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CHAPTER 5: TRANSFERRING PROPERTY INTERESTS BY GIFT OR SALE The Legal Concept Bargain promise   Non-bargain promise   The transfer of property interest by contractual interest (sale) involves a mutual exchange of obligations that are enforced by way of legal and equitable remedies for breach Usually takes place in commercial context where there is a need to enforce the expectations of contracting parties Transfer by way of gift that involves a gratuitous, unilateral transaction In general are unenforceable in the law of contract, although may be possible to create a legally enforceable unilateral promise if the promise includes nominal consideration (ie: peppercorn requirement) Equity is important in sale transactions, especially in the context of contracts for the sale of land, the doctrine of part performance and in relation to the recognition of ―equities‖ in family property arrangements GIFTS Equity:  Requirements for a Valid Gift Inter Vivos :‖b/w living people‖ Gift of real or personal property:  Can be made by a deed of gift: a document in writing that is sealed and delivered and almost always signed by the donor  However, in practice a deed not often used for gifts or personal property A gift of Personal Property is legally recognized (in absence of a deed) if: 1. There is an intention to make a gift on part of donor: did you intend to give it, or was it a sale? bailment? 2. Acceptance of the gift by the donee 3. Sufficient act of delivery (Bunn v. Markham) (most difficult part to demonstrate)  All 3 requirements are essential as equity will not recognize a gift if any one of the requirements is missing--―equity will not perfect an imperfect gift‖ (Millroy v. Lord, 1862) Gifts Of Real Property: can‘t be made orally and must be in writing b/c of Statute of Frauds which requires transfer in real property to be in writing to eliminate fraudulent crimes. Cochrane v Moore (1890) Facts:    Requirement of Delivery: Use of Trust b/c cannot find Valid Gift in this case (no delivery) – Rare result Benzon (horse owner) by words of present gift promises to give 1/4 horse to Moore (jockey) and Moore accepted Benzon then sold horse to Cochrane, because he was having financial difficulties (owed him money) He told Cochrane that he had given ¼ of the horse to Moore upon the sale; Cochrane said it would be alright. Issue: How do you define delivery in the context of a donor who wishes to make a gift of a part of a horse? Is physical delivery an essential requirement for an oral gift? Analysis:  Was there delivery in this case? No, the horse was not delivered; but hard to imagine delivering ¼ of the horse  Having regard to circumstances of the case, the physical indeliverability of the gift – is there another way to deliver? Ie. constructive or symbolic?  1 Moore can succeed in two ways: 1) Constructive/symbolic delivery is recognized, but Court does not go down this route in case 2) Trust: gift fails (no delivery), so instead we‘ll say that Benzon is a trustee for the horse and Moore is the beneficiary: ***this is a rare result – usually need a deed to create a Trust. With trusts, delivery is not necessary.  Legal interest (legal title) did not pass but equitable interest does  Benzon transferred legal title to Cochrane  Moore has beneficial interest in horse; provided Cochrane had notice of Moore‘s beneficial interest,  Cochrane DID have notice of Moore‘s interest  Cochrane obligated to Moore Constructive delivery is delivery of access to the thing in question, as opposed to the thing; ie. keys to car  Constructive delivery only prevails if actual delivery is impossible  If there is clear evidence of intent to accept and receive, the role of actual delivery is to give evidence of this intent; it reminds the donor of the seriousness of his acts  Lord Escher states that delivery is not merely evidence to give, it is the very essence of the gift, integral part of gift; it itself was be proved; ie. proposition not proof Discussion Notes: Historical Development of the Requirement of Delivery Cochrane- a transfer of any interest in land historically required ―livery of seisin‖-->handing over a clump of land in a land sale.  Similarly, a transfer of personal property required delivery of possession  These requirement demonstrate the emphasis on possession as evidence of title in the early development of prop law  With later development of contract law, became evident that property rights could be transferred by contract w/o transfer of physical possession  Cochrane- the court admitted that the requirement of delivery was not obsolete in other kinds of transactions, but confirmed that it was still essential to a valid oral gift of property What is the rationale? 1. Delivery impresses upon mind of owner significance of what he is doing, ―sobering function‖ impulsive nature of giving, delivery makes it real 2. Also want to protect people from fraudulent claims of gift being given, when it hadn‘t been given 3. Delivery bolsters intention Express Trusts   Court said that what took place b/w Benzon and Cochrone before Benzon executed the bill of sale to Cochrane made Cochrane (who had possession of the horse) the trustee for Moore of 1/4 interest in the horse  A trustee has an equitable duty to the beneficiary and the duty is enforceable against a subsequent purchaser Principle of equity:  This equitable interest will defeat those that acquire legal interest unless the bona fide purchaser (BFP) for value had NO notice of this equitable interest  In this case, Cochrane had notice, so equitable interest prevails To create a trust, a person usually executes a deed of trust, defining the property that is to form the trust, identifying the trustee and the beneficiaries, and specifying the trustees‘ duties. For an Express Trust, 3 matters must be certain: 1. The intention to create a trust 2. The subject matter of the trust 3. The objects of the trust 2 Cochrane is an example of a transfer of title w/o a change in possession There is no need for physical delivery of trust property, although it‘s unusual to create an express trust of personal property by an oral declaration as in Cochrane Resulting and Constructive Trusts (in addition to express trusts) Resulting Trust  When there is a transfer of property without an intention to create a gift (ie. Delivery but no intention of gift)  The recipient of the property holds it in trust for the transferor  May also arise when one person purchases property in the name of another w/ intention to make a gift  Grantor has equitable interest in it and may retrieve it with help of equity Constructive Trust  Courts recognize these to ensure a just result in a case where a person w/o title to property has made significant contribution to acquiring or maintaining it, thus preventing the unjust enrichment of the owner  Courts have often constructed trusts in the context of cohabiting couples where the person w/o title usually over times has made valuable contributions of money or labour to the property so that it would be unjust not to recognize an interest on behalf of non-paper titleholder.  In these cases, the court holds that the title holder is a constructive trustee and the person who made the contribution is a beneficiary Pettkus v Becker (1980): Court held that Ms.Becker had not intended to make a gift of her money and labour to Mr.Pettkus and he denied that he intended to hold the property for her benefit. Therefore, could not be a resulting trust but a constructive trust. Deed of Gift  There is no need for delivery if there is a deed of gift.  The traditional requirement that a deed had to be delivered to be effective has been interpreted to mean that there must be evidence that the person executing the deed intended to be immediately and unconditionally bound by it. In Re Cole (1964) Facts:        Delivery in Context of Common Possession (Family) Furniture purchased by husband in wife‘s absence Very wealthy man at the time He introduces her to the furniture in almost a ceremony (covers eyes and says ―its all yours‖) Insurance continues to be in his name (is it strange that gives gift but continues to insure) He executed a deed for other property of his: this means he‘s sophisticated (gives suspicion if real gift or to protect property from creditors), His business partner dies and estate makes claims, he owes lots of money and declares bankruptcy Tries to establish that the furniture was all a gift to his wife, so can‘t be included in bankruptcy proceedings (raises suspicion of fraud – ―gift‖ so that creditor couldn‘t take away) Issue: Do words speaking of a gift constitute gift? Was there delivery? 3 Analysis:  In the ordinary case, where a wife lives with her husband in a house owned and furnished by him, she has the use of the furniture by virtue of her position as a wife, but doesn‘t give her possession  In absence of delivery, no title in her  It has been established that oral words of gift or even written words of gift not embodied in a deed or will, are not sufficient to make an effective gift unless there has been delivery of the possession to the donee  Basic idea is that there must be giving and taking, and if donor retains possession he has not given and donee has not taken (Irons v. Smallpiece, Cochrane v. Moore, Bashall v. Hashall)  It is also established that the delivery of possession may be prior to, simultaneous, or subsequent to the words or gift (Cochrane v. Moore)  Irons v. Smallpieceto transfer ppt by gift there must either be a deed or instrument of gift, or there must be an actual delivery of the thing to the donee.  In case of prior delivery, it may not be necessary that the delivery be made by the donor: a pre-existing possession of the donee may be sufficient (Winter v. Winter)  However, in case of ppl living together, it is doubtful that possession attached to title  Bashall v. Bashall: what is necessary to constitute delivery from husband to wife: in an action by the wife it is necessary for her to show that the husband had done that which amounted to delivery.  If the act is equivocal (could either mean an intention of the husband to transfer the possession OR could mean an intention to retain possession but merely give her use) the act does NOT constitute delivery  Thus, the act of delivery requires something that amounts to a change in possession either preceding or following or coincident with the words of gift. Oral Words of gift, or even written words of gift not in a deed are not enough. There must be a giving and taking. If the owner retains possession, he has not given, and the donee has not taken. Held: NO act of delivery b/c the acts are equivocal and she fails to show any delivery,  No gift. Constructive and Symbolic Delivery Constructive Delivery: Delivery of the means of control  Restricted to when the chattel too large or difficult to transfer easily ie: organ, car (can‘t exactly pick it up and say here, take this)  Donor must show he has done everything possible to part with possession: ie: Watt v. Watt Estate: no change in donor‘s control since delivery of duplicate set of keys; if only one set, then means of control has changed, but b/c he retains the spare set, not sufficient delivery Symbolic Delivery  Delivery of something that represents the thing in context as symbol to indicate passing on  Ie: if donor gives picture of car using the words gift, it may be argued this symbolic delivery  Will look at if large and undeliverable  But, too large to deliver?? TOO BAD  you can always create a deed of gift!  Accept this b/c must be way to give things besides deed things that undeliverable  Little authority though on symbolic delivery  Need to surrender power & dominion Delivery of a Chose in Action  Personal property includes both choses in possession and choses in action  In Cochrane, the 1/4 interest in the horse was a chose in action: the gift was not a gift of 1/4 a horse.  Choses in action-may require compliance with special rules regarding the transfer of such interests (such as stat provisions)  Other examples include: bonds, stocks  For gift to take effect statutory requirements, must be endorsed 4 TRANSFERRING INTERESTS IN LAND: LEGAL AND EQUITABLE INTERESTS Conveyances and Contracts for Sale    Transfer of interest in land In most respects the negotiations of these contracts is similar to other contract bargaining contracts for the sale of land are subject to some special requirements reflecting the historical role of land as a unique form of proprietary interest The Modern Process Of Real Estate Transactions Usually Involve 2 Steps: 1) Agreement for Purchase and Sale:  After the vendor and purchaser have agreed on the basic terms for the sale, they:  Sign an agreement of purchase and sale and the  Purchaser tenders a deposit (a sum of money that represents consideration for the contractual agreement) o Moment offer accepted  contract o Moment signed  purchaser acquires equitable interest and enjoys equitable remedy that vendor specifically perform and transfer possession to you at date of closing 2) Transfer of Title by Deed:  Upon ―closing‖ date (usually 45-60 days after sign); if all goes well and vendor provides satisfactory title, 1. Vendor transfers legal title to the purchaser (Deed) 2. Purchaser pays the balance of the purchase Problems in Process:  Not all real estate transactions go smoothly, ie: 1. Worries about title: ask vendor to clear this up and provide satisfactory title 2. Vendor can change his mind 3. Purchaser may not be able to pay the purchase price at closing 4. The vendor may die after signing the contract but before closing (Lysaght v. Edwards)  it is necessary to define exactly what interests are created for the vendor and purchaser at the time of the agreement of purchase and sale, and what remedies are available to a vendor or purchaser in the event that the other party to the agreement fails to perform the terms of the contract Conveying the Legal Estate: Requirements of the Statute of Frauds  The transfer of the legal estate occurs at closing so long as the statutory requirements of transfer have been met The Statute of Frauds: (remains current law in most jurisdictions in Canada)  Enacted to ensure written evidence of transfers of interests in land  Intended to prevent fraud and perjury and to make it impossible for certain contracts to be alleged upon purely oral testimony by witnesses that might be perjuring themselves s.1(1) required that the creation of freehold estates must in writing and signed by the parties, and that failure to meet these requirements would result in an estate at will only s.1(2) required the leases are void unless make by deed s.2 provided that no estate of freehold or leasehold could be assigned, granted or surrendered unless by deed or note in writing signed by the transferor s.3 provided that leases for a term less than 3 years are excluded from the Statute of Frauds EQUITABLE INTERESTS IN AGREEMENTS FOR PURCHASE AND SALE Lysaght v Edwards (1876) Facts: Equitable Interests in Agreement for Purchase & Sale 5      Vendor (Edwards) entered into sale agreement with Lysaght in Dec. 1874, to close in Oct. 1875 Purchaser paid deposit Vendor died before closing date Purchaser brought an application for Specific Performance Defendants are the heirs of Edwards‘s will Issue: What are the obligations of a Vendor and Purchaser b/w the time of Contract and Closing? Analysis: What is the effect of the Contract?  What is a valid contract? Offer, acceptance, consideration. For real estate, another element is required – the vendor must be in a position to make title according to the contract, he has to own the title.  The moment you have a valid contract for sale the vendor (becomes in equity) a trustee for the purchaser of the estate sold and the beneficial ownership passes to the purchaser  The vendor has the right of possession until the purchase-money and has a charge or lien on the estate for security of that purchase-money, and a right to retain possession until it is paid (if not paid can issue a decree for cancellation of the contract: Either pay me, or lose the estate). Vendors also has an obligation to take reasonable care of the property.  Valid Contract:  Offer, acceptance, consideration. For real estate another element is required-->vendor must be in a position to make title according to the contract, he has to own title (vendor must own land in order to sell to purchaser—can‘t sell what he doesn‘t own). o Vendor must make out his title, OR, the purchaser has accepted the title ―buyer beware‖ o No matter how bad title is, the moment the purchaser accepts it, the contract is fully binding.  Vendor has right to purchase-money and purchaser has right to land; both are part of vendor and purchaser‘s personal estates Note: 1. At the time of contract for sale, risk now born entirely by purchaser; ie: house burns down, purchaser loses the house  However, this is often expressly altered by the parties in the contract itself 2. Consequently, vendor is not entitled to treat land like his own ie: can‘t damage it, remodel it, etc.  Vendor is like a trustee subject to his right to purchase money; an enforceable k for the sale of land results in the creation of a trust relationship b/w vendor and purchaser  A valid contract actually changes the ownership of the estate in equity: this is due to the availability of Specific Performance to the purchaser if the vendor fails to convey the legal estate   The vendor has the legal estate (and equitable interest in $) and purchaser has the equitable estate Summary: In the eyes of Equity: depends on valid contract  When a valid contract is signed to transfer land in the future, the Purchaser is now the Owner.  The Vendor‘s interest is reduced to a LIMITED set of rights: 1. To be paid 2. Has lien against land (right to take it back if you don‘t pay) 3. Right to make use of property until price is paid  Limited: meaning that he can‘t treat land like his own, obligation to take reasonable care of the property: can‘t remodel, build, damage it, etc. Equitable Interests and the Remedy of Specific Performance Semelhago v Paramadevan pg 486 CB    A valid contract actually changes the ownership of the estate in equity (b/c of remedy of Spec. Performance) Equity deems as done that which ought to have been done, so that it‘s appropriate to award equitable remedies to enforce the agreement for sale Historically, the remedy of S.P. has almost always been available in relation to land b/c land considered to have a unique characteristic so that damages are not adequate o This principle examined in Semelhago v Paramadadevan (1996)SCC 6 The vendor reneged on an agree for the sale of home in context of rising prices in homes Caused purchaser to lose $120,000 but at same time, his own home increased in value $110,000 At trial and appeal- court thought damages properly based on the value of the decree of SP SCC – Concluded that it was appropriate to use the date of trial to assess loss (even though windfall gain) o However, also suggested in obiter that it is no longer appropriate to maintain a distinction in the approach to S.P as b/w real property and personal property b/c land today (ie: subdivisions) isn‘t that unique! o Most people will gladly take $$ if the price is right o Push to recognize real property like any other commodity, with a $$ value Example Situation: o Vendor (CB) and Purchaser (Maggie) sign an agreement of purchase and sale, but before closing CB executes a deed in favour of a 3rd party (Liz) in relation to the same land o If Maggie has equitable interest and Liz has legal interest, will Maggie‘s equitable interest be enforceable against Liz? o Can enforce an equitable interest against everyone except a ―Bona Fide Purchaser (BFP) for value of the legal estate without notice‖ Since Equity operates on the conscience of people, and it respects: 1) Having paid money 2) Your honestly (absence of fraud) o 3rd party (Liz) is perfectly deserving, she is a BFP without notice of Maggie‘s equitable interest o There is nothing wrong with Liz to ―excite‖ equity‘s interference o Therefore, Liz‘s legal title is good, and Maggie is outta luck. So, there‘s a Period of Vulnerability b/w: 1. Contract 2. Transfer of Deed/Payment of $ How is this avoidable? o Purchaser (Maggie) must give NOTICE of her contract for purchase o Register in public record  presence is notice by law o o o o (2) Factors for Equitable Interest 1. Existence of Valid Contract: terms that are sufficiently certain 2. Availability of Specific Performance 1. VALID CONTRACT o Usual requirements for valid contract: offer, acceptance, consideration o For Specific Performance in Equity, contract further requires to be stipulated: 1. Description of property 2. Identification of the parties to the contract 3. Definition of the purchase price ie: ―Sufficiently certain‖ so that Specific Performance is available o Example of this is Walsh v. Lonsdale (see below) o Most important aspect of Validity of Contract  Statute of Frauds (see below) Walsh v. Lonsdale (1882) barely discussed in book, this is from class notesfusion of law and equity Facts Situation often occurs today. People enter into a contract for the sale of land, in this case for the lease of a weaving shed. Instead of writing out all the terms of the contract, they took some short cuts and incorporated terms of another contract. This resulted in a contract that contained two opposing clauses stipulating the time when the rent was supposed to be paid. The court has to exercise discretion to find the existence of a valid contract.  Lease is valid if three terms are certain.  There was an agreement for a lease and a conveyance of leasehold estate.  There was no doubt as to the parties and the property for the lease, but the price was at issue 7 (whether it was precise enough to grant specific performance).  Held that the rent in advance is based on the minimum number of looms, thus making the price certain. Thus, enforceable contract because sufficient certainty of terms. o Landowner leases mill to miller o Complex but vague terms in lease about rent o In Agreement to Lease (we agree now to lease later), rent was stipulated to be paid in advance o Common Law only requires payment after use of the land, so need to explicitly include this in lease if want it o Tenant let into possession with only the Agreement to Lease (contract), but no leasehold interest by deed o Rent not paid in advance, LL wants $, so goes in and seizes goods (commercial landlords can use distress) Issue: Whether it was possible to define the rent precisely enough to grant specific performance? Was rent due? Analysis: o Clearly a lease b/c of possession Was Miller: a) A periodic tenant (under common law), requiring rent to be paid at end of month? Or b) Does the contract they agreed to govern (rent due at beginning of month)? Tenant said no obligation to pay in advance since he was in possession under an oral lease only and the formal lease, which had this requirement was never executed Lessor relied on the agreement to lease as an agreement capable of specific performance so that the parties had an equitable int as if the deed of lease containing the requirement has been executed At appeal: an agreement to lease is as good as a lease; equity prevails Held: Agreement governs,  $ due at beginning and duress was legitimate. Equity: Historical Steps 1. They promised (had agreement) to make a lease 2. If Specific Performance was available, they would have been forced to make a lease 3. Lease made *Equity is prepared to hold done that what ought to have been done: Because you committed yourself to transfer title, provided Specific Performance is available, we‘ll say transfer of title has happened (don‘t need to go through Equity steps anymore) o Remember: Specific Performance is Discretionary – can‘t automatically get S.P. from court, like in compensatory damages which are available as of right 1. Must come to the Court with ―Clean Hands‖ o If fraudulent, (unclean hands), contract is still valid, but you won‘t get the extraordinary remedy of S.P, just get $$ 2. Equitable interest may also be defeated by a BFP w/o notice Recap: 1. Valid Contract to Purchase Land 2. Step in b/w that says Specific Performance must be available. 3. Become Owner in Equity Valid Contract cont‘d: o o o STATUTE OF FRAUDS Object was to prevent fraud and perjury, and to make it impossible for certain contracts to be alleged upon purely oral testimony of witnesses who might be perjuring themselves For contract to be valid, it must meet the requirements of s.4 of the Statute of Frauds S.O.F. defines the requirements for the creation and transfer of freehold and leasehold estates: 8 Problems: o ―gazumping‖: vendors negotiating with several buyers for the highest price, everything orally, so nothing is binding (using the Statute of Frauds) and he can back out of a deal o Especially in commercial contracts, people might be surprised and unhappy to find out that an agreement they were relying on is not enforceable because it lacks a signature o There was a reasonable expectation that parties were bound o Doctrine of Part Performance steps up to the plate to deal with this, tackling 2 difficulties of informal contracts: Behaviour: 1. Proof: the actions provide proof of relying on the oral agreement 2. Justice: unfair that I partly performed, but you‘re free not to b/c you didn‘t sign the contract DOCTRINE OF PART PERFORMANCE: o Equity has permitted the enforcement of oral contracts concerning land on the basis of this equitable doctrine, even though there has been no compliance with the Statute of Frauds ie: No signature, not in writing. o Consider, in a situation where a vendor makes an oral agreement with a purchaser to sell a parcel of land and, before the execution of the deed, the purchaser pays for improvements to the parcel. In doing so, the purchaser has relied on the vendor's oral promise. o If the vendor subsequently refuses to execute the deed, relying on the Statute of Frauds, can the purchaser claim that equity should intervene citing part performance as an equitable doctrine? Yes. The SCC considered part performance in Deglman v. Guaranty Trust and stated the test as follows: Test for Part Performance 1. The performance must be referable to the contract and to no other title: o The basic terms of the agreement can be determined w/ sufficient precision, and unequivocally refer to alleged agreement 2. The acts relied on to establish part performance must have been performed by the plaintiff (the person seeking to enforce the oral agreement) and not the defendant 3. Must be such as to render it a fraud in the defendant to take advantage of the contract not being in writing 4. The contract must be one, which if it were properly evidenced in writing would have been specifically enforceable 5. There must be clear and proper evidence, either oral or written of the existence of a contract o Also held in this case that the mere payment of money will NOT qualify as part performance 1. No action shall be brought upon any contract or sale of land, or upon any agreement (unless it is to be performed in less than 1 year from the making of the deal) unless it is: 1. In WRITING (memorandum, etc.) and 2. SIGNED by the party to be charged with the contractual responsibility (defendant) Starlite Variety Stores Ltd v. Cloverlawn Investments Principles of Part Performance Facts: o An agreement is made between the plaintiff and an authorized agent of the defendant to lease a new building. o The defendant himself never signed the agreement. o But, after the plaintiff signed the agreement and delivered a deposit, no mention was made about any problems, in fact construction was started. o Furthermore, the plaintiff was even allowed to make several changes during the construction phase, he was even allowed to pick colours. o The defendant subsequently leased the new building to another lessee for more money (Mac‘s Milk) o The plaintiff incurred considerable costs in reliance on this agreement. Issue: Can the agreement be enforced without a signature? Can the Statute of Frauds we overruled? Defendant's Argument: First that no agreement was ever reached between the parties, because the offer to lease was never formally accepted. Second, in relying on the Statute of Frauds the owner never signed. 9 Held: o The conduct of all parties throughout was consistent with the completion of the deal and inconsistent with an unaccepted unilateral offer. o Furthermore the actions of both parties amounted to part performance, and accordingly the burden imposed by the Statute of Frauds is relieved. o The preparation by the P of the plans to meet peculiar requirements; preparation of signs and the shelves, and the various expenses are all acts of part performance which meet the law‘s requirements o Therefore the defendant breached the contract, and the court awarded damages in lieu of specific performance. Notes: o Specific performance could not be awarded here. Why? Because BFP w/o Notice (Mac‘s didn‘t know about Starlite) o Otherwise, SP would have been awarded  this is enough, that it would have been awarded if possible (ie: Starlite is morally deserving) o So the court decided to order damages in lieu of specific performance because the latter remedy was no longer available. o The principles of part performance as stated in Deglman v. Guaranty Trust were used to resolve this matter, but it should be noted that, there must be an agreement w/ identifiable terms to which the acts of reliance are referable. o Evidence of reliance alone is NOT sufficient; must be an agreement to which the acts of reliance are referable o Moreover, the courts have stated that it is necessary to find ―acts done in performance‖ of a contract, and that ―acts done in preparation‖ are not sufficient. o The mere payment of money does NOT qualify as part performance of a contract involving land: money is too ambiguous, and could be equivocal to many things So, once you find Part Performance, equity will say that you have a valid contract, despite the Statute of Frauds, and you can now use Lysaght v. Edwards rule to become an owner in Equity, get Specific Performance 1. Valid Contract to Purchase Land…….no, don‘t have valid k….Part Performance  ok, got it! 2. Step in b/w that says Specific Performance must be available (or would be available) 3. Become Owner in Equity    REGISTRATION Registration helps to determine the relative priority among a competing interests. A transferee needs to ensure that what they are getting is what the transferor is purporting to transfer. Remember, you can only give as much as you have. Registration systems perform the function of giving the world notice of what interests exist in a particular object of property (registration systems also exist for personal property). This is to facilitate the transferee‘s job. In some areas, registration systems themselves confer title as well (as intimated above). The majority of registration systems are not like that though. Priority Rules:  Where two claimants both hold legal interests or where two claimants both hold equitable interests, the rule is that the first of the two legal interests takes priority. E.g. A  B; and then A purports to convey the same interest to C, B‘s interest takes priority. Also, based on the CL principle that one can‘t give what one does not have, a transferor can‘t convey a title greater than the title he has himself. (Here, A no longer has anything to give to C)  Equity over legal except for bona fide purchaser for value with notice (bfpfvwn).  Rule: Prior interests prevail.  Two legal claims: This rule prevails. 10        Two equitable claims: This rules holds but subject to a condition that the equities are otherwise equal. For instance, if the prior equitable owner has acted in bad faith in such a way that led to the subsequent person‘s interest, the rule won‘t apply. (Clean hands). Legal before equitable: The rule prevails. However, the legal title may be subordinated to the equitable interest if the legal claimant has done something inequitable. If they have, then they still hold legal title, only subject to the equitable interest. If you decided the legal interest prevails however, the equitable interest completely fails. Equitable claim takes priority over any subsequent legal claim except for bfpfvwn. Bf means in good faith. Can‘t act inequitably;  must come to equity with clean hands. pfv means you have to pay for it, this wont apply if something was given as a gift.―Equity will not assist a volunteer‖. wn means actual or imputed or constructive notice. The legal purchaser is under a duty to inquire as to any matters of which he should have known about. imputed notice means notice to any agent of the transferee. Hodson v. Marks (1971) Constructive notice [boarder is a trustee – elderly woman – purchaser comes to see the house ]  If a transferee fails to inspect the premises, or fails to make full inquiries with respect to interests of any person in possession, the transferee will be subject to (bound by) interests that would have come to his attention in a proper inspection. Summary: Priorities among competing interests: Prior Legal Prior Equitable Subsequent Legal Subsequent Equitable Nemo dat: First interest First interest prevails if prevails over later interest interests are otherwise equal Prior Equitable Subsequent Legal Equitable interest is enforceable against subsequent legal interest, except if subsequent holder is a bfpfv without notice Notice: 1) Actual notice 2) constructed notice 3) imputed notice. Notice may be given by registration. There are two types of land registration systems: Deeds Registration 1. Registration of documents;  registration system creates a public record and a depository for documents relating to title to land. It basically just gives notice to the world of what claims have been made against the land 2. Registration does not confer validity to the interests in land  It‘s still up to the purchaser to investigate the documents and satisfy themselves the title is valid (just like in CL). 3. Registration often confers priority re notice.  defines how priority is assigned to competing documents or interests Ontario: Registry Act  Torrens Registration Registration of only registrable documents; Registration confers validity; Registration confers priority; Registration removes the need for any further investigation; State compensation system  a compensation fund to persons whose interests are compromised b/c of errors made by the system  a simpler, clearer, more efficient interest. Ontario: Land Titles Act. So, the bottom line is that failure to register probably will affect the enforceability of your interest. Although failure to register does not effect the inherent validity of the interest, it may limit its enforceability against another registered interest. 11  All land in Ontario exists in one or other system; at present, most titles are being converted to Land Titles. This is being done in conjunction with programs to make it possible to register electronically (e-registration). These changes are occurring in conjunction with developments in title insurance and ―closing cenres‖. CHAPTER 6: NON-POSSESSORY INTERESTS IN LAND Profit a Prendre       Right I may have in your land, to take from your land Ie: to pick apples from your land To allow you to take salmon from someone else‘s stream A profit a prendre is not revocable in the sense of a license Can be terminated at any time upon reasonable notice Can be ―gross‖: doesn‘t have to tie between 2 pieces of land Mason v. Clarke (1955) Profit a prendre and part performance  M paid 100 pds for the right to kill and take rabbits from a certain estate. Owners sold the estate, and the new owner, (D) refused to from hunting. Court held that an equitable interest of profit a prendre was created on the basis of part performance.  ―A proft a prendre is an interest in land‖ How are these created?  This constitutes an interest in land and gives the right to take something off someone else‘s land including wildlife, minerals or timber. It can also be characterized as a right to extract some form of natural produce. e.g. oil/natural gas.  R in Right of B.C. v. Tener: mining rights constituted profit a prendre. Native Rights  There are also cases where Aboriginal claims to hunt or fish can be considered profit a prendres, but Canadian courts normally recognize these rights as unique Aboriginal principles.  In R. v. Sparrow - is it possible to characterize right as profit a prendre? If could be characterized in this way, what are the reasons for finding the right to be sui generis?  Cites Guerin; rights stem from exercise of the right from time immemorial License or Profit a Prendre? p.537  Profit a prendre is a similar to a license since both permit use of another‘s land for specified purpose.  But the profit a prendre is not revocable like a license which is generally terminable at any time upon reasonable notice. More is required.  the nature of PaP is to remove something from the land. Is difference between license and profit a prendre about license to use, vs. right to take? Also, a license will only be enforceable against parties to the K, and will not be enforceable against third parties. EASEMENTS ―A right annexed to land to use the land of different ownership‖ Key Features 1. Right in Land 2. Non-Possessory 3. Negative or Positive 12 4. Intention to Create binding interest (and not just a license) In Contrast: License  NOT a right in land; personal right only Negative Easement Cause me to refrain from doing something Negative easements are usually ―Restrictive Covenants‖ vs. Positive Easement Permit you to do something Ie: pass across my land; right of public utility to pass wires across your land Gypsum Carrier Inc v the Queen, 78 DLR (FC TD) Facts:    Easement requires INTENTION Gypsum boat caused damage to a bridge 3 RR companies make claims for their expenses in having to reroute their trains during the bridge closure G resisted these claims on the basis that no damage or injury was caused to any property owned by the RR companies or to any property to which they had a proprietary interest  RR company said that pursuant to their contract they each had an easement  The contract b/w the RR cos and the Crown held that the RR cos were given the right to construct and maintain connections b/w their own tracks and those on the bridge and to run their trains over the bridge during the term of each agreement.  The fed gov‘t still had full control over maintenance of the property covered by this agreement.  The RR cos had to pay $X per car passing over the bridge Issue: Easement or Mere License? Analysis:  Defined an easement as: ―a right annexed to land to utilize other land of diff ownership in particular manner or to prevent the owner of the other land from using his land in a particular manner‖ Held: the agreement b/w the Crown and RR cos NOT an easement -The docs appear to contain the requirements, but must look at the intention of the parties  was there an intention to create an easement? -When read as a whole, no intention. -The purpose was to create certain contractual rights whereby the RR in return for fees were allowed to use the bridge Test:  Must look at the Intention of the parties A. Look at agreement and see if parties used language of an easement B. What are implications if it is one or the other: 1. If license-won‘t bind successors 2. If easement-bind all subsequent owners *All criteria was met, but require an Intention for this right to pass and land & title. The Four Requirements for Creating an Easement 1. There must be a Dominant Tenement (parcel of land that enjoys the benefit of the easement) and a Servient Tenement (parcel of land that is burdened) 2. The easement must accommodate the Dominant Tenement 3. The Dominant and Servient Tenements cannot be both owned and occupied by the same person 4. The easement must be capable of forming the subject matter of a grant #1. Requirement of a Dominant (DT) and Servient Tenement (ST) DT  Benefit of Easement 13 ST  Burden of Easement  This means that an easement must be linked with 2 parcels of land, one over which the easement is exercised (the servient land) and one in favour of which the easement in created (the dominant land)  Authority relied upon for this requirement is Ackroyd v Smith (1850) (ER, Common Pleas): Plaintiff granted the right to use his road to cross the plaintiff‘s land to ―owners and occupiers of the defendant‘s land‖ and ―to all persons having occasion to resort thereto.‖ This was deemed to be a license and not an easement because the words of the grant were too broad and might have conferred rights to those other than the dominant tenement; therefore not an easement since did not benefit the dominant tenement land  DT and ST must be near, but don‘t have to be touching.  Concern for alienability The rationale for this requirement has been that servitudes should improve the utility of land; since easements can inhibit the productive use of servient lands, a burden on one land requires reciprocal benefit to another. This also limits the number of parcels which can enjoy easements, to reduce risk of overburdening a piece of land. Finally, the requirement addresses the concern that an owner could bind all successive owners/assignees.  However, the rationale has been criticized. It is argued that concern regarding binding successors is addressed by modern registration systems.  This requirement has created problems for public utilities who want easements for telephone lines, hydro lines, etc. The requirement has been removed by a number of statutes (Ont. Water Resources Act). Legislatively created easements without dominant tenements have been created for public utilites.  Easement in Gross In Canada: CANNOT have Easements in ―Gross‖ (ie: Need a DT) - can in US Ie: A wants to grant to B a right to land helicopters on A‘s property. Why should this be impossible just b/c no DT?  In practice, there are many example of legislatively created easements where there is no dominant land.  ie: public utilities such as water, sewage and electricity Vannini v Public Utilities [1973] 2 OR 11 (Ont. HC)  Court held that the commission‘s ownership of waterworks system (even though commission owned no contiguous land) constituted a dominant tenement #2. Requirement that the Easement Accommodate the Dominant Tenement:  Benefit must be conferred on the land itself, and not just to the owner of the land.  The easement must make the dominant parcel of land ―a better and more convenient property.‖  Annexation Concern: parties must have fixed it to land; you have to be able to say ―This piece of land, or the owner of this piece of land gets a benefit‖  Familiarity concern: we can understand it as a good use ie: we appreciate the use as a garden in Ellenborough In Re Ellenborough Park [1956] (Ont. CA) Facts:   There is a garden, which is surrounded by homes Title to the garden vested in trustees and each of the owners of the homes around the garden paid a proportionate cost of maintaining the garden  The owner of the garden wants to develop it  The home-owners complain, and argue that they have an easement. Issue : Whether the home owners have an enforceable right to use the park Held : Benefit was conferred to the dominant tenement, and therefore an easement was created. 14 The resolution of this issue depends on whether or not an easement exists. Specifically, the question to ask is, ―Does the right to use the garden confer a benefit on the dominant tenements?‖  This case looked at the 2nd and 4th requirement; and determined that the right which forms the subject matter of the grant must somehow conform with social practices in order to be legitimate.  The right must pass the test of social utility, it must be purposeful and recognizable.  It must be a right worth creating, that will endure.  Therefore, the court decided that the use contemplated and granted was the use of the park as a garden, which every Englishman would use, and thus it would endure over time.  Court held garden enhances property, and is connected with the normal enjoyment of the houses  This case raises the issue the geographic connection between the two parcels of land.  The court holds that the two parcels must be neighbouring, but don‘t necessarily directly adjacent (house in 2nd row that we‘re actually touching the garden were OK – not a problem) Challenge: Can you derive benefits as land-owner, and not just as an individual?  Ie: I‘ll give you season tickets to the Raptors if you buy this house  Individual benefit, but doesn‘t benefit you as a land-owner, so would just be a license.  Discussed Facts:  Hill v Tupper (1863) (Ex. Chamber) Servient owners own a canal and granted rights to A, owner of adjoining land, to let boats out for hire on the canal.  A then sought to restrain other neighbouring landowners from doing a similar activity  He sought to establish that his grant constituted an easement _______________________________________________________________________________________ ____________ Held: Action Failed  Mere Personal Benefit, NOT an Easement  Court said that it is not competent to create rights unconnected with the use and enjoyment of land, and annex them to it so as to constitute property in the grantee  It was clear that the P was trying to set up under the guise of easement a monopoly which had no normal connection with the ordinary use of his land  Mere personal benefit Key: Normal and Ordinary use of land Jengle v Keetch (1992) (Ont. CA) Facts:       3 cottages side by side A subject to an easement favouring adjoining lot B (B used to gain access to his lot) C owned lot beside B and had no easement (only way to get to his land by water) So C leased a part of B‘s lot as a parking area As B‘s tenant, C began to use the easement across A‘s land A commenced an action for injunction and damages for nuisance and trespass Did not decide if C‘s right is an easement or license but stated: C‘s right of way over A‘s land (ST) should be restricted to some purpose connected with the enjoyment of his portion of the DT (B)  if C‘s objective in entering into the lease was to park vehicles on B‘s property in order to reach his own property, it would be unlawful use of right of way Ratio:    #3: The DT and ST cannot be Owned or Occupied by the Same Person  The reasoning for this requirement is that if you already own both parcels of land, then you already have greater rights than you can ever grant yourself in an easement  This issue may arise when 2 parcels of land have been owned by different ppl (with an easement in place) and the owner of the dominant land then acquires by sale the servient land as well. 15  Where this occurs, there is no longer an easement in existence. If owner then sells the servient tenement to a third party, the easement reappears. #4: The Easement Must Be Capable Of Forming The Subject Matter of a Grant.  Both the meaning and justification of this requirement are obscure. Ellenborough Park establishes criteria: o Must be capable of being made clear ie: can‘t grant something that is too vague o Can‘t be for ―Mere recreation‖; should confer ―utility and benefit‖ o Can‘t work to substantially deprive owners of proprietorship or legal possession  The court needs to examine the nature of the right being conferred, and if it involves possession, it can‘t be an easement, because an easement doesn‘t allow one to divest an owner of possession of land. Natural Rights:  Ie: right to free flow of air and light  This would interfere with industrial plans, so had to control these rights by abolishing them as easements Some rules for easements to Query: 1. Easements are NOT possessory rights  Must fall short of possession  Ellenborough Park? Wandering around garden  this is pretty close to possession! 2. Easements Cannot be Mere Recreation  Must be matter of Utility and Benefit  This does not make sense any longer  recreation is extremely important to society today Methods of Creation: Express Grant / Reservation   a) Positive: allows dominant owner to do something on the servient land. b) Negative: prevents servient owner from doing something on servient land. 1. Express Grant:  Done by deed  Ie: Vendor sells part of land to purchaser, granting the purchaser a right of way over the land retained by the purchaser  Purchaser holds the DT, and the vendor holds the ST 2. Reservation:  When severing land: I ―reserve‖ for myself an easement across your newly acquired land  If the vendor sells the parcel of land to the purchaser, with a reservation or a right of way over the purchaser‘s land  The purchaser‘s land becomes the ST, and the vendor holds the DT  Grantor severs his land, and holds something back  a grant to yourself  Reservations MUST be done EXPRESSLY; Must be EXPLICIT  Will NOT allow burden of easement on Purchaser to be implied (but benefit can arise by implication to the purchaser ie: Barton v. Raine)  We don‘t interpret the deed to the benefit of the Vendor: he‘s in a position of power b/c  He constructs the Deed  Grantor knows the property: perfect position of information Easements may be created in equity by agreement to grant / reserve, enforceable by specific performance Walsh v. Lonsdale (1882), 21 Ch.D 9 (CA)  16 Hill v. Attorney General of Nova Scotia, (1997) (SCC) Facts:     In 1966 the province took land from the P to construct part of a highway, province constructed ramps which gave the Ps access to the highway Subsequent to this, in words and some form of written doc, tells P will continue to enjoy access to highway In 1992, the access ramps were removed The Ps claim compensation on the basis of an expropriation of an easement as a result of the construction Issue: If the docs relating the expropriation did not expressly refer to the grant of an easement, on what basis could the appellants succeed in claiming there was a grant of an easement? Analysis:  SCC said there was an easement in relation to the doctrine of part performance: there was a representation made by authorized reps of the crown that Hill would have an interest orally and by letters permitting him to cross the highway.  The crown then proceeded to construct and maintain ramps  Hill relied on this.  The words and actions of the crown created an equitable interest in the land in the form of a right of way over the highway.  Would be unjust not to recognize the representions and actions of the Crown which created an equitable interest in land when they were relied on by Hill. (***equitable interest created b/c of oral agreement and part performance)  Applied: Steadman v. Steadman, [1976] AC 536 (HL)  Equitable interest created where there is:  Representation made by servient tenement  Representation complied with by the servient tenement  Contemplated that dominant tenement will rely on representation  Actual reliance by dominant tenement, to its own detriment Held: Hill entitled to compensation in relation to the expropriation of his equitable interest in land 3. Implied Grant/Implied Reservation  Shadow cast by grant of another interest  If you granted X, you are taken to have granted Y  We infer from what you explicitly said about something else, that you implied an easement Reasoning: A) Necessity  Land is ―landlocked‖  see X X  Matter of Public Policy:  Landlocked land is unproductive land! B) Common Intention  Court leaning this way  Matter of the Intention of the parties  If land is landlocked, by matter of implication I must have reasonably implied/intended a right of way  This occurs in cases where X owns both and sold one piece of land  Easement is implied if person who purchased finds it necessary to have easement to have use of land Dobson v Tulloch (1994)(Gen. Div.)  The court concluded that the Ds were entitled to an easement in relation to their cottage property, which was completely landlocked except for a small portion that on river 17   They were entitled to an easement over land owned by the neighbouring owner who had initially brought an action for trespass against the D There was an easement of ―apparent accommodations‖ in addition to implied easement of necessity Lot accessible by water isn‘t inaccessible, therefore no easement Fitchett v. Mellow (Ont. HCJ)  Hirtle v. Ernest (1991 NS SC) Facts: Applicant seeking a declaration of a right of way Applicant purchased parcel of land bounded on 3 sides by lake and on other side by neighbouring parcel of land w/ access to a roadway  The applicant had bought the land knowing that it was landlocked and after making some unsuccessful attempts to purchase the right of way  He wanted to build a home and evidence that would be hard to transfer the materials by water Analysis:  Held that when a larger parcel of land had been divided b/w bros in 1957 (a predecessor in title to the applicant), one brother received a landlocked parcel, and that an easement of necessity had consequently been created at that time;  Note that there was no express grant of an easement here; also cannot be an implied grant since it had not enjoyed the right of way before the grant/purchase of the land  Therefore courts had to trace back to find an implied reservation: that is common ownership of both pieces of land at one point   Ratio: the test for necessity was no longer absolute necessity but rather practical necessity Principles: 1. The doctrine of right of way necessity is based on public policy- that land should be used and not rendered useless 2. Although there can be no right of way of necessity where there is an alternative inconvenient means of access, the requirement of an absolute necessity or a strict necessity has developed into a rule of practical necessity 3. Water access is not considered to be access over adjacent land. This is especially so in cases where the water access is not as of right, or would be contrary to the law, where access is not available for transportation of things needed for reasonable use of the land to be accessed, where the water access does not have transportation facilities for carrying on the ordinary and necessary activitiess of life to and from the land or where the water is not navigable or usable as a highway for commerce or travel Application:  Finds that w/o a right of way of necessity, the lot in question will not be able to be used and will be useless  That this is not a case where there exists an alternative, though inconvenient means of access;  And that the water access is not by right  Also found no evidence that the lake can be used for transport of things needed for reasonable use of Ps land POLICY QUESTION: Is the answer in this case, ie. practical necessity good enough? Is there need for reform? Need for Legislation: Landlocked Land and Easement  A.J. Bradbrook, ―Access to Landlocked Land: A Comparative Study‖ Property Law Act, 1974-1978, s. 180 (Queensland) o Provisions apply ―where it is reasonably necessary in the interests of effective use in any reasonable manner of land‖ o Provide for court to order easement where consistent with public interest and where owner of servient tenement has unreasonably refused to accept the obligation but can be adequately compensated for honouring it 18 Intention  We draw a necessary inference b/w parties  Look at what parties must have intended  Can arise by implication to the benefit of the purchaser Wong v. Beaumont (1965 QB)   Implied: Necessity Denning held that an implied easement existed with respect to the construction of a ventilation duct in a restaurant b/c required by health regulations. Even though landlord objected to the tenant‘s need for this, the court held that the tenant entitled to have it built since the landlord knew of the tenant‘s intended use of the premise as a restaurant when the lease was signed Wheeldon v. Burrows (1872) (CA) Implied Reservations  Courts more reluctant to use these principles  Principle thou shall not derogate from grant: o may mean that in granting land I intended to keep easement o what does mean is that must give what promised and can‘t take back o to give and then say implied is against principle In general courts won‘t imply reservation b/c to do so derogates from the grant; note exceptions: Wheeldon and Burrows principle  A vendor who holds a parcel of land and who uses a path across one section to gain access to another may create an implied easement at the time of the transfer of one section to the purchaser  Even though there was no easement, as long as the whole parcel belonged to the vendor, the division of the parcel of land and its transfer to the purchaser ―creates‖ an implied easement  It must be ―continuous and apparent‖ that it has been customarily used that way and ―reasonably necessary‖  So that purchaser would be aware that this easement will continue after purchase  This is an application of the principle of non-derogation: It serves as a form of consumer protection, allowing a purchaser to acquire easements that the purchased land appears to enjoy. Barton v Raine (1980)(Ont. CA) Facts:      Implied Reservation: Common Intention ―Continuous & Apparent‖ An implied easement was created when a vendor (who owned 2 adjoining lots with a mutual driveway b/w them) conveyed one lot to his son The property line b/w the houses meant that owner of one house didn‘t have sufficient room to drive the car to the garage at the back of the property w/o access to the mutual driveway The son had been living in the adjoining home for over a decade before the transfer of title, and thus the use of the mutual driveway had been established before the father‘s conveyance Some years later when both lots had been transferred to new purchasers a dispute arose about the right to use the driveway D said P had no right to use his land Looks to common intention and reciprocal easement Held that although the 1952 conveyance made no mention of a right of way (reservation)over the driveway b/w the 2 parties, there was, a common intention on the part of both the father and the son If the property had been purchased by stranger the inference as to the intention of the parties may have been different Held that an easement in the nature of a right of way over the driveway in question, in favour of the grantor of the property next door was acquired by implied reservation Court held law had ‗softened‘ since Wheeldon and that a common intention on part of father and son 19 Ratio:           to continue to use as easement existed As there could have been no misunderstanding about continued use of easement, and since ―the driveway was a tangible physical fact, there to be seen by all who chose to see it‖, the easement continued Found common intention that right of use of driveway would continue after conveyance Interruption of use didn‘t impair easement because ―easement can not be lost by a non user on evidence clearly establishing an intention to abandon it‖ Cites: Isreal v. Leith (1890), 20 OR 361 (QB) o  Sandom v. Webb o Registry Act doesn‘t interfere with legal rights arising other than by written interest, and does not alter priority of grantee of easement over subsequent purchaser   Court declines finding easement based on common intent on absence of ―affirmative evidence admitting of no alternative possibility‖ Ct holds Sandom doesn‘t apply where ―conveyance itself is silent on the question of the right sought to be established, the passage of time. . . necessarily militates against the likelihood of any such ‗affirmative evidence‘ being available‖ Defendant had actual notice of the user they disputed; had cause to suspect an adverse possessory interest prior to purchase, and could have called for declaration of possession by vendor 20 The Scope of Easements  Intention may be important in determining the scope of easements Giecewicz v Alexander (1989)     An express easement had been granted across the Ds land in relation to land owned by the P. The P had no other access to a public highway Few years later gained access to a new public highway The court dismissed the Ps application for a declaration of easement, holding that the extent of an express easement depends on the wording of the instrument, ascertainable by circs existing at the time of the grant  Subsequent changes in circs may alter the justification for the use of an easement.  A grant may be made for limited purposes and when that purpose is accomplished the right of way shall cease Held: Court concluded that the right of way ended when the Ps acquired access to a public highway Easements by Prescription  created by ‗length of user‘ of servient land by owner of dominant tenement  non-possessory; requires acts less than those needed to establish possessory title  provides for encumbrance of servient tenement by dominant to constrain servient owner‘s use of own property  no compensation owing to servient owner Tupper v. Campbell (1876), 11 NSR 68 (SC)  Where one person permits another to use land for particular purpose without compensation, may not be appropriate to conclude easement has been created Two methods for acquiring:  Proof of use since time immemorial 1189 AD (no good in Canada)  ―lost modern grant‖—continuous use for period of 20 years raises presumption of this  Easement by Prescription is acquired where there is continuous use for a period in excess of twenty years. After twenty years, the person who would like to claim the benefit of the grant must commence an action to ensure that the easement is recognized.  The relevant twenty years is the period immediately prior to commencing the action, not the period immediately prior to when cause of action accrues.  For an owner who would like to prevent an easement from being created by prescription, the person must block the use/right of way at least annually. Alternatively, a specific letter saying that permission is given means that there is no exquisite adversity, so the easement is not created.  Negative Easements: The Relationship Between Easements and Covenants Phipps v Pears 1965 Facts:       NO easement found 2 houses: new and old- new has wall built up touching old walls X owned both and then sold new to Y order made to demolish old b/c below the min stands when it was demolished the wall of new was left exposed; it was not weather proof P wants to recover for the damage done Argued that easement arising upon severance by implication Issue: Whether there is a right in law to be protected by your neighbour‘s house from the weather? Is there an easement of protection? Analysis: 1) All elements of easement present 21 a. Two separate props owned by 2 separate individs b. Dominant(new) and servient(old) c. Connection b/n easement and benefit of land- provides real value to land as land d. Can be subject of grant-->old must continue to protect 2) P claims that new had a right of support from old and that the D had withdrawn that support  This failed b/c the 2 walls were independent, not united  A right to be protected from the whether is not a right known to law, and the courts will not generally create new negative easements. See policy. 3) Then P said that this house entitled to protection against the weather. It provided protection from the weather and by pulling down the house, infringed his right to protection. This right analogous to the right of support and it is settled law that a man who has house next to another for many years, so that it dependent on it for support is entitled to have that support maintained 4) There are 2 kinds of easements in the law a. Positive: right of way, gives the owner of the land a right himself to do something on or to his neighbours land b. Negative: such as a right of light, which gives him a right to stop his neighbour from doing something on or to his land  Right to protection from weather if exists is negative.  Must be looked at with caution b/c courts weary of creating any new negative easement  : The only way the P could protect himself is by making a covenant with his neighbour that the latter will not tear down the house (or, for example cut trees, block view). Such a covenant would be binding on the neighbour in K. The covenant would also be binding on any successor who took notice of it. But it would not be as good as an easement, b/c it is not binding on the successor without notice. 5) Why Should be wary of creating negative easements: Negative easements huge restrictions in way owners may never have predicted Denning: parties could have explicitly agreed to this using a Covenant. How could one party know that other was obtaining rights over his property Cites the following cases:  Dalton v. Angus—neighbour is not entitled to pull down house without providing substitute support for adjoining house if necessary o Reluctance to impose negative easements because of social policy, i.e. would hamper legitimate development  Bland v. Moselely—no right to a negative easement to protect view; must obtain covenant with neighbour, which then bids as contract, and binds subsequent owners aware of covenant in equity  Leech v. Schweder—covenant not binding in equity on new owner who has no notice of it  Wright v. Macadam—negative easement must be based on a right / advantage known to the law and capable of being granted at law so as to be binding on all successors in title, with or without notice 22 Negative Easements vs. Covenants  R. Chused: 19th century US expanded use of negative covenants, finding them more useful for enforcing subdivision controls than covenant, which is limited in application by doctrine of privity COVENANTS AND THE USE OF LAND      Covenants are express contracts Very different from easement in the sense easement may arise by implied or presumed grant; covenant only arise by an express contract Covenants create a non-possessory interest in land Covenants may limit scope of activities on servient land Easement: binds people forever Definitions              Profit: The right to take something away from the land. Easement: A right annexed to a parcel of land to do something on a neighboring parcel of land (positive easement) or to prevent the other land from being used in a certain way (negative easement). Covenant: A contractual agreement between the owner of a parcel of land and another person relating to the use of land. Covenants in relation to land create non-possessory interests in land. Since may of the principles are fashioned on a case by case basis, they may appear ―unnecessarily conmplex and occasionally illogical‖ (OLRC). Covanantor: The promisor, they have the liability. Covanantee: The promisee, they have the right to sue. Positive covenant requires the covenentor to do something. Negative covenant requires the covenantor to refrain from doing something. A.k.a. restrictive covenant. The court uses a substantive test in determining what type of covenant you‘re looking at. In Tulk v. Moxhay, the covenant sounded like it was positive because it required the owner to maintain the square, but the court said it was negative because the main point was to prevent building on the square. Benefit of covenant: the property which wants to enforce a restriction Burden of covenant: the property against which a restriction is to be enforced. Privity of Contract: Two people who are in a direct contractual relationship. Privity of Estate: Refers to two parties who are in a relationship of tenure: lessor and lessee. This also applies to the relationship between a land owner and the Crown. But for many centuries there has been no subinfeudation. The relationship between vendor and purchaser is not subject to privity of estate since you can only transfer land by substitution, not sub-infeudation. Ontario Law Reform Commission, Report on Covenants Affecting Freehold Land CB p.573   Leading principles:  Privity of contract  Privity of estate Basic situations:  Privity of contract between parties  Between lessor & lessee, original parties to the lease, and between vendor and purchaser upon transfer of freehold land  Parties and & or personal representatives can bring actions against each other in contract, at law for damages or at equity for specific performance / injunction 23  Privity of estate between parties  Exists between lessor & lessee because of the tenure rel., not the K  If lessor assigns reversion or lesee assigns term of the lease, privity exists between:  Assignee of lessor & original lesee  Assignee of the lessee & original lessor  Assignee of lessor and assignee of lessee  Where there‘s privity of estate but not contract, assignee of term or reversion may enforce only those covenants that ―touch and concern,‖ / relate subject matter of the lease  Privity of K remains regardless of assignments, original parties remain liable to each other for breaches of covenant during entire term of lease  Neither privity between parties  Covenants are unenforceable except:  In equity for benefit and burden of restrictive (negative) covenant that runs with the land  In law for benefit only of positive or restrictive covenant that can run with an estate in land  Burden of covenants can‘t be assigned In Phipps v Pears (see above), Denning suggested that owner could have accomplished the same objective, explicitly, using a covenant  The covenant would have been enforceable in contract b/w the parties and it would have been binding in equity on subsequent purchasers with notice  The contractual agreement relating to land entered into by the owner would bind their successors in title, at least with notice in equity even though successors not involved in original contract, nor in any contract with each other  Important distinction: whether issue arise at law or arises at equity Privity of Contract and Estate 1. Privity of Contract allows parties to enforce the covenant  Exists b/w lessor and lessee and  Exists b/w vendor and purchaser upon transfer of freehold land  Benefit of Contract (right to sue upon it) is assignable; the burden (liability under it) is NOT.  Parties stand in direct contractual relation to each other and enforce their rights under the contract  Privity of Contract continues to exist regardless of assignment, so the original parties remain liable to eachother for breaches of covenants during the entire term of the lease Leasehold Covenants: Lessor and lessee have POC, so they can usually enforce all covenants in a lease The principles below apply in relation to assignments (of the reversion or of the term of the lease, but not to sublease) 2. Privity of Estate allows parties to enforce the covenant  Exists b/w lessor and lessee - does not exist in the context of Freehold land.  Privity of Estate continues only so long as the relationship of tenure exists (only while he/she holds the estate in the land)  If lessor assigns the reversion, or lessee assigns term of the lease, POE ill exist: 1. Assignee of lessor and the original lessee 2. Assignee of lessee and the original lessor 3. Assignee of the lessee and the assignee of the lessor 4. POE does NOT exist b/w lessor and sublessee 3. If POE exists, but POC does NOT:  The assignee of the lease or of the reversion may enforce only those covenants that ―touch and concern‖ or relate to the subject matter of the lease: Spencer’s Case (1583), 77 ER 72 (KB) 24   Covenants that do not touch and concern the land are not enforceable by the assignee of the original parties, only enforceable by the original parties themselves 4. Neither POC or POE exist  ie: situation b/w lessor and sublessee  If neither, a covenant is not enforceable at law Leashold Covenants: An Overview  Parties generally remain liable for covenants even where interests are assigned because they‘re bound in K by lease agreement  Spencer‘s Case (1583), 77 ER 72 (KB)  Benefit and burden of covenants that ―touched and concerned‖ land pass to assignee  Legal test of touch / concern is whether covenant affects lessor as lessor or tenant as tenant  Regent Oil v. J.A. Gregory (Hatch End) Ltd., [1966] Ch. 402 CA  Clause providing tenant would purchase products from landlord held to touch and concern land  Re Dollar Land Corp. Ltd. and Solomon, [1963] 2 OR 269 (HCJ)  covenant to repay tenant‘s security deposit held not to touch / concern land  bottom line: the test is a mess  Davis v. Town Properties Investment Corporation Ltd., [1903] 1 Ch. 797 (CA)  Phrase from Grantees of Reversion Act, 1540 (note: same phrase in On. Landlord and Tenant Act, ss.4-8) ―having reference to the subject matter of the lease‖ means same as ―touch and concern‖  Tichborne v. Weir (1892), 67 LT 735 (CA)  no privity of contract between lessor and squatter  no privity of estate because squatter wasn‘t assignee of lessee   principles below apply in relation to assignments of reversion and the leasehold estate in sublease arrangement, lessee transfers only part of leasehold estate, creating new lessor / lessee relationship  no privity between lessor and sublessee  when lessee assigns leasehold estate, new assignee takes on entire interest of the lessee  privity of estate between lessee and assignee Two Exceptions: A) In Equity: benefit and burden of a restrictive covenant only: a covenant that is negative in substance, can run with the land B) At Law: Benefit: (will run if) 1) Assignee must have a legal interest in land (we don‘t know if must be same interest – courts unclear) 2) Covenant must touch and concern the land (must benefit the land as land, affect value of land) Burden: CANNOT run with an estate in land Class notes A B CovenatOR Servient Tenement ―Burden‖ Promise to Refrain CoventEE Dominant Tenement ―Benefit‖  Where A & B are in Privity of Contract: No difficulty, plain old contract law BUT, 25  When A or B is sold, No longer POC Assignees: this is where it gets interesting A B X Assignee of Convenantor Y Assignee of Covenantee If covenantor and covenantee sold to X and Y, there is NO Privity of Contract b/w the two: does the benefit and burden attach to land and benefit or burden subsequent land owners? QUESTION: How far beyond the scope of privity of contract does the obligation run? 1- When does the Burden run with the land? 2- When does the Benefit run with the land? LAW Yes Positive or Negative No EQUITY Yes Positive or Negative Yes, but… Negative ―Restrictive‖ Only Benefit Burden Quadrant #1: Benefit in LAW  Benefit runs with the land   We will only elevate contractual promises to property rights if the benefit ―touches and concerns the land‖ Touch & Concern:  Has to affect the owners of the land as owners, and not just as individuals  Affect their use of the land; their manner of enjoyment, affect them more than just on personal level  Smith ―it must be shown that the covenant was entered into for the benefit of the land owned by the covenantee and not merely for his personal benefit  ―must either affect the land as regards the mode of occupation, or it must be such as per se, and not merely from collateral circumstances, affects the value of the land‖ Smith v. Snipes Hall Farm (1949): for benefit to run in law, the benefit must Touch & Concern the land Freehold Covenants: Enforcement at Law  Sometimes created by contractual agrees b/w 2 adjoining landowners to achieve particular objectives  More often created when a vendor transfers one or more lots to purchasers and a part of transaction creates a burden on a purchasers land in favour of land retained by vendor ** BURDEN DOES NOT RUN IN LAW AND NO PRIVITY OF ESTATE IN FREEHOLD CONTEXT The Benefit of Covenant Smith v. Snipes Hall Farm:   Had to keep riverbanks in good repair River Douglas Board promised all property owners that ―I will maintain the banks of your land‖ River Douglas Board A 26  Covenantor  (Burden)  Positive Covenant (I WILL DO something)  Covenantee (Benefit) B Assignee of Covenantee Issue: Can B enforce the covenant? Argument: Benefit of covenant runs with the land Held: Denning: Yes, the promise to repair ―touches and concerns the land‖  Has to affect the owners of the land as owners, and not just as individuals  Affect their use of the land; their manner of enjoyment, affect them more than just on personal level  Smith ―it must be shown that the covenant was entered into for the benefit of the land owned by the covenantee and not merely for his personal benefit Two Requirements for the passing of Benefit of a Covenant with the assignment of freehold: 1. Covenantee must have legal interest (needs legal title to land) 2. Covenant must Touch & Concern the Land *NO necessity that Covenantor has any land ie: for a positive covenant, promisor doesn‘t need to have any land to follow through with promise. It would follow that if it was a negative covenant (promise to NOT do something, he would require land to fulfill promise) *B does not need to have the same interest as A (court still open on this issue – but we‘re not going to touch it) NB: Law vs. Equity **Legal principles of the running of the benefit of the covenants make NO distinction b/w positive (take action) covenants and negative covenants (refrain from action) Quadrant #2: Burden in LAW  BURDEN OF A COVENANT RELATING TO LAND CANNOT PASS IN LAW  Concern was that property would become heavily burdened, and the assignability of land would be hurt The Burden of Covenant Austerberry v. Corporation of Oldham Elliott Covenantee (BENEFIT) Austenberry Assignee of Covenantee   Trustees Covenantor Positive Covenant: to DO something (repair road) (BURDEN: repairing road) Oldham Assignee of Covenantor Pakenham‘s Case (1368), YB Edw. 3., Co. Litt. 385a Keppell v. Bailey (1834), 39 ER 1042 (Ch.)  Covenant can run at law even where it doesn‘t concern covenanter‘s land  (church service case)  Original covenanters assigned interest to defendant  Plaintiff sought to enforce covenant 27  Held that burden doesn‘t pass for social policy reasons: ―great detriment would arise and much confusion of rights if parties were allowed to invent new modes of holding real property, and to impress upon their lands and tenements a peculiar character, which should follow them into all hands, however remote‖ Austerberry v. Corporation of Oldham Facts:  Elliott (covenantee) conveyed part of his land to trustees, with a covenant to keep road in good repair  Road was later taken over by the Corporation of Oldham  Elliott assigned his land to Austenberry (Assignee of Covenantee)  Oldham wants to recover costs of repairing road from the land owners, including Austenberry  Both A and Oldham had taken their conveyances with NOTICE of the covenant  Austenberry wants the court to enforce the running of the Burden as well as the Benefit ISSUE: Does Benefit and Burden Run with the Land? Held: Neither the Benefit or the Burden of the covenant to repair could run with the land Benefit:  The repair is for the road: there is nothing in the deed that points to where it abuts on the land of Austenberry  Too Incidental Benefit  shared by everyone on the road  Nothing about doing anything on A‘s land, and nothing pointing to his land in particular o  Benefit does not run Burden of repairing this road get passed on to Oldham?  It is a mere personal covenant  They did not intend this covenant to repair to run with the land  NO – BURDENS ARE NEVER PASSED ON IN LAW Could it run in Equity?  No, only NEGATIVE or restrictive covenants can run in Equity (to NOT do something) Policy Why don‘t burdens run with law?  Would render land inoperative / inalienable over time Why shouldn‘t benefits run with the law?  Burdens may also be restrictions that enhance value of land How to Overcome Passing of Burdens in LAW   Chain of personal covenants  Purchaser remains liable to vendor via privity of contract  Less tenable the longer chain gets—breakable by death, insolvency, disappearance of party Rentcharge—periodic payment charged on land  Used to enforce positive covenants because it‘s possible to annex a right of entry and impose a positive covenant  Enforceable in perpetuity Statute  Planning Act, 1983  Homebuyers must covenant to conform to local bylaws, etc.  Registerable under Registry Act or Land Titles Act  Condominium Act sets up comparable provisions for condo owners Doctrine of Halsall v. Brizell:  If you take the benefit of a deed, you take it subject to the burdens   28  Only operate in case of Mutual Promises: ie, Reciprocal: as neighbouring land owners, we exchange the same promise, we constrain land use together, and add value to both our lands in the process  Tito v. Waddell (Ocean Island), [1977] Ch. 106 (Ch.D)     Exclusive mining rights in exchange for covenant to replant after mining Miners sell to Waddell, who continues the mining, then leaves without replanting Applies Halsall—can‘t take benefit without assuming burden Invoked because it was the only way left, considering:  Benefit but not the burden of a contractual promise may be assigned  Burden of positive covenants cannot run with land at law or in equity Government Insurance Office v. K.A. Reed Services Ptdy. Ltd., [1988] VR 829 (SC Full Ct.)  Rejects Halsall; holds it was ―based on an illusory foundation‖  Freehold Covenants: Enforcement at Equity **4. Running of the Burden in Equity **  Adopted to overcome the Common Law principle that the burden of covenant could not run with Land Quadrant #3: Burden in EQUITY Tulk v. Moxhay (1848)  Tulk owned enclosed gardens ―Leicester Square‖  He conveyed it to Elms and his heirs and assigns with a Covenant that they would maintain the gardens and keep it uncovered from any buildings, and they had keys and privilege to use the gardens  Gardens then conveyed to Moxhay, but conveyance did not include the covenant in the deed, but he had notice of the covenant at the time of conveyance  Moxay planned on building on the Square, Tulk brought an order to prevent him Issue: Is the covenant enforceable? Held: We can restrain Moxhay as a Court of Equity  You bought it with NOTICE  It would render the land retained by the covenantee (Tulk) worthless (other tenants couldn‘t use gardens, wd diminish the value of his retained land)  Purchaser paid reduced price for land b/c of restriction on it (covenant). Not fair if he could turn around and sell it the next day for more than he paid for it, since the subsequent purchaser would not be bound by the covenant if we didn‘t allow it to pass. This argument is kind of weak, since subsequent purchaser will know of covenant on land, so he knows that A can‘t build on it himself, so B won‘t have to pay higher price b/c A won‘t have any use for the land if he can‘t build on it, so B will have good bargaining position  burden of the covenant can pass in equity where there is a bona fide purchaser for value with notice. Requirements for Burden to be Passed in EQUITY We‘ll enforce the covenant in Equity if: 29 1. Notice to an assignee of the covenantor in order for burden to run in equity ie. if assignee of covenantor is a bona fide purchaser for value w/o notice, covenant is NOT enforceable *Consider the position of a squatter who takes possession of the covenantor‘s land; will the covenant be enforceable against the squatter? Nesbet and Potts (1905): Court held that even though the squatter may not have notice, the squatter NOT a bone fide purchaser for value so the covenant will be enforceable w/o notice 2. Covenant must be NEGATIVE or restrictive covenant 3. Covenantee must Retain Land benefited by the Covenant, and which land must be somehow identifiable in 4. Covenant Must Touch & Concern the Land 5. Must be Intention of original parties to bind successors, and not just the covenantor personally Quadrant #4: Benefit in EQUITY Requirements for Benefit to be Passed in EQUITY: 1. Covenant must Touch & Concern the land (same as in LAW), AND 2. Assignee must show Entitlement to the Benefit: a. Covenant was Annexed to land  Deed expressly states that covenant is for the benefit of an identified parcel of land, or for the benefit of present and subsequent owners of the land  Whether cov. is annexed to all or part of the land   Dominant tenement must be identified in the deed b. Covenant was assigned in Addition to the conveyance c. Covenant was b/w owners of land in building scheme  Developed imposes mutual covenants on purchases of neighbouring lots for benefit of development as a whole Annexation Did parties INTEND this to be personal only, or a property interest? If annexed to land, and dominant tenement is identified  shows intention to create property interest Ask yourself: Do I need the burden to run to solve this problem? If YES, then need to follow Equity Rules Policy rationales for enforcing covenants  The Duke of Bedford v. The Trustees of the British Museum (1822), 39 ER 1055 (Ch.D)    Duke applied for injunction to restrain museum from building extension  Court rejects—―the character of the adjoining lands had been so altered with reference to the land conveyed, that the restriction in the covenant had ceased to be applicable according to the intent and spirit of the covenant‖ Judge in Tulk distinguishes Duke on grounds that ―the party who was seeking against the other the performance of the covenant, had himself, by his own acts, placed the property under such different circumstances that it was perfectly manifest that there was no reciprocity; the parties were not in any way in the same situation‖ Social policy motivation to give ‗business efficacy‘ to longstanding arrangements Requirement of notice Re Nisbet and Potts‘ Contract, [1905] 1 Ch. 391 (Ch.D)  Squatter isn‘t exempt from enforcement of covenant just because he doesn‘t have notice because he‘s not a bona fide purchaser White v. Lauder Developments Ltd. (1975), 60 DLR (3d) 419 (Ont. CA) 30  Passing of covenant must satisfy requirements of provincial registration statutes which may define process for establishing effective notice Requirement That the Covenant Be Negative Haywood v. The Brunswick Permanent Benefit Building Society (1881), 8 QBD 403 (CA)     Court has no jurisdiction to enforce positive covenant to build and repair Can only enforce covenants that restrict use of the land Positive covenants=unenforceable against assignee of covenantor in equity Negative / restrictive covenants=enforceable against successors in title of covenantor  Test for determining positive / negative is in substantive  Covenant can be negative in content but phrased positively, e.g. ―to use the property for residential purposes only‖  OLRC--Commentary  Existence of covenants may enhance alienability by protecting amenities of neighbourhoods and comptetitiveness in business  Negative-only rule ―operates to defeat the legitimate expectations of the parties‖  No principled rationale for rule  Recommended law should be reformed to permit burden of affirmative obligations to run Requirement that Covenantee Retain Land Benefited by Covenant  Enforceability of covenant burden in equity requires covenantee retain land benefited by the covenant  Homeowner‘s association unable to enforce restrictive covenant because it owned no land capable of benefiting  ―personal‖ covenant distinguished from those that relate to land owned by covenantee  English CA held Council couldn‘t enforce restrictive covenant against covenantor‘s successor in title because LCC held no land to benefit  Court held municipality‘s proprietary interest in its streets was sufficient as a ―dominant tenement‖ to support a restrictive covenant  Covenant between municipality and developer non-enforceable against assignees because municip didn‘t own land capable of benefit  Wouldn‘t ignore requirements imposed since Tulk because it was too late to return to 1849 position and ―decisions affecting real property upon this basis of which titles are passed and accepted should not lightly be disturbed‖  ―A restrictive covenant enforceable between persons other than the original parties is, in effect, an equitable interest in property‖  Burden didn‘t run because land to be benefited wasn‘t identified in the agreement  In absence of description, court assumed it was a persona benefit and didn‘t touch the land Re British United Automobiles Ltd. and Volvo Canada Ltd. (1980), 29 OR (2d) 725 London County Council v. Allen, [1914] 3 KB 642 Daly and City of Vancouver (1956), 5 DLR (2d) 474 (BC SC) One Twenty-Five Varsity Road Ltd. v. Township of York (1960), 23 DLR (2d) 465 (Ont. CA) Canadian Construction Co. v. Beaver (Alberta) Lumber Ltd., [1955] SCR 682 Ballard‘s Conveyance, [1937] Ch. 473 (Ch.D) 31  Burden of covenant couldn‘t run because not reasonable that covenant could benefit a huge dominant tenenment (1,700 acres) Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd., [1974] 1 WLR 798 Review   Court will generally accept covenant that benefits land unless there is evidence it would be unreasonable principles for running of the burden of a covenant in equity now require:  notice on the part of the assignee of the covenantor  negative or restrictive in substance (can’t be positive)  land benefited by the covenantor retained by the covenantee  intention on the part of the covenantor to bind successors and not just the covenantor personally Benefit of the Covenant     if assignee has only equitable interest in land, legal principles won‘t apply where assignee wishes to enforce covenant against assignee of covenantor, enforcement depends on equitable principles for running of the burden of the covenant, i.e. assignee must satisfy equitable rules for running of benefit for benefit to pass to assignee in equity, must ‗touch and concern‘ the land, as in legal principles assignee must demonstrate entitlement to benefit  show that covenant was annexed to land expressly or by implication, thus benefit is assigned along with the conveyance, or,  show covenant was between owners of parcels of land comprised of a building scheme Annexation  occurs where deed expressly provides covenant is for benefit of identified parcel of land or for benefit of present and subsequent owners of benefited land  Galbraith v. The Madawasaka Club Ltd., [1961] SCR 639  Covenant entered into purchasers of land from club was held to be unenforceable because deeds didn‘t refer to any land to be benefited  Covenant didn‘t touch and concern land—merely personal  No express annexation of the benefit of the covenant to any lands of the club   Re Sekretov and City of Toronto, [1973] 2 OR 161 (CA)  Covenant unenforceable because dominant tenement couldn‘t be ascertained from the deed Federated Homes Ltd. v. Mill Lodge Properties Ltd., [1980] 1 WLR 594 (CA)  Annexation requires deed specify whether covenant applies to tall or part of the covenantee‘s land  Presumption to apply to all unless contrary intention appears Express Assignment  Assignee may be able to enforce in absence of annexation if covenant was expressly assigned  Generally must be assigned simultaneous with conveyance of estate  Personal covenants not enforceable  Assignment must identify benefited land Development Scheme  E.g. developer imposes mutual covenants on purchasers of all lots in defined area for benefit of development as a whole 32   Creation of community interest among purchasers held in equity to require reciprocity of obligation among vendor and all purchasers Elliston v. Reacher, [1908] 2 Ch. 374 (Ch.D)  Equity requires:  Common vendor who clearly defined lands subject to schme  All lots made subject to similar covenants  lots sold with the intention that covenants should be for benefit of all lots in scheme  all purchasers purchased in expectation that covenants applied to and were intended to benefit all   Dorrell v. Mueller (1977), 16 OR (2d) 795 (Dt. Ct.)  Common vendor may not be required where land is registered under Land Titles Act McGregor v. Boyd Builders Ltd., [1966] 1 OR 424 (HCJ)  Recognition of building scheme requires and clear notice to purchasers of its existence CHAPTER 7: CONCURRENT INTERESTS AND “FAMILY” PROPERTY Shared interests: more than one person having a property interest in the same object at the same time  Most often created among family members  Statutory reforms have greatly changed the nature of shared interests  Shared or concurrent interests in property also represents an important challenge to dominant concepts of individual ownership and ―private‖ property. In relation to environmental protection efforts, for example, it may be argued that interests in air or water are held ―in common‖ by everyone. 2 main types of Concurrent Interests: 1- Joint Tenancy 2- Tenancy in Common Consequential Difference The Right of Survivorship: Joint Tenancy ONLY  When one joint tenant dies, the interest of the deceased tenant is extinguished.  The Survivor, alone, is now entitled to exclusive possession, so survivor‘s interest is correspondingly enlarged (becoming exclusive)  The major consequence of Right of Survivorship is that upon your death, your interest in the land is terminated, and you have no interest to pass on in your will.  This does NOT apply to Tenants in Common When to use which one?  Joint tenancy is preferred in situations where there are advantages to eventually having only one owner (as the effect over time in J.T. is to reduce the number of co-owners to one remaining title-holder)  They make title searches less complicated  UK require all legal concurrent interests to be held in joint tenancy (since legislative reforms in 1925)  Common law prefers J.T because of concerns of efficiency and convenience, especially in the context of title-searching., and equity prefers T.I.C (for reasons of certainty, fairness, and immune from right of survivorship)  J.T. most often used by married couples (who plan to stay together their whole lives, with the survivor becoming sole owner by right of survivorship, to devise the interest to children or others)  Rising divorce rates may change this 33 Simultaneous Death of Joint Tenants  This possibility is now regulated by statute. In Ontario, the Succession Law Reform Act, RSO 1990, c. S.26, s. 55(2).  Regulated by statute: each person is ―deemed to have held as tenants in common‖ Corporations  Section 43 of the Conveyancing and Law of Property Act, RSO 1990, c. C.34 provides that two or more corporations, or a corporation and an indvidual, ―are and have been‖ capable of holding property as joint tenants in the same manner as individuals (subject to the usual conditions for the acquisition and holding of property by a corporation in severalty).  Subsection 2 provides that when a corporation that holds property as a joint tenant subsequently dissolves, ―the property passes to the other tenant Conceptual Differences: The 4 Unities Joint Tenancy Tenancy in Common 1. Unity of Possession 1. Unity of Possession 2. Unity of Interest: interests must be equal in size and duration ie: both life estates, both leaseholds, etc. 3. Unity of Title: interests must be created in the same deed/document 3. Unity of Time: interests must be created to commence at the same time *The absence of any of the last 3 means that co-ownership is by T.I.C A) Interest of Joint Tenant: unified interest in the whole estate  Each and every joint tenant is ―wholly entitled to the whole of the land‖  Do not hold shares in the property  Entire estate is vested simultaneously in each and all of the co-owners  Joint tenancy is thus an amorphous kind of co-ownership in which the entire estate or interest in property—rather than any defined proportion or share in that property—is vested simultaneously in each and all of the co-owners.  Most common example: the matrimonial home of a husband and wife B) Interest of Tenant in Common: undivided fractional share (ie: ½ or ¼ )of the whole  But, this share is UNDIVIDED ie: cannot identify a particular part of the land that is his ½, because Unity of Possession is enjoyed fully by all of the tenants in common  You both have rights to possess the whole land regardless of shares, this only matters when you ―cash out‖ Creation of Joint Tenancy / Tenancy in Common McEwen v. Ewers and Ferguson [1946] (Ont. HCJ) Issue: Did the 2 sisters hold their concurrent interests as Joint Tenants (J.T) or Tenants in Common (T.I.C.)? ―to become the property of my daughters jointly and should they decide to sell the said property each of them is to have an equal share of the proceeds of the said sale‖ 34 A) Under the common law  interpreted as the creation of a J.T. (this was the Default position) B) Now, presumption reversed under statute (Conveyancing and Law of Property Act)  unless an intention sufficiently appears on the face of the will, it must be interpreted as T.I.C. (this is the default position under statute)  If you‘re unclear in drafting today, T.I.C is the default when in doubt: “anything which in the slightest degree indicates an intention to divide the property must be held to abrogate the idea of joint tenancy, and to create a tenancy in common.”  Formula to create Joint Tenancy if you want one: ―grant BA to A and B as Joint Tenants and not as Tenants in Common‖ (it‘s that simple). o Must be clear and pure o Must be deliberately created Here, testator shows an intention to create a joint tenancy with the word ―jointly‖, but also clearly shows intention to create T.I.C. with ―equal share‖. Held: Tenancy in Common: o The word ―share‖ implies T.I.C. o Where ―jointly‖ and ―equally‖ have been used found for T.I.C o Where words of division are used ―to be divided‖ or ―equally‖, it creates a T.I.C. **Language is very important in determining how to classify the concurrent interest – not solely dependent on meeting the requirements of the Unities (i.e. unity of possession, interest, title, and time). Fatal Language: 1- ―Shares‖: Tenancy in Common 2- ―Right of Survivorship‖: Joint Tenancy Severance of Joint Tenancy Process of changing from a J.T. to a Tenancy in Common Acts that destroy one of the 4 unities results in severance of J.T. and the creation of a T.I.C. Severance eliminates the Right of Survivorship so that the co-owners (now Tenants in Common), hold undivided shares that are devisable.    Joint Tenancy may be Severed in 3 Ways: Williams v. Hensman 1. Alienation: an act of any one of the persons interested operating his own share may create a severance as to the share.  Ie: I can sell my interest to B  Once I‘ve sold my interest, 2 of the unities have been broken: a. Unity of Time: interest created at different times b. Unity of Title: interest created in 2 different documents/deeds  B and remaining person now have a Tenancy in Common  NB: Alienation cannot be accomplished by giving away your interest in your will – Right of Survivorship will get there first 2. Mutual Agreement: Contract principle of exchange/considerationcan severe joint tenancy  Joint tenants agree to sever and become Tenants in Common  ie: negotiations with lawyers was enough to show the intention of both parties to sever J.T. even though there wasn‘t an express deed Robichaud v. Watson p.646 3. Course of Conduct: Any course of dealing sufficient to intimate that the interest of all were mutually treated as constituting a tenancy in common  when a severance depends on an inference of this kind without any express act of severance, it will not be suffice to rely on an intention, with respect to the particular share declared only behind the backs of the persons interested  Williams v. Hensman ―without an express act of severance, it will not suffice to rely on an intention to 35 sever, with respect to a particular share, declared only behind the backs of the persons interested‖ English influence today: In theory, if one of the unities is destroyed, or if the common or unilateral intentions are shown to exist, there is a severance, and nothing else need be considered Fodden:  Situation not conceived of as an exchange (like in #2), not an exchange of promises in contractual means  Is this agreement by conduct? Rationale (2) 1. Is notion that ppl might not have knowledge of these rigid property law categories, so we‘ll give effect to what they want, even if this hasn‘t been explicitly stated? 2. Or is there a need for communication in order to make sure there are no unexpected surprises?  Legislation has been passed to allow an owner to add a Joint Tenant (ie: he owns his house, and wants his new bride to be a Joint Tenant with him) by conveying it to himself, to satisfy the Unity rules: Example: If I convey B.A. to myself, I now have destroyed: 1-Unity of Time 2-Unity of Title  Now a Tenant in Common Severance of a Joint Tenancy  Acts that destroy the unities result in a severance of the joint tenancy and creation of a tenancy in common. It eliminates the right of survivorship so that the tenants in common now hold undivided devisable shares.  Three ways to sever a joint tenancies, Williams v. Hensman, 1861: o They can agree to sever the tenancy and then become tenants in common. o An act that intimates that the interests of all were treated as a tenancy in common  Robichaud v. Watson, 1983 ON: A cohabiting couple that held property as joint tenants separated. There were negotiations to settle, the husband made an offer that was refused and sometime later he was murdered. The court concluded that the negotiations indicated that they regarded themselves as tenants in common, so the fact that the guy was murdered severed the interest. One half passed to the mother‘s estate.  Morgan v, Davis, NB, 1984: a couple was negotiating for a divorce but the mere fact of separation is not sufficient for there to be a severing of the interest. When the husband died, the court held that the right of survivorship operated in favour of the wife. o A person can act unilaterally without the permission, or sometimes without the knowledge of the other tenants. o ―Having regard to their attitude and course of conduct, it is not difficult to infer that the parties, following the incomplete negotiations and the divorce accepted the situation wrt to joint tenancy as it was prior to the negotiations. I am satisfied they knew and understood the meaning and significance of the title being registered in their joint names and neither did anything to change that situation. No severance & by virtue of joint tenancy title to the ppt in Q passed Doreen at them moment of donald’s death”  Murdoch v. Barry, ON, 1975: the wife executes her joint tenancy as a tenancy in common and then wills it to her sister. The husband finds this out after the funeral of the terminally ill wife. The court said this was effective enough to sever the joint tenancy. Also note that if she had survived her husband, this act would have estopped her from claiming the right to survivorship. Severance of a Joint Tenancy by Murder  Severance of a joint tenancy has been confirmed in circumstances where one joint tenant has murdered the other. Schobelt v. Barber, 1966, On HC: imposing a constructive trust relationship where the murderer holds half the land in trust for the other person‘s estate. Prevention of the acquisition of land in an unlawful way. The ct rejected arguments that any modification of the usual rules concerning the right of survivorship would constitute an unacceptable ―further penalty‖ for the murderer, a return of the principle of forfeiture abolished by Crim Code o Four things ct considered: o Permit estate of deceased to accrue to survivor by right of survivorship (rejected should not benefit from wrongful act) o Deprive survivor of right of survivorship (rejected, inherent condition of joint tenancy) 36 o o Vest the estate in the survivor, but the victim should be deemed to have died after the wrongdoer (rejectedwould need massive change in ppt lawfor legislation) Apply the normal rule so that the estate accrues to the survivor, subject to constructive trust of an undivided ½ interest for victim‘s estate (ct adopted this)  POLICY against one should not benefit from ones own wrong doing  For criminal & civil remedies/ punishment available – why add a third remedy by removing right to survivorship (as hiers of deceased could sue for wrongful death) Unintentional Severance of a Joint Tenancy  Severance of a joint tenancy may also occur without an intentional act in the context of bankruptcy and in the execution of a judgment. SEVERANCE IN A FAMILY CONTEXT When people in a relationship own property as a joint tenants, should they be able to severe joint tenancy without a) knowledge of other joint tenant b) consent of the joint tenant Policy Arguments: -Consent may be unreasonable b/c one party may refuse for irrelevant reasons -Once you have notice, that may effect how you prepare your will -Notice – could argue that notice should be confined relationship of common law and marriage b/c of expectation that this would not change Knowlton v. Bartlett (1984) Facts:      Husband and wife owned property as Joint Tenants She left him She secretly executed a deed to herself (conveyed the interest to herself) She then falls ill and dies Her will left the Tenancy in Common to her brother Holding  Joint tenancy can be severed by mutual consent, or by conduct of the parties from which an intention to sever would be inferred. Can also be severed by the act of one of the joint tenants  s.23(3) of the Property Act of this province provides that a person may convey land to or vest in himself o s. 42 of the Conveyancing and Law of Property Act, RSO 1970, c. 85 [now RSO 1990, c. C.34]a person may convey property in himself in like manner as he could have conveyed the property to or vested the property in another person.  Held that execution of the deed constituted severance of the title, and after this, the husband& wife held the property as Tenants in Common.  At the time of her death, she was entitled to a half interest in the property as a Tenant in Common, and her interest passed under the provisions of her will to her brother (Knowlton). Severance: Principles of Interpretation and Notice  The issue of whether a Joint Tenant should be able to sever the Joint Tenancy w/o notice to the other joint tenants remains a matter of debate  Some hold that this should be required b/w spouses in a matrimonial home b/c ―the expectation of the spouses that the consent of both is needed to change the nature of their interests, and that, without that mutual consent, on the death of one, the property will pass to the survivor‖ 37  Saskatchewan is the only common-law province with legislation requiring the consent of other joint tenants before a transfer can sever a joint tenancy Severance and Family Property Statutes  Many statutes contain provisions prohibiting the ―disposition‖ of ―family‖ property (matrimonial home) without the consent of the other spouse. This might preclude severance by one spouse w/o consent of the other.  Horne v. Horne Estate (1987) held that a conveyance by a joint tenant to himself or herself for the purpose of severing a joint tenancy did not constitute a ―disposition‖ for the purposes of the Family Law Reform Act o ―a severance of a joint tenancy neither interferes with nor affects the existing balance b/w spouses with respect to the ownership or occupation of their matrimonial home during their marriage. In practical terms, its only consequence is that the spouses’ undivided half-interests become part of their individual estates, permitting them to devise their respective interests as they wish” EQUITY – Other Basis for SEVERANCE  Equity makes the assumption that people don‘t intend to make gifts  Examples: 1. X grants legal title to A, but B has paid money to X.  It appears as though X made a gift to A  Starting assumption is that ppl don‘t intend gifts, so that A should hold in TRUST for the one who paid, B.  A has legal title (Equity can‘t take this away)  But equity will compel A to hold a RESULTING TRUST for B o This is a rebuttable presumption: If parties bring evidence that it was intended as a gift, then equity will NOT interfere 2. X conveys property to A and B as Joint Tenants.  A paid $100 (1/3)  B paid $200 (2/3)  Equity will assume that B didn‘t intend to make a gift to A of the surplus, but that a RESULTING TRUST is created  Equity says Joint Tenancy not fair, so they are T.I.C. with 1/3 share, and 2/3 share in Equity  BUT, Legal Interests as Joint Tenants are equal and identical A B This is held in Trust for B *In Matrimonial property, Family Law Act alters this RIGHTS AND OBLIGATIONS OF CO-OWNERS C/L principles provided that a co-owner in possession was required to pay ―occupation rent‖ to co-owners out of possession in 3 situations: 1. Co-owner in possession has excluded the other ―Ouster‖ i. Includes ―Constructive exclusion‖ where wife forced to leave home b/c of abuse from husband Dennis v McDonald 2. The co-owners have an agreement respecting occupation and occupation rent 3. Where the circs require that the co-owner in possession be regarded as agent/bailiff for the others Statute of Anne:  An action for accounting may be brought by a joint tenant or tenant in common a/g a co-owner for receiving more than the co-owner‘s just share 38     Co-owner required to account for benefits received as co-owner from 3rd parties, but not for benefits achieved through his own efforts Purpose of Statute was to ensure that the co-owner in possession was not receiving more than his just share In Henderson v. Eason (1851) a former co-owner was not required to share farm profits with absent co-owner who had not been excluded (example of statue of Annes) For a case reviewing many the authorities, see Osachuk v. Osachuk (last section) –the law regarding joint tenants when one is in sole possession and it appears to be an unfair arrangement, amendments with safe guards is appropriate (legislature to decide) ACCOUNTING  When Co-Tenants disagree as to entitlement of share  Unity of Possession: NO difference here between J.T. and T.I.C: each owner is entitled to possession of the whole of the land 2 Common Law Basis for getting Accounting 1. Ouster:  When one co-owner forces the other off the land, he must provide accounting for how he used the land and what proceeds were earned  If I frustrated your use of the land, I need to be accountable 2. Bailiff (rare)  One co-owner asks the other to take care of his half for him  Bailiff can be required to account for what he did with the land Statutory Basis (Statute of Anne)  Provide acct‘g if you‘ve received more than your share  Obligation arises as soon as you come into possession  Usual example: money received comes from land, and is due them both: RENT  Does NOT stand for the fact that you have to make good use of the land o No obligation to account for proceeds that arose out of the capital or labour of the possessing coowner Why? Because would not expect that if farmer LOSES money, that other co-owner should have to share in this loss Termination of Concurrent Interests by Partition and Sale Partition Act, RSO 1990  Permits a court to order the destruction of the co-owner‘s unity of possession by defining boundaries for entitlement to individual parcels  The former concurrent interest is divided into separate units held as sole proprietary interests  If the two parties have conflicting land uses, one of them may invoke the provision of the Partition Act, R.S.O. which provides that co-owners may dissolve the partnership and sell or partition the land.  However, there are some difficulties deciding what to order.  Ordinarily, the courts determine what is to be more advantageous sale or partition. However, the courts generally prefer the land to be sold, and the proceeds divided.  They rarely partition the land, because it is easy to divide, but more difficult to put back together.  Moreover, land is not homogenous, therefore the size may be comparable, but its attributes may be entirely unequal thus leaving the parties at a disadvantage. When should the court order a partition, and when should it order a judicial sale and division of the proceeds? Cook v. Johnston (1970) Facts: The appellant‘s contention is that the remedy ought to have been by way of sale rather than partition 39 Section 3(1) of the Partition Act, RSO 1960 s. 287. 3(1) Any person interested in land in Ontario, or the guardian appointed by a surrogate court of an infant entitled to the immediate possession of an estate therein, may take proceedings for the partition of such land or for the sale thereof under the directions of the court if such sale is considered by the court to be more advantageous to the parties interested. Issue: How should court choose between ordering a partition or a sale? Held: -Partition was more appropriate than sale of the island, b/c there were few similar islands in the area, so it was more advantageous to the parties to partition the island than to take the chances of what might develop if it was sold -Neither of them wd be able to readily find a similar suitable cottage in the area. Morris v. Morris (1917) – in dealing with a similar matter, ―Sale as an alternate for partition is quite appropriate when a partition cannot be made‖ Gilbert v. Smith (1879) – the meaning of the legislature was that when you see the property is of such a character that it cannot be partition reasonably, then you are to take it as more beneficial to sell it and divide. Lalor v. Lalor (1883) – who was deciding whether partition or sale should be ordered, stated: ―I do not think any party has the right to insist on a sale; and it will not necessarily be ordered unless the court thinks it is more advantageous for the parties interested‖ Ontario Power v. Whattler (1904) – court reviewed the legislation giving jurisdicition to the court to order a sale, instead of a partition – court held that it should be partitioned unless it cannot be made without prejudice. If this is so, then the land should be sold and the funds should be divided. Knowlton v. Bartlett - Where co-owners are or have been husband and wife, the considerations may be more complicated. For several years, there was uncertainty about how judges should respond to an application for partition in such cases. - Some of these concerns were addressed in this case, in which Mrs. Barlett secretly executed a deed to herself severing the joint tenancy (before she died) with her husband. She died, leaving her one-half undivided interest as tenant in common to her brother, Kenneth Knowlton. The court in this case considered Knowlton‘s application for partition. - Husband was old, paid maintenance fees (financial hardship) RATIO: - It is open to a Court to exercise discretion with respect to granting or refusing an order for partition or sale. The cases to which I have stated that a Court in exercising this discretion should consider the relative hardship to the parties. - ― I do not attempt to enumerate or describe what reasons would be sufficient for a partition or sale. Each case must be considered in light of the particular facts and circumstances and the court must exercise the discretion vested in its judicial manner having due regard with those particular facts and circumstances and other matters that are fundamental‖ - Court must balance hardship of the parties involved Decision: - I am satisfied that at this time I should exercise my discretion and decline to order the sale of the property. Should circumstances change, a further application can be made to the Court and quite possibly a sale could be ordered at that time. - This decision is simply that at the present time and in the present circumstances I find that an order for the sale of this property would constitute a very real hardship upon Mr. Bartlett and that I should exercise my discretion in these circumstances and decline to order a partition or sale of the property. Factors - (p. 658-659 notes) 40   “Family” Property: A Study in Legislative and Judicial Reforms Matrimonial property is about relationships and ideologies with respect to property. The Historical Background: o Concerning Marriage and Property:  By marriage, the husband and wife are one person in law: that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband  Historical differences between single women and married wives as follows:  Women were free to own, manage and transfer property and enjoy the income attributable to her property and personal labour…but this changed the instant she was married: a) Her tangible personalty, subject to minor exceptions, instantly become her husband‘s property b) She did not lose title to real property formerly held by her soley in fee, but her husband acquired an interest known as jure Uxoris, entitling him to sole possession and control during the marriage. c) The husband had a right to an estate, if a child was born, called ―curtesy‖ d) After their marriage, all real property transferred to the spouses jointly was held in tenancy by the entirety; while the marriage lasted, the husband was entitled to sole control and enjoyment of this property. e) During the marriage, the wife could not contract, sue or be sued on her own behalf f) Her husband was entitled to all of her earnings. - In short marriage converted the wife into a legal cipher, or nonperson.‖ Some commentators have concluded that the legal principle of coverture reflected the biblical teaching that husband and wife become ―one flesh‖ while others have suggested that the principle represented a version of guardianship within marriage. Three different stages: 1) Common law: dower and curtesy. Dower and Curtesy: Common Law Entitlements Dower was a life interest of one third of the husband‘s freehold estates acquired during the marriage. (can no longer enact dowers) -is a problem b/c woman‘s right continued irrespective of husband owning the land (i.e. he could sell property to another and then die and she still has 1/3rd) -to avoid the dower, the husband get property by way of use -when husband sells property to another, the only was the other person can get 100% of land is if wife signs on the conveyance to give property to another person Curtesy was a husband‘s right only if the wife had children. No longer applicable. -when a man married a woman (seized with estates), and they had a child capable of inheriting the estate, on the wife‘s death, the husband held the lands for his life as tenant by the curtesy of England 2) Equity – trusts and settlements. Doctrine of coverture prevented women from acquiring land after marriage. Fathers often transferred lands so that the husbands would not gain an interest. Remember that under law, a husband and wife were like one person, with the husband having the title to everything. -prior to marriage, a woman‘s father could set up a trust in which the father could be the trustee and she would be the benefactor of the separate estate. The trust property could not pass to her husband upon marriage 3) Statute - Married Women‘s Property legislation: 19th C. result was to confer the right to hold property to women in their own names. This created the legal right for women to hold property but because of the patterns of land holding, women still did not benefit greatly. 20th C.: FLA: s.4 p.670. definition of property which is used to determine what property is going to be shared in the event of a marriage breakdown. 41 Until 1978, the rules of joint tenancy and tenancies in common were the norm, but then family law began to change this. According to Connie Backhouse, CAN statutes in the 19th century fall under 3 categories: a) the first and earliest group of statutes objective was to provide emergency relief for wives whose husbands had deserted them and their well being depended on their being able to control their own assets. This did not really encroach common law principles b) Second wave of legislation, gave females ability to hold separate estates which was insulated from her husband and her creditors. This failed to bestow broader dispositive powers. This act was essentially a protected measure diagnosed to function as a form debtor relief in harsh economic climate c) Third wave of legislation – married women control their earning as well as dispositive powers over separate property. But, ambiguous wording and restrictive judicial interpretation necessitated additional enactments to accomplish significant reform According to Backhouse, these legislative purposes of these reform statutes were not implimentaed by the courts and may not serve the interest of women in Canada who were active in trying to allow married women to have property. Based on the above legislative enactments, Blackouse concluded that: ―Feminist initiatives seems to have platyd at some role here. It is generally assumed that the organized women‘s movement did not appear in CAN until 1876 -However, Mossman, examining the genesis of the 1859 Act, uncovered records of a series of publications by Elizabeth Dunlop and other women to the Legislative assembly b/w 1852-1857 -The female lobbyists were claiming that the act of marriage. ― a woman is instantly derived of all civil rights.‖ Placing women‘s property and earnings in the ―absolute power‖ of their husbands -these lobbyists placed emphasis on low income women Overall, the 19th century witnessed a dramatic transformation in the property rights of married women in Canada. From a position of virtual powerlessness in 1800, married women gradually amassed control over their real and personal property, wages, and business by 1900. The changes were initiated by 3 waves of legislation -Some were motivated by a paternalistic desire to provide women with a limited form of income as an emergency measure -Others expressed protective impulses, in which legislators sough to preserve women‘s propetty from seizure from husbands -The later legislation seems to have been enacted largely as a form of self-imposed genuflextion of imperial power – to the extent that the last wave was viewed as a substantive reform – the goals that seem to have been to regulaize creditors rights, by subjecting married women to the same property laws that governmed everyone else -Courts still refuse to recognize domestic work as work done for separate wages. Courts narrowly construed what constituted ‗separate‖ property, and what constituted a ―separate‖ business undertaking, giving married men control over the vast bulk of family asses and business ventures. -even though law and wages appear egalitarian, there is a significant eschew in favour of men Property and the Impact of Divorce Reforms Murdoch v. Murdoch, SCC, 1975: the Murdochs married in 1943 and Mrs. M separated from her husband in 1968. At separation she filed for financial support and a declaration that her husband was trustee for her of an undivided one half interest in property owned by him and in relation to which she claimed they were ―equal partners‖. In the SCC, her claim was based on the doctrine of resulting trust. The court concluded that there was no evidence of financial contribution that would support this claim. This is the lovely part where Mrs. M has done the work of any ―ranch wife‖. Laskin‘s dissent would have recognized the contribution of labour and would have found a constructive trust. Catalyst for legislative reform. Legislating ―Family‖ property reform for Married Spouses after 1968 S. 4 of the FLA, a very broad definition: ―Property means any interest, present or future, vested or contingent, in real or personal property and includes, 42   a) property over which a spouse has, alone or in conjunction with another person, a power of appointment exercisable in favour of himself or herself. In the case of a spouse‘s rights under a pension plan that have vested The total values of the husband‘s property and the wife‘s property are added up, and then divided in two. Because of the broad definition, people are trying to claim unusual things as property. Rathwell v. Rathwell, SCC, 1978: the court recognizes constructive trusts as appropriate in these situations. Even though the Legislative reforms had passed, this outlook remained useful for co-habiting couples who were not married. Corless v. Corless, ON 1987: a wife claimed her husband‘s LLB should be property. The wife had worked to support the husband through law school. She had moved and altered her life so that he could work with the firm he articled at. In 1981, she started a company that had shown no profits. The court held that the degree was property within s. 4 of the FLA but it had no value and was not included in the calculation of the net family property. Entitled to part of her contributions to the acquisition of the degree Keast v. Keast, ON 1986: the medical degree is not property, but because she had put her mature student husband through medical school, she was awarded extra compensatory support. Linton v. Linton, ON, 1988: the medical degree is not property and is not included as part of the net family property of the husband even though his wife had supported him financially to acquire it. In this case also, the wife was awarded substantial and ongoing financial support to recognize her contribution. to N. America to practice dentistry. Two days after attaining his objective, the husband left at a time where their present interests amounted to nothing but the future earnings were substantial. Trial judge says that it is property, imposing a constructive trust on his degree. Appeal to the OCA: this is the end result of this string of cases. Not property but she is entitled to spousal support and the amount is the same as she received from the trial‘s constructive trust. Would have received 150,000 if it had counted as property. 4. How does the court actually deal with the definition in s.4: says that the degree does not fit the definition of real property: it is a licence to work in that particular profession. Its c/c include non-transferability, personal effort, right to work in general (floodgates), valuation of the license – may be unfairly speculative. Characterization of Licence  the only real right conferred on the holder of the licence is a right to work in a particular profession. In assigning property to a licence difficulties arise because it is not a right which is transferable (like regular property) and because it requires the personal efforts of the holder in order to be of any value in the future; and, third, because the only difference between such a licence and any other right to work in its exclusivity. 1. Non-Transferability a. In contrast, the right or licence to practise a particular profession is, by its very nature, a right personal to the holder, incapable of transfer. b. However, rights or things which are inherently non-transferable, such as the right to practise a profession, clearly do not constitute property in any traditional sense. 2. Requirement of Personal Efforts of the Licensee a. It goes without saying that without the personal efforts of the licensee, the licence will produce nothing. b. The policy of the FLA emphasizes principles of partnership during marriage, and selfsufficiency following its termination. When the marriage ends, the partnership ends. Placing a value on future labours of either spouse for purposes of the equalization payment would frustrate those policy objectives. 3. Right to Work in General a. Plumber, carpenter—does apprenticeships before being able to do his trade, or a business executive does university training in an MBA. Should the law consider all of these 43 Caratun v. Caratun, OCA, 1992: Dr. Caratun married the plaintiff and fathered a child so that he could emigrate attainments as property for the purposes of determining the equalization payment under the Family Law Act, either specifically under s. 4, or generally, which would allow the court to treat such attainments as property.   It is clear from the considerations referred to above that there are substantial difficulties, both practical and conceptual treating licences as ―property.‖ - In addition, the valuation of such a right would be unfairly speculative in the matrimonial context. A myriad of contingencies, including inclination, probability or success in practice of the profession, length of physical and mental capability to perform the duties of the profession, competition with the profession, and many others, all render a fair valuation of the licence unusually difficult. But a further potential inequity arises: support orders may be varied if circumstances change, but no amendment of an equalization payment is possible regardless of changed circumstances. - In the matrimonial context, the fallacy lies in treating a licence as property on valuation date, when most of its value depends on there personal labour of the licensed spouse after the termination of the relationship. That future labour does not constitute anything earned or existing at the valuation date. FOR ALL OF THE ABOVE REASONS, its my view that a professional licence DOES NOT constitute property within the meaning of s. 4 of the Family Law Act. J. Knetsch has arged that households are organized so as to maximize the overall economic well-being of the family as a unit, but without necessarily ensuring that the economic capacity of each individual is also maximized. Thus, if and when the unit disappears, some individual family members will benefit more than others, an inequity which matrimonial property rules should redress. the current trend in matrimonial property rules reflects an acknowledgement that houlsehold production is clearly valuable and that wives typically have fewer opportunities to acquire assets. A major rationale for the traditional organization of families and for various preferences for systems of matrimonial property rules is that the welfare of a family is likely to be maximized through a division of labour that allows for the advantages of specialization.  The settlement system (mat. Property rules) that recognizes this is then akin to one offering severance pay for the market labour opportunities forgone and the market skill depreciation of women who have to stay at home and do household chores. However, while specialization as a rationale for family organization (a wife producing household inputs and a husband producing money income)the fact that the traditional roles are so frequently observed may well have more to do with the biases in the system than to any natural ordering that prescribes this as more efficient.  An important variable that is to some extent, but certainly not wholly, beyond the control of individuals is the socialization process that encourages and discourages given interests and activities on the basis of sex.  A related bias is that women generally make smaller investments in human capital particularly in forms useful for wage employment, than do men.  Tax law also bias choices. Major incentive = household production is not taxed, thereby increasing the attractiveness to families of producing such services themselves rather than paying for substitutes out of after-tax earnings.  The lack of flexibility in the labour market, especially with respect to time, imposes another important constraint on family choices.  Another related market deficiency is the generally poor availability of market substitutes for household production.  A further and important bias is caused by discrimination against women in a labour market that decreases their wage returns and leads to a greater emphasis on household production would have been preferred if this restraint did not exist. Critical Perspectives on Property and Professional Degrees J. Knetsch, ―Some Economic Implications of Matrimonial Property Rules‖ - - 44  Self-imposed discriminationwomen are more likely to choose lower paying jobs that are located in familiar and secure settings such as offices, schools, etc., rather than ones offering higher wages but involving exposure to possible harassment or even physical abuse. The distortions in the incentives facing individual family members most likely result in choices in the division of labour that do not necessarily square with their evaluation of all the relevant values, including the erosion in the money income earning capacity of the spouse who provides household services.  Conclusions: - a woman who sacrifices her own career opportunities in order to improve those of her husband is making a bad investment, unless she is able to obtain the benefits of her husband‘s career during the marriage. The wave of family law reform following the decision of the SCC in Murdoch v. Murdoch profoundly altered the rights and obligations of spouses within marriage, and enhanced women‘s property and support rights on marriage breakdown. - In Caratun, the Court of Appeal ordered a lump-sum payment of support for Mrs. Caratun of $30,000, having concluded that the husband‘s degree was not ―property.‖ - Part of the pressure to include ―new property‖ in the family law statutory definitions derives from increasing concern about post-divorce rates of poverty, especially for women and children. Apocrypha (Unassigned readings until Ch. 8 heading) AFTER THIS PARTI DON‘T KNOW WHAT THIS IS—NOT IN READINGS!!! Osachuk v. Osachuk (1971) Facts:        Husband and wife owned two homes Rented upper room in one of these homes They separated Husband continued to live in the downstairs of the house where they rented the upstairs In the beginning, he rented the upstairs and received rent He then stopped renting the upstairs Wife called for an Accounting and sought partition and sale Issues: Wife: The wife objected to the decision allowing the husband to deduct his mortgage payments on account of the real property involved. Husband cross-appealed on the grounds (1) that the claim for accounting was barred by the Limitations Act; (2) that the appellant was not entitled to an equal share of the proceeds because she had not contributed financially to the purchase of the property; (3) that she was not entitled to half of the rent for the unrented apartment; (4) that she was not entitled to half of the value of the rent for the apartment occupied by the husband; (5) that the respondent should have been allowed credit for one-half of the real property taxes and insurance premiums paid by him. HELD: 45      There was no liability of the co-tenant for not having rented a vacant apartment. It was not applicable to this case because there had been no obligation to rent the apartment by the cotenant. The husband did not have to pay the rent for the suite occupied by him since he had not claimed an allowance for taxes, repairs, insurance etc. As far as the mortgage payments were concerned the husband was entitled to deduct one half of the mortgage principal from the proceeds of the sale as the appellant was an equal partner. Her equality was based on the spouses original intention to own the property jointly. Notes: 1. Statute of Limitations argument  Husband says he shouldn‘t have to account for rent b/c it‘s been more than 6 yrs  This is NOT the case  Separate obligation to account arises w/ every rent payment Year 1 Year 5 Year 10 For the last 6 years, ea. payment, new obligation arises 2. Current Expenses  Things you must pay, but do not increase the value of the property  Ie: Repairs, Property Taxes, Mortgage interest  If husband would have asked for accounting of Current Expenses, THEN he would have been ordered to pary occupation rent  He didn‘t ask for the expenses from ex-wife, yet she wanted Occupation from him!  Occupation Rent is only a Counter-Claim for Current Expenses,  wife‘s claim failed.  Co-Owners are Equally entitled to enjoy the land, and unless she was Ousted, he was just exercising his right to enjoy possession!  No payment of rent to wife. 3. What if husband WOULD have rented the upstairs….would wife be entitled to proceeds of rent? Remember, he didn‘t rent it out, and he wasn‘t obligated to b/c he was not an Agent/Bailiff for wife, so wife can‘t require him to rent it; court said NO obligation. Answer: NO, she would NOT be entitled to proceeds.Why Not? (answer a little abstract, bear with me)  All husband can do is compromise his interest  he doesn‘t have title to wife‘s interest, so he would NOT be renting her share of the upstairs  While husband wd be excluded from possessing upstairs once rented, wife cannot be excluded!  Husband has conveyed the leasehold estate of his title, not hers, so this doesn‘t affect her interest at all!  Just because she would be squeamish about living with another person  so what? Court doesn‘t care about this  Remember, these rights were established when privacy just wasn‘t an issue  If uncomfortable, you always have the option of Partition and sale (see Partition Act, above). Think of it like this:  A & B are T.I.C.  B then sells his interest to Q  B & Q are now T.I.C.  You would never say that B is entitled to any proceeds from A‘s sale to Q! Same thing above. ―FAMILY‖ PROPERTY: A STUDY IN LEGISLATIVE AND JUDICIAL REFORMS Family Law Act How to do economic justice b/w married persons 46     Scheme today whereby we calculate the increase in the value of property owned by spouse during marriage, and we share this between spouses ‖Equalizing Payments‖ Creation of personalized debt from richer to poorer Act does not affect ownership at all  still have w/in regime separate property $ Increase in Net Worth: NFP Marriage Date (MD) Time Valuation Date (VD) When you Separate      This increase will be split and shared with poorer spouse ―Net Family Property‖ A) Wife has a NFP B) Husband has a NFP MD and VD are snapshots of your wealth on that given day Family Law Act R.S.O. 1990 4(1) ―Net Family Property‖ means the value of all the property, except property described in subsection (2), that a spouse owns on the valuation date, after deducting, (a) the spouse's debts and other liabilities, and (b) the value of property, other than a matrimonial home, that the spouse owned on the MD, after deducting the spouse's debts and other liabilities, calculated as of the date of the marriage What does this Include?  Pension: easily the biggest piece of property the baby boomers of today have What this does NOT include? ―except property described in subsection (2)‖ 4(2) The value of the following property that a spouse owns on the VD does not form part of the spouse's NFP: 1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage  Spouse didn’t do anything to earn this, so can’t say they deserve entitlement to it 2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse's net family property a. Ie: Parents can give you property worth $100,000. This property is excluded, but unless expressly stated by donor, the income earned on this property (say it increases in value to $125,000) will be shared b. This income has to exist on VD: if you spent it all already, it‘s gone  irrelevant 3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages. 4. Proceeds or a right to proceeds of a policy of life insurance, as defined in the Insurance Act, that are payable on the death of the life insured. 5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced. 6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse's NFP (ie: Pre-Nup: you can contract out of all these rules for sharing) NB: Special treatment for Matrimonial Home 47  Must ALWAYS be included (can never be deducted)  Even if it was a gift to you  Owner cannot deduct it on VD day as what he/she brought into the marriage Definition of Matrimonial Home  s.18 holds that ANY property living in at time of separation is determined the matrimonial home  So if you used to live in a mansion, but you sold it to buy an RV to travel the country, and that‘s what you were living in when separated, THAT IS the matrimonial home for FLA purposes.  You don‘t get credit for things in the past Wife Assets on (VD) $ $ $ 200 100 200 Husband $ $ $ 500 $ $ 300 $ $ 250 NFP 100 $ 200 NFP 200 $ 100 50 50 200 * $ * $ 300 Debts on (VD) $ (200) Net Value on (MD) Subtract assets you brought into the marriage – that’s yours; you don’t have to share it. $ (50) Assets = 100 Debts = 50 Net= $50 *brought $50 into marriage *Jointly owned Home - Mkt. Value that Day Assets = 0 Debts = 100 Net= $(100) *brought $100 debt into marriage Husband is bringing Debt into Marriage on MD  s.4(5) holds that you cannot have a negative NFP, always minimum of zero  Net Value on Marriage Date can be negative  For equalization payment, only fair to add back in the debt that you brought  that‘s foregone savings since we paid this off; if you hadn‘t brought in that $100 in debt, we‘d be $100 richer!  NFP is then divided in HALF Constructive Trust  Primary utility for couples who are not married  Can be used for married couples too (see below) Problems: 48       Can be injustice since MD and VD are snapshots – not looking at in between What if value of good rises considerably after VD? Ie: rise in property value with massive inflation Why should owning spouse get this whole increase? If he would have sold it on VD day, got the proceeds and split it, she would have had this $ to invest during this time Court: Ownership  the ―owner‖ should gain the benefits Equity  Constructive Trusts s.14 Abolishes the presumption of ―gift‖, applies a Resulting Trust Presumptions 14. The rule of law applying a presumption of a resulting trust shall be applied in questions of the ownership of property between husband and wife, as if they were not married, except that, (a) the fact that property is held in the name of spouses as joint tenants is proof, in the absence of evidence to the contrary, that the spouses are intended to own the property as joint tenants; and (b) money on deposit in the name of both spouses shall be deemed to be in the name of the spouses as joint tenants for the purposes of clause (a). R.S.O. 1990, c. F.3, s. 14. Resulting Trust  An interest in property for (wives) that they would otherwise not be entitled to  Transfer of money shows that person is buying something, so A should hold on trust for B because of B‘s contributions If contribution is in Labour form, (ie: housekeeping, farming, etc.), court has to make a Value Judgment:  Have to recognize effort as work or ―money‘s worth‖  Indirect non-financial contribution (so harder to see the causal link as with a direct $ contribution)  Hard to value the work  no real market value for being a housewife  Human behaviour and effort & work, doesn‘t necessarily mean contribution in a commercial sense ie: ―these are acts of love, not contributions‖; love is not commercial s.5(7) Provides for right to Equalization Payment for Household Duties: (7) The purpose of this section is to recognize that child care, household management and financial provision are the joint responsibilities of the spouses and that inherent in the marital relationship there is equal contribution, whether financial or otherwise, by the spouses to the assumption of these responsibilities, entitling each spouse to the equalization of the net family properties, subject only to the equitable considerations set out in subsection (6). R.S.O. 1990, c. F.3, s. 5. Cases     The SCC in Thompson v. Thompson held that in the absence of financial contribution, the wife was not entitled to a proprietary interest in property from the mere fact of marriage and cohabitation. The majority in Murdoch v. Murdoch followed this decision. Laskin dissented and held, that a constructive trust must be recognized where there is a significant contribution of physical labour beyond ordinary housekeeping duties. The important thing to note is that the majority decision led to public outcry, and the Federal Law Reform Commission held that; the existing laws discriminate against married women, and are no longer acceptable in contemporary society. Accordingly a number of statutes were reformed, including the Family Law Act. Outlines 3 requirements for a valid claim of unjust enrichment – Wife gets Constructive Trust Pettkus v. Becker (1980) SCC FACTS:  Miss Becker and Mr. Pettkus lived together, but were not married.  They both worked extremely hard and lived together and built up a successful bee/honey business  Everything was in Mr. Pettkus' name.  After some years, there was a fight and they separated. 49  She is now suing for a declaration of entitlement to ½ interest. ISSUE: Is there a resulting trust and or a constructive trust? And if so, how is it apportioned between the two parties? Was there unjust enrichment? RULING: The court held that there was a Constructive Trust and therefore Becker gets ½ interest. NOTES :  The court held that when Becker contributed she had a reasonable expectation of receiving an interest in the property.  Moreover Pettkus freely accepted the benefit, and should have known of that reasonable expectation. Therefore, it would be unjust to allow him to retain it exclusively. The court found that there was unjust enrichment, by applying the Rathwell requirements : i.) Enrichment ($) and ii.) Corresponding deprivation, the person who created the enrichment is not deriving benefit (hard work) iii.) Absence of any juristic reason for the enrichment  gift  contract ie: employee  loan If no juristic reasons, need remedy: 1. Compensation or 2. Constructive Trust  No juristic reason was found, this decision over turned Murdoch v. Murdoch, where wifely duties were sufficient to find juristic reasons.  Court refused to create a resulting trust because there was no common intention to create legal relations either express or implied  Court held that Ms.Becker had not intended to make a gift of her money and labour to Mr.Pettkus but he denied that he intended to hold the property for her benefit, thus, could not be a resulting trust but a constructive trust  Denning: ―Each gave their all…she was a tiny woman, and carried a great deal of weight….‖  she gets HALF.  Constructive Trust: operates to give title to contributing party, as if Pettkus was holding it for Becker CHAPTER 8: Current Challenges in Property Law: The “Public” Nature of Private Property M.A. Glendon, The New Family and the New Property  The classic formulation of the individual‘s increasing dependence on new forms of wealth was made by Charles Reich in his 1964 article, ―The New Property.‖  He emphasized the role of government as a major source of wealth  Today, more and more of wealth takes the form of rights or status rather than of tangible goods. To the individual these new forms of property such as a profession, or right to receive income are the basis of his various statuses in society, and may thus be the most meaningful and distinctive wealth he possesses. With regard to governmental benefits, the US Supreme Court, starting with Goldberg v. Kelly, began to award the most important of them the status of ―property‖ for purposes of due process.  What entitlements have in common, is that all are devices to aid security and independence. Justice Brennan in above case agreedhe held that ―welfare benefits are a matter of statutory entitlement for persons qualified to receive them,‖ and that New York could not terminate them with prior notice and hearing…It may be realistic today to regard welfare entitlements as more like ‗property‘ than a ‗gratuity‘. Much of the existing wealth in this country takes the form of rights that do not fall within traditional common-law concepts of property.‖ 50   Not only is the individual acquiring more legal rights with respect to his particular job, he is seen as having a right to have work.  This has not become accepted constituional doctrine, but it has increasingly become official state policy  The changing law has been a sensitive indicator of the fact that, for the majority fo Americans, the most important relations in their lives, so far as economic security is concerned, is their own actual or potential employment relationship, with government and the family serving as back-up systems.  Maintenance is increasingly linked to employment, particularly through pensions, insurance and social security; and it is increasingly becoming the concern of the social welfare state.  In its day, the unilateral dismissal rule reflected and interacted with the growth of industry just as strict legal limits on divorce at that time ―fitted‖ the prevailing model of marriage as a support institution. The current law reflects and interacts with newer social trends, welldeveloped in the late 20th century, toward grounding the individual‘s social standing and economic security in work or employment-related benefits backed up by gov‘t, rather than in family relationships. The Job as Property: Access, Instability, and Ambiguity  Women and members of certain racial and ethnic minority groups have limited access to the preferred forms of new property (good jobs and fringe benefits) that at present are the important sources of economic security in our society.  they may be bound to a different kind of status, locked into welfare dependence and public housing. Discussion Notes—―New‖ Property in Welfare Benefits and Jobs?  According to Reich, ―There is a world of difference between allowing government to hold in its hands the individual‘s survival, and vesting this power in the individual. The former is tyranny, even if administered by the most reasonable bureaucrats. The latter is what this country is supposed to be all about‖  Richard Epstein criticized the decision in Goldberg. Since the overall funds available could be spend either on direct payments to recipients or on procedural safeguards for them, the court‘s decision effectively reallocated governmental priorities in relation to the welfare budget.  ―Public benefits have a pedigree different from that of any of the other forms of new property with which they are sometimes confused… . [By contrast with these other intangible property rights,] welfare rights are not designed to allow the exploitation of new forms of wealth, nor to facilitate the aggregation and efficient use of capital… . Welfare benefits are transfer payments that rely on the taxes imposed upon some in order to provide the benefits that are received by others.  Just as differences in underlying assumptions about property may lead to divergent views of the correctness of Goldberg, they may also lead to different outcomes in relation to issues of job security, etc. Protection of ―New‖ Property Interests in Intangible Objects  Proprietary interests such as copyrights, patents, and trademarks have been traditionally recognized as intellectual property and are now usually regulated by statute.  According to Epstein, these forms of proprietary interests however, should be categorized as ―old property‖ because they are distinguishable from new property claims to governmental benefits. Epstein argued that intellectual property interests create incentives to productive labour that is enhanced by legal protection. ―New‖ Property, ―New‖ Property, and Homelessness  Pamela Symes suggested that recognition of welfare entitlements and jobs as forms of new property offers no guarantee that everyone will have access to them, just as access to traditional property is not available to all. 51  There may be protection but is there freedom? There is more than a hint that the ―new property‖ could be a new tyranny.  Traditional property brought independence. On the contrary, so-called new property very often reveals a new dependence. And so I am suggesting that the real measure of property is the degree of freedom from dependence, freedom of selfdetermination. Real property than is real choice—and the key issue to be explored is that which eliminates choice—the dependence on the state that new property creates. The Need for Reform of Property Law? M.J. Mossman, ―Toward ‗New Property‘ and ‗New Scholarship‘‖   20 years after Laskin so stated the challenge to the law teachers, the question is whether the state of property scholarship in Canada has fundamentally changed, or even changed at all. Property scholarship is daunting in Canada because: 1. property and civil rights are matters within provicinal jurisdiction under the Cdn constitution; any assessment of property scholarship should therefore take account of published work in several different provinces 2. property law is more dependent upon statutes than upon common law principles—statutes enacted several centuries ago 3. absence of any constitutional principles overtly protecting proterty rights. Canada has no constitutionally entrenched property rights.  Property Law Scholarship is daunting generally because: 1. the meaning of property is not constant. The actual institution, and the way people see it, and hence the meaning they give to the word, all change over time…The changes are related to changes in the purposes which society or the dominant classes in society expect the institution of property to serve. 2. a legal scholar who works in the property area is much more likely to be a specialist in municipal zoning, or charitable trusts, or matrimonial property; he or she is much less likely to be interested in drawing connections and pointing out similar themes among these categories. Property Scholarship: A Preliminary Appraisal  It is perhaps noteworthy that the legal periodical literature seems to reflect at least in quantitative terms, attentiveness by legal scholars to some of the controversial property issues of the past 2 decades.  Most Cdn legal writing in property law reflects little interest in the methodology of its inquiry; it is a ―closed‖ system in which persons with legal training read the reasoned arguments of other persons who are legally trained and then critique the reasoning or the logic or the precision of the writing  The author finds doctrinal explication less meritorious than legal writing that pursues these broader issues. The Development of Property Analysis 1. The Doctrine of Estates in Land  The first is that they misrepresent the variety of legal ideas that flourished in the medieval period, when the basic concepts of modern land law were being established. The history is usually presented as an inexorable drive to universal fee simple estates held in free and common socage tenure.  The approach of the casebooks generally presents five centuries of development of land law concepts as if change occurred in a legal vacuum. In the end, the vision of legal change and esp. its relation to political, economic, and social factors is incomplete and often misleading.  With a few exceptions, the legal writing evidences no interest in modern reform of the principles developed under feudalism in England. 52 However, since such legal changes would affect not just those holding interests in land, but also those lawyers who manage the existing law—the lawyers have a self-interest not to advocate to change/develop law away from what they know already. 2. Landlord and Tenant  End of 1960s, law reform proposals regarding residential leases were significantly altering the legal rights and obligations of tenants.  Nonetheless, except for the law reform documents, there is little in the scholarly legal writing of the period that examines the impetus for the law reform initiatives. Nor is there much in the legal writing after 1970 that assesses the effect or significance of the legal changes introduced by amendments to residential leasehold law across Canada.  Underlying economic principles is also ignored which is likely to distort the analysis of the law of landlord and tenant, just as ignoring medieval history is likely to result in a distorted understanding of basic doctrines of land law.  A broader perspective is also needed here to understand the legal change that has occurred within a few decades in the landlord-tenant context and to appreciate the possible relationship between legal and social change.  The challenge for Canadian legal scholarship in landlord-tenant law is to assess in the broader context, the neutrality of the law and its inherent limits. 3. Matrimonial Property  If the legal scholarship on land tenures generally ignores the socio-political context, and the legal scholarship on landlord and tenant law seems to discount the impact of economic forces, the legal scholarship on matrimonial property appears imprisoned in both outmoded historical conceptions and larger economic forces.  Matrimonial property seems to sit somewhat uncomfortably in the midst of life estates; it is as if matrimonial property does not deserve treatment on its own, but must be ―fitted in‖ somewhere in the traditional schemes of things.  Perhaps because of this choice about the method of presentation, the underlying values of the reform legislation and the microcosm of its social and economic context are scarcely addressed.  There has been no substantial and fundamental re-thinking in Cdn. property scholarship of the role of law in allocating wealth between husbands and wives when marriage ends in divorce. Towards Blackacre‘s New Horizons…  This review of 3 areas of scholarly interest within property law demonstrates a range of different types of analytical problems.  In the context of title to land, the scholarship evidences a lack of contextual understanding‘ this results in a rigidity of thinking about basic concepts in modern property analysis and an institutional disinterestedness in legal reform.  The legal scholarship too often seems to view law in a vacuum, a practice that results in masking the underlying forces and values that shape the development of legal principles.  This approach is however, consistent with the interests of the legal profession in maintaining a system, which because of its intricacy, reinforces dependence upon lawyer‘s services in property transactions.  Thus it seems much of the scholarship on property is essentially doctrinal rather than normative, comparative, or interdisciplinary.  Yet, there is a crisis: a demand that property law demonstrate coherence to the external (non-legal) world and that principles of property law be adapted to provide protection for new interests, including those of tenants, and wives on marriage breakdown.  Because ‗property‘ is simply a conceptual construct of law, there is no logical reason to deny ―new property‖ claims. HOWEVER, the structure of our society cannot admit new claims without (inevitably) modifying older ones because the concept of property is essentially a distributive mechanism for society‘s benefits.  What does seem necessary, however, is a recognition that societal changes external to the legal system now make the property less and less a matter of only ―private law‖: 53    There is…a shift of attention from the property whose paradigm is the household, the walled-in or marked off piece of land … to the corporation, the hospital, the defence establishment … whose ―property‖ spreads throughout the society and whose existence is dependent upon subsidies, state protection, public provision of facilities, etc…Property becomes social in the sense that its base and its effects can no longer be contained within the framework of the traditional picture. The complexity of the demands means that it is unlikely that any one scholar, or type of scholar, can perform the whole task. Both those who are legally trained and those trained in other disciplines may participate; scholars with experience of ―law in action‖ and those without it may all offer useful insights. What seems most critical for the future of property scholarship is to focus attention on these issues in the classroom, and to help students to appreciate the experiential nature of legal ideas and not just their content.  Discussion Notes  Those who have acquainted themselves with [the law‘s] provisions have generally neither the time nor the inclination to undertake any other tasks than that of administering [the law] as an existing system. Besides, when a man [sic] has mastered an intricate and difficult system, he takes a positive pleasure not only in the superiority which his knowledge gives him, but in that knowledge itself. Appendix: Legal Dimensions (Property) The Role of Lawyers in Addressing Property and Human Rights Violations in an International Context: A Case Study of the Chixoy Dam Massacres in Guatemala Goal:  to get full compensation and just reparations the World Bank (WB) and the Inter-American Development Bank (I-ADB) for indigenous survivors of the Rio Negro community History:  Discrimination and exploitation of the Mayan-Achi community (indigenous to Rio Negro)  Military regime trained, armed & financed by US o Carrying out systematic massacres, disappearances, torture, rape against its own Mayan population  Large scale development project funded by WB & I-ADB o Ill-conceived plan (no community consultation) o Reason for genocide (as held by UN Truth Commision) o Displacement from homes to make way for Dam Construction (1975-1985) o More than 440 townspeople murdered o WB and I-ADB deny contributory role, deny knowledge of goings-on  WB 3 yrs after massacres of ‘82 gave additional $44.6 mil loan (no mention of attacks in loan docs)  1996 publication of a Witness for Peace report on Chixoy violence prompted the Bank‘s role  Locals claim everyone knew of corruption  Journalist: whole are was under sieze, head of security for project ordered massacres  WB personal worked in supervisory capacity btn 1979-1991 o ―The Chixoy reservoir was built with the blood of our people‖ o Banks claimed would beek poor Central American nation cheap sustainable power o Violence first struck March 4, 1980  March 13, 1982 o Blood flow heaviest on this day o 80++ family member lost on that day of one man 54 o o Guatemalan Armed Forces (GAF) gathered nearly 200 people that day: told them going to meeting and began to rape the women and kill Total of 178 people killed on this one day Present:  Surviving victims, still traumatized & living in worse poverty conditions than before  Struggle for proper compensation  WB claims to have taken corrective action in an improved resettlement plain  People claim this has failed to occur: no fertile land, no titles to houses, no potable water and no cash payments for lost crops  Project NEVER produced more than 70% capacity  Costs overrun inflated price tag Future:  All rights must be gte‘d  All actors must be held accountable  Impoverishment and repression must be dealt with as systemic and systematic violations of overlapping human rights  Governments and powerful economic actors should be held LEGALLY responsible  Impoverishment is NOT God-given or Natural  Should focus on ALL rights, not just ltd range of poli and civil o Much human rights work avoided analysing and denouncing the vicious cycle between repression and impoverishment o Nobody accepts responsibility  Should focus on ALL actors o Private and Political  Entitlements and Accountability are the key to battling the vicious cycle  Recognize: violations of human rights that lead to poverty and repression arise from deliberate policies and actions of wide range local, national and international actors WB:  On paper, WB policies are considered among most comprehensive in world  Policies require: o Local communications o Avoid displacement o Restoring std of living o Respecting vulnerabilities of indigenous peoples  There is a gap btn rhetoric and policies  WB doesn‘t take into acct political dimensions of human rights in it lending decisions unless violations of human rights has created conditions hostile to effective implementation of projects o Logic of this positions is questionable Impoverishment and disempowerment of displaced persons violates the Bank‘s mandate of poverty alleviations, YET this still occurs  The Inspection Panel is a permanent, quasi-independent body that receives complaints about violations of Bank policies directly from local people affected by bank-dinanced projects o Allows 2+ people to rqst indy investiation into Bank‘s role in project o Claim must focus on actions of omissions by WB policy framework o Mngmt given full opportunity to reply o Panel doesn‘t have oversight authority over the implementation of those remedial measures & not able to assess mngmt‘s response o Results with the Panel have been mixed o Problem with Panel: People need to have courage to report  WB needs to play a constructive role in promoting human rights and the rule of law 55 - - Take responsibility for ensuring actions not undermine human rights If incidents like this happen, the issue of land ownership becomes paramount. Try to develop a jurisprudence. o Ct will hear the case and come to a conclusion  Ct lack remedial powers to fashion a doctrine that requires an administrative machinery to administrate  Ct can‘t order there docket  Ct no control of parties that appear before it  With these criticism its still doesn‘t answer Q if following a judicial decision, whether the state will support decision Constitution pre-dated peace accord, together they recognize indigenous rights. Q does this apply retrospectively to help these people. These constitution just give legal effects to one having an attempt to recognize what was all ready the case Good Gov & issue of Liability WB INS failed to have necessary procedures in place or to force them, like enron an account of liability. Political dimension that is very important to understand o o Professional Responsibility & Access to Justice: Lawyers &Disadvantaged Client Groups Brian Bucknall: Pajelle Investments Ltd v. Herbold: On the Importance of Having a Convenient Enemy  Parkdale Legal Services (PCLS) stormed the heights of SCC and triumphantly planted its flag  1st review by Ont. Crts of provisions of s.96 (no longer) Landlord and Tenant Act: re: LL‘s obligation to provide and maintain rented premises in good state of repair fit for habition  Common law contained no obligation on LL to repair except where life and health in danger  Tenants legal estate was seen to be separate from K‘l covenants which sustained estate  Breach by LL of K‘l obligation  specific performance not grounds for termination  Part IV: o Amended various aspects of common law o Security deposits strictly regulated o Rights to distrain against a residential tenant‘s chattels was abolished o K‘l doctrines imported into LL-T relationship o Security of Tenure o Regulation of notices of rent increases and review of rent increase  Section 96: o LL responsible for maintaining and fixing premises during tenancy o Tenant responsible for ordinary cleanliness and repair of damages caused by willful or neg conduct o Summary applications to judge to enforce above & judge could  Terminate tenancy  Authorize repair paid by person responsible  Further orders deemed appropriate  PCLS: o Set in working class area of T.O. with an agenda and mark to pursue o Needed an easily recognized enemy vulnerable to attack: Enter Phil Wynn and West Lodge Towers (WLT)  WLT = complex of 2 high rise in low-income area  Built in accordance with relatively good stds  A/C, sauna/swim pool  Wynn: not an indifferent or distant LL, relation w/tenants were personal, whether good or bad (was both) o Mrs. Herbold = tenant  1971 rented in WLT  cold mos = heat was fitful and irregular  A/C was non existant 56 o  Sauna never operative  Swimming pool closed and drained of water  Went to PCLS for help Crt HELD: violation s.96, Herbold to have abatement in rent of $20 for next 6 mo BUT termination was relief rqst‘d  Herbold‘s position: He didn‘t give me what he advertised and I want out  BUT Herbold rented a suite not a swim pool, defective a/c not near apt., extent of LL obligation to keep in good repair not violated under restrictive reading of the legislation    Appeal: o At Div Ct = successful Next to CA: o Focus of decision = an abatement had been granted for which one had not been applied o Was a highly useful review of s.96, Herbold success again Next to SCC: o Accepted submission that: While s.96(1) covered entire building the provisions of 96(2) should be confined to area exclusively leased to tenant o S.96(3) broad enough to permit order for relief of rent o Agreed w/lower crt interp of act on whole June 20, 2002: Submissions to the Ont. Ombudsman  To investigate the fairness of practices and procedures under the Tenant Protection Act for the eviction of tenants  Process followed by Ont Rental Housing Tribunal fails to meet the Fairness Stds est by Ont. Ombudsman b/c: o Tenants not afforded a fair opportunity to have a hearing by tribunal before eviction o No mediation w.LL before eviction o Application fees prevent low-income tenant from paying rent in arrears and keeping their housing  Eviction applications have increased 28% since TPA in 1998  58% resulted in eviction w/o hearing or mediation b/c tenants don‘t meet 5day deadline for filing wrt dispute  No rent controls on new tenancies  5 day default is unique in Ont legislation  Tribunal has failed to est.clear process that tenants can follow when illegally locked out by LL to get into housing  TPA should govern rent increases in cost of utilities  Tribunal‘s pamphlets assist LL applicants although tenants are responding to eviction application in 86% of cases  Default order process hurts tenants  Hence, there is still much improvement needed re: LL and Tenant law  THAT‘S ALL FOLKS Table of Authorities (Cases, Alphabetical) CASES , Ackroyd v Smith (1850) (ER, Common Pleas): ..................................................................................................................... 84 Armory v Delamirie (1722) ........................................................................................................................................................... 14 Asher v. Whitlock [1865] ............................................................................................................................................................. 17 Attwater v. Attwater (1853) ...................................................................................................................................................... 37 Austerberry v. Corporation of Oldham .............................................................................................................................................. 99 Ballard‘s Conveyance, [1937] Ch. 473 (Ch.D) ............................................................................................................. 102 57 ( )( ) ........................................................................................................................................................................ 94 Barton v Raine (1980)(Ont. CA) ................................................................................................................................................... 90 Bashall v. Bashall: ............................................................................................................................................................... 74 Bata v. City Parking Canada Ltd. [1973] Ont C.A. ......................................................................................................................... 57 Beaudoin v. Aubin (1981) ............................................................................................................................................................. 27 Bland v. Moselely ....................................................................................................................................................................... 93 Bridges v Hawkesworth......................................................................................................................................................... 16 Bridges v. Hawkesworth ................................................................................................................................................................. 15 British American Oil Co. and DePass (1959) Ont CA ...................................................................................................................... 62 Brookins v. Canadian National Railway Co. (1974) ................................................................................................................... 59 Brumagim v. Bradshaw (1870) ....................................................................................................................................................... 21 Bunn v. Markham ............................................................................................................................................................... 72 Calder v. British Columbia, SCC, 1973 ........................................................................................................................................... 32 Canadian Construction Co. v. Beaver (Alberta) Lumber Ltd., [1955] SCR 682 ................................................... 102 Caratun v. Caratun, OCA, 1992 ...................................................................................................................................... 114 Clavering v. Ellison .................................................................................................................................................................... 40 Cochrane v Moore (1890) .............................................................................................................................................................. 72 Cook v. Johnston (1970) .............................................................................................................................................................. 110 Corless v. Corless, ON 1987 ............................................................................................................................................ 114 Cunliffe v. Brancker (1876)........................................................................................................................................................ 44 Dalton v. Angus ........................................................................................................................................................................ 93 Daly and City of Vancouver (1956), 5 DLR (2d) 474 (BC SC) ................................................................................. 102 David v. Town Properties Investment Corporation Ltd., [1903] 1 Ch. 797 (CA) ................................................... 96 Deglman v. Guaranty Trust .............................................................................................................................................. 80 Delgamuukw, BCCA, 1993 .......................................................................................................................................................... 32 Dobson v Tulloch (1994)(Gen. Div.) ............................................................................................................................... 88 Dorrell v. Mueller (1977), 16 OR (2d) 795 (Dt. Ct.) .................................................................................................... 104 Duke of Norfolk’s Case (1681).................................................................................................................................................. 43 Elliston v. Reacher, [1908] 2 Ch. 374 (Ch.D) ............................................................................................................... 104 Elwes v. Brigg Gas Co. (1886) ........................................................................................................................................... 17 Errington and Errington (1952) ................................................................................................................................................. 62 Fairweather v. St. Marylebone Property Co. Ltd.: HL, 1963 ............................................................................................................... 25 Federated Homes Ltd. v. Mill Lodge Properties Ltd., [1980] 1 WLR 594 (CA) .................................................. 103 Fitchett v. Mellow................................................................................................................................................................ 88 Galbraith v. The Madawasaka Club Ltd., [1961] SCR 639 ....................................................................................... 103 Giecewicz v Alexander (1989) ........................................................................................................................................................ 92 Gilbert v. Smith (1879) ........................................................................................................................................................... 111 Government Insurance Office v. K.A. Reed Services Ptdy. Ltd., [1988] VR 829 (SC Full Ct.)......................... 100 Grafstein v. Holme and Freeman (1958)......................................................................................................................... 17 Guerin v. The Queen, SCC, 1984 ................................................................................................................................................... 32 Gypsum Carrier Inc v the Queen, 78 DLR (FC TD) ......................................................................................................................... 83 Halsall v. Brizell: .................................................................................................................................................................... 99 Hannah v. Peel (1945) ......................................................................................................................................................... 16 Haywood v. The Brunswick Permanent Benefit Building Society (1881), 8 QBD 403 (CA) ............................ 102 Heffron v. Imperial Parking Co. [1974] Ont C.A. ............................................................................................................................ 56 Henderson v. Eason (1851) ...................................................................................................................................................... 110 Hibbert v. McKierman (1948) ........................................................................................................................................... 17 Hill v Tupper (1863) (Ex. Chamber) .............................................................................................................................................. 85 Hill v. Attorney General of Nova Scotia, (1997) (SCC) ...................................................................................................................... 87 Hindley v. Marquis of Westmeath (1827).................................................................................................................................... 37 Hirtle v. Ernest (1991 NS SC) ...................................................................................................................................................... 88 Hodson v. Marks (1971) ..................................................................................................................................................... 81 Horne v. Horne Estate (1987) ......................................................................................................................................... 109 Hunter Engineering Co. v. Syncrude Canada Ltd. .............................................................................................................................. 55 In Re Cole (1964) ........................................................................................................................................................................ 74 In Re Ellenborough Park [1956] (Ont. CA) .................................................................................................................................... 85 58 International News Service v Associative Press (1918) US Supreme Court ................................................................................................ 7 Isreal v. Leith (1890), 20 OR 361 (QB) ............................................................................................................................ 90 Jengle v Keetch (1992) (Ont. CA) ................................................................................................................................................... 86 Kay v. Parkway Forest Developments ....................................................................................................................................... 69 Keast v. Keast, ON 1986 ................................................................................................................................................... 114 Keefer v Arillotta (1976), 13 OR (2d) 680 (CA) .............................................................................................................................. 26 Keppell v. Bailey (1834), 39 ER 1042 (Ch.) ..................................................................................................................... 98 Knowlton v. Bartlett .......................................................................................................................................................... 111 Knowlton v. Bartlett (1984) .......................................................................................................................................................... 108 Kowal v. Ellis (1977) ............................................................................................................................................................ 16 Lalor v. Lalor (1883) .............................................................................................................................................................. 111 Leech v. Schweder ....................................................................................................................................................................... 93 Leichner v. Canada, OCA, 1997 ................................................................................................................................................... 26 Linton v. Linton, ON, 1988 ............................................................................................................................................. 114 London County Council v. Allen, [1914] 3 KB 642 ..................................................................................................... 102 Lysaght v Edwards (1876)............................................................................................................................................................. 76 M and N Properties (Cassandra Towers) v. Ryll ................................................................................................................................ 69 Mabo v Queensland (1992) ............................................................................................................................................................ 10 Masidon Investments v. Ham (1982) ............................................................................................................................................... 27 Mason v. Clarke (1955) ....................................................................................................................................................... 82 McEwen v. Ewers and Ferguson [1946] (Ont. HCJ) ........................................................................................................................ 105 McGregor v. Boyd Builders Ltd., [1966] 1 OR 424 (HCJ) ........................................................................................ 104 McLean v Reid (1978) .................................................................................................................................................................. 25 McPhail v Persons ............................................................................................................................................................... 19 McRae v. McRae (1898)............................................................................................................................................................ 37 Metro-Matic Services Ltd. V. Hulmann (1973) Ont. CA .................................................................................................................. 63 Metropolitan Toronto Condo Corp No. 949 v. Irvine (1992) ................................................................................................................ 70 Millroy v. Lord, 1862 ........................................................................................................................................................... 72 Minichiello v. Devonshire Hotel (1967) ............................................................................................................................................ 58 Money in Walls (hypothetical)(1988) ................................................................................................................................................ 14 Moore v. RT 1956..................................................................................................................................................................... 40 Moore v. UCLA [1990] Calif. Supreme Court ................................................................................................................................... 8 Morgan v, Davis, NB, 1984.............................................................................................................................................. 107 Morris v. Morris (1917)........................................................................................................................................................... 111 Murdoch v. Barry, ON, 1975 ........................................................................................................................................... 107 Murdoch v. Murdoch........................................................................................................................................................ 120 Murdoch v. Murdoch, SCC, 1975 ................................................................................................................................... 113 Nesbet and Potts (1905) ................................................................................................................................................... 101 O’ Reilley (No.2) (1980) ............................................................................................................................................................... 24 One Twenty-Five Varsity Road Ltd. v. Township of York (1960), 23 DLR (2d) 465 (Ont. CA) ...................... 102 Ontario Power v. Whattler (1904) ............................................................................................................................................ 111 Osachuk v. Osachuk ................................................................................................................................................................ 110 Osachuk v. Osachuk (1971) ........................................................................................................................................................ 116 Pacific Wash-a Matic Ltd v R.O. Booth Holding Ltd. (1979) .............................................................................................................. 64 Pakenham’s Case (1368), YB Edw. 3., Co. Litt. 385a ............................................................................................................ 98 Paradise Beach and Transportation Co. Ltd. V Price Robertson [1968] ................................................................................................. 24 Parker v British Airways Board [1982] ........................................................................................................................................... 14 Peel Non-Profit Housing Corporation v. McNamara and Cherry (1990) ................................................................................................ 71 Perry v Clissold ............................................................................................................................................................................ 18 Pettkus v Becker (1980) ...................................................................................................................................................... 74 Pettkus v. Becker (1980) SCC ..................................................................................................................................................... 120 Phipps v Pears 1965 ..................................................................................................................................................................... 92 Pierson v Post ....................................................................................................................................................................... 12 Piper v Stevenson (1913)................................................................................................................................................................ 22 Purefoy v. Rogers ................................................................................................................................................................ 47 59 R in Right of B.C. v. Tener:........................................................................................................................................................ 83 Rathwell v. Rathwell, SCC, 1978..................................................................................................................................... 114 Re British United Automobiles Ltd. and Volvo Canada Ltd. (1980), 29 OR (2d) 725 ........................................ 102 Re Casner (1883) ...................................................................................................................................................................... 37 Re Chauvin (1920).................................................................................................................................................................... 43 Re Corbit (1905) ....................................................................................................................................................................... 37 Re Dollar Land Corp. Ltd. and Solomon, [1963] 2 OR 269 (HCJ) ........................................................................... 96 Re Essex (County) Roman Catholic Separate School Board and Antaya (1977) ...................................................................................... 38 Re McColgan (1969) .................................................................................................................................................................... 40 Re McLean 1940 ...................................................................................................................................................................... 40 Re Nisbet and Potts‘ Contract, [1905] 1 Ch. 391 (Ch.D) ........................................................................................... 101 Re Sekretov and City of Toronto, [1973] 2 OR 161 (CA) ........................................................................................... 103 Re St. Clair Beach Estates Ltd. v MacDonald (1974) ........................................................................................................................ 22 Re Thorne (1922) ...................................................................................................................................................................... 37 Re Tuck’s Settlement Trusts (1978) ............................................................................................................................................ 37 Re Tulk Settlement .................................................................................................................................................................... 38 Re Waters (1978) ........................................................................................................................................................................ 39 Regent Oil v. J.A. Gregory (Hatch End) Ltd., [1966] Ch. 402 CA ........................................................................... 96 Robichaud v. Watson, 1983 ON ..................................................................................................................................... 107 Rylands & Fletcher ............................................................................................................................................................... 5 Sandom v. Webb .................................................................................................................................................................. 90 Schobelt v. Barber, 1966, On HC ................................................................................................................................... 107 Semelhago v Paramadevan .............................................................................................................................................................. 77 Shellmex ................................................................................................................................................................................ 63 Smith v. Snipes Hall Farm: ............................................................................................................................................... 97 South Staffordshire Water Co. v. Sharman (1896) ......................................................................................................... 16 Spencer’s Case (1583), 77 ER 72 (KB) .............................................................................................................................. 95, 96 St. Catherines Milling & Lumber Co. v. The Queen 1888 .......................................................................................................... 30 Starlite Variety Stores Ltd v. Cloverlawn Investments .......................................................................................................................... 80 Steadman v. Steadman, [1976] AC 536 (HL) ................................................................................................................................. 87 The Duke of Bedford v. The Trustees of the British Museum (1822), 39 ER 1055 (Ch.D) .............................. 101 Thompson v. Thompson............................................................................................................................................................ 120 Thompson, Turner v. Spooner ........................................................................................................................................... 6 Tichborne v. Weir (1892), 67 LT 735 (CA) ..................................................................................................................... 96 Tito v. Waddell (Ocean Island), [1977] Ch. 106 (Ch.D) ............................................................................................ 100 Tulk v. Moxhay (1848) .............................................................................................................................................................. 100 Tupper v. Campbell (1876), 11 NSR 68 (SC).................................................................................................................................. 92 United Steel Workers v US Steel Corp. (1980 )US ............................................................................................................................ 10 Vannini v Public Utilities [1973] 2 OR 11 (Ont. HC)................................................................................................... 85 Ventura Park Housing Co-operative Inc. v. Conway (1994) ................................................................................................................. 70 Victoria Park Racing v. Taylor [1937] High Court of Australia .................................................................................................... 4 Wainwright v. Miller (1897) ...................................................................................................................................................... 37 Walsh v. Lonsdale (1882) ............................................................................................................................................................. 78 Walsh v. Lonsdale (1882), 21 Ch.D 9 (CA) ..................................................................................................................... 87 Wheeldon v. Burrows (1872) (CA).................................................................................................................................................. 89 White v. Lauder Developments Ltd. (1975), 60 DLR (3d) 419 (Ont. CA) ............................................................. 101 Wibe v Lpp(1974) .................................................................................................................................................................... 59 Williams v. Hensman .................................................................................................................................................................. 106 Williams v. Hensman, 1861 ............................................................................................................................................. 107 Wong v. Beaumont (1965 QB) ....................................................................................................................................................... 89 Wright v. Macadam ................................................................................................................................................................... 93 Wrotham Park Estate Co. Ltd. v. Parkside Homes Ltd., [1974] 1 WLR 798 ........................................................ 103 60