Offer to Sell Real Estate Propety

							  Nemo Dat Quad Non Habit – can only give as good a title as you have
  FS rights are considered “complete” from the earth to the heavens

  Shelley’s Rule: “heirs” were words of limitation delineating the size of the estate, not
  words of purchase. The inclusion of “heirs” is no longer required due to the
  Conveyancing and Law of Propety Act.

  LIFE ESTATES – are a mechanism to divide the FS estate over time. When X grants to
  A for life the estate does not pass to A’s heirs but reverts automatically back to X (this
  right of reverter is an estate in land). LT has use and possession of the land, and can
  alienate his or her interest, in which case the buyer purchases an interest pur autre vie
  which reverts back to X on A’s death. LT has the responsibility to use the land properly
  and cannot create equitable waste which renders the land less valuable.

  CONDITIONAL ESTATES – create future interests

  CONDITION PRECEDENT

  CONDITION SUBSEQUENT
  X to A on condition that he not marry – A has FSCS, indefinite duration, alienable
  subject to CS.
  X has right of re-entry (not automatic) if condition is met, transferable to his heirs, and
  alienable.
  If A dies w/o marrying it becomes a FS.

  DFS
  X until A marries
  X has automatic right of reverter, inheritable and alienable (so long as it is not a
  personal interest)
  If A dies w/o marrying it becomes FS.
  • not subject to RAP b/c possibility of reverter vests immediately with the grantor – no
  abeyance of seisin.

               Key Words              Implication                Effect of a Void                  Example
Estate        “if and when”     Cond of acquisition        Entire device and transfer is     John devises to
subject to                      Event must occur for       void when the CP is void          Mary in fee simple
Condition                       interest to vest           (contrary to public policy)       if and when she
Precedent                                                                                    turns 21
Estate        “on condition     Cond of retention          Cond Sub struck out if it         X to A in fee
subject to    that”             Interest has vested        fails                             simple on condition
Condition     “provided         Right of re-entry if                                         that A does not
Subsequent    that”             condition occurs (if not                                     marry Y
              “but if”          exercised, in 10 years
              “if it happens    becomes FS absolute)
              that”
Fee Simple    “until”           Cond of retention          Entire device is void             X to A so long as A
Determina     “while”           Automatic Right of                                         teaches high school.
ble           “so long as”      reverter
              “during”          Reversion interest
              “while”           If event does not occur
                                = FS absolute

  *courts when looking at void try to: honour intention of grantor, do not want transfers
  to fail. If possible, they will try to maintain the instrument T/F PREFER CS to DFS

  CS over DFS
  Essex – Cts prefer CS b/c it contains an independent clause that may be struck out,
  otherwise entire instrument fails. In Essex it was found that the condition that the grantor
  “reserves to himself and his heirs the preference to buy the property at current price
  should the same cease to be used for purpose intended” was “superadded” to the grant.
  Furthermore, according to the Educaiton Act, once SB was in possession for 50 years all
  restrictions are removed.
  FSD not subject to the RAP.

  CP
  Re Tuck’s settlement (trust settlement)
  While conceptual uncertainty of a condition will render it invalid, evidential uncertainty
  does not where extrinsic evidence can resolve issues of uncertainty.

  CS over CP, void for uncertainty (“staying” on the farm)
  Re Down
  Cts will struggle to give effect to the testator’s intentions- to keep farm in family.
  The test for conceptual certainty for CS or FSD is that the “condition must be such that
  the Court can see from the beginning, precisely and distinctly, upon the happening of
  what event it was that the preceding vested estate was to determine”

  LE over license
  Re Waters
  Try to give effect to the tesator’s intentions, read each clause in the context of the will.
  “for as long as she lives” is sufficient to create a LE, which the LT can alienate by renting
  (presumably could sell her interest). LT’s failure to maintain the house is not sufficient to
  create a reversion.

  LE over license (where it fits intention of the grantor)
  CS over DFS (despite “until”)
  Re McColgan
  Cts will construe a DFS as a CS if they want to preserve the grant. Condition of “residing
  there personally” void for uncertainty (ie. vacation, hospital) – need to be able to ID from
  the beginning what event would cause the estate to be terminated.
  • “until her death” = LE
  • wills must be viewed in the context of the circs of the testator, beneficiaries and the
  estate itself.
Future estate with vested remainder (stays away fr grantor forever, is vested with the
termination of the prior particular estate)
X to A for life, remainder to B
A has particular estate

Contingent remainder – there is a condition to be met before the interest vests on the
termination of the prior estate.
Remainder to B if B ….

RAP applies if person is not ascertained or CP.
The rule against perpetuities states that if an interest is valid it must vest, if at all, within
the perpetuity period, calculated by taking the lives in being at the date the instrument
takes effect plus 21 years. If it is possible for the interest to vest outside of the
perpetuities period then the grant will fail. The rule does not state however that the
interest must vest, just that it must not be possible for it to vest outside of the perpetuities
period.

The policy behind the rule is to strike a balance between the rights of prior and present
owners of property, by limiting remote vesting, that is cut off legal rights to land after a
certain point, promoting the alienability of land and investment in upkeep of land as well
as to avoid land remaining unclaimed. The lives in being are anyone named directly or
indirectly which in this instance would be … Historically, the unenforceable condition
would be voided, however here as it is a CP or DFS the result of voiding this condition is
that the entire grant would fail. However, as courts always wish to honour the intentions
of the grantor, and clearly the grantor wanted A to inherit the estate, they may try to find
a way to save the instrument.

The courts will be aided by the Perpetuities Act has modified the RAP by creating a
"wait and see" period, in which the courts presume that a contingent interest is valid and
wait for the perpetuities period to run out before assessing the contingent interest. At that
point they will see if ….. However the new perpetuity period institutes an ultimate
perpetuities period of 40 years after the grant takes effect (PA s.15.3).

TRUSTS
In ON the courts of law and equity were joined in 1860, meaning that now Cts of law
administer equitable remedies and employ equitable doctrines such as income trusts,
which are not subject to corporate tax as the trust holds legal title to the asset on behalf of
the corp.

USES
A to the use of B
A holds the legal interest and is seised of the land where B has an equitable interest. The
advantage is essentially tax avoidance - B’s interest is not subject to common law
remainder rules, transfer taxes and in feudal times was not subject to feudal incidents

STATUTE OF USES
Uses outlawed by Henry VIII, striking out the party “holding” party’s legal interest
making the “user” the legal owner. Conveyancers circumvented the rule by adding
another use. Uses are still in effect in ON.

ABORIGINAL TITLE
• exception to the rule that property can only be held by those with legal personality,
Delgamuukw – the sui generis aboriginal title is vested in the aboriginal nation which is
a grouping of natural persons. The interest is not part of common law.
Leroy Little Bear claims that from an aboriginal perspective, there is no such thing as FS,
but other parties have a claim to the land such as animals, plants
• inalienable – Crown still the owner of abo land
• Delgamuukw – to assert title in 1st instance
        1. Land must have been occupied pre-sov
        2. property must have been continuously occupied from before sovereignty to the
        present.
        3. At sovereignty, occupation must have been exclusive
                • challenge for a hunting and gathering society

PERSONAL PROPERTY
Chattels – not attached to the property other than by it own weight
Fixtures – Real property so long as it is attached – can become chattel
Accretions – degree of attachment is such that it cannot be removed w/o damage to its or
the property.

Real property can become chattel (ie chop down a tree)
RBC v. Nielson – chattel becoming a fixture, part of the RP for the purposes of a
mortgage.

MINERAL RIGHTS are a type of real property that is transferable. Crown may reserve
mineral rights on a deed.

FINDERS (after 2 years becomes absolute LA, true owner is barred)
According to the principle from Armoury v. Delamirie, finders have a right of trover against all
but the true owner. This right is also subject to claims by other finders and occupiers. Property
law rules regarding the rights of finders are based on a hierarchy of interests: the true owner will
always have the best claim, followed by the finder, the possessor of the land, and the trespasser or
wrongdoer who although he has the weakest claim, despite the illegal circumstances of his
finding, may have a claim to a found object in the absence of a superior claim to the property
(Bird v. Fort Frances). The finder can only claim a right where he has taken control of the chattel
and it has been abandoned or lost (BA). The purpose behind these principles of finders’ law is
that every piece of property must have an owner to encourage alienability and maintenance of the
object, similar to property law’s aversion to abeyance of seisin.

This situation highlights inadequacies in the labour theory of property articulated by Locke that
the person who mixes her labour with an item establishes ownership over it

Pierson v. Post (fox hunting)
• first possession is the basis for establishing a proprietary interest
• possession requires a “clear and unequivocal act of possession” to take control of property. This
principle represents the common law theory of possession that favours certainty, requiring a
system of symbols that society understands as communicating possession.

Dissent in Pierson and the majority in Perry v. Gregory that the custom of the group should be
used to determine what the clear act of possession is.

Perry (metal detecting) LABOUR THEORY
• person who makes 1st efforts will be the one who has legal title (but Epstein – first possession
not apply to areas not yet exploited by individuals or nations, ie. oceans)
• good faith will be taken into account

INTENTION
.Grafstein – box found while renovating next door
• The Ct will assume an intent to possess through the physical act of possession if possessor
maintains control over the object.
• Finding occurs when the value is discovered.

Christie – must be intention to exercise control in order for it to be considered possession

OCCUPIERS
British Airways conflicting rights of finders/occupiers
• the owner/occupier of the land which is public cannot be presumed to be in possession of
chattels in that area unless they can demonstrate that they manifested an intention to exercise
control over the building and things in it. This is a high threshold, which requires in this case a
regular search for lost articles
• occupier’s interest would be greater if object were attached to the real property.
• finder and occupier have an obligation to try and find the true owner
• occupier’s rights apply to vehicles
• an employee takes it into care and control on behalf of employer.
• landowner will be preferred over a trespasser.
Crit: distinction between chattel being attached to property and “on” it is tenuous (Follows).

Elwes v. Briggs - The party who holds legal title to RP has a claim to chattels attached to the
ground of the RP.

Bridges v. Hawkesworth
party who has legal occupation (ie. renting) of the property and has private and exclusive control
has a claim to chattels w/i that property, but no claim to chattels that are w/i a public area of the
occupier's premises over which the occupier is not exercising control.

Kowal v. Ellis A finder will have superior rights to the occupier if she finds something that is not
attached to the ground, and which the occupier does not know about,over which the occupier is
not asserting manifest control, so long as he is not trespassing.
• Finder is in a bailment rel with the true owner.

South Staffordshire –
• things embedded in the property give occupier primary rights.
• occupier must prove his intention to exercise control was obvious
Hannah – Mere ownership of the property is insufficient to establish a superior claim, particularly
where the owner is not in occupation of the home.

JOINT FINDING
Keron v. Cashman – intention is an element - possession is not determined just by who first takes
personal possession. If the value of an object is realized jointly it should be shared jointly.

Edmonds – 3 kids take $ to the police
an essential element is the state of mind to keep possession of the money

WRONGOING
Bird – trespasser on private property
• Even if the finder is trespassing he has a claim to the chattel against all but the true owner.
• Possession will not be lost so long as the power of assuming effective control remains (ie.
giving $ to mom)

EMPLOYEES (BAs)
Appleyard
• workers cede finders rights to their employer, particularly where the LH explicitly reserved the
right to anything of value found.

South Staffordshire Water v. Sharman –
• employees cede their rights as finders to their employer.

ABANDONMENT
Moffatt – articles which appear lost (tin of money left in house that was sold)
True owner has superior title even if they have forgotten about the property unless they abandon
it, give it away, or sell it.

AG (Canada) v. Brock) (man denies $ in his car, heirs try to claim it)
Abandonment requires voluntary relinquishment with intention of terminating ownership without
vesting the ownership in anyone else. There must be no intention to reclaim it or resume
possession.

Weitzner v. Herman (woman tries to keep $120,000 found in a recently purchased home)
abandonment requires that there be no intention to repossess
ADVERSE POSSESSION

Possessory title is a common law concept in which the legal owner, the holder of paper
title, is separate from the person in possession. The basic principle is the same as that for
chattel: possession of property is a type of estate which can be defended against the world
except the true owner (Armory v. Delamaire). It is a FS estate, as it is of indeterminable
length, subject to being cut off by the true owner, which exists from the time possession
commences.

In order to assert a claim for possessory title, P must show that they had been in
possession for the 10-year possessory period (unless it is Crown land – 60) by s.15 of the
RPLA. Land titles had previously been registered under the imperfect system of the
Registry Act which allowed for possessory claims, but was converted to the LTA in
2004, under which no new possessory claim to title can arise. However titles that are
converted to the new registry are subject to prescriptive claims such as easements as well
as outstanding possessory claims from the old registry system. The possessory period
continues to run under the LTA and would be satisfied if the other conditions for adverse
possession were met.

The policy of the limitation period regarding possessory title relates to the answering of
questions dating back to the feudal period: who is seised of the land and how can this
seisin be transferred. The courts here are also interested in the "quieting" of legal title -
determining who is the true owner, in order to achieve greater certainty in the law. To this
end, courts want to cut off legal rights at a certain point, so that an owner need not be
concerned about very old claims arising to challenge his ownership, in addition to
promote the use of the land and increasing certainty by giving notice to the world of who
owns the land.

TEST:
D must demonstrate animus possendi - occupation with intention of excluding the owner
as well as other people. ….Where there is no explicit expression of an intention to
possess, if the facts give rise to open, obvious, continuous and exclusive possession, an
intention to possess will be presumed.
Open – meant to induce certainty
Continuous – relative concept
Piper

St. Clair Beach Estates
Offer to purchase the property shows they do not have possession
TEST: actual possession for statutory period

• Possessor has an estate of indefinite duration (FS) which can pass by inheritance or
transfer (Asher v. Whitlock).
• a person in possession cannot gain a larger estate by possession that in held by the
person with the right of ejectment (Fairweather)
• limitations period agst true owner only begins to run when periodic tenancy ends
(Cadillac Fairview).

MORTMAIN – in ON can be seen in the Religious Orgs Act” which limits the amount of
land that can be held indefinitely for charitable uses as it was land that was not generating
property tax income for the state.

QUIA EMPTORES – 1290 – forbade subinfeudation (the further division of land to
create further feudal relationships), fixing the feudal pyramid and confirmed the right to
alienate any interest in land without consent of the lord, only by substitution.

LEASEHOLDS are estates in land for a fixed duration

MORTGAGES
Lawrence v. Maple Trust overturned CIBC Chan, holds that where a mortgage is
fraudulently obtained, the person who obtains title from a fraudster acquires no interest as
against the person defrauded because the registrant (Maple Trust) had an opportunity to
investigate and avoid the fraud. B/c homeowner has no opportunity to avoid the fraud.

JOINT TENANCIES
Useful as they avoid inheritance tzxes