court held that golf course made a positive alteration of the property which caused the surface
water to flow off of the property in an unnatural way.

     LAND BOUNDED BY WATER

Common Law
• With non-tidal waters, ownership is “amedium filym aquae” -- from middle of water the
  river/lake bottom was owned by land owner to centre.
• With tidal waters, bed is owned by crown. The area between the high tide mark and the low
  tide mark, the “foreshore” is owned by the crown. Subject to specific grants




•    Beds of Navigable Waters Act – Ontario – renders the beds of all navigable waters property
     of the crown.

                                           Principles Of Property Law
CML 1208 B April 1998                                                                       Professor Brad Morse
                                       Property Law Semester II -- Summary                                       Page 4 of 4

Navigable Waters
• Navigable Waters in law = Navigable Waters in fact
• Includes waters that logs can be floated down.
• Navigable means that the water can be used to travel from point A to point B. Therefore a
  small enclosed pond will not count as navigable waters
• To count as Navigable waters, the water does not have to be navigable all year round, and it
  does not have to be navigable over every square foot.
• The Right to float logs is not paramount, it must coincide with the rights of any riparian land
  owners. Log owners will also be liable for any damage to riparian lands.

Southern Australia v Southern Centre of Theosophy – accretion
Lake receded over time revealing an additional 20 acres. The original land grant said all lands “to the lake”.
Court said that the new land is part of the property – forces of nature can alter land boundaries
where those boundaries are set out by water. That includes the creation of new lands by
accretion – sedimentary deposit – and the creation of new lands by the retreat of waters.

     RIPARIAN OWNER’S RIGHTS
     (1)       Right of Access
     (2)       Right of Flow
           (a)         quantity; and
           (b)         quality

Common Law Position
1) regular and domestic purposes – riparian owner has unquestionable right
2)    secondary purposes – i.e. manufacturing, large scale irrigation – riparian owner is under
      strict limits. Water can only be used on the riparian lands. The use must be reasonable.
      The water must be returned largely unaffected in quantity and quality.

Gauthier v Naneff – Riparian owner’s rights
Sudbury Boat Races. “A riparian owner is entitled to the flow of water past his land, in its
natural state of purity undeteriorated by noxious matter discharged into it by others, and anyone
who fouls the water infringes a right of property of the riparian owner, who can maintain an
action against the wrongdoer without proving that the pollution has caused him actual damage.”

                                                    Co-Ownership

Joint Tenancy
The Four Unities (PITT):
       1.         Unity of Possession -- same right to use and possess land (P)
       2.         Unity of Interest – interest of each joint tenant is identical (I)
       3.         Unity of Title – derive interest through same legal document (T)
       4.         Unity of Time – both joint tenants must receive interest at the same time (T)
• The four unities must be present before a Joint Tenancy will exist.


                                             Principles Of Property Law
CML 1208 B April 1998                                                                            Professor Brad Morse
                             Property Law Semester II -- Summary                      Page 5 of 5

•   In cases of co-ownership without the four unities, it will be a Tenancy in Common
•   Jus Accrescendi – the right of survivorship, one of the most important characteristics of the
    Joint Tenancy. When a joint tenant dies his interest is extinguished, increasing the holdings
    of the survivors. On the death of the penultimate JT, the remaining tenant will have full
    interest.
•   A Joint Tenancy can be converted into a Tenancy In Common, in some instances, through
    the unilateral action of a tenant.

Tenancy in Common
• Undivided interest according to the share that has been outlined in the grant.
• Tenants in Common can own different shares/interests.
• Interests are alienable by will – no right of survivorship
• Tenancy in common has only one unity – unity of possession – they have the right to use the
   whole property undivided.

Responsibilities of Co-Tenants
• Co-tenants are equally responsible for debts, liabilities, expenses, maintenance and repairs.
  Each co-tenant must contribute in proportion to their interest
• With mortgages, the interest is considered a current expense and is owed by the occupying
  co-tenant
• It doesn’t matter if one of the co-tenants doesn’t occupy the property.
• Where one co-tenant is occupying the property: (1) if the occupying tenant asks the other
  tenant for money for non-capital expenses, the second co-tenant can ask the first for rent; (2)
  where the expenses are capital expenses, the occupying tenant must contribute to the costs
  since s/he will benefit upon sale
• For improvements on the land: (1) if the value of the land is raised, both tenants are required
  to pay their share (the lesser of the cost or raised value); (2) if the value of the land is not
  raised there is no obligation upon either co-tenant

Statute of Ann
Where one tenant has received more than his/her share of profits they must account

Methods of Creation
• Even if the four unities are present you cannot assume that a Joint Tenancy has been created
• Determining whether or not a Joint Tenancy or Tenancy in Common has been created rests
  on the intention of the grantor.
• When the document is silent on this point, a rule of construction is required:
      (1)        Common Law – preferred the joint tenancy
              • Could be negated by the use of “equally amongst them”; “equally”; “in equal
                 moieties”; “share and share alike”; “respectively”; “between”; “amongst”; to
                 “each”; and to “all to have part and alike every one of them to have as much as
                 the other” – all considered words of severance.
      (2)        Equity – presumes Tenancy in Common


                                  Principles Of Property Law
CML 1208 B April 1998                                                   Professor Brad Morse
                             Property Law Semester II -- Summary                       Page 6 of 6

               (a)                 for partnership assets;
               (b)                 in cases where money is advanced and secured under mortgage;
               (c)                 when property is purchased in unequal shares; and
               (d)                 where possession is shared by individuals pursuing separate
                   commercial enterprises.
       •   In most jurisdictions, a statutory presumption in favour of the tenancy in common,
           reversing the common rule.

Severance of Joint Tenancies
• A joint tenancy can be severed in three ways:
      (1)          by one person acting on his or her own share;
      (2)          by mutual agreement; or
      (3)          by “any course of dealing sufficient to intimate that the interests of all were
            mutually treated as constituting a tenancy in common”
• Severance Through Unilateral Action -- any act that destroys an essential unity will bring
  the JT to an end.
      (i)         conveyance
      (ii)        granting of a life estate to another
      (iii)       a granting of a mortgage on interest where it involves some transfer of title
      (iv)        assignment or sublease of a leasehold joint tenancy
• Severance Through an agreement – where there has been an agreement which would turn
  the JT into a TIC, equity will estop the parties from attempting to assert their right of
  survivorship. An agreement doesn’t necessarily have to be express. An agreement by all of
  the joint owners to sell and divide the profits may result in the interest thereafter being TIC.
• Severance Through A course of dealing -- has supported a finding of a severance when the
  dealings fall short of a firm or explicit agreement. Canadian courts have held that failed
  negotiations over joint assets can lead to the finding that the owners regarded their JT’s as
  being severed.
• Severance by other means -- a severance will also occur:
      (v)              on a judicial sale or bankruptcy
      (vi)             In Ontario, where a spouse dies owning property as a JT in a matrimonial
              home together with a third party (not the other spouse), that JT will be deemed to
              have been severed immediately before the death of the owning spouse.
      (vii)            The murder of one JT by another will be regarded as a severance
      (viii)           If both JT’s are killed at same time – courts will place severance
              immediately before death – 50% to each estate

Resolving Concurrent Ownership Disputes
Termination – can occur through the release of one owner’s interest to the other, or by a transfer
by all of the co-owners to a third party. Alternatively a co-owner may invoke the judicial power
to order a physical division of the land (partition) or a sale. Once it is decided that an order
should be made, the options available are to direct:
        (i)            a physical division;
                • considered more favourable than sale.

                                  Principles Of Property Law
CML 1208 B April 1998                                                    Professor Brad Morse
                                      Property Law Semester II -- Summary                                       Page 7 of 7

                   •    In order to rebut the court’s preference for partition the party seeking sale must
                        show that the partition would be detrimental to the property (Dibattista)
         (ii)               a sale, followed by a distribution of the proceeds; or
         (iii)              a sale among the co-owners. -- One JT sells his interest to the other(s)

    CASES

Osachuk v Osachuk – responsibility, non-occupying tenant
[1971] Man – Marriage split-up, husband lived in apartment in matrimonial home, wife lived elsewhere, he didn’t want to pay rent
With a joint tenancy, each co-tenant is responsible for their share of property expenses. The
Statute of Anne says that where one tenant has received more than his/her share of profits, s/he
must account to the other. Therefore, if one joint tenant is living on the property, s/he must
account for the rent that would be made if s/he didn’t live there and the property was rented.

Re Murdoch and Barry – unilateral severance of JT
[1976] Ont HC Goodman J – wife conveyed a deed to herself for half the matrimonial home, then died. Is JT severed?
Joint Tenants have right to sever the JT unilaterally by conveyance. A conveyance by a joint
tenant from himself to himself of his interest in the jointly held properly destroys the unity of
title. Section 42 of the Conveyancing and Law of Property Act makes it quite clear that a person
may convey property or vest property in himself or herself.

Walker v Dubord – unilateral severance – declaration of intent
[1992] BCCA Rowles JA – wife was sick and dying, declared intent to sever JT but did not legally complete the severance
Joint Tenants may sever unilaterally by conveyance to themselves, but a simple declaration of
intent to do so, will not complete the severance. Sorensen v Sorensen [1977 Alb SC] -- declared
intention by one JT without further act is not enough to sever.

Tompkins Estate v Tompkins – severance by course of dealing
[1992-93] BCSC & CA – marriage difficulties, discussions began about property division. Husband died. Wife argued survivorship
In order to infer severance from a series of negotiations or actions, it must be shown that those
negotiations must, in whole or in part, contain or constitute a declaration by one party of an
intention to sever. The negotiations must have reached a stage where one could say an agreement
to sever can be inferred. Severance requires alienation, agreement, or facts precluding a party
from asserting that there was no agreement.

Schobelt v Barber – severance by murder
[1967] Ont HC Moorhouse J – guy murdered his wife. Seeking to exercise his right of survivorship
If one JT murders the other JT he/she will lose the right of survivorship. They do not, however,
lose their own share of the co-ownership. Here, the court sets the murderer up as trustee of the
second half of the matrimonial property in trust for the victim’s estate

Re Horne v Evans – unilateral severance, family law act
[1987] Ont CA Robins JA – the husband conveyed his interest in matrimonial JT to himself. Upon death wife argues that the
family law act operates and prevents him from doing that, giving her the right of survivorship



                                            Principles Of Property Law
CML 1208 B April 1998                                                                         Professor Brad Morse
                             Property Law Semester II -- Summary                     Page 8 of 8

A deed from a JT to himself destroys the unity of title and operates to create a TIC. The FLA
does not restrict the right of a JT to sever a JT unilaterally.




                                 Principles Of Property Law
CML 1208 B April 1998                                                  Professor Brad Morse
                                       Property Law Semester II -- Summary                                         Page 9 of 9


Dibattista v Mencola – partition or sale of TIC
[1990] Ont C.A. Brooke JA– appellants submit that, under the Partition Act, TIC have a prima facie right to partition and that sale
should only be ordered where it is more advantageous to the parties interested
The meaning of the legislature under the Partition Act was that when the property is of such a
character that it cannot be reasonably partitioned, then you are to take it as more beneficial to sell
it and divide the money amongst the parties. Therefore, courts will only order the sale of the
land, followed by the division of money, where it can be shown that partition is not reasonable,
and all parties would benefit more from the sale.

Bisson v Luciani – partition or sale of JT
[1982] Ont HC Cromarty J – some partners to a JT had debts upon their share. The other partners wanted to sell. They asked
for a partition so that they could have their shares free of the debt of the other partner(s).
There continues to be a prima facie right of a co-owners to partition or sale of lands. There is
corresponding obligation on a co-owner to permit partition or sale, and finally the court should
compel such partition or sale if no sufficient reason appears why such an order should not be
made. Each case must be considered in the light of the particular facts and circumstances and the
court must then exercise its discretion with regards to the fundamental facts.

Silva v Silva -- partition or sale & the FLA
[1990] Ont CA Finlayson JA – wife seeking partition of matrimonial property. Husband wishes to put it off until the settlement of
matrimonial property under the FLA because he believes that he is deserving of more than half of the home.
With respect with matrimonial property, an application under the Partition Act should be
deferred until all other matrimonial property settlements are resolved.

                                                            Trusts

     GENERALLY
1) Trusts can be established to allow a person to enjoy the benefit of trust income while
   preventing that beneficiary from having full control over the property
2) Equitable obligation binding on the trustee to deal with property, both real and personal, over
   which he or she has control, for the benefit of persons, of whom s/he may be one, or the
   benefit of objects, in such a way that the real benefit goes to the beneficiaries and not the
   trustee.
)1 The law does not expect the trustee to be infallible. S/he is expected to act as a reasonable
   business person would handle their own property.
)2 Today, through the Trust Act, trustees may be paid a reasonable fee
)3 The Trustee will be personally liable if they breach trustee duties
1) Settlor – creates the trust
2) Double ownership – common law title lies with trustee – equitable title lies with beneficiary
3) Trust property is special – it can’t be seized by the trustee’s creditors.

Express Trust
• The use of the word trust isn’t necessary – it may be definitive, but not necessary


                                             Principles Of Property Law
CML 1208 B April 1998                                                                            Professor Brad Morse
                           Property Law Semester II -- Summary                        Page 10 of 10

•   Where intentions expressed by grantor, in almost any form there will be a trust

Implied Trust
• Where wording is not express
• The existence of the implied trust often needs to be determined by the courts
• Often an implied trust will be the result of circumstances rather than wording

    RESULTING TRUST
May arise in two ways
1) it may occur when the beneficial entitlement under a trust has not been fully or properly
   disposed of by the settlor.
       • i.e. “A to B as trustee for C for life” – on death of C, A becomes the beneficiary of a
           resulting trust. B still holds legal title, but equitable title results back to A
2) When property is gratuitously transferred by A into the name of B, a resulting trust may be
   held by A
       • In this case, the presumption for resulting trust can be rebutted by showing that a gift
           was truly intended.
       • In some circumstances the presumption is reversed and there is a presumption of
           advancement. The presumption of advancement will arise dependent on the nature of
           the relationship of the parties. i.e. transfer from parent to child. This presumption
           can also be rebutted by bringing evidence of trust.

    CONSTRUCTIVE TRUST
•   A constructive trust is one imposed by equity, irrespective of an intention to create a trust.
    For example, an express trustee who wrongfully obtains profits from his or her position will
    hold those monies under a constructive trust.
•   A person who unlawfully deals with trust property in circumstances in which that person
    knew or ought to have known of the trust will be treated as a constructive trustee.
•   A constructive trust may be imposed to prevent a wrongdoer from profiting from a crime.
•   In Canada the remedial constructive trust today serves as a highly effective means of
    preventing unjust enrichment.
•   Institutional constructive trust – comes about when there is a fiduciary relationship and the
    fiduciary receives gains from that relationship. Unlike the remedial trust, there is no need for
    a detriment.

Unjust Enrichment
General Requirements of the Canadian Doctrine of Unjust Enrichment
1. an enrichment; (Rathwell)
2. a corresponding deprivation; (Rathwell)
3. the absence of a juristic reason for the enrichment (Rathwell)

Remedies for Unjust Enrichment
1. Monetary compensation

                                  Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                           Property Law Semester II -- Summary                        Page 11 of 11

2. Granting of an interest in land that does not amount to a fee simple




                                  Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                                   Property Law Semester II -- Summary                                      Page 12 of 12

3. Constructive trust
      • Constructive trust will be appropriate where:
          (1)             Monetary compensation is inadequate (Peter v Beblow)
          (2)             the presence of a clear link between unjust enrichment and the
              property; (peter)
          (3)             reasonable expectation of obtaining a proprietary interest (sorochan)

Calculating Damages for Unjust Enrichment:
1) Value Survived Approach – What portion of the property can be attributed to the claimant’s
   efforts? -- the advantage of this approach is that the court will give remedies for a larger
   range of actions. (peter v Beblow)
2) Value Received Approach – What would the plaintiff have received if s/he had been paid
   market value for the work done? Disadvantages of this approach are: traditional
   undervaluing of woman’s work in home; it does not value intangible contributions; fails to
   take into account contributions of the other party.

    CASES

Murdoch v Murdoch -- resulting trust & constructive trust
[1975] SCC Laskin Dissent (became law later)-- wife worked with husband and contributed her earnings to buy first property,
several properties later, and after the wife had worked the farms for 5 months a year while husband was on business, marriage
break up. Claims unjust enrichment -- Laskin wanted constructive trust. Prepared to take into account the
wife’s contributions before the lands were purchased, as well as her participation in ranching
operations over the years. Majority – held that intention is necessary to create a resulting trust

Rathwell v Rathwell – resulting trust & constructive trust
[1978] SCC – couple had a joint bank account, property bought out of that bank account. Wife contributed on farm etc.
Intention to create resulting trust found in the joint bank account and other facts
Three member dissent (in part) – there exists in Canada a general doctrine of unjust enrichment,
applicable where the facts display: (1) an enrichment; (2) a corresponding deprivation; and (3)
the absence of a juristic reason for the enrichment.

Pettkus v Becker – Resulting Trust & Constructive Trust
[1980] SCC Dickson J – case of long term live-in relationship. Contribution etc.
For a resulting trust common intention must be found (none found here)
For constructive trust – majority here adopted minority from Rathwell v Rathwell

Sorochan v Sorochan – constructive trust
[1986] SCC – another marital relationship, unjust enrichment of husband
The three requirements from Rathwell were found: enrichment, corresponding deprivation, and
the absence of any juristic reason for the enrichment. When determining if constructive trust is
the proper a connection between the property and the contribution must be established.




                                           Principles Of Property Law
CML 1208 B April 1998                                                                        Professor Brad Morse
                                   Property Law Semester II -- Summary                                     Page 13 of 13


Rawluk v Rawluk – constructive trust and the FLA
[1990] SCC – another case of husband and wife split up. Wife made contributions. Question is whether the doctrine of
constructive trust can be applied to determine the ownership of assets of marriage under the provisions of FLA.
The FLA act is not an exclusive code for determining the ownership of matrimonial property.
The Constructive trust still plays an important role in determination of matrimonial property.

Peter v Beblow – constructive trust
[1993] SCC McLachlin J for Majority – common law relationship. Wife did domestic work. Seeking constructive trust
Used the three requirements from Rathwell: enrichment, corresponding deprivation and the
absence of any juristic reason for the enrichment. Under the lack of juristic reason established
three sub questions:
        (a)        did the plaintiff confer the benefit as a valid gift or in pursuance of a valid
            common law, equitable or statutory obligation which he/she owed to the defendant?
        (b)        did the plaintiff submit to, or compromise, the defendant’s honest claim?
        (c)        Does public policy support the enrichment
This case also established a two part test for the granting of constructive trust the court must find
        (a)        that a monetary compensation is inadequate; and
        (b)        that a link exists between the services rendered and the property in dispute.

Frame v Smith – fiduciary duty
[1987] SCC Wilson (dissent) – deals with fiduciary duties
Relationships in which a fiduciary obligation have been imposed seem to possess three general
characteristics:(1) the fiduciary has scope for the exercise of some discretion or power.
                (2)         the fiduciary can unilaterally exercise that power or discretion so as to
                    affect the beneficiary’s legal or practical interests.
                (3)         The beneficiary is peculiarly vulnerable to or at the mercy of the
                    fiduciary holding the discretion or power
The remedies normally awarded for breach of fiduciary duty are the imposition of a constructive
trust and the accounting of profits.

LAC Minerals Ltd v Corona – fiduciary duty and breach of confidence
[1989] SCC La Forest J – Corona wanted to enter a mining partnership with LAC. LAC was told confidential information as part
of the negotiation process. LAC then went and bought the property that Corona was planning on buying. Corona argues that
LAC took on a type of fiduciary duty when it received information in confidence that put it in a position to hurt Corona.
Constructive trust is an available remedy for both breach of confidence and for breach of
fiduciary duty. The difference will be that a claim for breach of confidence will only be made
out when it is shown that a confidee has misused the information to the detriment of the confidor.
Breach of fiduciary obligation does not require that the harm in the particular case be shown to
have resulted.
The test for breach of confidence consists in establishing three elements:
        (1)        that the information being conveyed was confidential,
        (2)        that it was communicated in confidence, and
        (3)        that it was misused by the party to whom it was communicated.



                                            Principles Of Property Law
CML 1208 B April 1998                                                                        Professor Brad Morse
                                    Property Law Semester II -- Summary                                   Page 14 of 14

La Forest J looks at the definition of fiduciary duty from Frame v Smith and says that while it is
valid, it isn’t applicable here. A fiduciary obligation can also arise as a matter of fact out of
special circumstances of a relationship. What must be shown is that the actual circumstances of
a relationship are such that one party is entitled to expect that the other will act in his interests in
and for the purposes of the relationship. Ascendancy, influence, vulnerability, trust, confidence
or dependence will be of importance in making this out. But they will only be important to the
extent that they evidence a relationship suggesting that entitlement. The critical matter in the end
is the role that the alleged fiduciary has, or should be taken to have, in the relationship. The three
groups of factors which support the imposition of a duty here are (1) trust and confidence, (2)
industry practice, and (3) vulnerability.

Moffat v Wetstein – fiduciary duty & partnership
[1996] Ont Gen Div Granger J – partnership situation – searching for fiduciary relationship
Although the partnership relationship is contractual in nature and origin, the guise under which a
partner operates vis-à-vis other partners is that of fiduciary. The individual partner owes a
fiduciary duty to the partnership in general, as well as his fellow partners. Furthermore, the
fiduciary responsibility of a departing partner may endure past the date of their withdrawal from
the partnership.

                                         Land Law & First Nations

     GENERAL
•    Canadian law recognises land rights that were in existence before colonial acquisition
•    Alienation--Common law aboriginal land rights cannot be transferred to non-aboriginals.
     However they can be extinguished by surrender or through a valid act of the state
•    They are not rights of individual ownership, but are collective rights belonging to
     communities
•    Nature
     • may be of a possessory nature involving exclusive occupation of a territory, or may
         amount to other customary rights that are not necessarily exclusive (i.e. hunting, fishing).
     • Current Canadian jurisprudence suggests that the right claimed must have been an
         integral part of the claimant community’s culture at the time English sovereignty was
         asserted. Traditional practices may be carried on in modern ways without sacrificing
         their characterisation as traditional
•    Extinguishment
     • At common law unilateral expropriation by state was possible if intention was clear
     • Now subject to section 35 of the constitution act 1982, which provides that “existing
         aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognised and
         affirmed”.
     • In R v Sparrow – SCC held section 35 does not confer complete legislative immunity on
         aboriginal entitlements. If a law interferes with an aboriginal right, then there is a prima
         facie violation of section 35, giving rise to issues of justification. The court must be
         satisfied that there is a valid legislative objective. Social values (i.e. environmental


                                             Principles Of Property Law
CML 1208 B April 1998                                                                         Professor Brad Morse
                           Property Law Semester II -- Summary                       Page 15 of 15

       preservation) may justify. The court will also look at whether the state action conforms
       with the fiduciary obligations owed to aboriginal communities. The court will also need
       to make findings on proportionality, compensation etc.

   ROYAL PROCLAMATION 1773

Key Provisions
1) Reserves Lands for First Nations People – two basic categories
       (i)            traditional Indian lands within colonial borders;
       (ii)           vast land outside colonial borders – “Indian Country”
1) Prohibits Private Purchase of Land From First Nations both in settled Areas and outside
2) Sets up a Crown monopoly – First nation peoples can only convey or surrender to crown
3) Requires removal of Settlers from “Indian Country” – governors not to promote expansion
   to Indian lands.
4) Sets up purchase regime for Dealing with First nations land
       (i)            Re-iterates notion of no private sales
       (ii)           First Nations land can only be transferred or alienated to crown
       (iii)          Surrender/transfer had to be done at a public meeting called for that
               purpose
       (iv)           Surrender must be voluntary – chiefs must consent
1) Formalised Treaty Process

British North America Act 1867
Section 91(24) – exclusive federal jurisdiction over Indians and land reserves for them

   OVERALL SUMMARY OF ABORIGINAL RIGHTS SECTION

The Source of Aboriginal Rights
• Aboriginal title arises out of prior occupation of Canada by aboriginal peoples (Delgamuukw)
• The Royal Proclamation recognises but does not create aboriginal rights (Calder)

The Nature and Content of Aboriginal Rights
• Aboriginals hold usufructuary rights over the land (St Catherine’s)
• The time for identification of aboriginal rights is the time of first contact. (Delgamuukw)
• The time for identification of aboriginal title is the time the crown asserted sovereignty
   (Delgamuukw)
• Aboriginal rights can exist separate from aboriginal title (Cote, Adams, Delgamuukw)
• The test for proof of aboriginal title, the group asserting title must satisfy these requirements
      (1)        the land must have been occupied prior to sovereignty,
      (2)        if present occupation is relied on as proof of occupation pre-sovereignty, there
          must be a continuity between present and pre-sovereignty occupation, and
      (3)        at sovereignty, that occupation must have been exclusive (deglamuukw)



                                  Principles Of Property Law
CML 1208 B April 1998                                                    Professor Brad Morse
                                   Property Law Semester II -- Summary                                      Page 16 of 16

The Crown’s Fiduciary duty
• The nature of Indian title and the framework of the statutory scheme established for disposing
   of Indian land places upon the crown and equitable obligation, enforceable by the courts, to
   deal with the land for the benefit of the Indians (Guerin, Blueberry River)
• The relationship between the crown and the aboriginal people demands that aboriginal
   interests be placed first. However, the fiduciary duty does not demand that aboriginal rights
   always be given priority (Delgamuukw)

Section 35(1), Constitution Act, 1982
Application of section 35(1): applies to rights that were in existence in 1982. Extinguished
        rights were not revived.
Integral Practice Test:
        • Test to determine if a right claimed is integral to a distinctive culture and therefore
            protected by section 35(1) (Van der Peet):
                (1)                 Courts must identify precisely the nature of the claim being
                    made in determining whether an aboriginal claimant has demonstrated the
                    existence of an aboriginal right.
                (2)                 In order to be integral, a practice, custom or tradition must be
                    of central significance to the aboriginal society in question. It must be one of
                    the things that made the culture of the society distinctive from others.
        • This requirement cannot serve as a limit to preclude a title claim. (Delgamuukw)
Violations of Section 35(1)
        • Not subject to justification by section 1 of the charter
        • Fed. Legislation that affects the exercise of aboriginal rights will not be automatically
            powerless in light of s 35. Some infringements may be justified. (Sparrow)
Justification of Violations
        (1)         the court must be satisfied that the infringement is in furtherance of a valid
            legislative objective that is compelling and substantial (Sparrow, Deglamuukw)
            • Examples of valid objectives : social values, environmental preservation,
                protection of general population, protection of aboriginals themselves, and the
                protection of future generations of aboriginal peoples (Sparrow)
        (2)         An assessment of whether the infringement is consistent with the special
            fiduciary relationship between the crown and the aboriginal peoples (Sparrow,
            Deglamuukw)
            • Aboriginal interests need to be thought of first, but the fiduciary duty does not
                demand that aboriginal rights always be given priority (Deglamuukw)

    CASES

St Catherine’s Milling and Lumber v The Queen – usufructuary rights
[1888] PC Lord Watson – fed gov’t received surrender of Indian lands. Fed gov’t gave wood contract to milling co. Provincial
government sued saying that trees is their jurisdiction.




                                            Principles Of Property Law
CML 1208 B April 1998                                                                         Professor Brad Morse
                          Property Law Semester II -- Summary                      Page 17 of 17

The Crown owns underlying property rights. Aboriginals hold usufructuary rights over the land.
Upon surrender or alienation to the crown, that usufructuary right dissolves. Then, the provinces
have full control over the lands by virtue of s 109 of BNA 1867




                                 Principles Of Property Law
CML 1208 B April 1998                                                  Professor Brad Morse
                                     Property Law Semester II -- Summary                                          Page 18 of 18


Calder v Attorney General of BC – source of ab rights – not RP
[1973] SCC – claimants are member of nishga nation. Claim that aboriginal right has never been extinguished. They claim that
their title arises out of aboriginal occupation, and that the Royal Proclamation simply recognised their title as pre-existing
6/7 judges agree that the source of aboriginal title is not the Royal Proclamation. There is an
independent basis for Aboriginal title based on occupancy.

Hamlet of Bear Lake v Minister of Indian Affairs – criteria for recognition
[1980] -- The following Criteria for recognition of aboriginal rights;
          (1)        the claimants and their ancestors were members of an organised society;
          (2)        this society occupied the specific territory over which they assert aboriginal
              title;
          (3)        the occupation was to the exclusion of other organised societies; and
          (4)        the occupation was an established fact at the time of assertion of sovereignty

Guerin et al v The Queen -- fiduciary obligations of crown
[1985] SCC Dickson J – Indian band surrendered its rights to some reserve land within Vancouver. It surrendered its rights to
the gov’t in order for it to be leased to a golf course for the benefit of the band. Agreements made pre-surrender aren’t being
followed. – Aboriginal title wasn’t created by Royal Proclamation, it was pre-existent. The nature of
Indian title and the framework of the statutory scheme established for disposing of Indian land
places upon the crown an equitable obligation, enforceable by the courts, to deal with the land for
the benefit of the Indians. The conclusion is that the crown is a fiduciary depends greatly on the
fact that the land is inalienable except upon surrender to the crown. The interest gives rise upon
surrender to a distinctive fiduciary obligation on the part of the crown to deal with the land for
the benefit of the surrendering aboriginals.

Blueberry River Indian Band v Canada – fiduciary obligations of crown
[1995] SCC Gonthier J – Indian band surrendered mineral rights in 1940 to be leased for its benefit. In 1945 the band
surrendered all of its rights to the reserve to the gov’t. Years later gas and oil were found on the property. Indians trying to say
that they didn’t transfer the mineral rights in the 1945 surrender because they were previously severed in 1940.
The decision was reached by determining that the band neither expected nor intended to hold
rights over the minerals once the 1945 surrender was complete. However, the Department of
Indian Affairs breached its fiduciary duty to the band by selling the mineral rights in 1948. It
should have been acting in the Indian Band’s best interests and foresaw the possibilities.

R v Sparrow – section 35 of Constitution Act 1982
[1990] SCC Dickson CJ and La Forest J – Indian Band trying to claim right to commercial fish. Trying to say that s 35 of the
constitution act 1982 prevents legislatures from making laws in contradiction to it.
Application of section 35 of Constitution Act 1982
       • The word “existing” makes it clear that the rights to which s 35(1) applies to are
          those that were in existence when the Constitution Act, 1982 came into effect. This
          means that extinguished rights were not revived by the Constitution Act, 1982.
       • Further, an “existing” aboriginal right cannot be read so as to incorporate the specific
          manner in which it was regulated before 1982 – therefore the right in 1982, should it



                                              Principles Of Property Law
CML 1208 B April 1998                                                                             Professor Brad Morse
                                  Property Law Semester II -- Summary                                     Page 19 of 19

             have been regulated to some level (even prohibited), isn’t confined to that level of
             exercise
         • If a certain activity was central to a culture at the time of contact, the way that activity
             is performed may evolve to modern methods.
         • Legislation that affects the exercise of aboriginal rights will not be automatically
             powerless in light of s 35. If it meets the test for justifying an interference with a right
             recognised and affirmed under s 35(1).
         • Section 35(1) is not subject to justification by section 1 of the Charter
• The words “recognition and affirmation” incorporate the fiduciary relationship referred to
    earlier and so import some restraint on the exercise of sovereign power. Rights that are
    recognised and affirmed are not absolute.
    • The court must be satisfied that there is a valid legislative objective. Social values (i.e.
         environmental preservation) may justify, protection of general pop., protection of
         aboriginals themselves. The court will also look at whether the state action conforms
         with the fiduciary obligations owed to aboriginal communities. The court will also need
         to make findings on proportionality, compensation etc.
In summary
1) What is the aboriginal right claimed?
2) Was the right extinguished prior to 1982? – onus on gov’t. Can be unilaterally extinguished
    provided in clear and plain language to uphold crown’s fiduciary duty.
3) Has the right been infringed? – onus aboriginal group.
    (i) unreasonable; (ii) undue hardship; (iii) does it interfere with aboriginals' preferred means
    of exercising the right? (iv) Did regulation unnecessarily infringe an interest protected by s
    35(1)? -- none definitive
4) If infringed, is it justified? – onus gov’t
    (i) valid legislative objective? (ii) consistent with crown’s fiduciary obligations?

R v Van der Peet -- integral practice test
[1996] SCC Lamer CJC – How should the aboriginal rights recognised and affirmed by s 35(1) of the Constitution Act, 1982 be
defined? – The test to determine if a right claimed is integral to a distinctive culture and therefore
protected by section 35(1):
        1.         Courts must identify precisely the nature of the claim being made in
           determining whether an aboriginal claimant has demonstrated the existence of an
           aboriginal right.
           • To characterise an applicant’s claim correctly, a court should consider such factors
               as the nature of the action which the applicant is claiming was done pursuant to an
               aboriginal right, the nature of the governmental regulation, statute or action being
               impugned, and the tradition, custom or practice being relied upon to establish the
               right
        2.         In order to be integral a practice, custom or tradition must be of central
           significance to the aboriginal society in question.
           • The claimant must demonstrate that the practice, tradition or custom was a central
               part of the society’s distinctive culture. He or she must demonstrate that the


                                           Principles Of Property Law
CML 1208 B April 1998                                                                       Professor Brad Morse
                                Property Law Semester II -- Summary                   Page 20 of 20

                practice was one of the things which made the culture of the society distinctive—
                that it was one of the things that truly made the society what it was.
•   Methods can evolve, but if the activity wasn’t integral to the culture it won’t count
•   If the aboriginal group unilaterally stopped the activity prior to 1982, they can’t restart it

R v NTC Smokehouse – integral practice
[1996] SCC Lamer CJC
•   An activity to be recognised as an aboriginal right, must be an element of a practice custom
    or tradition integral to the distinctive culture of the group claiming the right
•   The determination of whether the aboriginal right claimed was an integral part of the
    distinctive native culture depends, in significant part, on the factual evidence.

R v Gladstone – integral practice, justification of infringements
[1996] SCC
•   To merit constitutional protection, a practice, custom or tradition which is integral to the
    aboriginal community must be shown to have continuity with the practices, customs or
    traditions which existed prior to contact
•   The intention to extinguish an aboriginal right by the crown must be clear and plain.
•   Justification of infringements of aboriginal rights involves a 2 part test: The gov’t must show
    (1)      it was acting pursuant to a valid legislative objective; and
    (2)      its actions were consistent with the fiduciary duty towards aboriginal peoples

R v Delgamuukw – summary of SCC positions
[December 1997] SCC Lamer CJC
Test for proof of aboriginal title, the group asserting title must satisfy the following criteria:
        (1)          the land must have been occupied prior to sovereignty
        (2)          If present occupation is relied on as proof of occupation pre-sovereignty, there
            must be a continuity between present and pre-sovereignty occupation
            • It is not absolutely necessary to prove an unbroken chain of continuity between
                 present and prior occupation (Van Der Peet)
        (3)          At sovereignty, that occupation must have been exclusive
• The time for identification of aboriginal rights is the time of first contact.
• The time for identification of aboriginal title is the time the crown asserted sovereignty
• The requirement that the land be integral to the distinctive culture of the claimants is
   subsumed by the requirement of occupancy. It would seem clear that any land that was
   occupied pre-sovereignty, and which the parties have maintained a connection with since
   then, is sufficiently important to be of central significance to the culture of the claimants
• Aboriginal rights can exist separate from aboriginal title. (i.e. right to hunt on land)
Test for justification of an infringement:
        (1)          the infringement of the aboriginal right must be in furtherance of a legislative
            objective that is compelling and substantial
        (2)          an assessment of whether the infringement is consistent with the special
            fiduciary relationship between the crown and aboriginal peoples


                                       Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                            Property Law Semester II -- Summary                        Page 21 of 21

            •   the underlying principle is that the fiduciary relationship between the crown and
                the aboriginal people demands that aboriginal interests be placed first. However,
                the fiduciary duty does not demand that aboriginal rights always be given priority

                                    Adverse Possession
•   Under the principle of adverse possession, the interest of the true owner may be extinguished
    by a person who has been in adverse possession of that land for a specified period.
•   The effect of the running of the full time is to extinguish the title of the paper title holder,
    giving the adverse possessor the best claim in the land.
•   Even before the full expiration of the period the squatter’s interest is not merely incipient: it
    can found an action in trespass against a subsequent possessor, and it can be transferred.
•   Adverse possessor, after limitation period has passed, has a legally protectable possessory
    interest which is transferable, alienable and willable
•   The adverse possessor, along with their possessory interest, get all other interests that exist in
    the property i.e. easements etc. They also get positive interests i.e. riparian rights

The functions of Adverse Possession
• Adverse possession arises when no action has been commenced against a trespasser during
   the statutory period of time allowed for a suit to be filed.
• The rules of adverse possession reward the squatter who uses the property, and penalise the
   holder of the paper title for his failure to have done so
• All that one must do to prevent a loss is to sue the squatter or occasionally assert title in some
   appropriate way.
• Adverse possession will also protect the expectations of an adverse possessor who has acted
   on the assumption that her occupation will not be disturbed. – like when a sale is made under
   a fraudulent document of title, or when a fence is wrongly placed.
• There, the law of adverse possession allows the legal and the actual positions to be aligned.
• By fixing a period of time, the law encourages the would-be squatter to take precautions
   before investing in the property, while also limiting the true owner’s ability to take advantage
   of any improvements that the adverse possessor might have made to the property.

Under a Land Registry System
• Disputes may still occur under a land titles system
• It is possible for a squatter to claim title under an unregistered contract obtained from the
  current owner; the register would provide no evidence of such a claim, one way or the other
• Boundary errors can also result in adverse possession.

The Basic doctrinal Components
• A person asserting squatter’s right must have an intention to possess and must demonstrate
   the requisite factum.
• To succeed the acts of possession must be:
       (i) open; (ii) notorious; (iii) adverse; (iv) exclusive; (v) actual; and (vi) continuous


                                   Principles Of Property Law
CML 1208 B April 1998                                                      Professor Brad Morse
                                 Property Law Semester II -- Summary                 Page 22 of 22

•  If any one of these is missing, at any stage during the statutory period, no rights against the
   paper owner can be asserted.
Open—in general the squatter must use the property as an owner might. Looked at another way,
       the adverse use must be such as to put the paper owner on notice that a cause of action
       has arisen. The possession can’t be clandestine.
Notorious – basically, it means that it must be generally known that the squatter is in possession
Adverse -- means that the squatter must not be in possession with the permission of the owner.
Exclusive – there must be a dispossession of, or a discontinuance of occupation by the true
       owner. Must show that you intend to exclude the rest of the word including PTH
Actual -- when a squatter has entered without paper title to back up his or her right to be there,
       only actual or pedal possession will suffice. Therefore possession of a portion of the
       property will not confer rights over the whole parcel. However, when entry is made
       under colour of right, such as under a defective grant, actual possession of only a part will
       be enough to put the squatter into constructive possession of the entire tract. Case
       specific and fact driven.
Continuous – in appropriate circumstances, intermittent use will be treated as meeting the
       requirement of continuity. One must ask whether the use of the property presents a
       ‘notorious’ image of continuing acts of ownership. The continuity requirement is not
       breached if squatter A sells possessory title to squatter B. Or even if squatter A simply
       leaves and then B enters on A’s departure.
• It has been held that possessory title does not arise unless the squatter is using the land in a
   way that is inconsistent with the rights of the true owner and with the uses that the owner
   intends to make of the land.
• The Ontario case of Keefer v Arillotta – the element of inconsistent use was viewed as
   relevant to the animus possidendi; it must be shown that there was “an intention to exclude
   the owner from such uses as the owner wants to make use of his property”
• Therefore, if the owner has the intention to use the property at some point in the future but
   not right now, it may undermine the adverse claim. Keefer suggests that the true owner need
   not have a specific future use in mind in order to undermine the adverse claim.
• Furthermore, it has been held that the test does not apply if there is a mutual mistake as to the
   correct location of the boundary line. (Keil v 762098 Ontario 1992 CA)

Ontario Limitations Act 1980
• s. 3 where PTH is the crown – 60 years
• s. 4 where PTH is other than the crown, 10 years from time when his interest became
  adverse to make a claim
• s. 8 – entry not enough to stop the Statute of Limitations from running – PTH needs to show
  intention to retake possession
• With co –owners – Statute of Limitations only begins if there is some exclusion by one.

    CASES

Walker et al. v Russell et al – sufficiency and character of adverse possession
[1966] Ont HC Gale CJHC – Island with cottage case.

                                          Principles Of Property Law
CML 1208 B April 1998                                                    Professor Brad Morse
                                   Property Law Semester II -- Summary                                      Page 23 of 23

McLean v Mullin (1922) – A mere trespasser only gains a possessory title to that portion of the
       land exclusively used or occupied by him. Where a party enters under a colour of right,
       his possession is not considered as confined to that part of the premises in his actual
       occupancy
Harris v Mudie -- the true owner can only be deprived of his title to those parts from which he
       has been actually excluded by the trespasser.
• The sufficiency and character of possession necessary to pass title must be considered and
   tested in the light of circumstances which surround each particular case

Keefer v Arillotta – exclusion, inconsistent
[1977] Ont CA Wilson JA – case of right of way for driveway, garage built in wrong spot etc. Claiming adverse possession
MacKinnon JA (dissent) – In order to stop the time running, there has to be some act by the PTH
        to re-exert possession
The crucial question is whether the respondents’ possession challenged in any way the right of
the legal owner to make the use of the property he wished to make of it. A possessory title
cannot be acquired against him by depriving him of uses of his property that he never intended or
desired to make of it. The animus possidendi which a person claiming a possessory title must
have is an intention to exclude the owner from such uses as the owner wants to make of his
property. A person claiming a possessory title must establish
        (1)         actual possession for the statutory period by themselves and those through
            whom they claim;
        (2)         that such possession was with the intention of excluding from possession the
            owner or persons entitled to possession; and
        (3)         discontinuance of possession for the statutory period by the owner and all
            others

Lutz v Kawa – mistaken boundary, AP and land registry.
[1980] Alb CA Laycraft JA – mutual mistake of boundary line
To require on the part of the claimant as a matter of law in all cases an intention to dispossess the
holders of the title of the land in dispute is not appropriate. The essentials to be established in a
case of adverse possession is that the claimant be in possession and that the true owner be out of
possession. Acts that would otherwise evidence a possessory title done under a mistaken
assumption as to the title may nevertheless be acts of possession such as will result in possessory
title. --- However, with a system of land registry, although an adverse possessor has met the
requirements and the PTH’s right to recovery is extinguished, it may still be the root of a valid
title in the hands of a BPFV. The purchaser for value would have valid title. The adverse
possessor would then require a further ten years of the requisite possession before her right to
obtain title by adverse possession would arise.

Giouroukos v Cadillac Fairview Corp – AP and leasehold
[1983] Ont CA Robins – trying to claim adverse possession -- 2/10 years the property was subject to a leasehold.
A party seeking to acquire a possessory title to leasehold land must prove adverse possession to
the requisite period against both the tenant and the landlord. The tenant’s leasehold interest and
the landlord’s freehold interest must each be extinguished before an absolute possessory title can


                                           Principles Of Property Law
CML 1208 B April 1998                                                                        Professor Brad Morse
                          Property Law Semester II -- Summary                      Page 24 of 24

be successfully established. Time does not run against the landlord’s freehold interest until the
tenancy determines.
• Additionally, Corpus Chirsti College v Rogers (1879 HL) – the mere surrender of an existing
    lease, by act or operation of law, and the contemporaneous grant of a new lease to the same
    tenant does not set time running. – the Adverse possessor can’t jump in between leases.




                                 Principles Of Property Law
CML 1208 B April 1998                                                  Professor Brad Morse
                                   Property Law Semester II -- Summary                                   Page 25 of 25


Hamson et al v Jones et al – AP with colour of title
[1988] Ont High Ct Parker CJHC – people purchased property, but didn’t get a deed. Built cottage etc.
The law distinguishes between trespassers who are essentially squatters and those who enter on
colour of title. Colour of title refers to persons who believe in good faith that they have title to
the land, but do not have such title.
Harris v Mudie (1882) – When a party having colour of title enters in good faith upon the land
professed to be conveyed, he is presumed to enter according to his title, and thereby gains a
constructive possession of the whole land embraced in his deed.
• Courts are reluctant to extend adverse possessory interests to claimants who were aware
    throughout the running of the statue of limitations that they had no legal right to the land

Keil v 762098 Ontario Inc – inconsistent use
[1992] Ont CA Carthy JA – driveway crossed the boundary line between two properties – 26 years
This court has emphasised that, in order to establish possessory title, it is necessary to
demonstrate that use of the land by the occupant in possession is inconsistent with the form of
sue and enjoyment that the titled land owner intended to make of it.

                                                     Easements

    THE ELEMENTS OF AN EASEMENT
•   Easements fall within the category of interests known as incorporeal hereditaments.
•   Examples of Easements: a tenant’s use of the common hallways of an apartment tower, a
    pipeline right of way, a right to walk or drive along a lane, to use a park as a garden, to stroll
    along a beach, to use a ditch for water run off, to make noise or engage in other acts of
    nuisance etc.
•   Negative Easements – restrict activities on the servient land (e.g. a right to receive light into
    a window on the dominant land, which thereby prohibits the servient from blocking it)
•   Positive Easement – permit the holder to engage in some activity on the servient tenement
    (e.g. using a right of way)
•   Four Doctrinal Limits circumscribe the allowable forms (Ellenborough Park)::
    (1)      There must be a dominant tenement (which enjoys the benefit of the easement) and a
        servient tenement (which is burdened).
    (2)      The easement must accommodate the dominant land – some real benefit must accrue
        to the dominant tenement, making it a better and more convenient property – also means
        that there must be a reasonable proximity between the dominant and servient tracts
    (3)      The dominant and servient tenements cannot both be in the hands of the same person
        – however, an easement might be given in favour of a tenant over lands retained by the
        landlord
    (4)      The easement must be capable of forming the subject-matter of a grant – this is
        because easements are incorporeal right, possession cannot be transferred. A grant is
        required to pass ownership. There are several sub-rules here
        (i)              there must be a capable grantor and grantee;
        (ii)             rights under an easement must not be too vague;

                                           Principles Of Property Law
CML 1208 B April 1998                                                                        Professor Brad Morse
                            Property Law Semester II -- Summary                       Page 26 of 26

        (iii)             a valid easement cannot confer on the holder a right to possession of the
                servient lands to an extent that is inconsistent with the possessory rights of the
                servient owner
        (iv)              the easement cannot be a mere right of recreation without benefit or
                utility; and
        (v)               it cannot require the servient owner to spend money (apart from fence
                easements)

   CREATION AND TRANSFER OF EASEMENTS
Express Grant -- easements may be acquired through an express grant made by the owner of the
       servient lands.
       • When no words of limitation are recited, the duration of the easement is determined
           with regard to the surrounding circumstances.
       • It is not necessary that the dominant tenement be described expressly in the granting
           document, if it can be identified through extrinsic evidence
Implied Grant -- An easement may be implied as a necessary incident of a property transaction
       • For example when renting an apartment –implied easement to use hallways & stairs
       • The implication of an easement is rebuttable by evidence
       • Legislation may provide for implied easements. Ontario law makes all pre-existing
           easements pass on the sale of the dominant tenement
Reservations – A reservation refers to the interest retained by a grantor on a transfer of land to
       some other person. On the sale or lease of property an owner may wish to reserve an
       easement over the land that has been transferred.
       • Easements may be impliedly reserved in cases of strict necessity
Estoppel -- easements can be created through the application of proprietary estoppel.
       • For example: Adams v Lougham – representation was made to a prospective
           purchaser that a lane was going to be set aside for the use of the land being offered for
           sale. It was on the faith of that statement that the purchaser agreed to buy the
           property. Accordingly the grantor was estopped from preventing the grantee from
           using the lane following sale.
Prescription – common law recognises that rights to an easement may emerge out of continuous
       use. The fabrication is that an easement was granted at some time in the past, as
       evidenced by long uninterrupted use.
       • Courts proceed cautiously when prescriptive rights are being claimed
       • Negative easements that are recognised under the law of prescription can develop in
           an incipient and passive way – for example, the right to receive light through a
           defined aperture can count as an easement. A prescriptive entitlement can arise
           simply because there has been unobstructed enjoyment of solar access to a window
           for the required prescription period (usually 20 years)
       • Three methods of acquisition through prescription:
           (i)                 based on a claim of use extending back to time immemorial
                   (1189). After 20 years a presumption arises to that effect. The presumption



                                   Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                           Property Law Semester II -- Summary                        Page 27 of 27

                    can be rebutted by evidence. Therefore, this method isn’t available to non-
                    aboriginal claims in N.A.
           (ii)                 “lost modern grant’ -- out of continuous use for a specified period,
                    usually 20 years. The idea is that a grant was made, but has gone missing.
                    Evidence of use for 20 years is looked at as proof. Can be rebutted by
                    evidence contrary.
           (iii)                English Prescription Act 1832 – adopted in Ontario – a claim for
                    prescription can be based on unobstructed 20 year use. An obstruction is
                    where the claimant has submitted to it for one year.
                    • Where 20 years have passed, and oral permission to use is shown by the
                        servient tenement, the stat. prescriptive easement claim can be defeated.
                    • Where 40 years have passed, oral permission will not defeat
                    • Written permission will always defeat a stat. prescriptive easement claim
       • The premise of a fictional grant must show lack of: (i) violence/protest by owner; (ii)
           secrecy of use; (iii) permission of owner (which creates a license situation rather than
           easement)
Statute – special rights may be conferred by statute – against public or private entities

   SCOPE, LOCATION AND TERMINATION OF EASEMENTS

Scope and Location
• The scope of the rights being granted should be described with as much precision as the
  nature of the easement allows.
• However, where the scope is not described with precision, the determination of scope
  becomes a matter of inference. Some considerations to be made are:
  (i)         original purpose of the easement
  (ii)        physical nature of servient lands, and extent to which an expansion would
          interfere
  (iii)       can the initial grant be read to contemplate the possibility of a change in the nature
          of the use of the easement, or are the rights frozen at time of grant?
  (iv)        Is there extrinsic evidence which could determine the scope of the right?
• The right granted should not be greater than necessary to give effect to the implied intention

Termination
• An easement may come to an end in a number of ways:
   (i)         it will die of natural causes when the time limit set for its duration runs out.
   (ii)        As a general rule, it will also end through a unity of ownership and occupation of
           both tenements
   (iii)       An easement may be expressly released by agreement
   (iv)        An easement may be released through implication, that is through abandonment
• Where abandonment is argued, intention to abandon must be shown. This intention may be
   inferred from a change in the nature of the dominant tenement that renders the easement



                                  Principles Of Property Law
CML 1208 B April 1998                                                     Professor Brad Morse
                          Property Law Semester II -- Summary                       Page 28 of 28

   useless, or by virtue of a similar change in the servient lands to which the easement holder
   doesn’t object.




                                 Principles Of Property Law
CML 1208 B April 1998                                                   Professor Brad Morse
                                 Property Law Semester II -- Summary                                 Page 29 of 29


    CASES

Re: Ellenborough Park – dominant/servient tenement, proximity
[1956] Eng CA
•   The benefit to the dominant tenement is that it makes that property itself more useful and/or
    convenient. It isn’t in reference to personal enjoyment.
•   The dominant tenement need not be adjoining to the servient tenement, but must be in some
    close proximity – virtually immediate access
•   Characteristics of an easement:
        (1)         there must be a dominant and a servient tenement;
        (2)         an easement must accommodate the dominant tenement;
        (3)         dominant and servient owners must be different persons; and
        (4)         a right over land cannot amount to an easement, unless it is capable of
            forming the subject-matter of a grant.

Phipps v Pears – easement to be protected from weather
[1965] Eng CA Denning – two neighbouring houses touching each other. One torn down exposing other to weather damage
The law is very wary of creating any new negative easements.
There is no such easement known to law as an easement to be protected from weather.
Neither can such an easement be granted upon sale of the property. An easement must be one
known to law in order for it to be capable of being granted at law.




                                         Principles Of Property Law
CML 1208 B April 1998                                                                   Professor Brad Morse
                             Property Law Semester II -- Summary               Page 30 of 30


                        Property Summary II Table of Contents

    NATURAL RESOURCES……………………………………….1
•   Airspace (1)
•   Freedom from Smells (2)
•   Subsurface Rights (2)
•   Water Rights (3)
•   Land Bounded By Water (3)
•   Riparian Owner’s Rights (4)

    CO-OWNERSHIP ………………………………………………….4
•   Joint Tenancy (4)
•   Tenancy In Common (5)
•   Responsibilities of Co-Owners (5)
•   Methods of Creation (5)
•   Severance of Joint Tenancies (6)
•   Resolving Co-Ownership Disputes (6)
•   Cases (7)

    TRUSTS……………………………………………………..8
•   Generally (8)
•   Resulting Trust (9)
•   Constructive Trust (9)
•   Unjust Enrichment (9)
•   Cases (10)

    LAND LAW & FIRST NATIONS……………………………………12
•   General (12)
•   Royal Proclamation (13)
•   Overall Summary of Aboriginal Rights Section (13)
•   Cases (14)

    ADVERSE POSSESSION……………………………………………18
•   Basic doctrinal Components (18)
•   Cases (19)

    EASEMENTS………………………………………………………..21
•   Elements of an Easement (21)
•   Creation and Transfer of Easements (22)
•   Scope, Location and Termination of Easements (23)


                                    Principles Of Property Law
CML 1208 B April 1998                                              Professor Brad Morse
                        Property Law Semester II -- Summary               Page 31 of 31

•   Cases (24)




                               Principles Of Property Law
CML 1208 B April 1998                                         Professor Brad Morse

				
DOCUMENT INFO
Shared By:
Categories:
Stats:
views:350
posted:10/30/2008
language:English
pages:31