Chapter 3 Fundamental Principles Governing ... - Legal and Lit by pengtao

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             CONTENTS

Contents....................................................................................................................................................................................... 1
Chapter I: Concepts of Property in Law ....................................................................................................................................... 3
    Introduction ............................................................................................................................................................................. 3
    The right to exclude others ..................................................................................................................................................... 3

        Harrison v Carswell ............................................................................................................................................................. 3
    The Aftermath of Harrison v Carswell: Shifting the Paradigm................................................................................................. 3
    Constitutional Guarantees ...................................................................................................................................................... 4

        Committee for the Commonwealth of Canada v Canada ................................................................................................... 4
    Alternative Visions and Property Claims ................................................................................................................................. 5
    Note: The Classification of Property Interests ......................................................................................................................... 6

CHAPTER 2: THE CONCEPT OF POSSESSION ................................................................................................................................ 6
    The Concept of ‘First Possession’ ............................................................................................................................................ 6
    Finders of Lost Objects ............................................................................................................................................................ 7

        Armory v Delamirie ............................................................................................................................................................. 7
        Parker v British Airways Board ............................................................................................................................................ 8
        Keron v Cashman ................................................................................................................................................................ 9
    Possessory Title of Land .......................................................................................................................................................... 9
    Possession and Aboriginal Title to Land ................................................................................................................................ 10
    Possessory Interests and the Operation of Statutes of Limitation ........................................................................................ 11

        Re St. Clair Beach Estates Ltd v. MacDonald ..................................................................................................................... 12
    Limitation Period and Leaseholds ......................................................................................................................................... 13

        Fairweather v St. Maryebone Property Co. Ltd. ............................................................................................................... 13
        Keefer v Arillotta ............................................................................................................................................................... 14
    Intention and Mistakes: The Need for Reform? .................................................................................................................... 15

        Wood v Gateway of Uxbridge Properties Inc. ................................................................................................................... 15

Chapter 3: Fundamental Principles Governing Property Interests in Land ............................................................................... 16
    The Doctrine of Tenure ......................................................................................................................................................... 16
    The Doctrine of Estates ......................................................................................................................................................... 17

        Re Waters .......................................................................................................................................................................... 19
        Re McColgan ..................................................................................................................................................................... 20
        Delgamuukw v British Columbia (SCC 1997) ..................................................................................................................... 23

CHAPTER 4: bAILMENT, lICENCES AND lEASES: DIVIDING TITLE AND POSSESSION ................................................................... 24
    Bailment ................................................................................................................................................................................ 24
    Leaseholds (Land) .................................................................................................................................................................. 25

        Metro-Matic Services Ltd. v. Huffman .............................................................................................................................. 25
        Highway Properties v Kelly Douglas and Co. ..................................................................................................................... 26

CHAPTER 5: TRANSFERRING PROPERTY INTERESTS BY GIFTS AND SALE: THE ROLE OF EQUITY ............................................... 28
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    Transferring Property Interests by Gift (chattels) ................................................................................................................. 28
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       Cochrane v Moore............................................................................................................................................................. 28
       In re Cole ........................................................................................................................................................................... 30
   Transferring Interests in Land: Legal and Equitable Interests ............................................................................................... 32

       Lysaght v Edwards ............................................................................................................................................................. 33
       John E. Dodge Holdings Ltd. V 805062 Ont. Ltd. ............................................................................................................... 34
   Unjust Enrichment ................................................................................................................................................................. 36

       Inwards v Baker ................................................................................................................................................................. 36
       Pascoe v Turner ................................................................................................................................................................. 37
   Transfer of Land Recap .......................................................................................................................................................... 37

CHAPTER 6: nON-pOSSESSORY iNTERESTS IN lAND: “pRIVATE” PLANNING AND THE USE OF LAND ........................................ 38
   The Profit a Prendre .............................................................................................................................................................. 38
   Easements ............................................................................................................................................................................. 38

       Depew v Wilkes ................................................................................................................................................................. 39
       Phipps v. Pears .................................................................................................................................................................. 40
   Covenants .............................................................................................................................................................................. 41

       Tulk v. Moxhay .................................................................................................................................................................. 43
       Re Drummond Wren ......................................................................................................................................................... 44
       Noble and Wolf v. Alley ..................................................................................................................................................... 44
   Non-Possessory Interests: “Private Planning” ....................................................................................................................... 45

CHAPTER 7: CONCURRENT INTERESTS AND FAMILY PROPERTY ................................................................................................ 45
   Traditional Concurrent Interests ........................................................................................................................................... 45

       McEwen v Ewers and Ferguson ........................................................................................................................................ 45
       Cook v Johnston ................................................................................................................................................................ 47
   “Family” Property: Reforms by Legislatures and Courts ....................................................................................................... 48

       Caratun v. Caratun ............................................................................................................................................................ 49
       Pettkus v Becker ................................................................................................................................................................ 50

CHAPTER 8: CURRENT CHALLENGES IN PROPERTY LAW: PUBLIC NATURE OF PRIVATE PROPERTY .......................................... 53
   Property as “Private” and “Public” ........................................................................................................................................ 53
   Property Claims and First Nations ......................................................................................................................................... 53
   “New Property” and the Charter ........................................................................................................................................... 55
   The Need for Reform of Property Law .................................................................................................................................. 56
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CHAPTER I: CONCEPTS OF PROPERTY IN LAW

INTRODUCTION

A fundamental concept of property law is that “property is a relationship among subjects with respect to
objects”; it is not a “thing”.

THE RIGHT TO EXCLUDE OTHERS


HARRISON V CARSWELL

Facts
    Owner of mall claims that mall is private property and that a picketer should not be allowed to picket in
        front of a tenant store but should picket on sidewalk, nowhere near vicinity of store
       The picketers were picketing inside the mall but in front of the store
Issue
       Is a shopping mall a private place or a public place, therefore establishing the right of the owner of the
        mall to exclude people from its premises?
Ratio
       Owner of the shopping mall makes determination of who can be in the mall, and after a request for
        people to leave, it constitutes trespassing
Decision
     Dickson (majority) convicted (overturned the appeal), Laskin dissented
Dissent:
     members of the public are privileged visitors whose privilege is revocable only upon misbehaviour or by
        reason of unlawful activity.

THE AFTERMATH OF HARRISON V CARSWELL: SHIFTING THE PARADIGM


RWDSU V T EATON COMPANY LIMITED
This case distinguished the precedent in Carswell.
Facts
     The Union claimed that Cadillac Fairview engaged in unfair labour practices because they were trying to
        prevent organization of the union (passing leaflets) for its tenant Eaton's by forcing them to leave

Issue

       Does the owner of a shopping mall have the right to exclude people from the premises when their
        reason for being there is to carry on statutorily endorsed activities?
Ratio
       where activity occurs which poses a tangible threat to the interest of not disrupting traffic or distracting
        customers, the landlord may take steps to stop it
    Shopping mall owner has to remain neutral, can only act if what is going on w.r.t. union organizing
        interferes with the interest of shopping mall owner, not a tenant
Decision
    Union organizers were allowed to remain on the premises.
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R V. LAYTON
Facts
 Layton handing out leaflets, charged under trespass when he would not leave the premises.
Issue
 Can one be convicted of trespass when his actions are protected under the Charter for freedom of
    expression?
Ratio
 When the impugned actions that are protected by the Charter for Freedom of Expression, are done in a
    peaceful and friendly matter, a person cannot be convicted of trespass on mall property.
Decision
 Union organizers were allowed to remain on the premises.

CONSTITUTIONAL GUARANTEES

The right to exclude has changed drastically since the advent of the Charter –basis not to apply Harrison

COMMITTEE FOR THE COMMONWEALTH OF CANADA V CANADA
A distinction is made between privately owned and publicly owned government property. Therefore it does not
really touch on Harrison v Carswell.
Facts
     Committee wanted to pass out pamphlets at the Dorval airport
     Government officials at airport did not want this to happen stating that they were on private property
         and had the right to exclude
     Committee brought an action under s.2(b) freedom of expression; requested declaration that the airport
         property constituted a “public Forum” to exercise such freedoms

Issues
     Does the exclusion of people from government owned but publicly used spaces constitute an
        infringement of s.2a of the Charter – Freedom of Expression?
Ratio
     Government cannot exclude people from expressing themselves (pursuant to s.2(a) of the Charter) or
        assert private property rights on their property that is akin to public arenas.
Analysis
     notion of Public arena  Gov. property is private but with public elements
        1. The traditional openness of the property
        2. Whether the public is ordinarily admitted
        3. Compatibility of the property’s purpose with the expression
        4. Availability of such property [elsewhere]
        5. The symbolic significance of the property for the message being communicated.
        6. The availability of other public areas in the vicinity
Decision
     The respondent’s freedom of expression was infringed. Non-security zones within airport terminals are
        akin to public arenas.
Dissent
     Dorval airport belongs to federal government and has same rights as other owner w.r.t. property

R V. BANKS
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Facts
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     Squeegee kids convicted under Safe Streets Act
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Ratio
       In order to be given Charter protection under 2(b) to preclude a claim of trespass, a person must be
        acting in a way that engages the core values of 2(b), actions cannot be merely commercial in nature
Decision
    begging is more akin to commercial and not political expression and therefore did not engage the core
        values of 2(b) – this form of “expression was held to be peripheral to the core values of the charter”

RETHINKING SHOPPING MALLS AND PRIVATE PROPERTY

TASK FORCE ON THE LAW CONCERNING TRESPASS TO PUBLICLY-USED PROPERTY AS IT AFFECTS YOUTH & MINORITIES

           Problem with the Trespass to Property Act was that it did not take into account the degree of public use
            of private property
           Wide ‘prosecutorial’ discretion is vested in the occupier of publicly-used property to choose when, how
            and for how long to exclude any individual person who avail themselves of the general invitation to treat
           insufficient recognition on the part of owners of private/public places of things needed for public users
            that do not contribute directly to commerce of the mall (mall as community centres)
           privatization of the modern town square must carry with it a corresponding obligation to provide for
            ‘non productive uses’

ALTERNATIVE VISIONS AND PROPERTY CLAIMS


ABORIGINAL CONCEPTS OF PROPERTY


LEROY LITTLE BEAR, "ABORIGINAL RIGHTS AND THE CANADIAN GRUNDNORM”
     Indian ownership of property, like the way of relating to the world is holistic
      o          Land communally owned
      o          Ownership rests not in any one individual but rather the tribe as a whole
     Living and non living things, past and future generations all have a stake in land
     Overlapping points
      o          The Indians' concept of title is not equivalent to what today is called 'fee simple title', it is
           somewhat less than unencumbered ownership because of the various parties that have an interest
           in it
      o          Indian social contract embraces all living things
     Indians could not have given unconditional 'fee simple' ownership to Europeans in any land transactions
    in which they may have engaged because they did not themselves have fee simple ownership
     The only kind of interest the native people have given or transferred must b an interest lesser than they
    had for one can always give an interest smaller than one has


DELGAMUUKW: COMMON LAW RECOGNITION OF ABORIGINAL PROPERTY
           SCC recognized aboriginal title as a sui generis interest that is held on a communal basis by aboriginal
          peoples, and that includes a right to exclusive occupation and use of defined land
           Historical relationships between aboriginal groups and territories must often be established by evidence
           The claimants requested the trial judge to accept traditional oral histories as equal to expert evidence
          provided by scholars
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PROPERTY, POWER, POVERTY
        "The absence of property leads to dependence and therefore any analysis of property can reveal as
        much about dependence as it does about power"
        Since individual autonomy and independence are important values in current western society, those
        who are dependent and without property are often powerless and poor
        MacPherson : Liberal theory should reconceptualize property, instead of focusing it as a right to exclude


NOTE: THE CLASSIFICATION OF PROPERTY INT ERESTS

                     REAL                                                PERSONAL

       Remedy        Remedy to return the property                       Entitled to value of the property

       Chattels      Corporeal hereditaments - interests capable of      Choses in possession- tangible
                     being held in possession                            property
                     Incorporeal hereditaments - non possessory          Choses in action - intangible
                     interests (e.g. right of way)                       property




CHAPTER 2: THE CONCEPT OF POSSESSION

THE CONCEPT OF ‘FIRST POSSESSION’


Possession is a proprietary interest; it is a prime example of how property interests may be created without a
contract. In some cases, possession takes priority over title.


3 MATTERS RELATING TO POSSESSION
  1.      Everyday meaning of word possession differs from legal concept of possession
              a. The law characterizes possession in terms of actual possession, constructive possession, right to
                  possession
  2.      Basic common law principle that property interests are always relative, never absolute
              a. Comparing the magnitude of peoples' interests (relativity of title)
              b. The right of the third party - irrelevant to the relationship to the rights of the plaintiff and the
                  defendant
  3.      Person's possession of a chattel or land may, by itself create a proprietary interest
               i.         property interest called possessory title

Relativity of title: the plaintiff who can establish a right based on possession that is prior in time to the
defendant's claim can succeed in an action against the defendant, even if there is a 'true owner' with better title
than the plaintiff
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CAROL ROSE, "POSSESSION AS THE ORIGIN OF PROPERTY"
     Common law approach: possession or occupancy is the origin of property
      o        Maxim that first possession is the root of title
 1.   Carol Rose argued that there were two principles for defining possession, and that they might seem to
    be in conflict: Those two principles are:
      o        Notice of the clear act - notice of someone possessing
      o        Reward for useful labour establishing right to ownership
 2.   Rose also argued that it was possible to reconcile these two principles
      o        Pointing out performing the clear act can be the useful labour
      o        The useful labour is the very act of speaking clearly and distinctly about one’s claims to property
 3.   In the context of common law requirements for establishing possession, why, according to Rose, were
    native Americans unable to meet these requirements?
      o        The notion that the people belong to the land rather than vice versa is a concept of stewardship
           which means that you would try very hard not to put major footprints on land,
      o        in context of common law, the indigenous people didn't make any clear act that represented the
           'text' that could be read by the common law community

PERRY V GREGORY
Facts
     plaintiff and defendant were metal detecting enthusiasts
     plantiff got a signal, began to dig a hole, defendant confirmed the signal and finished digging the hole
     metal plate was found of unknown value
Issue
     Who had first possession of the metal plate and thus had title to it?
Analysis
     Court relies on length of time between discovery and claim as one of the reasons to conclude that the
        first person was entitled not the second person
     Defendant borrowed the belt plate from the plaintiff and returned it to him, didn’t stake a claim until 10
        months later after consulting a lawyer
Ratio
     In determining ownership of an object, court will look to the subsequent actions of the parties to
        determine their intention with respect to that object.
Decision
     The plaintiff was entitled to the belt plate

FINDERS OF LOST OBJECTS


FINDERS AND FIRST POSSESSION


ARMORY V DELAMIRIE

This case is the basis for the law of finders today.

Facts
       Plaintiff is chimney sweeper's boy found a jewel and carried it to defendant's shop to know what it was,
        apprentice and jeweller took the stone
Ratio
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       Although the finder of a lost object does not hold an absolute property/ownership interest, can keep it
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        against all but the rightful owner.
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Conclusion
    The value of the best jewels is the measure of the damages against the jeweller to the plaintiff

Any proprietary rights to an employee finding an object in the course of employment accrues to the employer

PARKER V BRITISH AIRWAYS BOARD
Facts
     Plaintiff found gold bracelet lying on the floor of airport first class lounge
     He gave bracelet to anonymous official of the defendants and asked for it to be returned to him if true
        owners did not claim it
     Defendant's sold the items and kept the profits
Issue
     Who has a superior claim to a found object, the occupier of the land which it is found or the founder of
        the object?
Ratio
    o For possession, the two elements of control and animus possidendi: (possession with intent to exclude
        others) must co-exist.
    o the firmer the control, the less will be the need to demonstrate independently the animus possidendi
Analysis
     Kowal v Ellis: what must be shown is that the landowner claimant, who has not acquired ownership of a
        chattel, is a prior bailee of the chattel with all the rights, but also all the obligations of a bailee
The rights and obligations of a finder are
          1. finder has no right over chattel unless it has been abandoned or lost and he takes it under his
              control,
          2. the finder has very limited rights if the object is acquired through wrongful conduct like trespass
          3. a finder acquires the right to title against all but the true owner or those that can assert a prior
              right to the chattel that still existed at the time of finding
          4. an employee who finds a chattel does so on behalf of his employer, and
          5. a person with a finder’s right has an obligation to try and find the object’s true owner.
The rights and liabilities of an Occupier are
          1. occupier has a superior right to a finder when chattels are attached to or in the land/ attached to
              building whether he is aware of the presence of the chattel
          2. occupier has a superior right if prior to the chattel being found upon or in a building if and only if
              he manifests an intention to exercise control over the building and the things therein – intent
              can be manifestly express or implied
          3. an occupier who manifests intention to exercise control must reasonably seek to find the true
              owner of an object found by him or a finder
          4. Occupier of a chattel like a car or boat is to be treated the same as if occupier of a building.
  Conclusion

       there was no intention (express or implied) to exercise control over the lounge and all things which were
        in it
       the airline did maintain control of access to the space but this was not sufficient to assert a manifest
        intention to assert custody and control over lost objects
       no evidence that they searched for such articles regularly or at all

Parker establishes rights to a lost object if occupier has manifested an intention to exercise control over the
building and the things which may be upon it or in it An issue is how is the occupier supposed to manifest
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intent.
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JOINT FINDING AND “FOUND” OBJECTS


KERON V CASHMAN
Facts
     5 boys began playing with a stocking that Crawford (youngest boy) found, Cashman snatched it
     Crawford claimed all the money in the stocking while the other boys wanted to divide in 5
Issue
       Who is entitled to a found object when it is are found by more than one person?
Ratio
       an object jointly found will be considered to be in the possession of the group unless one member can
        assert that s/he had an intention or “state of mind” WRT gaining control and excluding the other(s).
Analysis
    Had the stocking been an article used to contain money or had the evidence established that Crawford
        retained it for the purpose of examining its contents, the original possession/retention by him might
        perhaps be considered as the legal 'finding' of the money enclosed
    The moment of finding is an important determinant of ownership
    When it was found, it wasn't picked up to exert ownership
    Knowledge of found object comes into existence or when someone takes control of the found object
        and decides what to do with it
Decision
    The money goes to all because at the time the stocking burst open, it was in the common possession of
        all as a plaything

EDMONDS V RONELLA
Facts
     2 boys found a bag of money and enlisted the help of a 15 year old to report it to police
     15 year old given 'sole' finder status
Issue
     When is a finder of a lost object a legal finder?
Ratio
     "a finder has been defined as the person who first takes possession of lost property but to be a legal
        finder, an essential element is an intention or state of mind with reference to the lost property"
Analysis
     Court found that lost property was not found until the plaintiffs and defendant had removed it from the
        parking lot
Conclusion
        o        Possession was jointly obtained, joint finders entitled to equal share of 1/3 each

EXTINGUISHING THE RIGHTS OF THE TRUE OWNER
   1.   Where the owner has abandoned the chattel
   2.   Statute of Limitations - Limitations Act –
            o someone in position of true owner has 2 years to bring application to recover possession of
                something that has been lost

POSSESSORY TITLE OF LAND


POSSESSION AS A PROPRIETARY INTEREST IN LAND: POSSESSORY TITLE
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Possessory title: one who holds possession of property

PERRY V CLISSOLD
Facts
     squatter moved onto vacant land, fenced it paid taxes on it, and farmed it over a period of more than a
         decade was in his exclusive possession (possessory title) until his death
     plaintiffs (trustees of squatter’s will) claimed compensation related to land resumed by the state
         government
Issue
     Do adverse possessors have property rights such that they are entitled to compensation for
         expropriation?
     Does the existence of a better claim by someone other than the plaintiff defeat the plaintiff’s claim
         against the defendant?
Ratio
     person in possession of land in assumed character of owner and exercising the ordinary rights of
         ownership has perfectly good title against all the world but rightful owner
Analysis
Jus Tertii Issue
     this issue of the existence true owner is not relevant, cannot be relied on as a defence
Barring the Right to the True Owner: Statutes of Limitation
     If rightful owner does not come forward and assert title through law within a prescribed period, his/her
         right is forever extinguished and possessory owner acquires an absolute title
     Adverse possessors - those who gain interest by acquiring possession
Decision
     privy council concluded that he should be compensated for possessory interest, though he did not have
         title interest

POSSESSION AND ABORIGINAL TITLE TO LAND


K MCNEIL, COMMON LAW ABORIGINAL TITLE
 McNeil is trying to make an argument based on possession in relation to Aboriginal peoples in Canada
 When Europeans came to North America, Natives were already in possession, but wasn't recognized
   1. Indigenous people not in a position to make a claim based on English law since they weren't in a position
        to understand English common law
            a. The whole notion of property in land/possession in land is not part of the Native American
                 worldview
            b. The Acts that they might have done to establish possession were inconsistent with nomadic
                 lifestyle
   2. Ethnocentric view - The proposition that in English law indigenous people of North America/Australia
        had the same rights to lands occupied by them as fee simple tenants with valid titles had to their
        cottages and gardens in England was probably beyond contemplation
   3. Not in interest of colonizers to formulate arguments that would tend to make acquisition of lands
        costlier and more difficult
  In the last few decades, there has been a transformation in looking at Aboriginal title to land:
        o See Delgamuukw
  Policy issues include who should reap benefits from undeveloped land - those who have lived there for
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   generations and rely on it for their livelihood or public at large?
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POSSESSORY INTERESTS AND THE OPERATION OF STATUTES OF LIMITATION


STATUTES OF LIMITATION: HISTORY AND PURPOSES (POLICY)
            Statutes of limitation define the relationship between a person with an interest based on possession and
           the person who is the true owner (paper title)
            Statutes of limitation give paper title holder time limit for bringing action to recover possession
            Real Property Limitations Act s. 15 provides for extinguishment of the paper title holder's right to bring
           an action to recover, not transfer paper title holder's title to the possessor
            In the late 20th century, when sophisticated land registry systems exist, it is more difficult to explain
           why legal principles should continue to protect squatters' rights at the expense of the interests of the
           paper title holder

JUSTIFICATIONS FOR STATUTES OF LIMITATION (RPLA) S. 15
      1.           Physical - in the past, nobody had registered interest
                          Computers are a modern invention
                          People just looked at what was physically going on in the land
      2.           Punishment PT holders who pay no attention to what's going on to their land
                          Not appropriate use of principles, don't use this as justification (use criminal law)
      3.           Reward the person who is actually making use of the land
                          Not totally appropriate either
      4.           Clearing title
      5.           Accuracy on who holds paper title is important in things like trade and commerce
                          If no incentive for paper title holders to pay attention to their land, results in inaccuracies
                          results in interference with commercial nature w.r.t. land
                          The recognition of possessory title is not just a holdover from medieval tradition but has
                   modern utility
                           A public registry of interests in land may not always be exactly in accord with what has
                   occurred on the ground

CAROL ROSE, "POSSESSION AS THE ORIGIN OF PROPERTY"
  Some venerable statutory law operates to transfer property to one who is initially a trespasser if the
    trespasser's presence is open to everyone, lasts continuously for a given period of time and title owner
    takes no action to get rid of him during that time
     Crucial element is communication
      o        Possession means acts that apprise the community arrest attention, and put others claiming
          title upon inquiry
     The possibility of transferring titles through adverse possession once again serves to ensure that
    members of the public can rely upon their own reasonable perceptions
      o        Owner who fails to correct misleading appearances may find his title lost to one who speaks
          loudly and clearly, though erroneously
     Important that property owners make and keep their communications clear
      o        Clear titles facilitate trade and minimize resources wasting conflict
      o        If clear, others will know that they should deal with owner directly if they want to use it

ACTS OF POSSESSION: COMMENCEMENT OF THE LIMITATION PERIOD AND QUALITY OF POSSESSION
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Note also the statutory language: the Real Property Limitations Act, ss 4 & 5 (at 162) and s 15 (at 157).
How was this language applied in Piper v Stephenson (at 163).
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OPERATION OF RPLA S.14 S. 4+5
   Section 4: Paper title holder shall bring an action within 10 years to recover land
        o Establishes limitation period for repossession of land in Ontario
        o 10 years after right of action accrued
   Section 5: right to bring an action to recover has been deemed to be accrued at the time of
        o Dispossession OR discontinuance of paper title holder possession
   Law recognizes possession as full property interest

It is necessary to define what acts constitute dispossession.

PIPER V STEVENSON
Facts
    1901 Piper buys six lots and built on the land that was hers and that wasn't hers
    Both parties had thought that the land belonged to Piper
    1912 paper title holder realized that she was encroaching on her land and brings an action to take back
        his lots
Issue
     When did dispossession occur so that the right to bring an action to recover began to accrue?
Ratio
     When the act of possession is continuous and exclusive, resulting from act(s) done to claim the land,
        dispossession has occurred.
Analysis
     Section 4 says 10 years, section 5 says from the date of dispossession
     Her action was a mistake - though intending clear act of possession when building the fence
Conclusion
     The building of the fence constituted dispossession because it is a sufficiently clear act that Piper is
        claiming possession of the other two lots

The issue of intention will become significant in these cases: Whether you intend to steal the land of someone
else.
The courts have tended to be unsympathetic to make clear acts of possession that dispossess someone else
when they clearly know the land doesn't belong to them

Animus possedendi: occupation with the intention of excluding the owner as well as other people

RE ST. CLAIR BEACH E STATES LTD V. MACDONALD
Facts
 Appellants used respondents' land for a period of years before they bought it
 Respondent bought land from Grants and put in stakes to clearly demark the south boundary of the land
    owned by appellants
 new orders want exclusive use of the strip of land the others had been using
 Appellant wanted to find that trial judge:
       o Erred in failing to find the appellants had acquired title to the land in question by adverse possession
          over the relevant statutory period
       o Erred in finding that the appellants required an animus possidendi with the intention to exclude the
          title holders from the property to acquire title by adverse possession
       o Erred in finding that the acts of the Grants in picking cherries constituted actual possession on the
                                                                                                                    12




          their part
Issue
                                                                                                                    Page




 Whether the appellants have established their claim to a possessory title of the land in question
                                                    13


       how do we assess which acts might constitute a clear act to demonstrate possession of the land?
Ratio
 To succeed, appellants must show
       1.          Actual possession for statutory period by themselves and those through whom they claim
       2.          That such possession was with the intent of excluding from possession the owners or persons
            entitled to possession
       3.          Discontinuance of possession for the statutory period by the owners and all others, if any,
            entitled to possession
 If they fail in any one of these respects their claim must be dismissed
Analysis
 The language differs from statute, in which it is dispossession or discontinuance; here it is really
    dispossession AND discontinuance
 The significant factor is that the Grants continual usage of the land throughout this time, as evidenced by
    picking cherries on the lands; indicates that there was no fence or physical barrier keeping them out
 An owner of a farm cannot be said to be out of possession of a piece of land merely because he does not
    perform positive acts of ownership all the time
 Court was concerned with the question of intention in considering the burden upon the one seeking to
    establish title by possession
 Leichner : the intention must be an intention to dispossess; even a fence may not be sufficient if the
    intention is not to create exclusive right to the land and thus cannot meet either the intention test or the
    first test of dispossession sufficient to show actual possession
Decision
 Appeal dismissed because cherry picking by the owner signalled no discontinuance



LIMITATION PERIOD AND LEASEHOLDS


FAIRWEATHER V ST. MARYEBONE PROPERTY CO. LTD.
Facts
 Paper title holder in 1893 leased a plot of land to a tenant for 99 years and then M in 1920 possessed a shed
    partly on the tenant's plot
 12 year period of limitation
 M claimed a right to use the shed until 1992 (year when 99 year lease would come to an end)
 Tenant surrendered the lease to the lessor in 1959 so that Lessor could get rid of M
Issue
 Does the limitation period running against a tenant also run against the landlord?
Ratio
 A squatter's title can be defeated by a forfeiture & regrant as well as a surrender and regrant
Analysis
   The lessee becomes entitled to possession and the lessor (paper title holder) doesn't have possession for
      the period of the lease
   A lessor must wait until the lease expires (reversion interest) to take back land from a adverse possessor
      that took land from tenant
   If lessor does not want to wait that long, he can forfeit the lease or the lessee can surrender the lease (end
      early)
   Tenant's right extinguished against M but that time would not start to run against the lessor's interest
      until the expiry of the lease, in 1992, not 1932
                                                                                                                     13




       What rights does a lessee surrender to lessor when the lessee's 'title' is extinguished due to a squatter?
        o        One logical argument: lessee could have nothing left to surrender and therefore no action on his
                                                                                                                     Page




             part should be allowed to prejudice the squatter
                                                    14


        o     Other position: law should not assist squatters, no injustice as squatter would not have had any
          knowledge of the duration or conditions of the lease therefore no expectation
   We shouldn't have situations where lessees cannot allow lessors to be dispossessed of their property

GIOUROUKOS V CADILLAC FAIRVIEW
Facts
 Tenant remained in physical occupation but on several occasions a short term lease came to an end then
    entered into a new lease on same terms
 Plaintiff - claimed possession against part of the lands subject to the lease - time began to run against lessor
    at end of first least to tenant - after that became 'notionally' entitled to possession
Issue
 Issue of commencement of the limitation period with respect to "successive leases to the same tenant over
    a period of years
Ratio
 because the tenant had remained in actual possession, more than a theoretical entitlement to possession
    was required to show the commencement of the limited period
Analysis
 Lessor's entitlement to possession in the case of successive leases represented only a legal fiction
Decision
 Court found that plaintiff was not entitled to possession of the disputed lands

THE ELEMENT OF INTENTION


KEEFER V ARILLOTTA
Facts
     For 70 years appellant property contained easement
 Conduct of the Owners
      a. The Respondents and their Predecessors in Title
              Appellants' premises used for business purposes
              Keefer put garage located at rear to property in order
                to line it up with driveway
      b. The appellants and their Predecessors in Title
          Trucks sometimes parked there to deliver goods
          Wintered in FL for past 18 years
 The Keefers acquired possession of the right of way so that the boundary is redrawn so the entirety of the
    garage, grassy area and stone driveway is on the respondent possession

Issue
 Whether the respondents' possession challenged in any way the right of the legal owner to make the use of
    the property he wished to make of it
Ratio
     A possessory title cannot be acquired against an owner by depriving him of uses of his property that he
        never intended or desired to make of it
            o Animus possidendi which a person claiming a possessory title must have is an intention to
                exclude the owner from such uses as the owner wants to make of his property
     if the paper title holder is holding the land for purposes of speculation and no intention to use it for
        anything, The possessor will be unable to establish possession, no matter what they do, it will never be
                                                                                                                     14




        inconsistent with intention of paper title holder
                                                                                                                     Page




The Inconsistent User Test:
                                                   15


    1.  Actual possession for the statutory period
    2.  with the intention of excluding true owners from possession
    3.  The acts of dispossession must be inconsistent with the intention of the true owner /his intended use of
        the property
   4. Discontinuance of possession for the statutory period
Analysis
    Onus of establishing title by possession is on the claimant and harder to discharge when he is on
        property pursuant to a grant from the owner
    The Keefers never acquired possession in relation to most of the area because the use they made of it
        was not inconsistent with the intention of the true owner (Cloys/Arillottas)
    the garage was inconsistent with the intention of the true owner
Decision
    Appellants' title has been extinguished only with respect to that part of the land occupied by the
        respondent's garage

BRIAN BUCKNALL, "TWO ROADS DIVERGED: RECENT DECISIONS ON POSSESSORY TITLE"
Critique of Keefer decision of the importance of Intention
       Law dealing with possessory interests - following principles
        1.       a person in peaceful possession of land will himself have a species of seised estate from the
             commencement of such possession
        2.       The peaceful possession of land is the type of possession which a true owner would himself wish
             to make and must be continuous
                          Property which is not in its nature susceptible to some degree of open/continuous
                    ownership will remain the estate of the paper title holder unless the claimant to a possessory
                    estate takes unusual measures to establish the existence of his interests
        3.       Establishment of a possessory estate can be demonstrated through variety of indicia, none
             sufficient in own right
                          Enclosure of land
                          Formal repudiation of claims by true owner
        4.       Where the facts with regard to open, obvious and continuous possession are well established,
             an intention to possess (animus possidendi) will be presumed
        5.       A person in possession of land with the permission of the true owner did not run a possessory
             period

INTENTION AND MISTAKES: THE NEED FOR REFORM?


WOOD V GATEWAY OF UXBRIDGE PROPERTIES INC.
Facts
 Woods and neighbours thought they owned 2 acres of land belonging to neighbours, used it for 18 yrs
 Neighbours sold property to Uxbridge whose survey revealed they held title to neighbours land and the 2
    acres
 Wood wanted a declaration against (U) extinguishing all of their rights
Issue
 When mutual mistake exists, is it legally possible for the party seeking possessory title to establish:
           1. the requisite intent to exclude the true owners from possession?
           2. effective exclusion of the true owners from possession?
                                                                                                                     15




       Have the applicants established the effective exclusion of the true owners during the requisite time
    frame?
                                                                                                                     Page




Ratio
                                                    16


o  Evidence of mutual mistake justifies an inference that the party seeking possessory title did intend to
   exclude true owners in the absence of evidence to the contrary
o Inconsistent user test for effective exclusion (in cases like Keefer) has no application in cases involving
   mutual mistake as to title
Analysis
    True owners did not know that they were the rightful ones - how is it possible to determine what use they
   intended for the property when they didn't contemplate it?
            o Legal impossibility
 Inconsistency test can only apply to trespassers - those who know land belongs to someone else
 Acts of use carried out by trespassers which is not inconsistent with rightful owner's intended use would not
   suffice to establish possessory title because
      1. Implied permission of the true owner
      2. Negatived a finding of the requisite intent to dispossess
Decision
 Applicants have established possessory title by way of adverse possession



CHAPTER 3: FUNDAMENTAL PRINCIPLES GOVERNING PROPERTY INTERESTS IN LAND

THE DOCTRINE OF TENURE
According to the common law, individuals and corporations may “hold interests” in land of the Crown; there is
no outright ownership. This result flows from the doctrine of tenure (the French word “tenir” means “to hold”)

Thus, common law does not recognize “allodial” rights (outright ownership) in land.

5 ways in which interests in land can be fractured:
        1.      Doctrine of tenure (now largely obsolete)
        2.      Doctrine of estates
        3.      Legal and equitable interests in land (the trust)
        4.      Co-ownership, and
        5.      Leases and licences

WHAT THIS MEANS IN ONTARIO IN 2006

Tenures Abolition Act, 1660: The only remaining tenure is “free and common socage;” the only
remaining “incident” of tenure is “escheat”: If the holder of an interest in land dies without a will
(intestate), without family who can take the interest on intestacy, the interest will “escheat” to the
Crown. The Tenures Abolition Act is still law in Ontario.

RECEPTION OF ENGLISH LAW IN “ONTARIO” (227-232)

1763: Treaty of Paris - transfer of sovereignty over all North American territory of France, and ungranted lands
of France, to English King (feudal right)

1763: Royal Proclamation: assertion of sovereignty; and recognition that native interest in lands constitutes a
burden on Crown’s title, unless surrendered
                                                                                                                   16




       o       Forbid English subjects from making any purchases or settlements whatever or taking
           Possession of any of the reserved lands
                                                                                                                   Page




       o       Cannot move into those lands either
                                                          17


         o      Established the fundamental principle that no aboriginal lands in America were to be taken by
            without consent of the aboriginal occupants
        o       Aboriginal title is not contingent on Royal Proclamation as it is a pre-existing inherent right
       The Crown entered into treaties with the peoples whereby their rights would be extinguished only by
      voluntary cession to the Crown in exchange for rights to specified territories known as "reserves"


THE DOCTRINE OF ESTA TES



                The doctrine of estates defines the “quantity” or “duration” of an interest in land.


Indeed, there could never be any direct ownership of land outside the allodium ... of the crown. The doctrine of estates
gave expression to the idea that each landowner (or “tenant”) owned not land but a slice of time in the land. The object of
his ownership was an abstraction called an ‘estate,’ the precise nature of each estate being graded by its temporal
duration.... [Thus,] one had ownership of an intangible right (ie an estate) rather than ownership of a tangible thing (ie the
land itself).

Walsingham’s Case (1573) ‘*T+he land itself is one thing, and the estate in the land is another thing, for an estate in the land
is a time in the land, or land for a time, and there are diversities of estates, which are no more than diversities of time.’ ”

TYPES OF ESTATES

      1. Leasehold estates: estates that are certain in terms of their duration

      2. Freehold estates: estates that are uncertain in terms of their duration:
            Life estate: an estate for as long as someone is alive
            Fee simple: an estate for as long as there are “heirs” capable of inheriting it

SUCCESSIVE INTERESTS: REVERSIONS AND REMAINDERS


             X grants: To A for life
                   A has a life estate
                   X has a reversion: after A’s death, the estate will revert back to X
                   (or, if X is dead, to X’s estate; if there are no heirs, it will escheat)

             X grants: To A for life, remainder to B in fee simple
                   A has a life estate
                   B has a fee simple remainder interest
                   X has a reversion, but it is not likely to be exercised because a fee simple estate will not likely
                   come to an end

             X grants: To A for 20 years
                   A is a tenant with a leasehold estate
                   X is the landlord whose interest is called the lessor’s reversion.

Note: In the above examples, all the interests are present interests. Even though B is not yet entitled to
                                                                                                                                   17




possession, his interest is a present interest in land, which he can sell or devise by will.
                                                                                                                                   Page
                                                          18


CREATING FREEHOLD ESTATES: THE LANGUAGE OF DRAFTING
Grants inter vivos: conveyances or transfers between live persons or corporations: generally take effect at date
of transfer

             The common law required the words “and his heirs” to create a fee simple in an inter vivos grant. This
              requirement was altered by statute
              Conveyancing and Law of Property Act, s. 5.
                  o Not necessary to use word ‘heirs’
                  o Sufficient to use words that sufficiently indicate the limitation intended
                  o Ifno words, conveyance passes everything that the conveying parties have in the property that
                     they have power to, unless contrary intention appears from the conveyance

Devises (testamentary = by will): transfers take effect on death

           The common law was not so strict in relation to the language required to create a fee simple estate in a
            will.
           The current provision is Succession Law Reform Act, s. 26.
                  Except when a contrary intention appears by the will, where real property is devised to a person
                    w/o words of limitation, devise passes the fee simple or the whole of any other estate that the
                    testator had power to dispose of by will in the real property

in order to create a life estate, must use language that refers to life/death

Words of limitation: define or delimit the size of the estate conveyed to grantee (life estate, fee simple)
Words of purchase: indicate to whom an interest is being conveyed

VARIATIONS OF FREEHOLD ESTATES: ABSOLUTE AND QUALIFIED ESTATES

Qualified estates may occur where a grantor wishes to maintain some continuing control over land.

       an absolute estate ends only if it comes to an end naturally (for a life estate: because the life tenant dies; and
        for a fee simple estate: because there are no longer heirs)

       a qualified estate may be terminated when the event defined by the grantor or testator takes place.

                           Language          Theory                   Consequences
FSD                   so long as             Event is inherent part   If determining event occurs, grant automatically
(time)                until, during, while   of the grant             determines (G has possibility of reverter)
FSSCS                 On condition that      Condition is ‘added’     If condition occurs, an interest of a specified
(condition of         Provided that          to the grant             duration will become terminable prematurely
retention)            But if                                          G must re-enter (G has right of re-entry)
                                                                      No automatic determination

FSSCP                 Not until, when        Condition is ‘added’     If condition occurs, then the grant is conveyed
(condition of                                to the grant
acquisition)
                                                                                                                             18




             Unlike a determinable fee, where determining event itself sets the limit for the estate, the condition
            subsequent is an independent clause added to a fee simple absolute
                                                                                                                             Page
                                                         19


             Determinable fee simple intended only to give the land for a stated use and when the use has ended,
            land returns to the grantor

VOID CONDITIONS
             Certainty
                  a. We need to be able to tell what the event is so we know whether or not it has been breached or
                       not
             Free alienability of land
                  a. if grantor has attached a condition inconsistent with the freedom of enjoyment, disposition, and
                       management of the estate
             Non-discrimination
                  a. Subject to a condition that it cannot be sold to persons of a particular race or religion
             Public policy
                  a. property can't be transferred in ways that affect “marriageability”
                  b. Partial restraint is ok - "He must not get married until he is 25"
                  c. when state has an interest in the non-performance of the condition

THE EFFECT OF A VOID CONDITION
             Conceptual uncertainty test: unless it can be seen from the moment of its creation precisely and
            distinctly, what events will cause forfeiture, the courts will strike down the condition

              If the condition is void in a FSD, the whole grant fails
                       Cannot separate the two [FSD]
                       As if they never granted it in the first place

             If the condition is void in a FSSCS, it is the added condition which is void, and it will be struck off,
        leaving the recipient with an absolute estate
                      Can separate the two [FS] + [CS]

       If the condition is void in a FSSCP, condition cannot be satisfied and the entire grant or devise will fail
                  Grant can never take effect

LIFE ESTATES

Re Waters and Re McColgan: principles for interpreting wills (devises) where the language is unclear.

       Sometimes it is possible that what is being granted is not an estate at all but merely a licence
       Licence- Enforceable to parties to the contract
       Life estate - enforceable against the whole world

RE WATERS
Facts
 "To EJ for as long as she lives or until she remarries or gives notice"
 Trustees want to argue that it is just a licence because she wasn't upkeeping the property as stipulated in
    grant
 she wasn't actually living there
Issue
                                                                                                                         19




 Is this an estate or licence?
 Is there a requirement of personal residence in order to have a life estate?
                                                                                                                         Page




Ratio
                                                       20


   Judge must put himself in the position of the testator and see what his intention was when the will was
    created. Look at 3 things:
            1. Language used in will
            2. Context in which language is used
            3. Circumstances in which it is made
Analysis
 Language of 'for as long as she lives' lends to idea that it is a life estate
 there was nothing in the testament that she her residing there was critical, if it was he would have said it
Decision
 The fact that he didn't require her to live there makes it so that it is a life estate and not a licence (i.e. rental)
    and was responsible for general repair

RE MCCOLGAN
Facts
 Provision stated "until her death or until she is not residing therein personally"
Issue
 What estate or interest, if any, is passed to MK under the provisions of the will? Licence or life estate?
 If any estate or interest, has it been terminated by her absence from the premises?
Ratio
 The condition (subsequent) 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.
Analysis
 The "until death" indicate life estate
 Found that it is FSCS
        o If it is fee determinable and the clause is ambiguous, she gets nothing
        o If it is a life estate condition subsequent and uncertain, she gets the house
 Court decided that because of circumstances it should be an expansive interpretation
 Court then goes through facts of circumstances and determines that condition fails completely of meeting
    the test
Decision
 Disposition: was a life estate, FS+CS, but the CS part (about residence) was void for uncertainty

PRESENT (AND FUTURE) INTERESTS
    Note the need to have an orderly transfer of interests: no abeyance of seisin

VESTED INTERESTS
           i) Vested in possession: The holder is entitled to possession

           ii) Vested in interest: The holder has full entitlement to the interest, and may or may not be entitled to
           possession

                                 “G grants to A for life, remainder to B and his heirs”

    A has a life estate which is vested in interest and possession.
    B has a fee simple remainder which is vested in interest at the date of the grant, and it will vest in
    possession when A’s life estate determines.

    Interests vested in interest can be transferred inter vivos and by will.
                                                                                                                           20
                                                                                                                           Page




CONTINGENT INTERESTS
                                                       21


1) The potential holder of the interest is not yet in existence
                 Eg i): G grants to A for life and then to A’s first child (A is childless)
            o The remainder to A's first child is contingent and not vested
            o Vested when child is born

2) The holder’s identity is unknown
                 Eg ii): G grants to A for life and then to A’s widow (a widow is unknown until the moment of
                 the spouse’s death).
           o The moment that A dies, we will know who that person is, and that person gets possession so
                 the person gets a vested interest and one in possession

3) There is a condition precedent to the holder’s entitlement to the interest
                 Eg iii): G grants to A for life, remainder to B in fee simple if he gains admission to the legal
                 profession in Ontario
             o Contingent until condition is met
             o If at time of grant, B is not yet lawyer, his remainder fee simple is contingent, once he does have
                 it, it is interest, once A dies, it is in interest and possession
    Summary:
     o         Vested interest arises only if the remainderperson is in existence, ascertained, not subject to a
          condition precedent
     o         When vested interest is not contingent on any future event and vests immediately at time of
          grant, known as vested remainder
    Distinction b/w vested and contingent remainders:
     o         Common law courts developed a series of rules that greatly restricted creation of contingent
          remainders
     o         With vested remainder, no doubt who would become seised immediately upon determination of
          the prior particular estate

EQUITABLE INTERESTS & STATUTE OF USES
Statute of Uses: All the existing equitable estates in the land prior to 1535 will be converted to legal estates in
land

          Conveyance to Uses: device whereby grantor grants land to X in fee simple, X permits religious
         institution to use land, no right of occupation himself

A group would jointly hold legal fee simple estate to the use of (or in trust for) each individual

“G grants to A (and others) in fee simple                     to the use of B in fee simple”
common law conveyance pursuant to legal principles            what makes this arrangement a conveyance to uses
G - feoffor to uses (G has no further interest in the
land)
A (and others) were the feoffees to uses (they hold           B is the cestui que use (B holds equitable title and
legal title and seisin)                                       enjoys possession)

       Modern form is the concept of a holding company
       Legally, the common law courts recognized only the conveyance to A and others. The conveyance to uses
        was completely ignored in the common law courts.
                                                                                                                      21




       Since the feoffee to uses had legal title and seisin and cestui que use had no legal right, no remedy in
        common law if feoffee was dishonest and took the land for self
                                                                                                                      Page




       This resulted in the creation of equity
                                                       22



Equitable interests in land could be enforced against everyone, except: the bona fide purchaser for value
without notice (actual or constructive). (BFPFVWON)

A holds the legal estate; and B holds the equitable estate in Blackacre, A transfers to C:

A transfers to C where A and C are conspiring to            it is not enforceable because C's interest is not bona
eliminate B’s interest;                                     fide
A transfers to C for $100,000, and C fails to look at       Constructive notice, C has an obligation to check the
the Register, on which B’s interest in registered;          register (construing a notice)
A transfers to C as a gift;                                 it is not enforceable because C is not a purchaser for
                                                            value
A transfers to C for $100,000, but C knows that B           Enforceable because he has notice
has an interest;
A transfers to C for $100,000, and C fails to               constructive notice - if they know someone is on the
examine the land; had he done so, he would have             land they are presumed to know that there is an interest
found B there.


    THE MODERN TRUST
Trustee – holds legal estate in a nominal capacity for the benefit of one or more persons
Beneficiary/Cestuis que trust – those who are entitled to equitable interests in the estate the trustee holds

Trusts can be expressly created or constructed for fairness.

TRUSTS (“THE USE UPON A USE”)
           G grants to A and his heirs to the use of B and his heirs to the use of C and his heirs
                Avoids the impact of the Statute of Uses
                After statute of uses, A has nothing, B has legal interest, C has an equitable interest

SIMPLIFYING THE LANGUAGE: MODERN TRUSTS
           "To my sister in trust for my children." (grant inter vivos only)
                   Statute of uses applies, the equitable interest of the children gets converted to a legal
           interest and the sister gets nothing
           "To the use of my sister in trust for my children" (grant inter vivos only)
                   To the use of my sister means that sister gets legal estate as trustee and children get
           equitable interest
                   There is an "invisible" first person, i.e. A in To A | to the use of B | to the use of C

WILLS & DEVISES
 Devises: at death, all property held by the deceased automatically becomes subject to a trust in the executor:
the executor is trustee; the devisees are beneficiaries.

                 “T devises to A and her heirs at 21 (At T’s death, A is 10).”

         T dies, beneficiaries have equitable interest in the deceased's property, executor is trustee who has
     obligation to carry out the will of the testator
                                                                                                                       22
                                                                                                                       Page
                                                      23


ABORIGINAL TITLE IN THE CONTEXT OF PRINCIPLES OF COMMON LAW AND EQUITY


DELGAMUUKW V BRITISH COLUMBIA (SCC 1997)

 Interrelationship between common law property concepts and aboriginal title
Facts
              The Claim at Trial
 Chiefs both individually and on behalf of their Houses claimed separate portions of 58K km in BC
 BC province counterclaimed for a declaration that the appellants have no right or interest in and to the
     territory
 Demography – the Aboriginal groups not the only ones living in that territory, there are other Aboriginal
     groups that do as well as non aboriginals
 History – ancestors migrated from Asia through Alaska, no reason to travel far from the villages for anything
     other than their subsistence requirements.
 North American Exploration – the time of direct contact between the Aboriginal Peoples in the claimed
     territory was approximately 1820
 Present Social Organization – claims arise from long-term communal rather than personal use or possession
     of land
Issue
 What is the nature and scope of the constitutional protection afforded by s. 35(1) to the common law
     aboriginal title?
 What is the specific content of aboriginal title?
 What is the test for the proof of title?
 How do we reconcile the oral history of aboriginal title to proof?
Ratio
Aboriginal Title at Common Law
     Aboriginal title is sui generis in the sense that its characteristics cannot be completely explained by
     reference either to the common law rules of real property or to the rules of property found in aboriginal
     legal systems
                 Inalienability – lands held pursuant to aboriginal title cannot be transferred, sold or surrendered
             to anyone other than the Crown
                 Entitled to possession based on prior occupation + continued occupation since then
                 Communal and not individual title
                 Consistent with traditional occupation
Analysis
What is the content of aboriginal title, how is it protected by s. 35(1) of the Constitution Act, 1982, and what is
required for its proof?
       Fundamental disagreement over the content of aboriginal title itself
         Appellants – aboriginal title is tantamount to an inalienable fee simple
                 Respondents – Aboriginal title at most encompasses the right to exclusive use and occupation of
             land in order to engage in those activities which are aboriginal rights themselves
            Content of aboriginal title lies somewhere in between these positions
Content of aboriginal title
     Aboriginal title encompasses the right to exclusive use and occupation of the land held pursuant to that
     title for a variety of purposes
                        Canadian Jurisprudence – Guerin holds that aboriginal title is an interest in land which
                    encompassed a legal right to occupy and possess certain lands
                                                                                                                          23




                        Reserve Land – nature of Indian interest in reserve land is very broad (s. 18 of Indian Act)
                        S. 18 wording of “for the use and benefit” does not restrict to practice, custom and tradition
                                                                                                                          Page




                    and can be used for any other purpose for the general welfare of the band
                                                          24


                    Indian Oil and Gas Act – purpose of statute is to provide for the exploration of oil and gas
                 on reserve lands --mineral rights
 Those protected uses must not be irreconcilable with the nature of the group’s attachment to that land
                    Lands held by virtue of aboriginal title may not be alienated
                    Community cannot put the land to uses which would destroy that value
Proof of Aboriginal Title
 requirement that the land be integral to the distinctive culture of the claimants is subsumed by the
   requirement of occupancy
 in order to make out a claim for aboriginal title, aboriginal group asserting title must satisfy following
   criteria:
    o Land must have been occupied prior to sovereignty
    o If present occupation is relied on as proof of occupation pre-sovereignty, there must be a continuity
         b/w present and pre sovereignty occupation
    o At sovereignty that occupation must have been exclusive

        What is important in this case is that the court is saying in s. 35 that non-recognition by common law is not
         determinative of previous existence

CHAPTER 4: BAILMENT, LICENCES AND LEASES: DIVIDING TITLE AND POSSESSION

BAILMENT
Bailment: Arises when owner parts with possession of a chattel for a specified purpose
     Bailor - true owner/holder of title of the chattel
     Bailee - the person who has possession of the chattel

CAN ARISE THROUGH CONTRACT OR GRATUITOUS:
             o       Contract, e.g. car rental
             o       Gratuitious, e.g. borrowing a book

LIABILITY OF BAILEES
Bailees were generally held liable only on the basis of fault and a different level of care was imposed depending
on the nature of the bailment:
        1.       Bailments for the sole benefit of the bailor - bailee assumes a low duty of care and is liable for
            gross negligence only
             i.           e.g. Remme v Wall, Campbell v Pickard
        2.       Bailments for the sole benefit of the bailee - bailee assumes a much higher duty of care and is
            liable for slight negligence
             i.           e.g. Jenkins v Smith
        3.       Bailments for mutual benefit - duty of ordinary diligence applies unless otherwise altered by the
            terms of the contract

WHERE DUTY OF CARE MAY BE ALTERED:
    1.    Where a significant degree of control has not been transferred, the owner may just be purchasing a
       licence to use premises, etc. instead of creating a bailment
          o        If only a licence, holder may not likely be held liable for any damage while in its possession but if
               there is a bailment, the holder may be liable for negligence
    2.    If bailment for the mutual benefit of the parties is also a contract and the terms may include a clause
                                                                                                                           24




       designed to limit the liability of the parties in the event of a breach of that contract
          o        To the extent that courts accept the duty of care altered, is one for contract law not bailment
                                                                                                                           Page
                                                    25


LEASEHOLDS (LAND)
        In the past, leaseholds were contractual interests, not property interests:
              o not entitled to proprietary remedy (entitled to damages not land)
              o Sphere of enforceability is affected by whether the relationship is contractual or not
                          e.g. No privity of contract between the lessee and X whom lessor contracts with
     Courts have increasingly incorporated contract law remedies and obligations in the event of a tenant's
         breach
Lessor - title holder/ landlord
Lessee - possession but with implied obligations / tenant

LICENCE OR LEASEHOLD
       A lease is a grant whereby the owner of real property (landlord) grants the right of exclusive possession
        of the land to another (the tenant) for a specified period of time
        o        Essence is that tenant has a right to the exclusive possession of the leased premises and right to
             exclude all others including the landlord
       A licence is merely a contractual right to enter onto the land of another for a specified purpose and
        constitutes little more than a defence to an action in trespass
        o        No exclusive possession but permits them to enter premises

             Lease                                            Licence
Privity of   if the landlord sells his or her reversionary    If a licensor sells his interest in the land to a third
Contract     interest to a third party, this third party      party, generally the third party will take the land
             generally takes the reversion subject to the     free of any obligation to the licensee
             outstanding leasehold estate                     Can recover their interest under unjust
                                                              enrichment or estoppel

Protection   If tenant wrongfully evicted from the            If licensor is in breach of licence, licensee will
of           leasehold estate, he or she may bring an         generally be able to recover only monetary
Interests    action to recover the leasehold estate           damages under contract law, no statutory
             If tenant is in breach, landlord may be able     protections available
             to employ the summary proceedings                If licensee breaches, licensor will not be able to
             available under landlord and tenant              employ the summary proceedings under landlord
             legislation                                      and tenant legislation



 METRO-MATIC SERVICES LTD. V. HUFFMAN
Facts
     the owner of an apartment building enters into a contract with a supplier of washers and dryers for the
      building;
     owner of the building sells it to a purchaser
     purchaser did not want to honour contract, wanted different supplier
     Metromatic sues Huffman on the basis that the agreement between owner and M was a leasehold
      estate not just a licence
Issue
     is the purchaser bound to recognize the agreement with the supplier?
     What is the significance of defining the agreement as creating a licence rather than a lease?
                                                                                                                        25




Ratio
     Notwithstanding the terms of the agreement, which seemed inconsistent w/ grant of exclusive
                                                                                                                        Page




      possession, if occupant in fact enjoys exclusive possession and was meant to, then a tenancy was found
                                                      26


Analysis
    If agreement characterized as license:
           o washing machine co. has no agreement with new owners
           o only remedy to sue original owner for breach of K
    If characterized as leasehold estate:
           o Property remedy applies
           o BFPFVWON –enforceable against everyone except that person
    Hullman knew of the existing contract between X and Metromatic so he was not a BFPFVWON
Decision
    Because court found it to be a leasehold estate, Metromatic could enforce against Hullman as it is a
        property interest

TERMINATION REMEDIES IN THE COMMERCIAL CONTEXT
          In commercial leases, there is less reason to assume an inequality of bargaining power between the
         landlord and the tenant than in residential leases so law governing them tends to favour freedom of
         contract
          Issue of termination critical:
           1. Commercial leaseholds - Law returning to 'contract' analysis in the context of commercial leasehold
               estates
           2.       Residential tenancies - so legislation in Ontario attempts to balance the competing interests o
               the tenant and landlord


HIGHWAY PROPERTIES V KELLY DOUGLAS AND CO.
     1.       landlord could refuse to accept the abandonment and treat the lease as subsisting, suing for
        rent as it came due
     2.       Landlord could terminate the lease and sue for rent accrued to the date of termination
                       Landlord not entitled to rent or damages for any period after the termination
     3.       Landlord could inform the tenant that he or she proposed to re-let the premises on the tenant's
        behalf, and at end of term landlord would claim any deficiency between the rent payable by tenant
        and the rent obtained by re-letting
    Implicit in this is no duty to mitigate

Facts
          The tenant repudiated the lease, and the lessor regained possession and attempted to relet the
           premises, without success
          According to principles of leaseholds, the lessor had accepted a surrender of the lease, and was
           therefore entitled to sue the tenant for damages to the date of surrender.
          The lessor, however, wanted to sue for prospective damages as well
Issue
          What is the measure and range of damages which the landlord (appellant) may claim by reason of the
           repudiation by the tenant of its lease of
          What is the effect of the landlord’s taking possession with a contemporaneous assertion of its right to
           full damages according to the loss calculable over the unexpired term of the lease?
Ratio
           landlord entitled to terminate lease but w notice to defaulting tenant that damages will be claimed on
            footing of present recovery of damages for losing benefits of lease over its unexpired term
                                                                                                                      26




Analysis
           Before SCC decision of Highway Properties, 3 mutually exclusive options available to landlord where a
                                                                                                                      Page




           tenant vacated the premises and ceased paying rent before end of term:
                                                        27


            Sue as rent comes due
            1.
                 loss of cost, delay, inefficient remedy
        2. Sue at date of termination and collect on breached covenants accrued up until that date
                 based on concept of estate, landlord forfeits the lease (tenant has no further obligation)
                 Forfeit is advantageous when you can find someone else to rent the place for a higher price
                 In this case, not advantageous to the mall because no one wants it
        3. Try to relet the premises on behalf of the tenant - subletting on behalf of the tenant (acting as an
            agent)
                 Doesn't bring an end to the leasehold estate
                 As if the lessee had assigned its leasehold estate to someone else (constructive, a fiction)
                 Same problem as the second remedy in the sense that no one wanted to rent the premises,
                     even for the rest of the term
    Appellant suggests fourth alternative based on contract: recovering the present value of the unpaid
        future rent for the unexpired period of the lease less the actual rental value of the premises for that
        period
        Not sensible to pretend that a commercial lease is not also a contract, therefore take 4th remedy
Decision
    Appeal allowed

COMMERCIAL VS. RESIDENTIAL
       Different policy issues - commercial leases take longer to formulate than residential leases (standard form
        contracts)
         Inequality of bargaining power
         Therefore residential leases need more protection for tenants

LANDLORD'S DUTY TO MITIGATE
           Subsequent courts have held that where a landlord intends to rely on the fourth contract remedy from
          Highway Properties, s/he is under an obligation to mitigate any loss and his or her damages will be
          reduced if s/he fails to mitigate
           if the landlord seeks to rely on the first property law remedy and elects to treat the lease as remaining in
          force and sues for rent as it comes due, landlord is not under duty to mitigate

PACIFIC CENTRE LTD. V MICRO BASE DEVELOPMENT CORP
Facts
       tenant argued that when the landlord re-let for a term expiring after the end of the term of the first
      lease, it could no longer have been acting as an agent for the tenant b/c the agent cannot do something
      that is not within the power of the principal to do
Issue
 what remedy is a landlord entitled to when he relet the premises to another for longer than the original
    lease period?
Ratio
       If landlord seeks to rely on third property remedy, landlord must re-let the premises on the same terms
      as the original lease and not for a longer term or else it will be deemed to have been terminated and can
      only recover losses to the date of termination (second rule)
Analysis
       Number of problems with the property law remedies for a tenant's wrongful repudiation of a lease:
  Rule 2 & 3
       effectively prevent the landlord from recovering his or her entire prospective loss (P of unpaid future
                                                                                                                           27




      rent for the remaining period of the lease - actual rental value of the premises)
                                                                                                                           Page




Decision
       Re-let at a lower rent, losses of $46 000 but was only allowed to recover $1400
                                                     28


       Therefore because of attempt to mitigate, the landlord could no longer recover full expectation loss


RESIDENTIAL TENANCIES AND THE DUTY TO MITIGATE
        s. 13 of Ontario Tenant Protection Act stipulates that both parties must mitigate
        Where a duty to mitigate has been imposed on the landlord under legislation, a residential tenant is not
      liable for the entire amount of rental payments due for the remainder of the term of the residential lease
      provided there is some market value

190 LEES AVENUE LTD. PARTNERSHIP V DEW, TANGUARY AND WHISSELL
       The court considered the question whether a landlord who had served notice to terminate a residential
      tenancy and the resident had vacated, can still sue for prospective loss of rent at common law
       Found that they could
       Otherwise a defaulting tenant would simply have to behave badly enough to push the landlord into early
      termination in order to avoid the financial consequences of breaking the lease


CHAPTER 5: TRANSFERRING PROPERTY INTERESTS BY GIFTS AND SALE: THE ROLE OF EQUITY

TRANSFERRING PROPERTY INTERESTS BY GIFT (CHATTELS)
Equity will not perfect an imperfect gift
       o         Because a gift is a transfer without consideration, there must meet common law requirements
            in order to make a valid gift

LEGAL REQUIREMENTS FOR A VALID GIFT INTERVIVOS
i) real property gift: a document in writing, signed and sealed by the donor and delivered to the donee is
required

ii) personal property: in the absence of a deed of gift, there must be:
                             Delivery
                             Intention on the part of the donor
                             Acceptance by the donee.

1A. DELIVERY - (GENERAL)


COCHRANE V MOORE
Facts
 Benzon transfers 1/4 interest in horse to Moore
 B obtained funds from C on the basis of a promissory note;
 In payment, bill of sale made to C including the horse in which M argued that he had a 1/4 interest
 at the time of the bill of sale, it was pointed out to C that M had an interest in Kilworth, and C stated that it
    would be “all right.”
 M wanted to assert his share of the horse
 C said no delivery = no gift
Issue
 how to deliver a quarter of a horse for ownership - that is why delivery is the main problem of the case
                                                                                                                      28




Ratio
 A trust is created when the buyer knew of a prior interest of a specific chattel when there was intention and
                                                                                                                      Page




    acceptance of a gift but no delivery
                                                         29


   Delivery is still required for a valid inter-vivos gift-- there must be a transfer, not just words about a transfer.
Analysis
 Trial judge created an exception that no delivery is required when chattels cannot be so easily delivered
 Therefore Moore has the valid gift
 Appeal judge discusses whether delivery is or is not required for transfer of title of a chattel by gift
 In the context of contract - title can shift without actual delivery
 Court found that upon writing letter indicating the gift to M, B created a trust for M
 When B sold the horse to C, C effectively was the trustee for M
 C knew of the existence of a prior interest of a specific chattel by somebody else
Decision
 Delivery remains a requirement for a valid gift
 Achieves same outcome as trial judge but through a different means
Obiter
 Oral gifts are protected from fraudulence when delivery is required
 Shows how possession is the precursor to property

TWO EXCEPTIONS TO THIS REQUIREMENT FOR DELIVERY:
        o   Deeds
        o   Contracts of sale where the intention of the parties is that the property shall pass before delivery

GIFTS & TRUSTS
     Trust: A transfer of title without a transfer in possession
        The creation of a trust requires three certainties
            1.      Intention to create a trust
            2.      Identification of the subject matter of the trust
            3.      Identification of the objects of the trust
           Although there is an intention to create a trust, there is no requirement of physical delivery
           By contrast, valid gift requires both intention on part of donor as well as delivery

Resulting Trusts: Resulting trusts usually occur in circumstances where there is “intention”
         Delivery no intention of gift
         Recipient of the property holds it in trust for the transferor
         When a person purchases property in the name of another without intending to make a gift

Constructive Trusts: trusts that may be “constructed” by courts to avoid some inequity
           when one person makes a contribution to property that is held by some other person, it is possible
           that person with title is construed as trustee for person who makes the contribution
        Based on unjust enrichment

 WATT V. WATT ESTATE
Facts
           Marina owner wrote a document saying that boat owned jointly by him and the P‟s husband
           P claimed entitlement to the boat as a gift
           The marina owner died, his estate said there was no valid gift
Issue
           Was there a valid gift on the part of the plaintiff to the marina owner
Ratio
        
        Constructive trust - in remedy when it is not possible to conclude that there was an actual gift but it
                                                                                                                           29




        would be unjust to preclude a party from access to the property
                                                                                                                           Page




Analysis
                                                    30


       Appeal court says there is no valid gift because delivery of keys was not delivery of gift because marina
        owner also had a set of keys
Decision
    No valid gift but construct a trust
          This is a good example of court coming to conclusion that there is something unjust about estate
          having whole ownership of the boat

DEEDS OF GIFT:
    Sometimes even deeds of gift may be “incomplete”

SCHILTHIUS V ARNOLD
Facts
         Man executes a deed where he gives 1/2 interest in fee simple to a woman
         Few years later after discussion of marriage, donor gives second half conveying remaining interest
          as well
         The solicitor for the woman was supposed to register it but didn't and marriage plans fell through
         Man wants to set aside second deed of gift
Issue
         Is there a valid gift?
Ratio
         If a gift is conditional (precedent), then the condition must be fulfilled in order to be completed
Decision
         Basis of gift was conditional on marriage, therefore no gift if condition remained unfulfilled

1B. DELIVERY – (FAMILY GIFTS)


 IN RE COLE
Facts
 Man who is quite wealthy sets up an exquisite home while his wife is taking care of sick child
 Man takes wife into home, shows her all the items and says, "this is all yours"
 Eventually went bankrupt
 Trustee in bankruptcy who claimed that home and its contents are part of the estate for purposes to meet
    obligations
Issue
 Whether there has been anything here which amounts to an act of delivery or a change of possession either
    preceding or following or coincident with the words of gift so as to make it perfect
Analysis
 No delivery of contents of the house
 Her lawyer said that delivery is satisfied by words and being in proximity of the items, by bringing the
    recipient to the goods rather than the other way around
 Delivery is still required for a valid gift
 If the gift is successful, there is a lot less available to transfer to the creditors of the bankrupt
Ratio
 If the husband wanted to give the contents of the house to the wife, must do it by way of deed of gift in
    relation to chattels
         In land, giving a deed must always be done
                                                                                                                    30




Decision
         There was no gift made
                                                                                                                    Page
                                                      31


LANGER V MCTAVISH BROTHERS
Facts
 Man brings fiancée to new home, showed her an array of furniture and declared ‘it’s all yours’
Issue
 Has the gift been perfected—has delivery taken place?
Ratio
 Court may take into account nature and circumstances of the parties when determining if there is delivery of
    a gift
Analysis
 In in re: cole the difference is that they were already married, also the bankruptcy situation
Decision
 Because the husband has brought her to the home and declared content of home then that constitutes
    delivery

MACKEDIE ESTATE V MACKADIE
Facts
 son was given paintings every year for 5 years with a note on it that said, “happy birthday”
 After receiving paintings, put back on deceased's wall
 Father willed away paintings to somebody else
Issue
 Was there constructive delivery so that the son could keep the gift?
Ratio
 Written endorsements constitute intention to make a gift
 Wrapping the gifts constituted delivery
 Possession does not have to be exclusively with the donee
Decision
 There was a valid gift

Constructive Delivery: delivery of “choses in action” (as in Cochrane) now usually requires compliance with
specialized statutes.
            The issue is having you completely divested yourself of means of control for possession?
symbolic delivery - Not a valid gift in Canada if it does not constitute delivery as there is no letting go of control


2. INTENTION

THOMAS V TIMES BOOK CO. LTD.
Facts
 Thomas went on a drinking spree in London, and mislaid his original copy of the play.
 Thomas told the agent, Douglas Cleverdon, that “if *he+ could find it *he+ could keep it.”
 Cleverdon eventually located the original in a pub in Soho
 he sought to establish a gift from Thomas (a claim disputed by Thomas’s widow)
Issue
 The question is whether during his life time he made a valid gift
 What was Dylan's intention with respect to Cleverdon?
Ratio
 Delivery was sufficient as Dylan Thomas effectively gave Cleverdon control of finding the manuscript
                                                                                                                         31
                                                                                                                         Page




3. ACCEPTANCE
                                                        32


       Not litigated often because people generally accept gifts
       Sometimes people makes gifts and don't communicate to the donee that a gift has been made
       The principle is that until you know of the existence of the gift you don't have to accept it
       Courts have tended to expect donees to decide whether to accept a gift within reasonable time of discovery
        of the gift

LEGAL REQUIREMENTS FOR A VALID DONATIO MORTIS CAUSA

       This is a gift in contemplation of death.
       delivery is required, but (like testamentary gifts) they do not take effect until death; and
       if the donor recovers, the gift is automatically by law revoked.
       The scope of DMCs is pretty narrow - no time or ability to make a gift inter vivos or a testamentary gift

TRANSFERRING INTERESTS IN LAND: LEGAL AND EQUITABLE INTERESTS


CONVEYANCES AND CONTRACTS FOR SALE
A transfer of legal title to land requires a deed.

Deed: a document signed by the vendor (perhaps under seal), which is effective to convey title from a vendor to
a purchaser, subject to statutes concerning registration of interests in land.

In general, land is conveyed in Ontario by way of a two-step transaction:
1. Valid contract for the sale of land: the vendor and purchaser agree on the terms of the transfer and on the
    date when the title will be transferred
        The contract for the sale of land creates an equitable property interest for the purchaser, by virtue of
        fact that specific performance is available (s.p. = equity created)
        Therefore equitable interest created when capable of s.p.
2. Conveyance of the legal fee simple estate by a deed of transfer: the closing date.
        modern real estate transaction: it is only when the vendor delivers a deed to the purchaser at closing
        that the legal estate in land is transferred to the purchaser

A valid contract for the conveyance of land under step 1 requires:
1. the vendor’s ability to make title (Lysaght)
2. requires a valid contract (the usual requirements for contract)
3. Specific Performance requires 3 P's: Property, Parties, Price (Walsh)
4. Statute of Frauds, s. 4: an agreement in writing, signed by the party “to be charged.”

THE SPHERE OF ENFORCABILITY OF AN EQUITABLE PROPERTY INTEREST –CAN ENFORCE IT
AGAINST EVERYONE EXCEPT THE BONA FIDE PURCHASER FOR VALUE W/O NOTICE

Gazumping: The problem of vendors negotiating with multiple purchasers at the same time to obtain the
highest sale price and using the Statute of Frauds to avoid the consequences of their oral agreements

THE STATUTE OF FRAUDS
           Statute of Frauds was enacted to ensure written evidence of transfers of interests in land
            o       To prevent fraud and perjury by false allegations of contracts
                                                                                                                     32




           Statute of Frauds requires:
            o       1(1) the creation of a freehold estate must be in writing and signed by the parties
                                                                                                                     Page




                           Failure at this is an estate at will only
                                                   33


        o       1(2) leases are 'void unless made by deed'
                        No estate of freehold or leasehold can be assigned, granted or surrendered unless by
                  deed or note in writing and signed by transferor
      Ontario Statute of Frauds, RSO 1990, c. S.19

 LYSAGHT V EDWARDS
Facts
 Vendor Edwards sold land to purchaser Lysaght
 the vendor died before the closing date
 After the vendor's death purchaser brought an application for specific performance of the contract against
    the heirs of the property
Issue
 Can the purchaser compel the vendor's estate in carrying out the contract? (Specific performance)
Ratio
 when there is a valid contract for the sale of land, the vendor becomes in equity a trustee for the purchaser
    of the estate, and the purchaser becomes a trustee for the purchase price.
Analysis
 A decision that essentially tells us what happens at stage 1 of the real estate transaction from a legal
    perspective
 Stage 1
 LAND: The moment you have a valid contract for sale of real property, the vendor becomes a trustee for the
    purchaser in equity and the equitable ownership passes to the purchaser
 Vendor has right to purchase money and the right to retain possession of estate until purchase money is
    paid
 At stage 1, we have a situation where the vendor has become a trustee for the purchaser
 MONEY: The purchase money obligated under the contract, the vendor has an interest in that purchase
    money
    Stage 2
 At closing, the vendor get nothing, the purchaser will have legal title by transfer
Valid Contract
 Valid contract - a contract sufficient in form and in substance so that there is no ground whatever for setting
    it aside as between the vendor and purchaser
 It converts the estate in equity- it makes the land a part of the real estate of the vendee and purchase
    money a part of the personal estate of the vendor
Risks
 If anything happens to the estate between the time of sale and the time of completion of the purchase it is
    at the risk of the purchaser
 At same time vendor is not allowed to treat the estate as his own or else liable for any damage caused

                               Before Contact            Contract                   Conveyance
      Law                      Vendor (fee simple)       Vendor (fee simple)        Purchaser (fee simple)
      Equity                   Vendor (fee simple)       Purchaser (fee simple)     Purchaser (fee simple)
       The assistance of equity will normally be forthcoming in each case unless the purchaser has forfeited
      such help by reason of some unconscionable act or default or if s.p. would prejudice the rights of third
      parties
        o       "equity deems as done that which ought to be done"
                                                                                                                    33
                                                                                                                    Page
                                                           34


Specific Performance
        a decree of specific performance required a purchaser personally to close a transaction and that the
      purchaser could not avoid this obligation by assigning the purchaser's rights under the agreement to an
      impecunious numbered company (Lubben v Veltri & Sons Corp)
        In Semelhago, obiter - there is no longer any need to treat real property as unique when it is merely
      subdivision lots
         o       Is specific performance necessary anymore?
         o       If not, is there a duty to mitigate

JOHN E. DODGE HOLDINGS LTD. V 805062 ONT. LTD.
       Question of uniqueness in a commercial context
Facts
     Defendant vendor had agreed to sell some commercial land to the plaintiff
     Land was near theme park which was crucial as he wanted to build a hotel
     Defendant breached but argued that land was not unique enough and therefore plaintiff should have
        mitigated his loss
Issue
     Was the land in question sufficiently unique enough to warrant specific performance from the vendor?
Ratio
     Specific performance will only be granted if the plaintiff can demonstrate that the subject property is
        unique in the sense that its substitute would not be readily available
            o This quality should be related to the proposed use of the property and be one that is particularly
                suitable for the purpose for which it was intended
Decision
     The property in question was sufficiently unique to give rise to a remedy in specific performance

WALSH V. LONSDALE
Facts
     Landlord agreed in writing to lease a mill to the tenant at a rent based on the number of looms run
      annually
     Parties never executed a deed of lease but tenant went into possession and paid rent
     With oral agreement, common law regarded the tenant as holding a periodic tenancy -defined by the
      period of the rental payment (annual)
     When landlord asked for advance payment, tenant refused
     Landlord exercised remedy of distress whereby he can seize goods in satisfaction of arrears
     Tenant claimed because lease was oral, no obligation to pay in advance
Ratio
Court will treat the parties if the three requirements for valid K were met as if SP had already been granted, i.e. as if the lease
had already been executed.
Issue
       Was the lease specific enough to warrant specific performance?
Analysis
    Being a lessee in equity means that the lessee cannot complain of the exercise of the right of distress
        merely because the actual parchment has not been signed or sealed
Decision
    the court knows the property, the parties, and by using the min # of looms the price –this creates an
    equitable K
                                                                                                                                      34




PART PERFORMANCE: EQUITY BEYOND THE STATUTE OF FRAUDS
                                                                                                                                      Page




        This has been designed in part due to the unfairness in the Statute of Frauds
                                                            35


       Has to do with a significant action/activity that is referable to a contract not contract itself
       Equitable doctrine of part performance may make enforceable a contract for the sale of land even if the
     contract does not meet the requirements of s.4 of the Statute of Frauds

MADDISON V ALDERSON
   “The proper course in such a proceeding is that of seeking to establish primarily such a performance as
     must necessarily imply the existence of the contract and then proceeding to ascertain its terms.
   The acts performed must speak for themselves and must point unmistakably to a contract affecting
     ownership or the tenure of the land and to nothing else

DELGMAN V. GUARANTEE TRUST
    the mere payment of money does not qualify as part performance
TEST for Remedy of Part Performance:

              1. Performance was „referable to K‟
              2. Acts relied on to establish PP must be performed by the plaintiff, not the defendant
              3. K must be one which it were properly evidenced by writing, would have been
                 specifically enforceable
              4. Clear and proper evidence (oral or written) of existence of K

STARTLITE VARIETY STORES V CLOVERLAWN INVESTMENTS LTD
Facts
     Cloverlawn had delegated an employee to create a lease with Starlite to lease a store in the mall
     S signed the agreement but C did not sign it
     S then undertakes activities - building, fixtures, etc.
     C then leased the same property to Mac's Milk
     C: we didn't have a contract that complied with s. 4 of the Statute of Frauds
     S wants to enforce the contract
Issue
     If the agreement is not signed by one party, does the agreement not meet the requirements set out in
      the Statute of Frauds and thus preclude S from enforcing the contract?
Ratio
If a party partly performs acts on land to his detriment in reliance on the oral agreement a court will say that it is unjust not to
enforce agreement
        Four essential elements required to establish part performance which will exclude the statute :
         1) Referable to a contract alleged but no other title
         2) Render it a fraud in the defendant to take advantage of the contract not being in writing
         3) The contract to which they refer must be such as in its own nature is enforceable by the court
         4) Evidence of part performance (Deglman criteria)
Equity is not enforcing the oral agreement, but it is enforcing acts that are referable to oral agreement (the equities that arise
out of the agreement)
Analysis
    evidence of the part performance that implies the existence of the contract, the terms of which can then
        be given in evidence
    Mac's Milk was a bona fide purchaser for value without notice so they cannot bring action against Mac's
        Milk
Decision
    Plaintiff gets $20 k
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                                                                                                                                       Page
                                                           36


D. EQUITIES: AT THE BOUNDARIES OF GIFT, TRUST, CONTRACT AND SALE
           Equities- Equitable interventions that result in transfer of title circumstances where there is NO contract
            Distinguished from 'equitable interest' although sphere of interest is the same
            The focus of this section is on informal, non bargain family arrangements concerning land

UNJUST ENRICHMENT
          Equitable intervention in family arrangements concerning property falls into a number of different but
         related categories
           o       Contractual licences coupled with an equity
           o       Significant contributions from a family member w/o no title to another with title
         Even though there was no K at all, the court looks at the injustice of a particular fact situation and
           exercise discretion to avoid unjust enrichment by imposing constructive trusts

           resulting trusts were created when money was paid while constructive trusts have to do with unjust
        enrichment in terms of work expended

        Transfer of Legal Interests      Transfer of Equitable Interests    Unjust Enrichment Transfers
        Regular CL Criteria              In between 2 step process –        Facts do not conform to LI or EI but
                                         remedies in equity                 situations where there is unjust enrichment.

Proprietary Estoppel: Estoppel by Acquiescence
       "the jurisprudence of proprietary estoppel provides an extremely flexible means by which the courts can
      so fashion discretionary relief as to do justice in light of the interaction and expectation of the litigants"
       Similar to promissory estoppel but may result in an interest binding on third party purchasers with
      notice of the equity

INWARDS V BAKER

Facts
             Father told his son to build a building for himself to live in on his property
             When he died, father left money to son in will, left property to his wife and their kids together
             The kids, appointed as trustees sought to force Baker out of the property
             This is not a successful gift of land because there is no deed
Issue
             Does Baker have title to the land or a licence?
Ratio
        
        If the owner of land allows another to expend money on the land under an expectation created or
        encouraged by the landlord that he will be able to remain there, that raises an equity in the licensee
        such as to entitle him to stay
             o Licence coupled with an equity
Analysis
    Plimmer - the equity arising from the expenditure need not fail merely on the ground that the interest to
        be secured has not been expressly indicated, court must look at the circumstances in each case to
        decide in what way the equity can be satisfied
             o In this case court can look at circumstances to see whether there is an equity arising out of the
                 expenditure of money
    Evident that the father allowed an expectation to be created in the son's mind that this bungalow was to
                                                                                                                           36




        be his home as long as he wished it to be
    In light of that equity, father could not in 1932 have turned to his son and said, "leave"
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    Could a purchaser of the property from the father then get the son out?
                                                   37


            o   No, any purchaser who took with notice would clearly be bound by the equity
            o   So too the present plaintiffs are clearly bound by this equity
Decision
    Son had a qualified life estate


PASCOE V TURNER
Facts
     Man says to woman he is cohabiting with that she should have the house and its contents
Issues
     Although there is no valid gift, what entitlement does Turner have against the property?
Analysis
The Imperfect Gift
     The plaintiff made an imperfect gift of the house
              o There is nothing in the facts from which an inference of a constructive trust can be drawn
              o In the event it remained an imperfect gift, there is no equity that can perfect an imperfect gift
     Voluntary agreement not completed will not be assisted in equity, but the the subsequent acts of the
         donor may give the donee that right or ground of claim which he did not acquire from the original gift
Proprietary Estoppel
     the work done on the house was substantial in the sense that the adjective is used in the context of
         estoppel
     This is a case of estoppel arising from the encouragement and acquiescence of the plaintiff when, in
         reliance upon his declaration that he was giving the house to her
     The policy issue in In Re Cole there was a concern about the bankruptcy aspect of the chattels that
         worked against the wife whereas here there is not however in both cases both remained present in the
         house
     Court comes to conclusion that the only way to settle it is to transfer the fee simple estate
              o Licence is no good because he could transfer the property to someone else
              o Trust is no good because for example, he could do things to the property that make it miserable
                 to live there
     Court wants to design the appropriate remedy
        Decision
       o         Transfer in fee simple
        Obiter
       o         It is an exceptional outcome

TRANSFER OF LAND RECAP
Transfer of Land Recap
   1. Legal –deed of sale or gift
   2. Equitable (where no deed of conveyance)
           a) SP –focuses on the existence of a K
              o Must have valid K (offer, acceptance, consideration)
              o V must have title
              o K must be capable of SP (3 P‟s)
              o K must be consistent w/ Statute of Frauds (esp. s. 4)
           b) PP –use it to help us say that no one would have done what they did if they did not think they had a K
              o Used when not meet tests for SP (i.e. not in writing, not signed by party to be charged)
              o Is PP that implies existence of a K (i.e. would not have done it if there was no K)
   3. Equities (where there is no K, and no SP and no PP implying a K then equity surfaces)
                                                                                                                    37




           a) Person claiming the equity must show the 3 E‟s
                    o (encouragement, expenditure, expectation =equity)
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           b) Inwards v. Baker and Pascoe v. Turner
                                                       38


CHAPTER 6: NON-POSSESSORY INTERESTS IN LAND: “PRIVATE” PLANNING AND THE USE OF
LAND
Involve having a property interest that does not carry with it a right to possession

       In addition, easements and covenants have been used as mechanisms of “private” planning
       easements and covenants remain important for such planning purposes
       conservation and heritage preservation goals
       overlap between conceptions of “private” and “public” interests in land.
       These non-possessory interest have become the basis of issues of environmental and sustainability planning
             Conservation easements

THE PROFIT A PRENDRE

Profit a prendre: permit someone to go on the land of another for the purpose of removing something.
        1. The profit does not permit the holder to remain on the land
        2. nor does it confer any right to possession.
 Different than an easement as easement confers right to use the land belonging to another
 Normally a profit a prendre is for a defined period of time

MASON V CLARK
Facts
   Mason paid 100 pounds for right to shoot rabbits for a year from Clarke's property (oral contract)
   Non possessory interest because you are not entitled to possession of that land but of the rabbits that you
      happen to kill
   When he tried to exercise that right he was prevented from doing so by the respondent
Issue
 What rights does a profit a prendre entail?
Ratio
 When there is only an oral contract for a profit a prendre and there is part performance, then one receives an
    equitable profit a prendre
Decision
     Court finds he has an equitable profit a prendre because there was no paper contract but an oral contract
        and because there are acts of part performance

R V SPARROW
SCC recognized that the band held an aboriginal right to fish for food beyond mere subsistence
      R v Sparrow - confirmed that right to use traditional fishing grounds
      But defined the interest land as a sui generis interest instead of a profit a prendre

RIGHT OF BRITISH COLUMBIA V TENER
     Government enacted legislation making part of the land a provincial park after it had given them mining
    rights
     Situation of whether the holder of the interest has a licence or a profit a prendre in relation to take
    minerals so that they can continue to enforce it against the provincial park


EASEMENTS
                                                                                                                         38




          Easements: right of way - if an easement is valid then it has the same effect
          Courts are generally restrictive in their interpretation of rights that might be characterized as easements
                                                                                                                         Page
                                                         39


GYPSUM CARRIER INC. V THE QUEEN
Facts
     An ocean freighter owned by Gysum carrier collided with the New Westminster Railway Bridge
     Bridge owned by federal government but used solely by railways
     Railway companies sought damages for rerouting expenses
     Gypsum Carrier resisted the claims on the basis that no damage or injury was caused to any property
        owned by the railway companies or to any property in which they had proprietary interest
Issue
     Did the railway companies have some form of proprietary interest in the bridge that would enable them
        to recover damages?
Analysis
     Federal government given full control over the maintenance and betterment of the property even
        though the railway companies could construct their lines to match up with the bridge
     Claim was rejected as an easement
     Easements are "a right annexed to land to utilise other land of different ownership in a particular
        manner or to prevent the owner of the other land from utilising his land in a particular manner"
Decision
     No easement was created

            Traditionally, there are four requirements to establish the existence of a valid easement:
                    a. There must be a dominant and a servient tenement
                            Dominant tenement enjoys the benefit of the easement
                            Servient tenement that is burdened
                    b. The easement must accommodate the dominant tenement;
                    c. The same person cannot own the dominant and servient tenements; and
                    d. The easement must be capable of forming the subject matter of a grant (ie defined).

A) DOMINANT AND SERVIENT TENEMENTS:

                     dominant tenement - he is the person that benefits from the easement
                     servient tenement - his land is subjected to the easement

             easement in gross: when one doesn't own land, cannot have an easement
              o     In Canada, an easement in gross cannot exist because there must be a dominant tenement

B) ACCOMMODATING THE DOMINANT TENEMENT:
       An easement has to confer a benefit on the dominant land, not just on the owner of the dominant land
       If it increases the value, it accommodates it but it is not necessary to increase the value of the dominant
        tenement

DEPEW V WILKES
Facts
             A group of cottage owners were entitled to use a laneway (easement from D) from the public highway
              to their respective cottages:
             The right of way was supposed to be for ingress and egress but have started possessing it by parking
              their cars
             Doing more than they were entitled to do
                                                                                                                      39




Issue
             is the right to park your car a case of dominant tenement?
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Ratio
                                                     40


       an easement c an be acquired through continuous use that accommodates the dominant lands
Analysis
    their claim to a further easement depended on whether the right to park their cars “accommodated”
        their lands
Decision
    They are basically doing what they would for their dominant tenement

The dominant tenement must be enhanced/accommodated, not the person

C) THE NEED FOR SEPARATE OWNERS OF LAND:
        If there is an easement and then the land subject to the easement is acquired by the person owning the
        dominant tenement, the easement is extinguished.


D) CAPABLE OF FORMING THE SUBJECT MATTER OF A GRANT:
Since the easement permits activities by a non-owner on the land subject to the easement, the easement must be
definable: it is not possible to have an easement that cannot be described in a grant.
        o We have to be able to describe using words what this easement is about
        o A requirement of an easement is that it is not too vague

NEGATIVE EASEMENTS


PHIPPS V. PEARS
Facts
      about negative easements but also touches on covenants (running with land)
        #14       #16
       Hospital Plaintiff
     Because there is no contract between the new owners, they cannot sue for any breach for tearing down
          the wall therefore the plaintiff argued easement
Issue
          o Whether there is a right known to the law to be protected by your neighbour's house from the
              weather
          o Is there an easement of protection?
 Ratio
     There is no such thing as a negative easement.
Analysis
     Two kinds of easements known to the law
       1. Positive easements - right to do something on or to neighbour's land
       2. Negative easements - right to stop his neighbour doing something on his neighbour's own land
          Negative easement in this case would involve right to support and right to protection from the weather
     This argument is dismissed as there is no such thing in law as a right in protection from the weather
     Wary of granting new types of easements as the court does not want to restrict neighbours from
          enjoying their property
     The law has to be careful for creating new interests - more so in negative easements
     The only way that the protection from weather could be enforced is to create a covenant (contractual
          situation)
                                                                                                                    40




                         In order to enforce against subsequent purchasers will be through equity (BFPFWN)
                                                                                                                    Page
                                                      41


POLICY CONTEXT OF NEGATIVE EASEMENTS
Policy Reasons
o To prevent the proliferation of uncertainty in property interests
o There will probably be some negotiation for the covenant (consideration given)
o Law is reluctant to create restrictions on property owners that they didn't know they were subject to
       If they want protection, they should pay for it, create a contractual relationship
o Law does not want to affect the way people can enjoy their land




COVENANTS
       Covenants in relation to land, like easements and profits create non-possessory interests in land
       Problems with the unenforceability of easements on new owners lead to why some covenants have
      been recognized as proprietary interests
       A covenant for a negative easement would have been enforceable in contract between the parties and
      binding in equity on subsequent purchasers without notice

         Privity of                          Privity of estate                        Neither privity of contract nor
       contract only                                                                           estate exists

      Regular rules,     If the lessor assigns the reversion or the lessee assigns   Freeholds:
      original parties   the terms of lease, privity will exist between              1.     The vendor and
      remain liable to    1. the assignee of the lessor and the original lessee         purchaser's assignee
      each other for      2. an assignee of the lessee and original lessor           2.     vendor's assignee and
      their breaches      3. an assignee of the lessor and an assignee of the           purchaser
      during the               lessee                                                3.     vendor's assignee and
      entire term of     An assignee of the term or reversion is liable only for        the purchaser's assignee
      the lease          breaches of covenants that occur while she holds the           Leaseholds:
                         estate in the land                                          Between lessor and sublessee

In scenario 3, a covenant is not enforceable subject to two exceptions
  1.    In equity the benefit and the burden of a restrictive covenant can run with the land
            Restrictive covenant: covenant that is negative in substance
  2.    The benefit (not the burden) of a positive or restrictive covenant that touches and concerns the land can
      run with an estate in the land

       Covenantor - the one who makes the obligation and is burdened by the covenant
       Covenantee - the one who benefits from a covenant
       Positive covenants - requiring the covenantor to take some action
       Negative covenants - requiring the covenantor to refrain from defined activities

Impact of running with land: IF covenants run with the land and are enforceable against subsequent buyers,
situation where contract is now being enforced by and against parties who were not contracting parties.

Understanding Covenants
 The law needs to balance the rights of land-owners to protect the value of their land by entering into
   contractual arrangements with their neighbours, and the need to ensure that the use of land is not tied up
                                                                                                                        41




   indefinitely in problematic ways.
   The tension between landowner's freedom of contract and broader interests of public policy has frequently
                                                                                                                        Page




   occurred in relation to discriminatory covenants
                                                    42




LEGAL RULES FOR PASSING OF COVENANTS
   Often created when a vendor transfers one or more lots to purchasers and creates burden on a purchaser's
    land in favour of the land retained by the vendor
        o        If purchaser subsequently breaches the agreement, the vendor may sue for damages for the
             breach and obtain an injunction in equity preventing a breach from occurring or continuing to occur
        o        Based on privity of contract
   According to legal principles, the benefit of a covenant may pass in defined circumstances but the burden of
    a covenant cannot pass with the assignment of a freehold interest under any circumstances

BENEFITS RUNNING WITH LAND
 The person who originally has the benefit has transferred the fee simple estate and the recipient of the
   estate has a legal fee simple estate
 The covenant has to be one that touches and concerns the land
 Legal principles for the running of the benefit of the covenant make no distinction b/w positive covenants
   and negative covenants

BURDENS RUNNING WITH LAND
 The running of the burden: the burden never runs at law
 Rationale for the burden not being passable/transferable:
       Great detriment would arise and much confusion of rights if parties were allowed to invent new
          modes of holding and enjoying real property
       Property titles would become too heavily encumbered and the assignability of the land would be
          impeded
       Persons subsequently dealing with the land would have great difficulty in ascertaining the existence
          of such covenants because they do not normally have a physical manifestation

Creative ways to avoid the legal principle that the burden never runs with the land
           1. A chain of personal covenants
                    Maintain privity of contract
                    Each time there is a transfer of fee simple there is also a contract
                    The chain is broken when someone dies, moves away etc.
           2. A rentcharge (infrequently used in Canada, more often in the UK)
           3. Statutory burdens, eg the Planning Act- that permit the running of the burden

The rule in Halzall v. Brizell: A person who claims the benefit of the deed must also take it subject to the burdens

DURHAM CONDOMINIUM V AMBERWOOD INVESTMENTS
A Canadian example of Halzall
Facts
     Developer constructs a condo for a condominium corporation and also a recreational facility on this land
     Developer and Durham signed an agreement for sharing use and maintenance expenses of rec. facility
            o Intended to be binding on successors of party
     Amberwood Investments bought the land adjacent from the developer
     Amberwood ceases to make payments pursuant to the agreement
Decision
       Since Amberwood did not use recreational facility, they are not receiving any benefit therefore are not
                                                                                                                       42




          subject to the burden
                                                                                                                       Page
                                                     43


o   Rule of non-passability is inconvenient and may result in unfairness but any remedy must come from
    legislature
Dissent
       Would apply the benefit/burden exception because they had notice of the burden
       Must always accept burden if you have notice of it before you purchase property
       Applying equitable principles of notice

EQUITABLE RULES PASSING OF COVENANTS


TULK V. MOXHAY
Facts
     Tulk - owner of Leicester Sq. conveys it to Elms
     Elms must maintain the square garden in an open state and uncovered with any buildings
     Gardens were conveyed to Moxhay and heirs but did not convey the covenant
Issue
     Could the burden of the covenant pass from Elms to Moxhay?
Ratio
              The covenant is enforceable in equity when there is notice
Analysis
     On the rule, the burden cannot pass
     Undertaking an obligation might affect the value one is prepared to pay for the fee simple estate
     If the law is that one can transfer without the obligation, the price is higher and results in a profit
     In this way, he is escaping his moral obligation
     Moxhay admits that at the time he got it, he had notice of the existence of the covenant
                       No longer a BFPVWON
Decision
 The covenant passed

POLICY rationales for enforcing covenants:
    Equity intervenes when burden of covenant doesn’t run at law to protect original covenantee against
       injustice.
    Financially unfair: Because at time A and B make covenant, A probably pays B money…If B then gives D
       land without the covenant, then he can breach the contract in essence, and make more money too.
    Unfair because of notice: Also, D had notice of existence of covenant and the price for the land he paid
       was dependent in part upon on the burden required by the burden of the C.
   Basic Principle
o Moral obligation created on the part of person with a burden of covenant
o When a subsequent buyer has notice, then bound in equity

SUBSEQUENT REFINEMENTS OF THE PRINCIPLE OF TULK V. MOXHAY

Subsequent refinements of the principle of Tulk v. Moxhay: five requirements
1.       Notice
                 Also a BFPFVWON
                 If any equity is attached to the property by the owner, no one purchasing with notice of that
         equity can stand in a different situation from the party from whom he purchased
                 The decision in Tulk v Moxhay cannot preclude equity from taking place
2. A “negative” covenant
                                                                                                                  43




      Principle comes from 1881 decision called Haywood
            Severance of the positive covenant from negative in Tulk v Moxhay and only enforce the
                                                                                                                  Page




               negative covenant
                                                   44


       Negative covenants are enforceable
3. Covenantee retains land to be benefitted
      The person benefiting must retain land that has a possibility for benefiting by the covenant
      If not, does not retain the land then cannot enforce burden
      Alberta Ltd v Molson Breweries Property: had land but is too far away to benefit (200 miles away)
      Where municipality makes an agreement with a developer but cannot enforce covenant against
          purchasers from the developer because it does not have land that can be benefited
4. Covenant must “touch and concern” land
5. Intent of covenantor that the covenant bind heirs and successors in title

COVENANTS AND DISCRIMINATION:


RE DRUMMOND WREN
 Rendered on the basis of the doctrine of public policy therefore wasn't enforceable
 An example of a partial restraint which is itself considered invalid because of the nature of the restraint
   involved
 Uncertainty - some contracts are not enforceable for this
       o "objectionable nationality" is too broad - any nationality is "potentially objectionable"
  There are both broad public policy issues as well as narrow issues with respect to property law

NOBLE AND WOLF V. AL LEY
Facts
     Covenant that is attached to the conveyance to the fee simple estate right in the deed
     Clause f: lands shall never be sold, assigned, leased, rented, occupied by anyone of the Jewish, negro,
        coloured races…
            o Very specific in terms of its exclusion
     Noble wants to sell the property to Mr. Wolf
Issue
     Are the cottagers able to enforce their benefit against Mr. Wolf
Ratio
     Unenforceable because it does not touch and concern the land therefore it is unenforceable
Analysis
     This is different than Drummond Wren where they said it contravenes public policy
            o Why such different approaches to discriminatory covenants?
            o This was distinguished because in Drummond Wren it had to do with shelter not leisure
Decision
     SCC: covenant unenforceable

Conveyancing Law of Property Act
    "every covenant made after the 24th of Mach 1950 that but for this section would be annexed to and
      run with the land that restricts sale, ownership, occupation or use of land because of the race, creed..is
      void and of no effect."
    This section may go beyond the categories in Noble and Wolf - restrictions w.r.t. more things than just
      race

DISCHARGE AND REFORM
                                                                                                                   44




       Yes there are provisions in the Conveyancing Act that allow for getting rid of easements
       When you are in breach, you might be subject to an injunction or damages
                                                                                                                   Page
                                                       45


            o       e.g. West Edmonton Mall - breached a covenant not to sell hamburgers - was granted an
                injunction against them

NON-POSSESSORY INTERESTS: “PRIVATE PLANNING”


 “PRIVATE” PLANNING, “PUBLIC” LAW AND CONSERVATION
            Recommendation that covenants should exist in gross (shouldn't have to have land in order to enforce)
            Land obligation - to replace covenants
            Contrasting reform effort in US where they created one new kind of obligations called servitudes by
           combining all the old kinds of obligations
            How covenants continue to be used in public planning activities
             o       Stewardship of land -
                  i.         e.g. examples of preservation of wood lots
             o       Conservation easements (covenants)
                  i.         Entered into on the part of environmental organizations or government agencies and
                       are governed now by legislation
                 ii.         Ontario Conservation Land Act

CHAPTER 7: CONCURRENT INTERESTS AND FAMILY PROPERTY

           since concurrent holders of interests in land must share possession, such arrangements are more likely
            to occur among family members than among strangers.
           family law statutes have increased the kinds of shared interests in family property for married couples
           trust principles have developed similar arrangements for cohabiting couples
                o opposite-sex
                o same-sex couples

TRADITIONAL CONCURRENT INTERESTS

Concurrent Interests: interests where more than one person having a property interest in the same object at
the same time

FOUR KINDS OF CONCURRENT INTERESTS

      1.    Joint tenancies: require the presence of the four unities and the right of survivorship; and
      2.    Tenancies in common: only one unity is required: possession (no right of survivorship).
      3.    Tenancy by the entireties: A joint tenancy for a married couple
      4.    Co-parcenary: Historically, on intestacy without a male heir, daughters held as co-parceners.

           Joint tenancy- If A and B hold a joint tenancy, B dies, A has sole tenancy
               Not the same as saying that B's title passes to A, just that A no longer has to share it with B
               Disadvantage is that you don't know who will pass first --> revert to tenancy in common
           Tenancy in common - undivided half interest, when B dies B can will away his undivided half interest
               A has a tenancy in common with the recipient of the estate
                                                                                                                      45




MCEWEN V EWERS AND FERGUSON
Facts
                                                                                                                      Page




     Finlay McEwan died devising a life estate to wife in relation to lots 5 and 18
                                                    46


       After wife death, remainder interest in 5 to Robert
       After wife death, remainder interest in 18 to Bertha and Janet using these words:
            o “Lot 18…to B and J jointly and should they decide to sell the land each of them is to have an
                 equal share of the proceeds of the sale”
       B died and devised her one half interest to R
       R (Plaintiff) wanted it construed as a tenancy in common so he would be able to hold interest in it
Issue
       Was it a tenancy in common or a joint tenancy?
Ratio
         Words such as ‘jointly’, ‘equally’, ‘share’, ‘to be divided’ indicate a tenancy in common for the purpose
        of intention under CLPA, s. 13
Analysis
    Under common law, construed as a joint tenancy
    Under CLPA,s. 13, unless an intention sufficiently appears on the face of the will, it must be interpreted
        as a tenancy in common, not joint tenants
    Appears that testator does not how intention to create a joint tenancy but in words ‘equal share’, an
        intention to create a tenancy in common
    Where words ‘jointly’ and ‘equally’ , ‘to be divided’ ‘share’= tenancy in common
Decision
    Judgment for the plaintiff

The consequences of characterizing it as one or the other:
    Joint tenancy – when one dies, interest extinguished, the other’s estate is correspondingly enlarged
          o interest cannot be devised by a will
    Tenancy in common – each has a devisable one half share as co-owners
          o Interest can be willed away to a third party

As a matter of policy, why did the common law prefer a joint tenancy? What policy favours the preference for
a tenancy in common?
     Preferred where there are advantages to reducing the amount of owners
            o Efficiency and convenience in title searching
            o Title is consolidated in the last surviving joint tenant prior to being devised
     Tenancy in common is preferred by equity – immune from the caprice of survivorship CLPA s. 13

What are the conceptual features of the right of survivorship? Note the statutory principles that apply when
two joint tenants die simultaneously. How can corporations hold property as joint tenants?
    Right of survivorship effective in context of lifelong marriages
    Context of rising divorce rates, it may be more ephemeral
    Simultaneous death renders a joint tenancy a tenancy in common (Succession Law Reform Act, s. 55(2))
    CLPA, s. 34 – two or more corporations, or corporation and individual are capable of holding property as
        joint tenants in a matter same as individuals

C) SEVERANCE
      JT: if one of the unities is destroyed, the joint tenancy will be “severed” and a tenancy in common will be
       created.
Four Unities for Joint Tenancy
    unity of possession – all having an interest in the whole of the property
                                                                                                                      46




    unity of interest- same quality, duration
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    unity of title- come from same title documents
                                                    47


     unity of time – commence at same time
Unities for Tenants in Common
     unity of time
Conceptual Distinctions
     interest of joint tenant is unified interest in the whole
     tenant in common: fractional share of interest but is still undivided
Severance of a Joint Tenancy
     since a joint tenancy requires that four unities be present, acts that destroy these unities result in a
         severance of the joint tenancy and creation of a tenancy in common
     severance of a joint tenancy eliminates the right of survivorship so that co oners hold unidivided shares
         that are devisable
     in the absence of agreement among all joint tenants, can act alone in severing a joint tenancy

D) RIGHTS AND OBLIGATIONS AMONG CO-TENANTS

These rights and obligations apply to both joint tenants and tenants in common, because both are entitled to
unity of possession.

Since both joint tenants and tenants in common are entitled to unity of possession, problems arise is one
concurrent owner is “in possession” while others are not. This situation may arise if:
     one concurrent owner leaves voluntarily
     one concurrent owner excludes others from possession.

Legal accounting: can concurrent owners out of possession share in profits or in increased values; and
conversely, do they have obligations to contribute to expenses?

The common law principles concerning “occupation rent”:
Co-owner in possession was required to pay ‘occupation rent’ to co-owners out of possession when:
       1. co-owner in possession has ousted the other
       2. co-owners have made an agreement respecting occupation and occupation rent
       3. circumstances require that the co-owner in possession be regarded as agent for other co-owners

Courts of Justice Act, s. 122(2) provides for an action against a co-tenant who receives more than their share.

E) PARTITION AND SALE: TERMINATION OF CONCURRENT INTERESTS

Partition Act provides that co-owners may apply for partition and the court will order it, unless the court
considers that a sale and division of the proceeds is preferable.

The result of partition is that the concurrent interest is terminated, and each former co-owner becomes the sole
owner of their part of the property. For obvious reasons, partition may be difficult when the co-owners are
husband and wife and the subject property is the family home.

COOK V JOHNSTON
Facts
     two parties wanted their property (a cottage island) to be partitioned
                                                                                                                   47




Issue
     Can the parties insist on a partition or a sale?
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     Which is the appropriate remedy in this set of circumstances?
                                                    48


Ratio
       In situations where one or both parties would be prejudiced via a partition, a sale will be ordered, and
        vice versa. Parties do not have a right to insist on either remedy.
Analysis
    Proceedings are to be taken to partition unless it appears that partition cannot be made without
        prejudice to the owner’s of, or the parties interested in, the estate, then proceed with sale
    Even if the parties received more than the actual value of the property from a stranger, neither of them
        could readily find another suitable summer island home in that district
Decision
    partition

“FAMILY” PROPERTY: REFORMS BY LEGISLATURES AND COURTS
This is one area of Property Law which has been substantially reformed, especially in response to the increased
accessibility of divorce in Canada after the enactment of federal divorce legislation (for the first time) in 1968.

Married spouses:
    Historically, married women had no entitlement to hold interests in property (including their earnings)
    Unmarried women sometimes held interests in property, and some of them were engaged in business
       activities - but the situation changed on marriage.

Common Law:
    Dower: ensured that a woman was entitled, if she survived her husband, to a life interest in one-third of
        lands owned by him in legal fee simple during his lifetime.
             the purchaser of husband’s land would be bound to recognize the wife’s dower interest, which
                 was inconvenient.
Equity:
    For wealthy fathers of daughters, who were often the target of unscrupulous suitors, there was also the
        possibility of arranging for a trust at the time of marriage: the father/son = trustee, the daughter =
        beneficiary.
    the wealthy father transferred lands or stocks to the trust - but unscrupulous suitors did not get access
        to the property on marriage.

MURDOCH V MURDOCH
Facts
     Irene Murdoch and her husband were successful ranchers in Alberta,
     they had worked together to maintain and increase their holdings
     At end of their 25-year marriage, Mr. Murdoch held title to all the property.
Issue
     What were Irene’s interests pursuant to the 1968 Divorce Act?
Ratio
     In the context of the matrimonial home, the contribution made by the non-title holding spouse must be
        directly referable to the acquisition of land and not mere household chores
Analysis
     The Murdoch case (1975) was the first major case to reach the Supreme Court of Canada after the 1968
        Divorce Act
     Distinguished non-monetary but valuable contributions made by spouses in the acquisition of property
        to the ‘work done by any ranch wife’
                                                                                                                      48




Decision
     the majority decided that Mrs Murdoch had no claim to any of the property (although they confirmed
                                                                                                                      Page




        an award of support)
                                                        49


Dissent
          facts justified a declaration of constructive trust through significant contribution of physical labour
           beyond ordinary housekeeping duties

THIS CASE WAS THE CATALYST FOR COMMENTATORS SEEKING LEGISLATIVE REFORM.

          Eventually, reform resulted in the Family Law Act (1986: Ontario): requires that the value of all property
           held by the spouses be shared at marriage breakdown equally
          Became necessary to define ‘property’ for purposes of division
          S. 4 defines property as –“any interest, present or future, vested or contingent, in real or personal
           property”

PROFESSIONAL DEGREES

CORLESS V CORLESS
Facts
     Wife claimed that her husband’s LLB degree should be valued as property as she supported him
        financially as he was earning the degree
Issue
     Is an LLB degree property for the purpose of s. 4?
Ratio
     The LLB is property under s.4 of the FLA, but it had no value
Decision
     LLB was not calculated as part of the division of assets


CARATUN V. CARATUN
Facts
     Mrs. Caratun supported Dr. Caratun in obtaining his dentistry degree and immigrating to Canada
     He rejected her at a time when their family assets were minimal but earning potential was high
Issue
     Is a medical degree property pursuant to s. 4?
Analysis
     The situation is obviously unfair to Mrs. Caratun
     In determining the issue of whether a professional licence constitutes property, th cases concentrate on
        two aspects of the problem: the nature or characterization of a licence and difficulty of valuing a licence
        in the family property context
     Degrees are not property because
         It is non transferrable
         Uncertainty as to value because it is dependent on personal effort
         Professional licence is just different in scope than the general right to work
                 Hard to value different types of specialized degrees --actuaries, etc.
                 Difficult to value different jobs
Decision
     She was entitled to spousal support as the degree itself was too hard to valuate

M. MCCALLUM ON CARATUN V CARATUN
         Property is relationships, not actual 'thing' but the SCC is thinking of it as a physical thing
                                                                                                                        49




         She compared the family relationship like a business partnership as an analogy
                 When business partnerships come to an end via bankruptcy, they provide for distribution of
                                                                                                                        Page




                    property after payment of debts in accordance with each partner’s share in the partnership
                                                      50


                   Partnership Act does not account for paying premiums in kind but in money and the assets are
                    future profits.
          If courts could adopt a purposive approach to valuing goodwill, why not adopt a similar purposive
           approach to defining property?

J. KNETSCH "SOME ECONOMIC IMPLICATIONS OF MATRIMONIAL PROPERTY RULES"
        Look at matrimonial property rules to see if they do achieve some sort of equality of outcome
        Talks in the traditional division of labour in terms of maximizing wealth
        The way that labour is divided will have repercussions for the marriage breakdown in that one party will
         be disadvantaged
        Tax implications as household chores aren’t taxed
        Labour market that decreases wage returns of women further emphasizing household production

COHABITEES AND CONSTRUCTIVE TRUSTS:
The statutory regime in Ontario and in other provinces concerning property-sharing at separation or divorce
applied only to married couples.

NOVA SCOTIA V WALSH
 Legislature made clear decision to limit property sharing to married couples
 NS Court of Appeal that the exclusion of cohabitees violated s. 15 and could not be saved under s. 1
 The SCC overturned the ruling in the Court of Appeal
       People have the choice to cohabit or marry, those who marry choose a matrimonial property regime
 Dissent: we need to provide protection for people in relationships of dependence in family units
 In Saskatchewan, the rights of matrimonial relationships extended to cohabitees that live together for 3+
  years
     Married couples and cohabitees are treated the same in every respect except property law

PETTKUS V BECKER
Facts
     Cohabitee with Pettkus who introduced Becker as his wife
     Becker paid for household expenses enabling Pettkus to save entire income to invest in bee keeping
      business
     Respondent, Becker through her labour and earnings contributed substantially to the good fortune of
      common bee keeping enterprise
Issue
     What was Becker entitled to upon dissolution of the relationship?
           Was there a resulting trust or a constructive trust?
     Can constructive trust be established having regard to a common law relationship?
Ratio
     Unjust enrichment between spouses needs:
           The enrichment of one partner
           The deprivation of the other
           The absence of a good reason why the one was unjustly enriched while the other one suffered
     For first and second requirement:
           The enriching/depriving activity must be causally connected to the acquisition of property
     For the third requirement:
           an effectively spousal relationship
                                                                                                                    50




           one prejudices herself in reasonable expectation of receiving interest in the property
           other freely accepts the benefits where he knows or ought to have known of the expectation
                                                                                                                    Page
                                                   51


Analysis
Resulting Trust
     Becker thought it was a resulting trust
     To establish a resulting trust, it is necessary to show that there was a common intention on the part of
        the title holder and the claimant that the property would be shared
              intention -what is the intention of the donor (gift?)
              If no intention to make a gift but not reflected in legal title -resulting trust created
              there has to be the intention of the donor that s/he wants some sort of interest in that property
     Claim for resulting trust cannot succeed because there has to be a common intention
         Mr. Pettkus did not have an intention that Becker has interest in property too
         He was very clear in his evidence at trial that he did not intend for her to own anything
Constructive Trust
     Unjust enrichment lies at heart of constructive trust
     3 Requirements to be satisfied before unjust enrichment can be said to exist
              A) Enrichment
              B) Corresponding deprivation
              C) Absence of juristic reason for the enrichment
     A) Financial support and labour on Becker's part enriched Pettkus
     B) Becker received very little in return
     C) "where one person in a relationship tantamount to spousal prejudices herself in the reasonable
        expectation of receiving an interest in property, and the other person accepts freely the benefits, in
        circumstances where he knows or ought to have known of that reasonable expectation, it would be
        unjust to allow the recipient of the benefit to retain it"
     This is a constructive trust
The Common Law Relationship
     Can constructive trust be established having regard to a common law relationship?
     Purpose of constructive trust is to redress wrongs of unjust enrichment
     There is no reason in principle to preclude the doctrine from common law relationships
     No basis for distinction b/w marital relationships and informal relationships which subsist for a lengthy
        period of time
Causal Connection
     Must be a clear link between the contribution and the disputed assets
     For unjust enrichment to apply, it is obvious that some connection must be shown b/w acquisition of
        property and corresponding deprivation
     Becker indirectly contributed to the acquisition of the farm by making possible the accelerated rate of
        saving by P
Respective Proportions
     It depends on the contribution each person has made, half is not a presumption although it did happen
        in this case
Decision
     The remedy that Becker gets is a constructive trust
              Becker has a half interest
              Pettkus has legal title as trustee

Subsequent Refinements of the Constructive Trust
    A trust could be awarded where the non-titled cohabite had contributed to the maintenance of property
       already owned by the other cohabite (thus no contribution to acquisition of property) – Sorochan v
       Sorochan
                                                                                                                   51
                                                                                                                   Page
                                                   52


Same Sex Cohabitees
    The same sex couple were not entitled to statutory remedies under the ‘family’ property regime
       because they were a same sex couple but a constructive trust - Anderson v Luoma

In the past decade, there were numerous proposals for reform: The LRC - eliminate resulting and constructive
trusts in the family law context completely

FAMILY LAW REFORM AND FIRST NATIONS ON RESERVES
Statutory principles do not apply to land on aboriginal reserves; and the federal government has not legislated
pursuant to its authority for Indians and lands reserved for Indians. Result is a significant “gap” in family
property arrangements on reserve lands.
 1986 SCC decisions Derrickson v Derrickson + Paul v Paul
 Nothing special about claims they are making, only significant part is that their homes are on aboriginal
    reserve land in BC.
 Court: concludes statutory family property regime in BC was not applicable regarding the interests of
    aboriginal women in matrimonial property on reserves because of the constitutuional issue of division of
    powers and the coverage in this area of the Indian Act
 Federal government has to enact legislation for marriage breakdown on reserve – the provincial legislation
    cannot apply to their lands.
 Why hasn’t the federal gov’t enacted legislation since 1986? Aboriginals have been asking for self
    government since 1986 so it puts restraints on the Feds to enact legislation.

M.E. TURPEL, HOME/LAND
Why has no action been taken to fill this “gap” since 1986?
   Department of Indian Affairs maintains a ‘Reserve Land Register’ on which particulars of every
      certificate of possession are recorded
   Traditions on land holding does not conform to the idea of allotments and certificates, everyone knew
      where everyone hunted and lived
   No Indian individual can own reserve lands in fee simple, but are set aside for the benefit of the whole
   Canadian law has yet to categorize the relation and its legitimacy as a distinct cultural conception,
      different but equal to Western conceptions
   Essentially, an aboriginal woman has no legally recognizable interest in her matrimonial home, unless
      she solely holds the certificate of possession
            Gaining an interim order for exclusive possession will be impossible as there is no legislation
               which will apply in this context
            Access to matrimonial property does not save aboriginal women from impoverishment b/c the
               value of a possessory interest in reserve land is circumscribed by restrictions on alienation and
               the limited interest
   The federal government has not legislated with respect to cohabitees on reserve land for matrimonial
      property
   There have been political limits on federal governments from legislating/changing the Indian Act as it is
      not consistent with political aspirations for self government

       The person who has certificate of possession on reserve land has a right to be there, person without
        who doesn't has no right to be there
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                                                                                                                   Page
                                                    53


CHAPTER 8: CURRENT CHALLENGES IN PROPERTY LAW: PUBLIC NATURE OF PRIVATE PROPERTY
This chapter goes back to the conception that property is a relationship among subjects with respect to objects.

PROPERTY AS “PRIVATE” AND “PUBLIC”
       Two separate ideas about property: concept of individual’s protected interests and that individual
        interests are part of the concept of property but no assumption of the primacy of individual interests
        over collective ones.
       Individual property rights must now be seen as subject to the values of human dignity and the sense of
        the reciprocal responsibility which each citizen owes to his or her community
       Increasing emphasis on the public law nature over the private law nature of property

What kinds of issues or norms may need to be considered in the context of this development? What criteria
should we use to assess these questions?

PROPERTY CLAIMS AND FIRST NATIONS
First Nations representatives strongly believe that “land, and jurisdiction over land *self-government] go hand in
hand.”
      Right to exercise jurisdiction over our traditional lands, resources and people

K. MCNEIL, DEFINING ABORIGINAL TITLE IN THE 90S: HAS THE SUPREME COURT FINALLY GOT IT
RIGHT?
McNeil suggests, “the most important aspect” of Delgamuukw decision for aboriginal peoples is the court’s
assessment of the “content of aboriginal title”:

INTRODUCTION
       In Ontario and BC, Aboriginal lands were simply seized for incoming settlers
       Royal Proclamation of 1763- reserved unceded Aboriginal lands for Aboriginal occupation and use, and
        stipulated that those lands could only be acquired by the Crown at an assembly of the Aboriginal people
        concerned

THE CONTENT OF ABORIGINAL TITLE
       the Court rejected the position of British Columbia and Canada that Aboriginal title is limited to
        historical uses of the land, and that it is equivalent to an inalienable fee simple estate
       SCC did not actually decide whether the tribes have Aboriginal titleissue was avoided b/c there were
        discrepancies b/w the way the case had been pleaded and the way it was argued on appeal
       title described by the SCC:
       Sui generis (class of its own)
         Non-transferrable by sale
                  Inalienable--cannot be transferred by anybody except the Crown
         Communal
                  Communal --the title is communal not individual
                  Issues with who is a member and who is not a member but the fundamental principle is still
                     there
         Source of title is prior occupation and pre-existing systems of law
                  Sovereignty- origins of possession prior to sovereignty --Royal Proclamation
                                                                                                                     53




         Exclusive
                  The aboriginal claim had to be one of exclusive use and occupation
                                                                                                                     Page




         Limitation to uses “not irreconcilable” with nature of group’s attachment to land.
                                                      54


                    Continuity--there should be a continuity between what they were doing before sovereignty
                     and now although other uses are still ok and there could have been a gap
                  There is a caveat in that the use of the land cannot be something totally goes against what
                     the land was meant for
       Aboriginal people’s have as much right as any landholder to prevent others from intruding and using
        their lands without their consent
       Paternalistic for the SC to impose restrictions on Aboriginal title in the interests of cultural preservation if
        the Aboriginal community in question does not want them –issue of self government

PROPERTY AND SELF-GOVERNMENT
       Decision making authority has to accompany communal land use rights or else there might be a free for
        all for resources—therefore some form of self government needed
       SCC in Delgamuuk didn't deal with sovereignty at all (remains unresolved)
       Connection to land must be allowed to change over time
       Canadian courts should not judge social change in Aboriginal communities deciding what is necessary
        for cultural preservation – too paternalistic

PROOF OF ABORIGINAL TITLE

           In order to prove title, SCC said that Aboriginal people must prove that they occupied the claimed
            land at the time the Crown asserted sovereignty and that it was exclusive
           This is relevant time because Aboriginal title is a burden on the Crown’s underlying title
           SCC said be mindful that conclusive evidence of pre-sovereignty occupation is difficult to ascertain
           Aboriginal peoples must be consulted before infringement to title is justifiable and right to
            compensation for loss incurred as a result of infringement

ASSESSING THE DELGAMUUKW DECISION
McNeil’s response to the question about whether the SCC has “finally got the definition of Aboriginal title right”
is a qualified lawyers’ response of “yes and no.”
          YES-Court’s approach to issues of proof and content are basically correct—must show exclusive
              occupation using their own standards
               Joint occupation allowed
               Right to exclusive use and occupation
               Limitations on uses as long as modifications are allowed to change naturally
          NO-suggestion that Aboriginal title can be infringed in the interests of economic development
              benefiting private persons disregards the special protection accorded to property rights
               Constitutional protection not given sufficient importance

McNeil’s arguments about litigation and negotiation with respect to these aboriginal land claims:
        1) Aboriginal people still have to prove that they have Aboriginal title
        Did not resolve the issue of which Aboriginal peoples have title to what lands
        Avoidance of protracted expensive legal battles
        2) the inalienability of title may prevent them from developing those resources without the
            cooperation of government
      For the first time the right of Aboriginal peoples to participate as equal patners in resource development
   on Aboriginal lands has been acknowledged
                                                                                                                           54




THE RESULTS OF DELGAMUUKW
     The public law character of aboriginal property rights has been reinforced by s. 35 of the Charter
                                                                                                                           Page
                                                    55


     R v Sparrow – SCC held that s. 35 provides constitutional protection to aboriginal rights that were not
      extinguished prioer to the enactment of the Charter
     Bill C31 creates a system to permit equality for Indian men and women


“NEW PROPERTY” AND THE CHARTER
    The idea of protecting “property” in the Charter was seriously debated in the early 1980s, but it was not
    included in section 7, even though the Canadian Bill of Rights had earlier enshrined protection for
    “enjoyment of property” in section 1(a).
       Notion of things that might be characterized as new property and impact of Charter in relation to
    property
       This was a controversial issue b/c Conservatives wanted to provide protection of property but the NDP
    opposed it

    Those involved in the politics of the Charter were also concerned to either prevent any protection for
    property or to ensure that the definition of “property” included “new” property claims. In the end, section 7
    of the Charter did not include “property,” either “traditional” or “new.”

MA GLENDON, “THE NEW FAMILY AND THE NEW PROPERTY

This excerpt provides an overview of these developments at the time of the debates about whether the
Canadian Charter should provide protection for property.

We are in an interdependent society and there is an analogy between feudal relationships and modern
relationships
       if we see things as privileges rather than entitlements, we are living in tyranny even though it is
     administered by reasonable bureaucrats
         Something relating to means of life should be regarded as new property
       Board of Regence v Roth
         "every citizen that applies for a government job is entitled to it unless the government can prove…"
       Not consistent with political realities

Internal Exile
       Reich remains one side of the argument about welfare as entitlement and property
       her most compelling argument is that of 'internal exile'
         Why do we tolerate 'internal exile' for children and mentally ill--poverty is a condition similar to
             other things that what is not tolerated
         What we will not tolerate stops at socioeconomic realities

Job as Prosperity: Access, Instability, Ambiguity
     Women and some minority groups have limited access to the preferred forms of new property (good
        jobs and fringe benefits) that at present are the important soureces of economic security
     This means that their relationship to government and government benefits assumes paramount
        importance
     For others it means they depend on family relationships which are becoming increasingly fragile
     For majority of Americans, most important relationship for economic security is their employment,
                                                                                                                    55




        family serving as back-up system
                                                                                                                    Page
                                                       56


“ECONOMIC INTERESTS”, SECURITY OF THE PERSON AND POVERY
           Security of the person is a fundamental sense of security

GOSSELIN V QUEBEC
Facts
     Legislation to amend entitlement to welfare benefits where if you were over 30 the amount you can get
        is much lower than if you had one over 30
Analysis
     Challenged with s. 15 and s.7
     Section 7 - no positive obligation, only had to do with a deprivation, meaning that s. 7 is not a protection
        of economic security
Decision
     SCC held that the government had the right to make that decision

Homelessness in Ontario:
   Canadian charter contrasted with South African charter which their charter seems to provide protection
      for adequate housing

“NEW PROPERTY” AND INTANGIBLE INTERESTS
           Some objects of proprietary interests are intangible (choses in action).
           there are other examples, including broadcasting and the tort of appropriating personality, which have
            been regulated by legislation and by courts.
           New forms of technology raise challenging questions about whether, or to what extent, concepts of
            “property” are useful in conceptualizing and regulating the need to balance a range of public and private
            interests.

       Proprietary interest - an idea that has acquired a sufficient character that we can attach an interest to it
        o        Patents, trademarks, branding
       if a cable company copies and rebroadcasts a tv program, is it an infringement or can it be argued that
    they were copying signals and electrical pulses?
      o          The court found that it was an infringement of property
       Tort of appropriation of personality - a common law claim in situations where people don't agree to
    have their photo published even though they are not the main subject of the photo
       Regina v Stewart (1988)
     The concept that you take something yet it would still be there, it didn't fall into the then current
        definition of theft (where theft means that you take something away)
     Wanting to construe it as theft but couldn’t, resulted in parliamentary action
       Can confidential documents be construed as property?


THE NEED FOR REFORM OF PROPERTY LAW


M.J. MOSSMAN, “TOWARD NEW PROPERTY AND NEW SCHOLARSHIP”
This article focusses on the problems of reforming property law: a need for (further) reform, but also focus on
the problems of reform: issues about entrenched views as well as procedural problems.
                                                                                                                        56




   The question is whether the state of property scholarship in Canada has fundamentally changed at all
   Requires an assessment of property scholarship in Canada, difficult because:
                                                                                                                        Page




        o 1) provincial jurisdiction – any assessment must look at all provinces which differ greatly
                                                 57


        o    2) property law is more dependent on statutes than common law that were enacted centuries ago
        o    3) legal philosophy – property is a concept that evolves according to societal context
                   Must look at traditional and new property interests
   There is an expertise that lawyers have in relation to complicated simple, if we made it really simple,
    perhaps people wouldn't need lawyers anymore
        o Is this a reason for the lack of enthusiasm for reform?
Toward Blackacre’s New Horizons
 Scholarship evidences a lack of contenxtual understanding – legal scholarship views law in a vacuum, which
   masks the underlying forces and values that shape the development of legal principles
 Crisis: a demand that property law demonstrate coherence to the external (non legal) world to provide
   proection for new interests
 Because property is a concept, there is no logical reason to deny new property claims
 Structure of our society cannot admint new claims without modifying older ones b/c it is a distributive
   mechanism of society’s benefits
 Any suggestion that the new property claims should be rejected in order to preserve the integrity of the
   concept =argument in favour of status quo (protection of existing property interests)
 Shift in attention from property whose paradigm is household/marked off land to corporation, hospital,
   things requiring state protection
 Property becomes social in the sense that its base and its effects can no longer be contained w/I framework
   of traditional picture

3 Ways in common law that ideas about equitable property were accommodating claims of access
            A. Relation to access of public spaces – Committee for Commonwealth of Canada v Canada
            B. Indigenous peoples’ claims
            C. Recognition of claims to environmental protection




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