12/11/2012 02:52:00

← The Nature of Property

← The properties of Property
←
← Bundle of Rights is the traditional conception: Honore has identified these elements:
← the right to possess, manage and control
← right to income and capital
← can be transferred while living and upon death
← right to protection of these rights
← the duty to prevent harm
← liability to seizure
← These rights can be both amalgamated and severed. Ownership is divisible.
← Competing views, is there a core to this bundle?
← Single Variable Essentialism:
 The irreducible core attribute of property is the right to exclude others (Blackstone). It
is a necessary and sufficient condition.(diss. in Yanner)
← Multi-Variable Essentialism:
 There are multiple core criteria. Rights to exclude, to use or enjoy, and to transfer
(Also started with Blackstone). The right to exclude is a necessary but not sufficient
condition.
o Moore: took essentialist view:
o Harrison (picketing in parking lot): majority determined that the right to
exclude is a fundamental property right that overrode the plaintiff’s labour
rights.
← Nominalism
 Property rights are what the law and society makes them, there is no core element.
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o Maj. in Yanner: The state’s property right extends to licensing the hunting of
fauna. It is not absolute and did not prevail over aboriginal hunting rights.
← Aboriginal conceptions of property are recognized in Canadian law as Aboriginal title
(Calder).
← Yanner v. Eaton
← Highlights challenges that arise when defining property
← Majority – modern, nominalist approach; fluid; property is a variable bundle of rights
(crown can license the hunting of fauna but does not have absolute rights and ownership– did not
prevail over aboriginal hunting rights)
← Minority – single variable essentialism – if Crown has the right to exclude then they have
absolute property rights (aboriginals lose right to hunt without license)
← Theories of Property: The Case for Private Property
← Property rights are claims that will be enforced by laws or conventions. It is an enforceable
claim because it is seen to be justified by theories of its basic purpose (MacPherson)
← Personhood:
← A person needs property to develop their personality (Hegel). A person needs some
control over external resources (property) to be a complete person. Places importance on security
and privacy. Has been used in Aboriginal Title cases: The relationship to the land is a key
component to the group’s perception of their community
 Popov: Likely part of the motivation for claiming possession of the ball was that
“owning” the ball was important, it was not solely the economic interest in the ball
 Moral rights of copyright law
← Labour Theory:
← Everyone is entitled to the fruit of one’s labour (Locke). Private property is ‘natural’
because each of us owns our body and therefore our labour
 In INS the majority was uncomfortable labeling news property, since there was no right
to exclude against the world, so came up with the “quasi-property” to define the rights
of exclusion between the news agencies. The majority reasons were influenced by
these labour theories of justification of private property
← Economic Prosperity Theory:
← The tragedy of the Commons (debatable with the tragedy of the anti-commons: when too
many people have a right of exclusion and no one has effective control)
 The fee simple system of unlimited time of ownership reduces transaction costs
(Elickson)
 Their “inherent” efficiencies have led to the presence of private land rights around the
world
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 Torrens System:
 Concerns over economic ramifications if extracted cells were recognized as property
(Moore)
 Based on premise that people are rational economic wealth maximizers (Ziff).
Contrast: Soulos: plaintiff desired to have the house even though it had gone down in
value.
 US doctrine of regulatory taking (Lucas beach case and Can Mariner case)
 Coase theorem
← Utilitarian: People’s needs for happiness are best met through security of property
← Novel Claims of Property: Property is not a static concept,
← Cases illustrate the tensions between what interests are legally protected
 Generally property law aims to promote economic efficiency in transactions between
people rather than the protection of property for its own sake
 Howevery, Ellickson suggests that the fee simple system not only improves economic
efficiency but its greatest advantage is that it is a low cost method of ensuring that
living landowners conserve natural resources
← Numerus Clausus Principle:
 Courts are uncomfortable creating new forms of property. Possible policy
considerations are: a desire to limit the possible kinds of rights makes for better
efficiency in transactions, desire to minimize problems of the anti-commons, and a
belief that since property rights are hard to extinguish the courts should be cautious to
recognize them (Moore)
← Functionalism:
 Considers whether it makes social and economic sense to define interest as a property
right
 In INS (US WW1 Case) the court used the term “quasi-property” rights to define rights
of exclusion between news agencies since “property” would have meant right of
exclusion from the public. Policy considerations involved, court was unwillingly to give
news agencies a right of exclusion against the public.
← Attributivism:
 Considers whether the attributes of a novel claim fit into existing definitions of property
and that therefore if the claim is recognized the law of property is expanded in a
coherent manner
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 In Victoria Park Racing (AUS) the court determined that an entertainment spectacle is
not property. There is not support in English Common law that a view is property. The
economic component of the spectacle is not sufficient to make it an interest recognized
as property.
 Aboriginal title has been recognized as a property right that has similarities but also
some differences with Common law understanding of real property (Calder): right to
free alienation distinguishes aboriginal title from fee simple
 In Moore (US) the majority and dissenting judgments disagreed about whether the
attributes of a person’s interests in his cells once they were removed from his body
constituted property. The majority judgment took an essentialist view. Dissenting
judgment held that the concept of property is broad enough to include cell tissue
← Property in Perspective
← Aboriginal perspectives
← Anishinabek perspectives on property include a duty for people to respect the interests of
future generations.
← In Witsuwit’en law titles to trap lines must be transferred through feasts and cannot be
bought or sold. Feasts provided that there would be a large number of witnesses who would
observe the transfer
← Both aboriginal law and English feudal systems place emphasis on transferring property
through the family unit and were generally more focused on collective rather than individual
interests.
← Common Law Sources of Canadian Property Law
← Doctrines of Tenures and Estates
← Tenurial System imported into England by William the Conqueror. In theory everyone is a
tenant of the Crown. Previously, the Norman-Saxons had an allodial sense of property (the object
is literally owned)
← Crown could grant land under tenure to his tenants in chief.
← This imposed reciprocal obligations upon the Crown and his tenant; the tenant would take
an oath of service and the lord would promise secure tenure.
← Neither the Lord or the tenant had absolute ownership of the land. Both of them had a
relationship to the land and to each other that was somewhere between ownership and
possession
← In many ways the relationship between the lord and the tenant was a contractual one
based on service that was bought with rights to land rather than money
← Tenants could subinfeudate (i.e. repeat this process, taking tenants for themselves). Their
tenants are called tenants in demesne, and the subinfeudating tenant becomes a mesne lord.
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← Subinfeudation: Tenants could, with the permission of their lord, substitute another party,
who would take their place (oaths and all). This is usually part of a sale of land, and is how it’s
done today.
← By the 12th C. inheritance through the law of the land (focus is on continuation of the
bloodline) became legally binding and the lord was compensated for the loss of his power to
choose his tenant.
← Free Tenure: Free services were defined and the requirements could not change easily.
 Knight service
 Grand sergeanty: Ceremonial rights to serve the lord
 Peasant sergeanty: More everyday rights to serve the king, such as franklumore,
(spiritual praying)
 Socage: Agricultural service
← Unfree Tenure: Service was undefined and theoretically tenants were subject to the will of
the lord. Local customs eventually put limits on unfree tenure
 The only vestige of the services of socage that remains is escheat
← Significant English Statutes
← Quia Emptores (1290): Guarantees the right to alienation (i.e. substitution no longer
requires the consent of the lord).
← Statute of Wills (1540): Permitted bequest by will (i.e. select one’s heir(s)). “Devise”.
← Tenures Abolition Act (1660): Abolished all forms of tenure except for free and common
socage, and abolished all incidents of tenure except for escheat (reverting to lord upon lack of
heir or end of tenure) and forfeiture (loss of tenure upon criminal offence).
← Reception of English Law
← Crown determined that land in Common law jurisdictions was obtained through settlement,
the myth of terra nullius and that therefore English laws were imported.
← English law was imported into BC as it existed in 1858 so far as they are not “from local
circumstances inapplicable” s. 2 Law and Equity Act
← Contrasted with Conquest, where the local laws stay in force (e.g. Quebec)
← Types of Property
← Realty
← Corporal: right to physical possession
← Incorporal: Property right without possession (e.g. an easement right of way that can be
passed through title)
← Personalty
← Chattels Personal: Things that are not land. Either: a) choses in possession (tangible) or b)
choses in action (intangible) (e. share in a company/copyright)
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← Chattels real: Basically just leases

← Sui generius
← Unique interests,
← Aboriginal title is unique (Delgamuukw), historically was used to argue that Aboriginal
rights were not property rights
← Property, Class and Poverty
← Liberalism and Homelessness
 Classic liberalism would suggest that public property should be as limited as possible
however such a situation however the case for public property can also be argued on
negative liberalism philosophy as well. A country where public property is increasingly
regulated is increasingly a place where the homeless do not have the freedom to
exercise negative liberty, the right to not be interfered with (Waldron). Their positive
rights, to engage in everyday human activities and meet basic needs disappear
 The lack of regulation of the commons however leads to their abandonment. Leads to a
tragedy of the commons, chronic nuisance in public spaces leads people to retreat from
them (Ellickson)
← Constitutional Protections for Property
 Property rights are not constitutionally protected in Canada, except for aboriginal title
under s.35(1)
 No guarantee that people must be compensated for the valid expropriation of land by
governments
 The Charter limits
o S.8 protects property from unlawful searches
o S.15 protects equality under the law and does not allow for discriminatory
property entitlements
o Overall the Charter has been used to protect various commercial property rights
and limits the regulation of public property
← Quasi-Constitutional Protections
 S.1 of the Bill of rights protected enjoyment of property however these rights were not
constitutionally entrenched and could be overridden by other legislation
o Authorson: the federal government was able to deny the enjoyment of benefit
funds for war veterans by legislation absolving the Crown of liability. The
veterans rights to the enjoyment of their benefits were not saved by the Bill of
Rights
 Article 1110 of NAFTA protects foreign investment interests from nationalization or
expropriation unless it is for a public purpose and compensation is provided
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o Compensation ordered in Metalclad. American firm attempted to build

hazardous waste treatment facility, local permit was denied. Only successful
case so far under this article but there are fears that this section will affect
situations before they get to court
o More similar to the American regulatory takings criteria then the criteria of
Canadian de-facto expropriation.
← Expropriation
 The government takes property from people. Although there is no constitutional
requirement for compensation there is legislative and common law that real or personal
property cannot be taken without expropriation.
o The exception is the Civil Forfeiture Act: allows the collection of property earned
on a balance of probabilities through crime
← In Canada: De facto expropriation
 Tolerates large degree of property rights that can be taken away without compensation
(Mariner).
 Very rarely have courts recognized de facto expropriation (three cases)
o Recognition that legislation may very significantly restrict owner’s enjoyment of
public property (Mariner).
o Court cannot decide on the fairness of the removal of the rights (Mariner)
o Compensation can only be order if it is authorized to do so by legislation
(Mariner), the Expropriation Act does not designate a loss of economic value as
a loss that will be compensated for
 Right to build on beaches regulated through an Act to protect the beach
and dune system
 Potentially, if courts were to recognize de facto expropriation it would require
(Canadian Pacific Railway v. Vancouver):
o It must remove all reasonable uses of property
o The Crown must gain a beneficial use of the property
 City did not gain benefit, only trespassers did
 Designation as public thoroughfare and greenway does not remove all
reasonable uses of the land
← Regulatory Taking
← Known as regulatory taking in the US. Enshrined right in the US through Constitutional
protection of property
 Regulation that effectively takes away the right to exploit a resource can be considered
regulatory taking and requires compensation (Pennsylvania Coal)
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 Regulatory taking is regulation that denies economically viable use of land. When an
owner is forced to sacrifice all economically beneficial uses of land for the common
good a taking has occurred (Pennsylvannia Coal)
o Right to build on waterfront property denied under legislation amounts to
regulatory taking
 Considers case specific factors (Penn Central Test):
o POTENTIAL ECONOMIC IMPACT
o THE EXTENT TO which it interferes with reasonable expectations of investments
o The nature of the government action
← Boundaries
← Airspace
 A landowner is entitled freedom from permanent structures in their airspace so far as
the actual or potential use and enjoyment of that space goes. Above this line the space
is common property and belongs to no one until taken by the first proprietor. (Didow)
o This area is now largely ruled by statutes
 S. 141(1) of the Land Title Act: A landowner in fee simple may create air space parcels.
S.141(3) These airspace parcels may be subdivided
← Subsurface
 Competing views, probably not ad inferos but that was the majority opinion in
Edwards. The dissenting opinion was the owner of the mouth of the cave owned the
cave. This judgment relied on economic justifications,
← Coase Theorem
 Law and economic theory that regardless of who is actually assigned the property
rights initially, absent transaction costs, the person with the greatest economic interest
in it will end up with the rights in the end. The legal allocation of property rights just
designates where the bargaining begins. The law should then allow for the greatest
ease in bargaining, and promote exclusivity, universality, and transferability
o But: Endowment affect, people are likely to value an item more if they currently
hold it then what they are willing to pay for it.
o This, and transaction costs often makes who is initially granted the rights still
important
 Dissenting opinion likely is the best option from an economic perspective,
since it minimizes transaction costs (Epstein)
← Mineral Rights
← Three sources of law in relation to subsurface rights
 1) Perogative rights of the Crown
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o Historically crown grant automatically excluded precious metals. At common

law, a land grant would include all but precious metals in the subsurface. Now
largely ruled by statue
 2) Terms/ reservation in the Crown grants
 3) Statute: s.50(1) of the Land Act:
o Crown grants allow the government and its agents to take up to 1/20 of a
person’s land for public works.
o The government can enter any part of the land and extract mineral resources as
well as water resources and transport water across the land for mining or
agricultural purposes
o The government can also take gravel, sand, stone, timber or other resources for
public work constructions
o A Crown grant does not give title or right to the geothermal resources, minerals,
coal, petroleum and gas under the land
o S.50(5) Unless a grant of Crown land makes express contrary terms (s.50(3)),
the conditions in s.50(1) are implied in the title
← Lateral Boundaries
 Surveys of land used to be described by natural boundaries, now generally described
through government surveys
 If there is a dispute over the boundary markers, the intention of the parties is priority,
if that is still ambiguous natural and artificial monument boundary markers take
precedence over statements of area
← Support
 Landowner has right to enjoy land at common law and can rely on support of land by
neighbor’s. The purchaser is entitled to the level of support that existed at the time the
land was acquired (Blewman)
 Strict liability, landowner must prove withdrawal of support, only applies to land in its
natural state. It must be established that the withdrawal of support causes subsidence
to the land and is not related to the weight of buildings (Blewman)
 For buildings, a land owner can get an easement of support by paying neighbor to
guarantee lateral support
 The subdividing owner of property is likely not under strict liability to the new owners
for subsidence of property, although the law of negligence still apples (Blewman)
o Policy reasons of holding subdividing owner’s accountable for excavation that
took place before subdividing, possibly many years earlier, is not desirable from
a policy perspective
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← Prescriptive easement
 No longer possible, s. 24 of the Land Title Act:
o Common law doctrine of prescriptive rights is abolished, it is no longer possible
to acquire rights to adjacent property through prescriptive easement (since
1974)
← Encroachments (s.36(2) of the Property Law Act
 If a building or fence encroaches on a neighbour’s property, the court may order
o the landowner to have an easement on the encroached land and pay
compensation to the neighbour
o title for that portion of land to be transferred through payment of compensation
o the building or fence removed so that it no longer encroaches on the adjoining
land
← Water Boundaries
← Common law:
 Historically, at English common law there was the presumption that riparian owners
owned the bed of the waterway to the midway point. When the water was tidal the
Crown owns the foreshore and the ocean bed.
o Courts have generally found English Common law to be inapplicable to water
boundaries and the distinction is made between navigable and non-navigable
waters. For navigable waters the bed is owned by the Crown (Nikal)
o Fishery is separate from the ownership of the bed (Nikal)
o A “navigable” definition considers the entire length of the river not whether it is
actually navigable at one specific point
← S. 55 of the Land Act
 No part of the bed or shore of a body of water is part of a title to land that has been
granted by the crown. This applies to land granted before and after the introduction of
this section in 1961.
← S. 56 of the Land Act
 The only exception is title that expressly included the bed of a body of water before
1961
← Riparian Rights
← Right of accretion
 Land that is eroded away by water gradually and imperceptibly is lost.
 Land that accretes by the same gradual process is gained.
← Foreshore
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 Riparian owners have the right of access to the water but in exercising this right, they
must not disturb the owner’s of the foreshore’s rights of enjoyment (Murray)
o Wharf built across foreshore illegally disturbed rights of the public to the
foreshore
← Rights to water
 Right to use of water vested in Government (s.2(1) of the Water Act)
o Does not apply to groundwater (s.1(1) of Water Act)
 No one owns water until first appropriator, therefore valid nuisance claim
against someone who contaminates it before it is appropriated. It can be
used to the determinant of neighbours but not contaminated.
(Steadman)
o S.42(2): It is not an offence to divert unrecorded water for domestic use, if no
license to it has yet been granted.
 While no riparian right to use and flow left in BC, there appears to still be
rights against contamination (Steadman)
← Fixtures
← When a chattel becomes a fixture its title is absorbed by the title of the realty (LaSalle).
How this is determined:
 When determining what the objective of the attachment was, an objective standard is
used (LaSalle)
 Largely depends of particular facts of each individual case, but the general principles
are (LaSalle):
o Chattels not attached to land by anything other than their weight are prima
facie not considered part of the realty
o Chattels affixed by even a small degree are considered part of the realty prima
facie unless there is a contrary intention. The strength of the attachment
corresponds to the strength of the presumption
o Circumstances that alter the prima facie intention must be available for all to
see
o The intention must be apparent through the purpose of the annexation. This
must be available for all to see (objective test) The test is whether the purpose
of the attachment was to enhance the value of the real property or whether it
was for better use of the chattel as chattel
 Notice of interest in Carpets was not registered as it should have been in
the Land Titles Registry. Therefore was not available for all to see
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 Although the degree of affixation was slight, the purpose of the affixation
was to increase the value of the hotel and not for the pure enjoyment of
the carpets (LaSalle)
o A contract signed between parties that states that a chattel shall not become a
fixture is ineffectual, except against the parties to the contract, unless it is
registered in the Land Titles Registry for the world to see. Property rights are
rights good against the world and therefore a contract on whether a chattel
becomes a fixture between two parties is not binding on third parties without
notice (Diamond Neon).
 Signs likely became fixtures after ownership of land changed and lease of
tenant expired
 They were affixed to the land
 Showed intention of permanent fixture
 Their purpose was to improve land
o Personal Property Securities Act: enables people to register property interest in
Chattels in Land Titles Office so they do not become fixtures
← Tenant’s Fixtures (Williams and Rhodes)
 Subject to special rules, generally a tenant may reclaim fixtures and restore them to
Chattel status
 Not all fixtures attached by tenants may be removed at the end of lease, they may only
be removed if the purpose of the attachment is for a trade, they are ornamental, or
for the purpose of domestic convenience
 They may only be removed if the removal will not cause serious damage to the party
 They must be removed in a reasonable amount of time, generally at the end of the
lease (Carabin) or soon after
 Parties can alter these basic rules through contract (Levesque)
← Tangible and Intangible Resources
← Copyrights protect both economic and moral rights, although Common law Copyright Acts
have traditionally been more concerned with the protection of economic rights (Theberge)
 economic rights, these can be sold and reassigned (Theberge)
 Moral rights protect sentimental concerns, they can be waived but not sold (Theberge)
o Transferring images from a poster onto a canvas is not a breach of copyright
protection from the unauthorized “reproduction” because technically the images
have not been reproduced. They may have violated his moral rights but because
of pre-seizure the Pl was only able to sue under this type of copyright
infringement (Theberge)
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o Boundary between tangible rights and owner of intangible rights. Signal that
copyright act protects more then rights of physical owner
 Although a higher life form (plant or mouse) may not be patented in Canada, a gene
may be patented. Therefore the use of a plant for which the patented gene is integral,
infringes the patent owner’s right to monopoly over the use of its patent (Monsanto)
o Defendant was not an innocent bystander, he actively bred the plants with the
patented genes, even though he did not use “Round-up” pesticide on the
“Round-up Ready plants”
o Defendant was unable to rebut possession rights of the plaintiff
o Ownership of the thing is no defence to a breach of the Patent Act (Monsanto)
← Possession
 Relative term, the question is who has the better claim to possession between the
plaintiff and defendant. The rights of 3rd parties are irrelevant (Asher)
 Possession is prima facie proof of ownership, the onus is on the other party to establish
a prior possessory right. (Popov)
 At its core, possession involves intent to control it or exclude others from it as well as
physical control. (Popov)
o Unusual “pre-possessory interest” recognized in Popov: When a person
undertakes significant steps to achieve possession and the effort is interrupted
by unlawful acts of others. The actor has a recognized pre-possessory interest
that is a qualified right to possession. Not clear if this right will be continued to
be recognized.
o This case blurs the usual distinction that title of personalty is based on
possession
← Adverse Possession
 Even without adverse possession, right of possession is good against all those but the
person with the title (Asher)
 Ability to acquire land by prescriptive right to it through adverse possession over
(usually) a 20 year period has been abolished through s.24 of the Land Title Act in BC,
with small exception:
o S.3(4) of Limitation Act: In case of first title owner, a person already in adverse
possession can make title claim though s.171 of the Land Title Act, but must
have been acquired before 1975
 At Common Law, where it has not been abolished:
o Possession must be open and notorious, the title owner needs to be aware of it
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o Possession must be adverse: the possessor does not have the title owner’s
permission
o Possession must be exclusive: Maintain exclusivity against all but the owner
o Peaceful:
o Actual: Possessor Must physically be there
o Continuous
 If Title owner did not assert title for the required period of time then the title owner
loses the ability to assert the right to the land.
 This system has been abolished (mostly) and replaced with the Torrens System, this
values economic efficiency
← Finders
← Rights of Finder (Parker)
 Title is good against all those but the true owner, or the occupier if that person has a
better claim
 Acquires right over Chattel only if abandoned or lost
 Takes it into his care and control
 Very limited rights if acquired through wrongdoing (ex turpi causa principle) (Baird)
 Rights over finder good against all but the proper owner
 If found by employee or agent in course of employment the rights are transferred to
the employer
 Subject to obligation to take reasonable measures to find the true owner
← Rights of Occupier
 Rights are superior of the rights of the finder if:
o the chattel is in or attached to land or attached to building.
o If the chattel is in a building for which the occupier has a manifest intent to
exercise control over the building
 Difficult to prove in quasi-public areas (Parker)
 Obligation to seek true owner and take care of the chattel
 Also applies to occupiers of chattel (such as ships)
← Bird:
 Rights of boy who found money while trespassing superior over the rights of the town
since true owner or landowner did not assert rights
← Baird:
 Pl. admitted to stealing money but was never charged, money was still denied to him
because of ex turpi principle. Wrongdoing was of a degree sufficient to warrant
invoking this principle
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← Abandonment
 Unsettled area in Canadian law but American law suggests it must be a total giving up
of property rights with the specific intent or inference of intent to abandon due to
passage of time, tone of transaction and owner’s conduct. Must include intent to let the
next person who comes by claim possessory rights (Charrier)
o Burial items are not considered abandoned
 Possibly, items are not truly abandoned until they are acquired by someone else (Ziff)
Gifts
 Example of the continued importance of possession in property law
 Common Law is suspicious of gifts, it does not enforce promises that are not bargains
and are not made under seal (Baron)
 Feeling that bargains have a seriousness of intent that promises of gifts do not have
(Baron)
 Onus on the receiver of the gift to prove it was made (Times Book)
 The delivery element serves as a check on the impulse of the giver, which is viewed as
suspicion, and is required as tangible “proof” of the gift (Baron)
← Types of Gifts (Schoppel)
← Testamentary:
 Wills, and must comply with the formalities of the Wills Act
← Inter vivos, “Between the living”: Must be proven, on a balance of probabilities that there
was:
 Intention
o Making intention public is strong indication of intention (Times Book)
 Acceptance
 Delivery:
o Symbolic delivery does not qualify but constructive delivery does qualify. The
delivery must impart exclusive possession.
 To complete a gift the giver must do everything necessary to transfer all
power to the person receiving the gift “equity will not complete an
incomplete gift” (MacLeod)
 Delivery of land must include everything necessary to transfer title within
the power of the donor
 Failure to deliver duplicate Certificate Title, allow defendant said
she would makes the gift incomplete (MacLeod)
 Possession with consent of the giver is sufficient to be delivery
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o Constructive delivery will sometimes be sufficient (Times Book). If item is

unwieldy it may be replaced by transfer of the deed (Schoppel)
o Symbolic delivery is generally not sufficient, it is the transfer of a symbolic
representation, rather than the means of control(constructive) (Youdan and
Hovius)
 Constructive delivery: example of importance of exclusion
← Donatio Mortis Causa: Deathbed gift
 Does not have to conform to Wills Act, but it can be revoked
 Made on expectation of death,
 In Canada only applies to personal property
← S.20 of the Land Title Act:
 Except against the person making it, All transfers of land or interests in land are not
complete at common law or equity unless they are made in compliance with the
requirements of the Land Title Act
← S.189(1):
 The duplicate certificate of title must be given to the registrar for cancellation for a
transfer to be complete
← Common Law Estates
← Estate is “time in the land or the land for a time”
 Freehold: indefinite time
 Leasehold: definite time
 Fee: inheritable
 Fee simple Absolute:
o Inheritance is simple, any heir qualifies for inheritance, if there is no heir the
land escheats back the Crown (the lord), and it is absolute, meaning there are
no conditions
o The magic words “To A and his heirs” are no longer required for presumption of
fee simple (Thomas)
o Presumption of fee simple (s.186(2) of the Land Title Act
 Fee simple does not require the phrase “and his heirs” Property Law Act
s.19(1).
 A transfer of land or interest in land does not need to use the word
“succesors” and the transfer is a fee simple transfer or the greatest
interest that the transferor has the power to transfer s.19(2)
 17

 Fee simple is assumed when land is transferred through wills unless a

contrary intention appears in the will (The Wills Act s.24). This reverses
the common law stance
← FeeTail
 Estates could be passed through lineal descendents through fee tail.
 S. 10 of The Property Law Act abolishes fee tail, never really was present in Canada
Life Estate
 A life estate may be created to last:
o For the life of the recipient of the estate or
o For the life of another
 Life estate is created by carving out this limited interest out of a fee simple
 No special terminology is needed for its creation under common law
← Repugnancy Problems
← When the wording of the will is conflicting and it is unclear whether a fee simple or a life
estate is intended:
 Presumption of Fee simple (Wills Act s.24)
 The testator’s intention is taken from a consideration of the whole will, and other
admissible evidence and the meaning of the whole and part of the will (Christensen)
 When the testator is a lay person the technical meaning of the words in a will cannot
be given as much weight as they would if the drafter was a person with legal training
(Christensen)
 Three possible options:
o First gift is absolute and repugnant portion is discarded (Walker)
 If gift is absolute than testator cannot determine how it transferred after
the death of receiver
 “should any portion of my estate still remain in the hands of my
said wife” at the time of her death “undisposed of by her
o Determine gift was a life estate with power of encroachment (Taylor)
 “to have and to use during her lifetime”
o Life estate with no possibility of encroachment (Christensen)
 Reference to “said property” suggests that the testator did not intend
that his second wife could sell the property
 These cases are highly fact specific and are generally determined by the trial judge’s
impressions of the details outside of the wills themselves
← Rights Powers and Obligations of Life Tenant
← Rights:
 18

 Life tenant can use and enjoy the property and can transfer it, which would create a
life estate “for the life of another”
 The remainder owner has the right to the property in the same condition as when it
was given to the life tenant
← Upkeep:
 Life tenant is liable for daily maintenance
 Remainder person is responsible for repairs and the principle of the mortgage
← Law of Waste (Report on Basic Principles of Land Law)
← Limits the extent to which a life tenant may alter the real property. Four types. The first
three may be allowed through contract with remainder person and life tenant but the fourth may
not:
 Ameliorating:
o Enhances value of the land. Technically not permissible unless there is an
express provision to the contrary, but courts are unlikely to prohibit these types
of alterations unless the alterations significantly alters the nature of the
property
 Permissive
o Damage from failure to act to maintain property. A life tenant is not
impeachable for this unless a duty to repair is stipulated in the grant
 Voluntary
o The committing of a positive, detrimental act. Little case law, but the cutting of
timber, unless it was used to improve the value of the land would be considered
voluntary waste
o More strictly enforced
o Remedy would be an injunction or damages
 Equitable
o Severe, malicious and willful destruction. Courts will provide a remedy through
an injunction. This type of waste cannot be allowed through contract with
remainder person. There would have to have been an express provision in the
grant. (s.11 of the Law and Equity Act). Attempt to avoid a “tragedy of the
commons” (Ziff)
← Life Estates Arising by Operation of Law
← At Common Law, inheritance transferred through consanguinity, and therefore did not
transfer to widow or widower
← Curtesy
 19

 A husband could acquire a life estate in the property of his deceased wife, through this
law if a heir had been born
← Dower
 The widower would have a life estate in 1/3 of the estate of her husband
← Dower was abolished but then replaced by homestead laws in the West of Canada, these:
 Fetter the ability of the owner spouse to sell a homestead without the consent of the
spouse (s.3 of the Land (Spouse) Protection Act)
 Provide the non-owner spouse with a life estate upon the death of the owner spouse
(s.96 of the Estates Administration Act) and
 Exempt at least a portion of the homestead from collection by unsecured creditors (s.4
of Land (Spouse) Protection Act)
 These laws only apply to legally married couples but are largely unimportant now
because of other Family and Property Acts
← Aboriginal Title
Delgamuuk
 Lands in BC were not conquered, pre-existing property rights were not extinguished
with British Sovereignty over British Columbia
 Federal government could unilaterally extinguish Aboriginal title before the 1982 and
s.35 of the Constitution Act which protects aboriginal rights
 Provincial title is subject to aboriginal title (s.109 of the Constitution Act)
 Provincial laws of general application apply to aboriginal people, any that apply to
aboriginal rights, and form the “core” of federal jurisdiction do not apply. Therefore
provincial laws cannot extinguish aboriginal rights
 Calder established that legislation could unilaterally extinguish Aboriginal title before
1982 through a clear, legislative intention but this was never done.
← Delgamuukw
← Sui Generis Aboriginal Title Content:
← Guided by a policy of reconciliation and person or grouphood theories of property
 Right to the land itself
o It is a property right not solely a right to exercise traditional rights
o Right to use land for a variety of activities, including purpose that go beyond the
exercise of aboriginal rights
o however the range of uses is subject to the limitation that the uses must not be
irreconcilable with the nature of the attachment to the land, since this is the
basis of the group’s aboriginal title, analogy made to equitable waste, issue is
examples given are voluntary waste, that would increase economic value in land
 20

o If aboriginal people want to use the land for other purposes they can sell it back
to the Crown and the buy the land back in fee simple
o Normally includes mineral rights
 It arises from the prior occupation of Canada and Aboriginal Systems of
Landholding
o Physical occupation is based on common law notion of possession
o Source must predate the assertion of colonial sovereignty
o Ill defined how the two concepts work together, Nomadic people are at a
disadvantage
 It is held communally, and is a collective right of all members of an aboriginal nation
o One model of Aboriginal societies is applied to all aboriginal groups, for instance
the Nisga’a held land by families
 Inalienable Except to the Crown It can only be surrendered by the Crown or
transferred among other aboriginal people
←
← Test to Establish Aboriginal Title
 First Occupancy
o Must have been occupied prior to sovereignty
 Continuity
o If present occupation is used as proof of occupation there must be substantial
maintenance of the connection, meaning the occupation could have been
disrupted(loose test (Ziff))
 Exclusive Occupation
o Includes shared exclusive control
o The intention and capacity to retain exclusive control, not whether or not others
were allowed in territory
← Test to Justify Government Infringement
 Although Aboriginal rights are enshrined in the constitution through s.35, and are not
subject to Charter s.1 limitations, In Sparrow and then in Delgamuukw the court
developed a test that reads in limitations to aboriginal rights through justified
government infringement
o Legislative objective that is compelling and substantial
 May include: pursuit of economic and regional fairness,
 Conservation,
 Historical reliance on fisheries by other groups
 21

The infringement must be consistent with the special fiduciary relationship between the Crown
and aboriginal people
 Requires consultation, compensation and potentially consent
 22

← Oral History
 Oral history may be accepted if it reliable (comes from a credible source) and useful
(no other valid aboriginal perspectives are available) (Marshall)
← Self Government
 This question remained unanswered
← “The Crown is under a moral, if not a legal duty, to make negotiations in good faith”
 Emphasizes that this is an issue for the government, not the courts
← Post Delgamuukw
 No aboriginal title has been recognized in BC
Test Narrowed Marshall:
 Court must examine the nature and extent of the pre-sovereignty aboriginal right
and then seek a corresponding common law right
 For aboriginal title, there must be regular use of defined tracks of land
 Claims that fail to meet the requirements of Aboriginal title because of less intensive
use than required may still meet criteria for other types of Aboriginal rights (Marshall)
Haida
 Knowledge, real or constructive that an activity of the Crown affects an aboriginal
group that has a credible but unproven claim the duty to consult and accommodate
even before the land claim is settled arises from the “honour of the Crown”. (Haida)
 The scope of this duty is proportionate the strength of the land claim and the
intrusiveness of the potential effect of the activity (Haida)
 The honour of the Crown also involves a duty to negotiate in good faith (Haida), but
the Crown must balance competing interests and:
 Aboriginal people do not have a veto power (Haida)
o If a First Nations is unhappy with the Government’s use of disputed lands they
can enter into a process of judicial review
 Although Aboriginal Title cannot be extinguished, it can be regulated and infringed by
government Action (Bernard)

Indian Act
The view of family that is reflected in the Indian Act has similarities to inheritance laws in
common law jurisdictions before the 19th century. There is a distinction drawn between personal
property and land. This reinforces the idea of collective ownership of land as well as a personhood
theory of property, which views land as particularly integral to a person or community’s identity
 23

 There are some scholars, such as Tom Flanagan, who advocate for private land
ownership on reserves. The Federal government has moved in this direction and allows
First Nations to take steps towards this.
o The Nisga’a have recently introduced limited private fee simple ownership
Provisions
 Possession of land on a reserve must be allotted by the band council with the approval
of the minister (s.20(1))
 The Minister may issue either a certificate of possession (s.20(2)) or a certificate of
occupation (s.20(5))
 A certificate of occupation may be issued for two years (s.20(5)) and may be
extended, transformed or revoked (s.20(6))
 Indians with a certificate of possession may transfer land to other band members but it
must be approved by the Minister – s. 24
 If an Indian is no longer entitled to live on reserve they must transfer the certificate of
possession to the band or band members or the right of possession reverts back to the
band and the Indian must be compensated (s.25)
 A person who is not a band member may only occupy a reserve with the approval of
the band council –s .28
 A band may absolutely surrender all rights of members to the Crown s. 38
 A person who is not entitled to reside on a reserve is unable to acquire possession or
occupation rights by descent –s.50(1)
o Since 1951 the Minister is rarely involved in the administration of the Indian Act
on reserves but they retain a veto power.
← Estates in Personalty-
 Historically, the common law did not recognize life estates in chattels (Crago)
 Personalty was owned absolutely (Crago)
o This is qualified by the exceptions of bailments
o Generally the simplest way to transfer ownership of personalty to successive
generations is through a trust
Equitable Interests
Rules of Equity
 Based on good conscience
o Since equity is discretionary, one must come to equity with clean hands
 Equity follows the law, practically equity may appear to overrule the common law, but
theoretically Equity only compliments common law
 24

 Equity regards what ought to have been done as done: meaning that once an
agreement is made to sell land the equitable interest passes to the buyer for the
transfer of the legal title is complete
 Equity will not aid a volunteer
← “Equity’s Darling”- Conway
 There is a myth that equity protected women’s property interests, in reality this was
often not the case. Equity did recognize that married women had distinct identities
from their husbands. While equity was sometimes use to protect the property interests
of wealthy married women, it was often employed against women.
 Equity was often employed to divert property from legal heiresses to males (Conway)
o The equitable principle of strict settlement employed a system of feetails to
keep property intact and generally in the male line
o The trust system was also employed to keep the beneficial title in the male line
 Equity was employed to make the common law dower less effective
 Equity did provide some protection for married women, since it recognized a separate
identity for wives from their husbands, but generally the gains in property rights of
women were made through political reform rather than the use of equitable principles
The Use


 Not recognized by the common law, but the Court of Chancery recognized the duties of
Feoffee to C’est qui use. The Feeoffor was bound by conscious to carry out intentions of
Feoffor
 Uses developed into functional property right, good against the world except for the
bona fide purchaser of the legal estate without notice of the equitable interest.
Historical Development of Uses
 Reasons (P. Butt, “Origins of Equity”)
 25

o Death duties only payable if tenant was “seized” of the land. After 1290, Tenant
a tenant could subinfeudate other tenants
o Since the traditional way to transfer land was through livery of seizin
(ceremony) there was a basic human desire to make “secret” deals
o The most significant reason was likely that at Common Law there was no way
for landowners to will land. Land transferred through primogeniture upon death
← Statute of Uses (1535)
 Henry VIII wanted and end to uses. He was able to convince parliament to pass the
Statutes of uses. This moved the legal title from the feoffee to C.Q.U.
o Repealed in Britain in 1925. Never formally abolished in BC so may still apply
 What is not prohibited by the Statute of Uses
o Leasehold grants: “to A for 99 years for the use of C”
o Grants to a corporation “to B Ltd. for the use of C”
o Active uses: Real obligations imposed on feofee (Trustee)
o A uses upon a use (Exausting the statute): “To B for the use of C for the Use of
D”, C has legal interest and D has beneficial interest, within several generations
this was being used to circumvent the Statute of Uses
o Statute did not apply to personal property
The Trust
 Settler: Feoffor
 Trustee: Feoffee
 Beneficiary: C’est qui use
← The Mortgage (a type of express trust)
 Mortgagor: Borrower
 Mortgagee: Lender
 (Holdsworth)
o Since lending money with interest was illegal at Church law, the device of the
mortgage developed. Lendor got paper title to the land and money from the
benefits of the land. When the principal of the load was paid by the specified
date the land would be conveyed to the Mortgagor.
o At common law if the principal was not paid back by the strict deadline the
mortgagee would get to keep the property.
 (Sugarman and Warrington)
o Equity developed remedy whereby mortgagor had equitable right to redeem
after the deadline if load repaid within reasonable period.
 26

o Equity then developed remedy of foreclosure: If borrower continually does not

repay loan within reasonable period of time the mortgage may be forclosed and
mortgagee was able to keep equitable and legal interest in property. The
mortgagor would lose their right to redeem
o Mortgage remedies developed from attitude that landowners, who made
embarrassing mortgage deeds, should be protected from their bad bargains
← Trusts
 Intentional Trusts
o Express
o Resulting
 Incomplete or ineffective Transfer
 Gratuitous transfer
 Note: since Kerr: the common intention resulting trust is no longer an
important category
 Constructive
o Institutional: based on the wrongful conduct of the defendant
o Remedial: Motivated by the unjust enrichment of the defendant
← Resulting Trusts
 A resulting trust occurs when the legal title is transferred while the beneficial title
remains with the original owner (Pecore)
 A resulting trust may be created when a trust document has not fully disposed all the
beneficial rights (Ziff) ex: A to Acme Co. in trust in fee simple to hold in trust for B for
life  The remainder fee simple equitable interest would result back to the settlor.
Gratuitous transfer: The equitable maxim: Equity prefers bargains over gifts generally applies.
However, this is only a presumption and it may be rebutted (Pecore). For minor children the
presumption is for advancement (Pecore). There is also a presumption of advancement between
spouses (Pecore),
 In Pecore: Elderly Father transferred funds into joint bank account with his daughter
o The presumption was rebutted:
 The father was concerned for the financial security of his daughter and
he assisted the family financially
 The father’s letters stating that the money had not been gifted to his
daughter likely stemmed from fears that the funds would attract capital
gains tax
o Madsen: Similar facts but the siblings did not support claim that it was intended
to be a gift. Daughter was unable to rebut presumption
 27

← Constructive Trusts
← Remedial constructive trust:
← Background
← After Murdoch, where a farmwife was denied any interest in the family ranch despite her
monetary and labour contributions there was a strong movement for family property reform.
However this only applied to married couples. The remedial constructive trust developed as a
remedy for common law partners who did not qualify under Family property acts.
← The Test:
← Plaintiff must show (Peter):
 Unjust enrichment on the part of the defendant
o A tangible, economic benefit was received and retained by the defendant
o There was a corresponding deprivation to the plaintiff
o Absence of a juristic reason for the benefit (for example a contract or gift)
 Duty of the plaintiff to show that there is no reason that fits into an
established category, the burden is then on the defendant to prove that
there is another juristic reason, with attention to the reasonable
expectations of the parties and/or public policy arguments, that this
should not qualify as unjust enrichment (Garland)
 Once unjust enrichment is established (Peter):
o The default remedy is monetary compensation, to gain a proprietary remedy of
a remedial constructive trust the plaintiff must establish:
 Money is not sufficient in the circumstances (i.e. defendant wouldn’t pay)
 The plaintiff’s contribution was specifically linked to the property
 Calculation of compensation (Peter):
o Quantum meruit approach: value received, fee for services
o Value survived approach (used in Peter): plaintiff contributed to the family
enterprise and should share in the benefits of it.
o The value survived approach with a monetary award is also possible (Kerr)
← Institutional Trust
 May exist without unjust enrichment (Soulos)
 Institutional and remedial trusts connected by appeal to good conscience, based on
wrongful conduct (Soulos)
 Four Criteria must be satisfied for a remedy to be available (Soulos):
o Defendant acquired the assets in relation to an equitable obligation they held
o The assets came into the hands of the defendant through a breach of this
equitable relationship
 28

o The plaintiff must have a legal reason for seeking a proprietary remedy, either
personal, or as a deterrence to other people in the position of the defendant
o An absence of factors that would render the imposition of a constructive trust
unjust. Example: protection of BFP
 Equity is a flexible concept, and a constructive trust may be applied to relationships
and interests for which there have not traditionally been protection under common law
(Bulun Bulun)
o No protection for communal copyright in the Copyright Act. However, an artist
that uses the communal knowledge and artwork on the consent of the
community may be under a fiduciary duty to preserve the integrity of their
culture
o Court suggested that in an extreme case of a breach of the fiduciary duty by the
artist a constructive trust may be applied as a remedy
o Here Artist met duty by moving immediately to protect the interests of the
community. No fiduciary duty between the person who breached the copyright
and the community
← Transfer and Acquire Interests in Land
← Crown Grant
← Describes Land granted for the first time by the Crown since the assertion of sovereignty
(s.50 of the Land Act). Unless there is a specific revocation clause, title is irrevocable. The actual
sovereign may reacquire the land though an act of the legislature, meaning in line with
expropriation statutes
← Will or Intestacy
← A will must be in writing (s.3)
← Signed by the testator with two witnesses present who also must sign (s.4)
← For members of the armed forces and mariners at sea, only require one witness
← The Wills Act is strictly interpreted and applied
← The Estate Administration Act Part ten sets out the inheritance rules applicable upon the
death of someone who dies intestacy
← Real estate that is not held in joint ownership is treated for these purposes like personal
property and the legal title vests in the names of the executors or administrative representatives
(s.77(1)). The executors must hold the real estate in trust for the beneficiaries (s. 78(1)) and the
personal representatives may convey the legal title to the person beneficially entitled to it
(s.79(1))
 ← Proprietary Estoppel
← In rare cases equity may be used as a cause of action to acquire interests in land. May
occur when A, to the knowledge of B, acts in a way detrimental to their own land based on a
reasonable expectation of acquiring a right over B’s land.
← Intro vivos transfers by gift or contract
← A contract in respect to land is not enforceable:
 Unless the person (or their agent) being sued to complete the contract signed
document(s) that provide evidence that the contract has been made and a reasonable
indication of the what land is being transferred (s. 59(3)(a) of the Law and Equity Act)
 There has been either partial performance by the party being sued (s. 59(3)(b) of the
LEA) this includes payment or acceptance of payment of a deposit or part payment (s.
59(4) of the LEA)
 The person alleging the contract has acted to change their position in a way that to not
enforce the contract would, in light of the situations of both parties, be inequitable
(s.59(3)(c))
o S. 59 of the LEA is a reflection of the 1677 Statue of Frauds and the equitable
remedies that developed in response
← The Contract of Sale
←

Before Contract Contract Conveyance ←

←
← Law
← Fee simple in ← Fee simple in vendor ← Fee Simple in
Vendor Purchaser ←
←
← Equi
← Fee Simple in ← Fee simple in ← Fee Simple in ←
ty Vendor Purchaser (equity regards Purchaser
what ought to be done as ←
done) ←
←
← Equitable title qualified by being a right good against everyone except a BFP
← Logic issue with this conceptual map: Only applies if specific performance is a possible
remedy (land must be unique)
← Legal title must be registered in the Land Title office. It is good against the world, except
against the person making it (s.20 of the LTA)
 30

← Qualified transfers and Future Interests

← Reversion: X grants Black Acre to A for life, X retains
← The grantor (or their estate) retains a fee simple in reversion if less than the whole fee
simple is transferred
 It is a present, vested right to future enjoyment (Stuartburn)
← Remainder: X grants Blackacre to A for life, then to B in fee simple
← B has a remainder interest in the property. It is a present, vested right to future
enjoyment (Stuartburn).
 Both remainders and reversions may be disposed of through contract or gift (s.8 of the
Property Law Act)
 A remainder interest in property qualified the politician in Stuartburn as an “owner”
 A person with only a remainder interest does not qualify as “seized” of the land,
requires present, beneficial interest (Senator Forrestall issue (Ziff))
← Defeasible Interests
← X grants blackacre to A in fee simple, but if at some point A doesn’t do y, Blackacre reverts
to X
 X retains a right of re-entry, exercisable if a condition subsequent is broken (Caroline)
 Words such as “on condition that, but if, provided that, if it happens that” suggests a
condition subsequent
 A right of re-entry is still a property right
o In Caroline: “shall revert if” suggested defeasible interest, would have offended
rule against perpetuities, drafted by laypersons, judge decided to rectify deed
← Determinable Interests
← X grants Blackacre to A in fee simple, until Y occurs,
 X retains a possibility of reverter, which means that when Y occurs the fee determines
automatically to X (Caroline).
 Y operates as an internal limitation
 Word such as “while, during, so long as, and until” suggest a determinable interest,
have temporal sound (Ziff)
← Determinable and Defeasible Interests and Statute law
 31

 may be disposed of s.8, or registered in the Land Title office like a charge (s.10(4) of
the LEA)
 A determinable interest is treated in the same was as a defeasible interest for the
purpose of the rule against Perpetutites (s.23 of the Perpetuity Act)
 The fiction that a determinable interest is a vested interest has been eliminated by s.23
of the Perpetuity Act)
 The distinction remains relevant if the limitation/condition is broken
 Registered as charges (s.172 of the LTA
 Land held in trust will be registered “in trust” but particulars of the trust are not
entered in the Land Titles Office (s. 180 of the Land Title Act)
 May be passed and created through wills (s.2 Wills Act)
← Aboriginal title land:
 Sui generis, the common law distinction between defeasible and determinable interests
do not generally apply (St Mary’s Indian Band)
o Grant condition if “cease to be used for public purpose” did not qualify as a less
than fee simple grant for the purpose of the Kamloops amendments
← Contingent Interests
 Rules of construction:
o Presumption against intestacy (Mckeen)
o Presumption in favour of early vesting (Mckeen)
o An interest that follows a life estate is presumed to be vested (Brown v Moody)
 X grants Blackacre to A for life and then to C in fee simple, but only if Y happens
o C has unvested contingent remainder in fee simple because her fee simple is
subject to a condition precedent
o X retains a possibility of reversion
o If it is unclear who out of a small group of people will acquire the fee simple
they all have contingent unvested interests
o McKeen: Careful will, but did not consider possibility of wife dying after sisters,
determined intention of testators was to make sisters vested interest. Wife’s
death was not intended to be a condition precedent
Effects of invalidity: Slott in Chart!
← Conditions Precedent
 For realty: Invalidity voids the gift
 For personality: Complicated!
o Conditions precedent involving realty are treated more leniently if there is an
uncertainty issue because invalidity voids the whole gift. Generally if it is clear
that the donee has met the condition it is alright if the condition is vague to the
rest of the world.
← Conditions Subsequent to defeasable gift:
 Invalidity makes the gift absolute
o Courts require more certainty with conditions subsequent because it is
important that someone whose interest is liable to be divested should know
what events will divest their interest
o A donor for which it is a higher priority that the gift be given instead of the
condition being met should use a condition subsequent so that if the condition is
struck out the property will remain with the intended beneficiary
 When it was more important to the Testator that donee receives a
benefit then whether the condition is met, it is likely to be a condition
subsequent (HJ Hayes)
 A Testator’s intention is presumed to not be intestacy, courts will prefer
the reading of the will that does not result in intestacy (HJ Hayes)
 Condition that son would receive land if he worked the land was
determined to be condition subsequent and therefore void for
uncertainty.
 Testator’s intention was to benefit all his sons, 1,000 dollars to be
paid to James by Harold if James did not work the land supports
this.
← Determinable Limitation to determinable gift
 Invalidity voids the gift
o A donor for whom the qualification is of a higher priority then the wish for the
property to remain with intended donee should choose this type of gift.
← Public Policy Limitations on Private Power
← Three basic Categories (Ziff):
 State Action
 Private Conduct in the Public domain
 Private conduct treated as being outside the public arena
 33

← Tension between principles of free alienation and autonomy with other values.
← -Cypres doctrine can only be applied to charitable trusts (Leonard Trust Foundation)
← Quasi-public nature of a charitable trust suggests that it can be reviewed by courts to
determine if it is inline with public policy (Leonard Trust Foundation)
 Majority decision limited to particularly offensive language in recitals, determined the
operational words cannot be separated from the recitals.
o Suggestion that discriminatory trusts without blatantly offensive language are
acceptable (re Ramsden: scholarship available only to protestants distinguished
Leonard because Leornard was based “blatant religious supremacy and racism”)
 Tarnopolsky J.A. (concurring judgment) laid out a possible framework for evaluating
other trusts:
o Distinction should be made between family trusts and non-family trusts
 Justification: Charities have special protections from taxation, privileged
status, private/public divide
o Charitable trusts should be upheld against the Charter values, Human Rights
legislation, and international instruments
o The trust should be evaluated considering the social and historical context of the
target group
o Unclear if a special requirement in a trust has to be based on historical
disadvantage of a targeted group
o Fox: one member of Appeal Court applied the considerations of Tarnopolsky to a
family trust situation
← Restraints on Alienation
← they are invalid if they are repugnant to the inherent attributes of ownership (TCS)
← At the heart of the rules against restraints is economic efficiency (TCS)
← Three most obvious types of restraint:
 Mode
 Class
 Time
← An invalid restraint may be one that is either express or implicit (TCS)
← Right of First Refusal: Element of restraint, but not as restrictive as a option because a
seller does not have to sell
 34

 Despite low price, this restraint on the Bennetts was not sufficiently restrictive to make
it void
← Option to Buy: An option is a right to purchase, it is more coercive as the discretion in
regards to its application is held by the potential buyer (TCS)
 The right of option, accompanied by the very insufficient purchase price, triggered by
the deaths of the Bennetts was coercive to a degree that made it an unlawful restraint
on private property
← Leases and Licenses
← Leases
 Contractual, exclusive possession, but title does not pass (Fatac)
 Four basic types
o Periodic (ie month by month)
o Fixed term
o Tenancy at will: either party can terminate lease at any time
o Tenancy at sufferance: lease has expired but tenant stays on without
permission (not really a true tenancy)
 Privity of Estate
o Obligations between a tenant and landlord that “touch and concern the land”
continue even if privity of contract is discontinued.
 If T1 assigns lease to T2 the privity of estate obligations are assigned onto
the new tenant
 In a sublet neither privity of contract nor privity of estate obligations are
assigned onto the second tenant. The first tenant remains responsible to
the landlord.
← Licenses
 Either express or implicit. It is a permission to do what would otherwise be trespass
(Ziff).
 It is not an interest in land so it is not binding on subsequent purchasers (Fatac)
 Gratuitous
o Theoretically revocable subject to Human Rights legislation
 Contractual
 35

o A contractual license contains an implied term that it will not be arbitrarily

revoked without notice subject to conditions of good behaviour (Davidson)
← Lease or License?
 The key difference between a lease and a license is the test of exclusive possession
(Fatac)
o In a lease the occupier’s right exclude the reversioner except to an allowance
for inspection or repairs
o In a license the situation is reversed, the licensee can only enter and use the
land with permission
 The difference between a lease or a license is determined through examining the
substantive rights conferred and not just the language of the agreement (Fatac)
o Rent is not a precondition for tenancy but suggest a legal intention
o Limitations on purposes do not negate a tenancy
o When the right to occupy can be terminated through legal matters extraneous
to landlord-tenant relationship (such as holding public office) it is not a tenancy
(Fatac)
 In Fatac: Was a license:
 The owner had a general right of access so long as they didn’t
disrupt the other party’s activities
 As well, the area for which Atlas could actually mine was
dwindling. There was no clearly defined area for which Atlas
would have exclusive use.
← Bailments
← A bailment involves the transfer of possession of chattel from a bailer to a bailee with the
intention/ expectation that the property will be returned, even if it is fungible. A bailment can
exist independent of a contract (Letourneau)
 The obligation to return the property in the original, or in some cases altered, state is
the essence of bailment.
o Generally the ability to substitute the goods for other items is inconsistent with
a bailment (Crawford)
 Since Murray had the ability to return different cows to Crawford title of
the cows had passed and it was not a bailment.
 If the chattels remains the property of the bailer, even if there is comingling of the
chattel when it is with the bailee, the transfer may still be characterized as a bailment
(Mercer)
 36

o Grain case, bailer would likely get back different grain but still considered a
bailment
 Impossible to tell one grain from the other (Could go either way)
 The farmer retained control of the grain, unlike Crawford
 37

 Point of transfer
 There was a clause in the contract that the grain remained the property
of Mercer and the grain company would sell it as his agent
 In order to establish a bailment possession must transfer (Letourneau)
o Plaintiff following the directions of the defendant’s employee qualified as
delivery of possession- other couple provided evidence of this
o The fact that the trailer was not placed on the defendant’s property was not an
issue
o In some cases, the fact that the plaintiff kept a copy of the key might be an
issue- didn’t consider that here
 Once the plaintiff has established that there was a bailment the onus shifts to the
defendant to prove that it was not negligent in its roles as the bailee (Letourneau).
o Traditionally, the standard of care required of the bailee differed between the
type of bailment:
 Benefit to bailer (usually gratuitous) (lower standard)
 Benefit to bailee (usually gratuitous) (higher standard)
 Mutual exchange (generally contractual) (in between)
o Now, the likely standard of care will be a general negligence standard, but this
may still be relevant (Letourneau)
← Shared Ownership
← Four Categories at Common Law
← Co-parsinary:
 Arose when property was left to heirs who were all daughters who would then share
ownership as co-tenants.
o Abolished by ss. 83-94 of the Estate Administration Act
← Tenancy by the Entireties
 Applied to Husbands and Wives and could only be severed by death or divorce. It
depended on the unity of the marriage persons. It has been abolished though s. 12 of
the Property law Act
← Joint Tenancy
 The four unities combined with an intention to create a joint tenancy are required for a
joint tenancy to be formed (Ontario Law Reform Commission)
 38

o Unity of possession: each owner has an undivided interest in the whole

o Interest: the interest in land must be the same in extent, nature and duration
o Title: Each tenant’s title must be derived from the document or occurrence
o Time: All tenants’ titles must vest at the same time
 There must also be an intention for a right of survivorship
o A right of survivorship speaks before the will
← Tenants at Common
 Only unity of possession is required to create a tenancy in common (Ontario Law
Reform Commission)
← Preference
 Words of severance, which suggest some type of division, indicate an intention to
create a tenancy in common (Bancroft)
o Words such as “equally” “share and share alike” suggest a tenancy in Common,
possibly “jointly” Bancroft
o Presumption at common law of joint tenancies (Bancroft)
 For personalty, the common law presumption of joint tenancy remains
(Bancroft)
 Equity sometimes prefers tenancies in common.
o In partnerships the legal title is shared in a joint tenancy but the equitable
interest must be held in trust for as tenants in commons for heirs
 Statutes:
o S. 11(2) of the Property law Act: the presumption is reversed to a presumption
of tenants in common for land, except for trustees
o S.11(3) if not stated, shares of tenants in common are presumed to be equal
o S.18: A person may sever joint tenureship and may transfer land to themselves
o S.177 of the Land Title Act: joint tenants must be recorded and identified on the
title.
o S. 173 of the Land Title Act: The registrar may effect registration at the instant
a shared ownership of a fee simple arises
← Severance
← Joint Tenureship can be severed by either a unilateral act (in law), a mutual agreement
(equity), or an express or implied course of dealings (in equity) (Sorenson- ABCA)
 A Unilateral Act of one tenant that destroys one of the four unities (Sorenson)
o No notice or consent required (Stonehouse)
Wife conveyed interest to daughter without knowledge of husband, valid
even though it wasn’t registered until after her death (s. 20(1)): “except
against person making it”
o Things that will Sever:
 Conveyance of title to 3rd party (Stonehouse)
 Conveyance of title to yourself (s.18 of Property Law Act)
 40

 Executed but unregistered transfer (effective against person who made

it) (s. 20(1)) of Land Title Act
 Trust (severs legal and equitable ownership) (Sorenson)
 Lease- unclear- likely not
 Unilateral declaration of a trust
o Life estate
 Things that will not Sever:
o Charges against title (do not effect unity of title) (Sorenson)
 S.231 of Land Title Act: A mortgage operates as a charge
o Unilateral will (Sorenson)
o Incomplete partition action (Sorenson)
o Unilateral declaration (Sorenson)
 Mutual agreement (Sorenson)
o Although they had a divorce settlement they were operating as if they still had a
joint tenancy
 Course of dealings
o Can be express or implied (often in course of marriage breakdowns Ziff)
 Sorenson
o Trust deed with intention of advancement was an effective and complete
transfer of the equitable interest.
o Since transfer of title to son were only delivered to her lawyer she hadn’t
deprived herself of the right to revoke
← Resolving Concurrent Ownership Disputes
← The general rule in common law is that there is no way to account for benefits of
occupation. Co-tenants are allowed to posses the whole. While Common law did not require co-
tenants to share costs and benefits equally equity held that co-tenants should not suffer or profit
out of proportion to their interest.
 Ouster: Constructive or actual, when one tenant makes it impossible for another to
occupy the property.
 41

o equitable remedy of occupation rent may be as a remedy for ouster

← Accounting for Benefits: Estate Administration s. 71(1)
 Allows for accounting between co owners for rents and profits
 Obligation is only for rents actually received, there is no obligation for other co-tenants
to attempt to make a profit
 Only applies to profits arising directly from the land itself- does not include profits
made through one party’s “own” industry
 Applies to very, very, serious forms of waste
← Accounting For Expenses
 In equit: accounting for allowances: Only applies after partition and sale of co-tenancy
(Ont Law Reform)
 S. 13 of Property Law Act: A co-tenant that has had to pay expenses (owed to third
parties) over their share may apply to the court for order to recover extra costs
 S. 14 of PLA: as a remedy to s.13, the court may a) place a lien on the interest in land
of the defaulting owner, b) order sale of interest c) make any other order to allow
applicant to recover
 All equitable remedies,
← Termination of Co-Ownership
← The Partition of Property Act
← S. 2: All parties with interests in land may be compelled to partition or sell land
← S. 3: Parties can claim a sale and distribution of proceeds as well as claiming partition
under this act
 This Act doesn’t apply on reserves
 Discretionary power of courts to not enforce partition if it would be inequitable
(Harmeling)
 S. 2 of PPA: creates a prima facie case for partition but this presumption may be
rebutted in situations where granting it would result in hardship and justice requires
that the order not be made. (Harmeling)
o Sale of house would not allow the husband to obtain similar accommodation.
o Elderly man
o House was primarily purchased with his money (undervalued wife’s
contribution?)
 42

← Co-Ownership Through Marital Property Law

← Family Relations Act
 Establishes system of deferred legal sharing of property. Part 5 (division of property)
currently only applies to married couples and not common law spouses, unless they
“opt-in” (Walsh)
o Maj.: Marriage is a choice, deference to legislature
 Other remedy: constructive remedial trust
o Dissent: The “choice” to not marry in a common law relationship may only be
the illusion of choice
o Rules of separate property continue to apply until some triggering event: marriage
breakdown (divorce, separation) (s. 56(1))
o Most assets are considered family assets and the presumption is that each spouse
owns a ½ interest in the property as a tenant in common (s.56 (2))
o A family asset is property owned by one or both spouses and ordinarily used by a
spouse or a minor child of either spouse for a family purpose (s. 58(2))
o Although there is a presumption of equal sharing, there is judicial discretion to re-
apportion based on the circumstances (s.65)
o Exception: business asserts are not considered family assets unless there was a
direct/indirect contribution by the other spouse (s.59)
 NOTE: an indirect contribution can include effective management of the
household and taking care of the children (s.59(2))
 Onus is on the spouse claiming it is not a family asset to show that it was
used for business purposes, not family purposes (s.60)
o Irrespective of a triggering event, court can determine possession, ownership, or
division of property (s.66)
o If there is a conflict between any acts regarding division of matrimonial property,
the Family Relations Act prevails (s.69)
← Land (Spouse) Protection Act
 A spouse may make entry on registrar against the homestead and the homestead
cannot then be transferred without that spouse’s consent during his or her life (s. 3)
 Despite any testamentary disposition or liability due to debts, a personal representative
holds the homestead in trust for an estate for the life of the surviving spouse (s. 4(2))
← Estate Administration Act
 If interest in spousal home goes to someone other than the surviving souse the
beneficiary must hold the spousal home in trust for a life estate in the spousal home
← Wills Variation Act
 43

 If a testator does not make adequate provision for the proper maintenance and support
of a spouse or children, the court has the discretion to order a variation to the will that
makes provisions for the spouse and children that is just, equitable and adequate in
the circumstances (s. 2)
o The guiding principle for variation of a will under this section is symmetry
between the legal duties of the Testator before death (see Family Relations Act)
and those given to beneficiaries through the will (Tataryn)
o When possible will variation should meet all legal and moral obligations
(Tataryn)
 Legal obligations will trump moral obligations (Tataryn)
 Testator made clear that he had disliked his son John from an early age
o “Adequate” is an objective test made with reference to community standards
(Clucas)
 Even though testator said that provisions for disabled son were adequate
the Court varied the will
o Lowly financial situation or disability of a child will increase moral obligation
(Clucas)
← Property Law on Reserve
 Part 5: of the Family Relations Act does not apply on reserve (Derrickson)
o S.91(24) gives exclusive jurisdiction over Indians and Lands reserved to Indians
to the federal government
o S. 88 (referential clause in Indian Act) may not apply to Indian lands
o Ss. That deal with ownership in the Family Relations Act conflict with provisions
in the Indian Act
o The court may however award compensation in lieu of real property rights
through the Family Relations Act
 These decisions are devoid of the social context. Monetary compensation
is not sufficient (Mary-Ellen Turpel)
 S. 77 of the Family Relations Act, as it relates to occupancy of the family home on
reserves, is invalid as it conflicts with Indians Act provisions that deal with occupancy
(Paul)
← Priorities
 Nemo dat: you cannot sell what you don’t have
 Bona fide purchaser for value without notice
o Must have paid value (equity will not assist a volunteer)
o Must not have had notice (must come with clean hands)
 44

 Actual,
 Constructive (ought to have inquired further)
 Imputed (notice should have been conveyed by an agent)
← Common Law rules:
← 1) A legal interest vs. a subsequent legal interest (Rogue sold Blackacre to innocent bfp)
 Nemo dat applies
← 2) Legal interest followed by equitable interest
 The conventional position is that nemo dat applies and the legal interest has priority.
Situations of fraud or possibly gross negligence may be exceptions.
 Example: 1rst mortgage legal interest transfers, 2nd mortgage: equity of redemption
← 3) Equitable interest followed by legal interest
 A holds land in trust for B, but sells to C
 If C is BFP, then the subsequent legal title prevails over B’s equitable interest
← 4) 2 equitable interest
 First in time, first in right but since it involves equity there is discretion for the court to
consider what is just based on the facts
← Chippewas of Sarnia
 Surrender was not done properly. The band attempted to assert their aboriginal title
was a legal interest that would take precedence of the bfps over the last 150 years.
 The Court of Appeal determined that Aboriginal title is a fusion of equitable and legal
concepts.
 Therefore as an equitable interest the BFPs subsequent have priority over this
aboriginal interest.
o Distinguishes Guerin:
 The band had notice and acquiesced to the transfer
 The Chippewas were attempting to invoke equitable remedies and
therefore were liable to equitable defences
 45

 Laches and Acquiescence (concept of equity)- Former titleholders are

estopped from claiming an interest in equity where they have acquiesced
to the conduct transferring their interest away, and there has been
reasonable reliance on that acquiescence
← Registration Systems`
← At common law: no registration system, proof of title was facilitated by an abstract
(Youdan)
 Summary of documents tracing title prepared by vendor and looked over by purchaser
 General rule that chain of title had to extend sixty years, but this did not determine the
quality of the title and parties could determine a different length by contract
← Deed Registration System (Youdan)
 Deed is deposited with registry office
 Do not guarantee title
 Generally treated as equivalent to actual notice
 Encourages registration of interests and process of title search became easier
o Race System: First interest to register has priority
o Notice system: The key aspect is notice, and registration just serves as
equivalent to notice
o Race-Notice system: To achieve priority a party must register first without
notice of a prior interest
← Torrens System
 Indefeasibility: “The Curtain” s. 23(2)
 Risk Shifted from BFP to “true owner”: The mirror, doctrine of notice is abolished
 Assurance: Fund to provide monetary compensation for instances where the system
fails
Benefits and Problems with Torrens
Benefits
- facilitates sale of land and reduces cost of transactions
- Faster
 46

- Assurance fund protects people in case something goes wrong

- Prevents fraud or misrepresentation of ownership/interests in land
- Certainty
Problems
- people who would not have lost title under CL can under Torrens (instead of protecting
legal estate owner at all costs, Torrens system sometimes favours BFP)
- Assumes that there are not many rogues in the world

← Torrens in BC
 Interests, unless they are exempted under s.23(2), are only acknowledged through
registration (s.20 of Land Title Act, s.54 of Land Act)
 Indefeasible fee simple title is held by the registered owner and registered title is good
against the world (s.23(2) of LTA), subject to the list in s.23(2). The “Curtain Principle”
o Once a certificate of title is registered it can be relied upon (Creelman).
 This applies whether or not the circumstances were such that the
certificate should not have been issued (Creelman)
 However, the exception is that the Torrens System does not protect
rogues
 Also s. 23(3): A leasehold with actual occupation for less than 3 years
does not need to be registered
 Principle of immediate defeasibility for fee simple transfers (s.23(2))
 For all other charges there is a rebuttable presumption of immediate
indefeasibility (s.26 of LTA)
 Deferred indefeasibility: BFP must be one step removed from
rogue, must actually have relied on registrar, leaves first BFP
without a remedy
 For mortgages, which are charges, if a subsequent BFP
didn’t rely on the registrar the presumption may be
rebutted (Gill): original owner got title back without charge
of mortgage
 Certificate of indefeasible title does not bar rectifying the certificate if the
only interests engaged are people who had notice that the title wasn’t
clear (Pacific Savings). S.23(1): Certificate as long as it remains in force
and uncancelled
 Notice of pending litigation over re-opening the mortgage was
given before offer for purchase was accepted
 47

 A court can rectify a title as long as a BFP is not affected (KAUP)

 All other methods of acquiring rights in land are abolished (s. 23(3) of LTA)
 The register will register an application for title if the boundaries of the land are
sufficiently certain and a good and marketable title in fee simple has been established
(s.169(1))
o An application founded on adverse possession will not be accepted for
registration, with some exceptions (s.171 of LTA)
 The owner of subsurface or airspace rights who does not also own the surface can only
register the interest as a charge (s. 179 of LTA)
The register will register applications for a charge if the registrar is convinced that it is
a good title and it is not an interest in land (s.197)
 A charge is any interest less then fee simple (s.1 of LTA)
 The date of application is the relevant date for determining priority
 The Mirror: “Except in the case of fraud in which he or she has participated in” a
registered owner is not affected by notice of an unregistered prior claim (s.29(2))
← S.23(2): Indefeasibility of fee simple title is subject to a number of things listed in s.23(2)
of LTA:
 A) Original conditions of the grant (i.e. Crown grant)
 b) Federal and municipal taxes (if you owe taxes, they can take your property)
 c) Municipal charge, rate or assessment at the date of the application for registration
imposed on the land
 d) Lease not exceeding three years when there is actual occupation
 e) Public easements (ie: highway)
 f) Right of expropriation (you take your fee simple subject to the ability of the
government to take your property if it’s in the publics interests)
 g) Caveats, charges, judgments, pending court proceedings
 h) Someone else showing the boundaries are wrong
 i) Right of someone to show fraud in the registration and that the registered
owner participated in the fraud (you take subject to the registered owner having
participated in fraud)
 j) Restrictive condition, right of reverter, or obligation imposed on the land by the
Forest Act, that is endorsed on the title.
←
← Fraud
 48

 To qualify as fraud in the Torrens System more than mere notice is required (s.29(2),
Holt Renfrew). If knowledge of an unregistered interest is used for an unjust purpose it
may qualifies as fraud (McCulloch ABQB). The common law definition of fraud includes
a false representation that was reasonably relied on by the party (Holt Renfrew). The
BC Supreme Court in Woodwest applied a broader, equitable approach to fraud.
Knowledge of an unregistered interest followed by an attempt to use s.29 of the LTA to
defeat a prior claim may be considered fraud, subject to the discretion of the trial
judge.
o Common law definition of fraud (Holt Renfrew ABCA):
 Representation made
 Representation is false
 The other party reasonably relied on this representation to their
detriment
 In Holt Renfrew:
 Majority reasoned that Dickson did not rely on the
representations made by Pekarsky
 Minority viewed the carefully worded offers as sharp
practice in dealings with other lawyers, As well, this was
extended by to include a duty to correct a representation
when the party knows it has know become a false one
 Tension with duty to client
 Woodwest:
o Knowledge of the prior interest was gained before offer to purchase
o Evidence that Woodwest had knowledge that the seller wanted the lease to be
honoured
o Attempted to use LTA to defeat the unregistered lease within ten days of
acquiring the title
o Unregistered commercial leases are common
  McCulloch
o (By mistake caveat was removed from the certificate, defendant then
transferred title to corporation owned by him and a few family members, tried
to rely on LTA to defeat unregistered interest)
 though he said it was for “tax purposes” the timing from when McCulloch
found out about the mistake and the time he transferred title was too
convenient
← Volunteers
 Torrens System does not generally protect volunteers (Ziff), the curtain will not fall for
a volunteer
← Caveats (Ziff):
 An unregistered interest
 A notice of a claim that has not formed yet, only registerable for 2 months, may be
renewed?
 Does not validate the interest claimed, serves only as notice
← Overriding Interests:
 Listed in s.23(2) of LTA
 Aboriginal Title: Attempts to register notice (caveat) of pending land claims in the
Torrens registration system have generally been unsuccessful
o Aboriginal title is “upstream” of the Torrens System, it therefore cannot be
registered as a subsequent interest (Skeetchestn BCCA)
← Assurance Fund
 S. 294.2(1) of LTA:
 A person who is a) deprived of an interest in land because of a wrongful act and who
would have been able to recover that interest in land under the common law
 B) is barred from bringing an action for possession or rectification of the register
because of the Torrens system,
 May bring an action to recover damages against the rogue. The AG is joined as a
nominal defendant and if the rogue is judgment proof the plaintiff can recover against
the assurance fund
o Note: for deferred indefeasibility the bona fide purchaser who dealt directly with
the rogue would have not have title to the land nor would have access to the
Assurance fund since they would not have kept title at common law
o For immediate indefeasibility: both parties have remedies
← Title Insurance (Ziff):
 Protects against defects in title that lead to a loss
 The insurer will defend a title challenge on the insured’s behalf
 Very prevalent in the US were Torrens is not well established
 Not yet significant in BC
 Appeals to the very risk adverse by appealing to the situations that Torrens doesn’t
cover: (boundary errors, risks taken by lendors???)
 Where title insurance is prevalent, lawyers play a much smaller role in real estate
conveyances
 Title insurance claims are rare in Canada because title fraud is generally quite rare
← Servitudes
 Incorporeal interest: less than an estate in land, non-possessory right over land
 Tension between commodificaion of land and ease of transactions (Torrens) and a
personhood view of property (covenants etc)
← Easements
← 4 Necessary but not sufficient conditions (Ellenborough Park):
 1) A dominant and a servient tenement is required (s. 218 LTA modification: an
easement “in gross,” without a dominant tenement is permitted if the easement is in
favour of a listed government or public corporation)statutory easement
o There must be proximity between the tenements but they are not required to be
adjoining (Ellenborough Park)
o Exception is a burial plot, at common law it is classified as an easement at gross
 2) The easement must accommodate: it must clearly benefit the dominant tenement as
land and not just as a personal benefit to the owner of that tenement
 3) The dominant and servient tenements must not be owned by the same person (note
s.19 of PLA: Common ownership of the tenements does not extinguish an easement)
 4) The right must be capable of forming the subject matter of a grant:
o it must be sufficiently precise and
o must not result in substantial deprivation of possession rights of the owner of
the servient tenement and
 51

o must be more than a right to recreation (although this has been broadly
applied- easement to walk in a gardenEllenborough Park)
← Positive easements:
 Example: right of way
 Historically are favoured at common law since they do not restrict how an owner can
use their land (Phipps)
← Negative easements
 The common law is chary of establishing new negative easements (Phipps)
o No negative easement of protection from the weather
o Established negative easements: right to a view, support
← Profits a pendre
 A permission to go onto the land of another and severe personalty from realty (Tener)
 Can be granted in gross, there is no need for a dominant tenement (Tener)
← Servitude-like rights
 Rights to public or quasi-public spaces
 Charter rights to freedom of expression apply to the use of public property
(Commonwealth)
 Charter protections do not extend to public use of copyrighted materials (Michelin)
o Registration system, though state-sanctioned, does not qualify copyright as
quasi-public property
← Covenants
 A promise to do with land that may endure beyond the contracting parties
 At common law, benefits ran with the land but burdens did not
← Burdens
 In equity, some burdens may run with the land (Tulk). For a burden to run with the
land subsequent purchasers must have had notice. For a covenant to run with the land
it must be negative in substance (also: s.221(1)(a) of LTA)
 52

 In Tulk: positive requirement to pay costs may not have been at issue, the thrust of
the covenant was negative
 There must be the intention that the burden runs with the land
 Must touch and concern the land: it must be clear that the covenant is valid and
applies
o A registration of a covenant serves as notice but does not guarantee the
legitimacy of the covenant (s.221 of LTA)
o A restrictive covenant based on discriminatory principles such as race, sex, or
religion is void (s.222 of LTA)
 Subsequent purchasers must have notice, part of the principle that equity must be
otherwise prepared to enforce the covenant
 A declaration of a building scheme may be registered as a charge against the land. This
will then run with the land (s.220 of LTA)
← Benefits
 Benefits may run with the land
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← Essay Ideas
← Tension now: no longer so much between common law and equity but between judge
made law and statute law. Common law and equity have both moved towards more discretionary
systems
← Equity protects the interests of the wealthy rather than fairness for broader society (trusts)
← Institutional constructive trust, personal reason for proprietary remedy: example of
personhood theory of property, achieving this type of remedy more invasive, plaintiff must show
that they deserve the remedy,
← Sui generis designation in St Mary’s Indian Band: operates as discretionary area where
judges can do what they think as right. Is this a problem?
← Restraints on alienation: tension between personhood/feudal view of property and battle
for free and efficient alienation of land (example Torrens)
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 12/11/2012 02:52:00
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