Villeneuve 1

PROPERTY LAW FALL SUMMARY (5140 – PROFESSOR ROBB)

The Rule of Law
 “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law”
o The “law”: the mechanism by which social interactions are regulated
o Duty as lawyers to help ensure the rules that define our social organization continue to do so
 The more often that decisions/actions are a product of arbitrary whims, the more each undermines the rule of law, and the
greater the danger that presents to stable but free social interactions. It undermines individual trust in the system.
o Legislatures, judges, and lawyers must adhere to the rule of law first and foremost

Roncarelli v Duplessis (SCC)

Facts: P owns a restaurant and is a Jehovah’s witness. P continually bailed out other Jehovah’s witnesses who were arrested for distributing
pamphlets. D was the premier of Montreal, called liquor license board and had P’s license for restaurant removed, forcing him out of
business. D publicly admitted to doing so, P sued him.
Reasons: citizens must violate the agreed upon rules of behaviour to be held accountable (not simply because someone doesn’t like you)
Ratio: “… that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and
irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of the disintegration of the rule of law”

Property Law
 Property: not a thing, but a relationship that one has with respect to other people as it pertains to things
o You own rights in respect to an object (i.e a car)
o Property law is the starting point of all common law, and is an area of private law
 Escheat: all of us in Canada own our property “of the Crown” (last remnant of the feudal system)
o If you die without a family or a will, your property will escheat back to the government
 Property law is devoted to defining ownership
o Ownership is made up of 2 elements: title (i.e. the receipt for your book) + possession (i.e. holding your book)
 Possession is divided into 2 elements: actual control + intent to control
 Title and possession are usually together, but can be separated (ex. renting a house)
 Things that can be owned: real property (i.e. land) and personal property (i.e. stuff)
o Two kinds of personal property: tangibles (in possession) and intangibles (in action)
 3 Rights of Ownership:
1. Right to exclude (claim-right): right to exclude others bc of their duty to do/not do something (upheld in tort of trespass)
o Protects right of who can step on your land and use your stuff
2. Right to use (privilege): right to determine how something is used (upheld in tort of nuisance)
o Protects your enjoyment of land
3. Right to transfer (power): the right to divest, the capacity to effect legal relations or change someone’s legal status
o Can gift or transfer your property
 Objects of property change over time (i.e. can’t own people anymore)

Hohfeld
 First Order/ Primary Relations (2):
1. Claim Right: imposes a legal duty/obligation of non-interference on at least one other person
2. Privilege (licence): allows for an action, and at least one other person has no right that imposes a duty not to act
o Privileges are lesser/ more easily revoked than claim rights (rights are more important)
 Second Order / Secondary Relations (2):
3. Power: allows a person to alter the existing rights, duties, or privileges of at least on person, and that person is liable to
having them altered
4. Immunity: prevents at least one other person (who has a disability) from altering your existing rights, duties, or privileges
 Property rights are held in rem (against the entire world) as opposed to in personum (held against an individual)
 Rights are not absolute
o Ex. You have a right to use your baseball bat, but don’t have a right to beat me with it

Pluf v Putnum Rights aren’t absolute (“necessary” case)

Facts: D owns dock where P’s boat is attached. During a storm, D detaches boat from dock to prevent harm to dock. P’s family was inside
boat, got injured, P sued D.
Hold: For P, D doesn’t have a right to “necessarily protect dock” as people’s lives valued more than property

Macpherson
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 Article aims to correct two main misconceptions:

1. Property is about relations with respect to things (not concerned with things themselves)
2. When we discuss property, we aren’t always just talking about private property (problematic bc other types exit)
 Types of Property (3)
1. Common property: everyone has a right not to be excluded (ex. clean drinking water)
2. State property: held by gov as an artificial person (gov has power to exclude like private individuals do)
3. Private property: held by individuals who have a right to exclude

Indigenous Conceptions of Property

 Indigenous conceptions of property developed “externally” (independently) from common law conception
o We have to make both conceptions fit together bc s.35 of Charter forces us to
 Main distinctions between common law and indigenous law:
o Common law: linear and individualistic (land is owned for a period of time by individuals to the exclusion of all other)
o Indigenous conceptions: cyclical and wholistic (land is owned by the entire group, one that existed in the past and will
persist in the future, animals and nature have an equal claim to land as humans)
 Law is not written down but told orally through stories. These stories are not meant to be authoritative but to
invite discussion and are always unique as they change each time they are told.

OWNERSHIP OF SPECTACLES, HUMAN BODIES AND IP

Victoria Park Racing and Recreation Ground Company Limited v Taylor Spectacles are not private property (can’t exclude others)
Facts: D owns property beside race grounds. He builds a platform for people to sit and watch. P brings action.
Issue: Is D’s actions a nuisance (interfering with reasonable use and enjoyment of property)? Hold: No nuisance, for D
Reasons: There is no existing precedent that recognizes a proprietary interest in a spectacle or performance. Thus, court says it is not up to
them to make new laws (their job is to follow previous ones)
Ratio: “Anyone is entitled to look over a plaintiff’s fence to see what goes on in their land. If plaintiff wants to prevent, build a bigger fence”

INS v AP
Facts: AP sending info by telegraph about WW1. INS is capitalizing on the different time zones, therefore receiving an early edition of AP
info. INS rewrites info into own words then sends to West Coast. AP seeks an injunction.
Issue: Does AP have a propriety right to the news? Hold: Not a traditional property interest, but a “quasi-right” (partial injunction)
*USA SC later abandons this ruling as all other countries followed the dissenting judge’s rule as precedent (dissent influenced Vic Park)
Ratio: (dissent) “the mere fact that the object you are selling is a marketable commodity isn’t enough to establish that its actual property”

JCM v ANA Sperm cells are considered property

Facts: Lesbian couple purchases sperm straws, each has a child with sperm before separating. JCM remarries and new partner wants to
have a child with sperm cells. ANA refueses, JCM pursues action.
Issue: Whether sperm cells (reproductive human tissue) are property? Hold: Yes, must split sperm cells evenly.
Reasons: Rejected ANA’s moral argument as firstly, court not equipped to make moral opinions, and secondly, everyone has been treating
sperm as property in the past due to its exclusive use.
 In past, common law didn’t allow human beings or their body parts to be considered property. However, as medical science
advances, common law must rethink its stance (used precedent from Yearworth case where sperm bank left fridge unplugged)
Ratio: Sperm is property because parties in question have exclusive use over them

Saulnier v Royal Bank of Canada Statute always takes priority over common law principles
Facts: P (fisherman in NS) holds 4 fishing licenses, he goes bankrupt. D (RBC) creates deal where 3 rd party would buy licenses for $600k. P
won’t agree, says licenses aren’t property. D starts action for declaratory relief.
Issue: Is a license a property (something you can claim/assert a right to)? Hold: Yes, license is property
Reasons: In past, common law always said licenses weren’t property (they were a mere permission to do smthing that would otherwise be
unlawful, one that can be revoked anytime). But acc. to the statutory law, licenses are property (statutes intentionally made the definitions
broad to incl. assets that wouldn’t normally be considered “property” at common law to ensure creditors can recover outstanding debt)
 BIA: property is any “money, goods, things in action, land… interest and profit, present or future, vested or contingent, in, arising
out of or incident to property”
 PPSA: property is “goods, a document of title, chattel paper, a security, an instrument, money or an intangible…”

THE RIGHT TO EXCLUDE

Harrison v Carswell Robb agrees with dissent
Facts: D owns mall, P is picketing outside her store bc on strike. D asks her to leave, she doesn’t. P is charged with trespass.
Issue: Whether the owner of a shopping plaza had sufficient control or possession of the common areas, having regard to the unrestricted
invitation to the public to enter upon the premises, as to enable it to invoke a remedy of trespass? Hold: Yes owner does, for D.
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Reasons: D has a right to exclude “at his whim” (for whatever reason he chooses). A license is a mere permission, it can be revoked
whenever the owner wants (subject to human rights legislation).
Ratio: “owner who has granted a right of entry to a member of the public may withdraw the invitation, and if the invitee then refuses to
leave, the invitee becomes a trespassor”
Note: Majority of SCC based their decision on Peters v The Queen, but minority argues the facts are substantially different.
 Peters v The Queen: P sets up a picket against grocery store’s decision to sell California grapes (a random guy, not on strike).
Charged with trespass. SCC unanimously ruled for D. P trespassed as he doesn’t have any legal standing except his unrestricted
public license to enter a shopping mall.
Dissent:
1. Distinction between Peters case and Carswell case
o Peters (random guy, not on strike) vs. Carswell (legally on strike). Very different cases, should not be treated the same
2. Distinction between right to exclude as a residential property owner (doesn’t need to be justified) vs. right to exclude as a private
property treated as a public space (must be justified, can’t be revoked by will, valid reasons incl unlawful or misbehaviour)

RWDSU v Eaton Centre Toronto

Facts: P (union) distributing fliers in mall outside store (bc no external access), mall owner asks P to leave. P brings action claiming Eaton
Center asked mall owner to do this (unlawful as striking is allowed). Hold: Yes Eaton Centre asked them, for P.

Committee for Commonwealth of Canada v Canada

Facts: P (committee) distributing pamphlets at airport. RCMP and airport asked them to leave bc policy in place this is prohibited. P brought
action claiming they had a right to distribute under s.2(b) “freedom of expression” of Charter Hold: For P
Reasons: If the gov could restrict access, only those with large enough wealth would be able to engage in freedom of expression
Ratio: Airports are “contemporary crossroads”, on the same constitutional footing as streets and parks
 Logical compromise – some, but not all, gov owned property is constitutionally open to public for engaging in expressive activity

Batty v Toronto
Facts: P (protestors) camping overnight at park in Toronto. D (the city) issued trespass notice. P applied for injunction, claimed the eviction
infringes on their Charter rights under s.2 Hold: Yes it infringes on right, but is reasonable violation under s.1 of Charter
Oakes Test:
1. Objective of legislation pressing & substantial? – yes bc TO is a densely populated city with limited park/open space
2. Proportionality test
a) Rational connection between legislation and objective? – yes
b) Minimal impairment? – yes, there isn’t an absolute ban on park use, can use it 19/24 hours per day, just can’t live there
Reasons: Protestors doing this without regard for their neighbour, using the property in a way that prevents others from enjoying it.
Ratio: “The Charter doesn’t create a world of such absolutes, rigidity, or lack of common sense with respect to the private use of public
spaces.”

Vancouver v Cheng
Facts: P (budhist protestors) put up posters on side of highway. D (Vancouver) tried to remove as there is a rule that you must gain
approval from the city engineer to do this. P sues. Hold: For P, city doesn’t have power to do this (ultravires, by-law is beyond their
statutory power)

Intellectual Property
 Intellectual property is an intangible (includes trademarks, copyrights, and patents)
o Most common intangible today isn’t IP, it’s financial institutions (i.e. stocks, savings accounts, bonds, etc)
 Intellectual property has been defined and understood by federal statute (they each have their own Act)
 Fundamental component of IP law = right to exclude (can’t infringe on IP, owner has “exclusive right” to use)

Michelin v Caw IP should be protected the same if not more than real property (bc more diff to define borders of IP bc can’t see like land)
Facts: D (union) used Michelin Man for protesting, drew him stomping out Michelin employees. P (Michelin) started action, wants an
injunction and damages for infringement of trademarks and copyrights. Hold: For P, copyright violation (not trademark)
Reasons:
 Trademark violation: have to actually interfere with someone’s trade
o CAW is a union (not for profit), not a commercial business so it can’t engage in commercial activity. Therefore, can’t
violate trademarks
 Copyright violation: must show they reproduced in a substantial way
o CAW clearly reproduced the Michelin man
 CAW argued it was parody under the fair dealing exception (1 st time argued in Canada). Court rejects bc “parody isn’t criticism”
Ratio: “Just because the right is intangible, it shouldn’t be any less worthy of protection as a full property right”
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 “Subjecting the plaintiff’s [copyrighted image] to ridicule as the object of a parody isn’t compatible with the function of the
copyright… The [copyrighted image] about to stomp hopeless workers into submission doesn’t present the original author’s intent
of a favourable corporate image or provide incentive for compensation to artists for the integrity of their vision”

Pennsylvania Coal co v Mahon (USA)

Facts: Pennsylvania Coal company sold surface rights of land to Moen (company keeps the mineral rights). Moen accepted the risks of living
on top of a coal mine and company absolved all liability. New law is created called the Kohler Act that says you can’t mine under residential
property if the land can move/sink. Company sends written notice to Moen saying they will be mining under his house. Moen starts an
action seeking an injunction, so they stop mining operations.
Hold: Injunction granted, cand Mahon can keep his house, but government ordered the state to pay the company
Reasons: SCC created new concept called “regulatory takings”. Said the gov enacted the Kohler Act which qualified as taking the company’s
mineral rights (it deprived them of their goal bc it made mining so expensive). Therefore, the state is constitutionally obligated to
compensate.
Robb: SC used legal realism to create “regulatory takings” (didn’t exist). The state wasn’t even a party to this action yet somehow they lost
CAUTION: Can’t apply in Cda bc property isn’t constitutionally protected (it’s only mentioned as one of the prov’s excl powers in s.92(13))

Manitoba Fisheries Ltd v The Queen (SCC 1979) Established 2 step test to prove when gov limits your property interests (Expropriation Act)
Facts: Mtb Fisheries is a fish exporting company. Gov makes a law that creates a Crown corp that controls the entire freshwater fishing
export industry (to improve economic benefits to the Indigenous fishers). Company sues.
Hold: This counts as an expropriation that the company must be compensated
Reasons: Establishing a Crown corp to export freshwater fish constituted a taking of Mtb Fisheries’ “goodwill”, which mean they are
entitled to compensation.
Ratio: Court created a test that the plaintiff must prove when seeking compensation
1. That the leg measure appropriated an identifiable property interest
o The gov action needs to interfere with and devalue P’s proprietary interest
2. That the expropriating authority gains the value of the property taken
o Gov must acquire the value/ property interest
This test is difficult to prove bc of step #2. Although most regulations on property limit the way the property can be used, it is rare that the
limit creates a property interest for the government (why this test is distinct from Pennsylvania case, the state there didn’t gain anything
but still forced to pay)

Mariner Real Estate v Nova Scotia (1999 NSCA) De Facto expropriation in Cda only occurs when reg confiscates all “reas uses” of land
Facts: Mariner Real Estate owns private land. The Minister says the company can’t develop on this land bc under the Beaches Act, gov sets
restrictions to protect development on beaches. Company sues bc they want compensation.
Hold: Mariner Real Estate doesn’t get compensation bc they fail the Mtb Fisheries test on step #2 (prov gov gained no proprietary interests)
Reasons: Distinguishes btwn American definition of de facto expropriation and the Cdn definition. In Cda land use regulations can be
severely restrictive (bc property isn’t const protected like in USA), therefore a de facto expropriation in Cda can only be deemed to have
occurred when the regulation confiscates all “reasonable private uses”. This regulation scheme didn’t extinguish all reas uses of the beach,
can still use it in other ways. Therefore, gov doesn’t owe compensation.
Ratio: Reg the use of private beaches doesn’t const a taking of land under Expropriation Act

Canadian Pacific Railway v Vancouver (2006 SCC)

Facts: Cdn Pacific Railway decides operating the railway isn’t profitable, asks city if they want to buy. Vancouver says no, but then they pass
a by-law that says that park property can’t be developed on to make money. Railway sues bc now they can’t sell or make money on it.
Hold: Not ultravires the municipality, the city has the power to do this. Also, ruled this wasn’t a de facto taking
Reasons: Railway company failed the Mtb Fisheries test on #2, the municipality isn’t gaining any proprietary interest in the land (as it is
turning it into a public park), nor is there any other reasonable use to which the land can be put.

Takeaways
 Strength of your property interest against the Crown = weak
 Strength of your property interest against individuals = strong
 Expropriating property – requires compensation
 Confiscating property – does not require compensation (just taking)

REAL PROPERTY – TENURES AND ESTATES

 The evolution of common law begins with the creation of courts (concerned with identifying and protecting ‘interests’ held by
parties in the land)
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The Doctrine of Tenure

 Doctrine of Tenure (to hold): the first element of the feudal system
 Land tenancy in England after 1066 consisted in the Feudal Pyramid
o Intended to distribute land interests to relevant groups in medieval England, an early tax system
 Allodial ownership: nobody owns anything in the pyramid except the Crown (the only absolute owner). Rather, all the people
below on the pyramid hold ‘interest in’ the land
 Ranking: clergy (‘frankalmoign’), barons (‘tenants in capite’), and workers (‘socage tenure’)
o These individuals given an interest in the land as a means of ensuring productivity
 Each tenant down on the rungs was granted a set of rights and obligations (tenurial incidents) owed to the tenant immediately
above them
o I.e. Barons get to live on the land in exchange for protection (have to go to war and fight) whereas the workers/farmers
upkeep land and provide food
 Alienation of your interest in the land wasn’t possible without approval from the lord above you in the rung
 If a tenant died, their eldest son would be offered the opportunity to accept the interest, but must pay relief for it
o If a tenant died with a young heir, the lord became their guardian and collected revenues from those lower down on the
pyramid until heir reaches the age of majority
 If a tenant died without any heirs, then their interest would escheat back to the lord on the higher rung
 Substitution: selling your interest in the land (substitute yourself with the person you are selling the land to)
 Subinfeudation: adding a new rung, a partial transfer of a tenancy in which the purchaser owes tenurial incidents to the seller
o You sell a part of your ownership/tenurial status to someone else, so now someone new owes you stuff (makes you feel
like you’ve moved up the ladder but really just added a rung below you)
o Tenants still had to ask permission to do this, however upper lords were surprisingly okay with this
 Subinfeudation created a huge problem because it was very difficult to track who owes who what (bc so many rungs added)
 Statute of Quia Emptores (1290): Banned subinfeudation and allowed alienation (130 years later)
o From that point on transfers could only substitute the parties to the tenure without adding a new rung
o The result over time (as people died and land escheated back to Lords and the Crown) = the pyramid flattened out so
now all land in Canada is held directly of the Crown
 Tenurial system created tension/power struggles as tenants (especially those directly below the Crown) sought loopholes to avoid
paying tenurial dues (rent/taxes)
 Statute of Tenures (1660): converted all existing free tenures (those not already part of the pyramid) into socage tenures, which
carried no tenurial incidents (though it didn’t eliminate the existing incidents)
o A ‘win’ for parliament over the Crown
 Statute of Tenures still technically good law in Cda
o To entrench the elimination of tenures in Cda, the Const Act 1791 (creating upper and lower Cda) held that all future
grants of land in upper Cda would be in ‘free and common socage’
o We didn’t inherit specific English laws, but a legal tradition (i.e. on how to resolve disputes between citizens)
 Royal Proclamation (1763): the Crown attempting to resolve disputes with Indigenous groups (prevent Europeans encroachment
on native lands)… “we recognize Aboriginal property interests”.
o Asserts that Europeans won’t take Aboriginal land unless they wish to sell it. In that case, the land will be purchased only
for the Crown (not for inds) and only at a public meeting (so everyone is aware od the transfer)
o It is because of this proclamation that English law now dominates Cda
 Treaty of Niagara: to solidify the proclamation, the Crown sent a rep to meet with 24 Indigenous groups to sign this treaty,
affirming a partnership between those groups and England
 With respect to Aboriginal land title, SCC has ruled that it’s sui generis (not tenurial), but is instead a function of long possession
 The one tenurial incident that still remains in escheat
o It is now governed by statute in common law provinces (in Ontario, both real and personal prop escheat back to the
Crown if someone dies intestate)
o The Civil Code of Qbc surrounds “allodial” ownership vs. common law is held “of the Crown”
 Why is land held “of the Crown” superior to “allodial” ownership? = Land held “of the Crown” is easier to
balance private and public interests in land use (easier regulation of uses) & inc the possibility of stewardship
 Seisin: initially a reference to the possession of land or chattel (i.e. “being seised of this tenancy/chattel”)
o Now it is a technical term that is only applied to freehold estates (not leaseholds or chattels)
o Only those seised of a freehold could bring a “real action” to regain possession of their land (similar to writ system)
 With respect to leaseholders or those dispossessed of a chattel, they had to bring a “personal action” (bc their
interest wasn’t ‘seisin’)
o “Livery of seisin”: the public method by which an interest in land would be transferred to another
 Useful when members of the public weren’t literate
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The Doctrine of Estates

 Estate: you don’t own the land itself but an intangible right that applies to that land
 Kinds of estates that could be held in respect to land (2):
1. Freeholds: greater quality bc held for an indeterminate time (no end date, lasts “forever”)
2. Leaseholds: lesser interest in land bc their duration of time was determinate (has an end date)
 While today this qual distinction isn’t as relevant (not necessarily better to have a freehold), still some advantages to owning a
freehold. For example:
o You must own a freehold worth at least $4000 to run for the Senate.
o Typically more vulnerable if you own a leasehold
 Three types of freeholds (3):
1. Fee simple – theoretically can go on forever (lasts as long as the heirs of the holder persist in time and don’t transfer their
interest), the largest estate possible
o O grants “to A and his heirs”
2. Life estate – estate lasts as long as the life of the holder (since their time of death is unknowable, it is a freehold bc its
duration is indeterminate)
o O grants “to A for life”
3. Fee tail – the estate descends to a particular class of relatives (like a fee simple but you identity a specific class of relatives)
o O grants “to A and the heirs of his body” (i.e. only kids, no cousins or siblings, etc)
o NOTE: Illegal in most provinces, incl Ontario (only still legal in PEI)
 Style of cause in most cases isn’t adversarial court actions but instead trustees and executors seeking advice from courts to avoid
exposure to private liability

1. The Fee Simple Estate

 Largest estate known to law (both in duration and nature/extent of the rights granted to the holder)
o Most robust set of the bundle of rights, emphasizes the control of the owner
 Fee holders allowed to transfer the totality of their interest to the transferee in perpetuity by substitution
o They can pass on the totality of rights connected to the land (incl the right to direct how title will pass in future)
 The duration of the estate is in principle eternal and the interest transferred is identical in character to the interest held
o Both features established by the statute Quai Emptores
 Therefore, a fee simple estate ends only when the holder dies intestate (at which pt the interest in land escheats back to Crown)
 Before the Statute of Wills (1540), land passed according to primogeniture: eldest son inherited the land
o If no sons, then daughters could inherit but usually got less interest (i.e. if 2+ daughters, interest split equally btwn them)
o Wives not heirs at common law (could only inherit a life estate)
 Succession of primogeniture didn’t apply to personal property, which fell to the spouse and children (Statute of Distribution 1670)
 Primogeniture was abolished in Ontario in 1852, and real & personal property are now treated the same, by reference to their
value, under the Devolution of Estates Act 1886
 Absolute freehold in a fee simple rights (3 Roman):
1. Usus – right to use (restricted only by tort of nuisance and public regulation, which can be quite significant in Cda)
2. Fructus – right to profit from the land
3. Abusus – right to alter land physically (even to the point of destruction)
4. Alienation – holder’s right to alienate whoever they choose, to create new estates, and other interests like incorporeal
hereditaments)
5. Inheritance – right to transmit land right by will (if no will, estate descends according to intestate succession)
o In Ontario, this succession is governed by the Succession Law Reform Act 1990
 3 roman terms are subject to tort of nuisance (neighbours reas use and enjoyment of their land) and public regulation
 Can transfer/alienate by gift, grant (transfer by means of contract) or device
 Since 1895, spouses in Ontario became entitled to a “preferential share” of the intestate’s estate (the amount they are entitled is
currently $200,00, any surplus is to be shared with the children and their descendants)
o Order = spouse, kids, grandkids, parents, siblings, nieces/nephews, end (aunts/uncles/cousins hard to receive)
o SLRA defines spouses narrowly (co-habitation isn’t sufficient, need to be married)
o However, Part V allows dependants to challenge the statutory regime, therefore dependent co-habitants could inherit
 Formula for transferring a fee simple by contract/will: to A & his heirs
o “to A” = words of purchase (indicates who receives interest/ the purchaser)
o “& his heirs” = words of limitation (specify the duration of the estate… heirs don’t have any legal interest in the land)
 Here, specifies the unlimited duration of a fee simple, creating no specific interest for the heirs
o A can freely alienate the property without consent/knowledge of heirs
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 In Ontario, we no longer need this formula; before you needed to include “and his heirs” or else presumes you’re only transferring
a life estate. However, today the assumption is in favour of the fee simple (so if you just say “to A” it assumes all interest go to A).
However, still need in NB bc the presumption in favour of a life estate still exists there.
o However, if the phrase “and his heirs” is used in a prov that doesn’t require them, they are still treated as words of
limitation (Totrupp v Patterson)

Totrupp v Patterson (1970, SCC) If “and his heirs” is included today, it is still read as words of limitation (fee simple)
Facts: Father and uncle of P created nearly identical wills stating that whichever of the two die first, the other gets all estates. Uncle dies
first, then the dad. Dad died in testate bc he didn’t revise will (only person in will was the uncle who is dead). Despite not needing the
phrase “and his heirs” anymore, it was still included in the will. P argued this phrase shouldn’t be read as statement of limitation but one of
purchase. Hold: Statement of limitation
Ratio: Even if you don’t need those words anymore, when they’re included it means a statement of limitation like it always has

2. The Life Estate

 A life estate is more limited than a fee simple bc it lasts only the length of one human life (the duration of the grantee’s life)
o It is still a freehold however, bc the duration of the life is uncertain
 A limited interest: either the grantor has retained a “reversion” in fee simple, or the grantor has transferred the reversion to a 3 rd
party (3rd party’s interest is a “remainder”)
 Two possible formulas:
1. “O to A for life” – A has the life estate while O holds a reversionary interest (when A dies, the estate reverts back to O)
2. “O to A, remainder to B in fee simple” – A has the life estate while B is the ‘remainderperson’ (B holds the remainder interest
in fee simple in the property). O retains nothing. (O=grantor, A=grantee)
 A life estate grants the holder an ‘income’ interest (they are able to reap profits from the productivity of the land for their life)
 The reversionary or remainder interests are interest in the ‘capital’ value of the land
o Reversionary interest run with the land, just doesn’t manifest until the person dies
 Both the holder of the life estate and the remainderperson hold a present interest in the land, however the remainderperson
doesn’t assume their possessory interest until the life estate ends
 Profit en prendre: property interest that allows you to enter someone’s land and reap the benefits of it (i.e. fish)
 Roman law: life estate has usus and fructus (right to possess and enjoy income), but not abusus (can’t alter land)
 Law of Waste: life tenant can’t undertake acts that will damage the capital value of the land (waste = a tort, can get injunction)
 Types of waste (3):
1. Voluntary – actively did something to damage capital value of the property, i.e. blew a hole in the ground (life tenant is liable)
o Could be a product of your negligence, i.e. you chose to bring a stick of dynamite onto property, accidentally
exploded (still liable bc you chose to bring danger onto the property)
2. Permissive – fail to maintain property in a passive way, an omission, i.e. fail to repair roof (life tenant isn’t liable, even if they
were negligent, bc they didn’t actively do anything…they aren’t responsible for maintaining the capital value of the land,
that’s the resp of remainderperson/grantor)
o Exception: if will/contract includes explicit language saying your responsible for permissive waste, then can be liable
3. Ameliorating – alters property for the better/ increases the capital value (life tenant isn’t liable)
o A type of waste bc of emotional connection (i.e. turn family farm into production plant)
4. Equitable – imposed by the Courts of Chancery, requiring a life tenant not to destroy the capital interest even if the original
grant freed them from common law liability in waste (akin to voluntary waste)
o If in will/contract it said abuses don’t lead to liability, you can go to courts of equity for $ damages (bc unfair)
 Tort of waste rarely used today because successive interests in land are usually held in trust (the trustee is responsible and
empowered to maintain capital interest)
 Usually, the person with the reversionary/remainder interest is required to pay maintenance expenses for the property
 Courts of equity: attempted to fix the rigid interpretation of common law that provided unfair results
o Usually, common law remedies= damages/ compensation vs. equitable remedies= action (specific perf, injunction, etc)
o The two courts were eventually combined under Judicature Act, but their languages still persist
 Life estates can be transferred in a variety of ways (i.e. sale, gift, or leasehold) but those transfers always end when life tenant dies
(meaning the interest can’t be bequeathed)
 Life estate pur autre vie: arises when you sell your life estate (like subletting), but it only lasts as long as the grantor/seller lives
o When the seller/grantor dies, the interest in land reverts back to the original grantor/remainderperson
o It creates problems when the purchaser dies before the seller. When the purchaser of the life estate dies, person who
sold doesn’t get it back (bc they sold their life estate). However, it doesn’t revert back to grantor/remainderperson until
they (the seller) die.
o It’s assumed by most the interest becomes part of the purchaser’s estate
 Given the presumption in favour of a fee simple in most provs for most transfers, creating a life estate requires the right language
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o Up to courts/ judges to det the intent of the testator according to the language used (put themselves in their sheos)
Estate of Peter P Ryan v Elizabeth Boutros-Ryan (2007) “without charge” only means “rent-free” (still required to pay reg upkeep expenses)
Facts: Marital contract said widow would gain a life estate in the family home “without charge” and that any “major expenses” would be
covered by his estate. Normally the person with the life estate (the widow) would be required to pay. However, widow argued “without
charge” meant trustees should cover all expenses related to the house.
Hold: “Without charge” merely meant “rent-free”. The trust would be responsible for capital/major expenses, but she would be responsible
for ongoing maintenance fees

Re McDonald Estate (2008) Permissive waste does not extinguish your interest in a life estate, nor does abandoning the property
Facts: Widow holds life estate in property but is poor and lets the home go into disrepair (can’t pay bills so she abandons it). Stepson
(remainderperson) argued that she had abandoned her life estate. Therefore, he wants the remainder kicked in.
Hold: For widow. Court said her permissive waste didn’t extinguish her interest.
Reasons: She had no duty to maintain or even live on the property, the fact that the life tenant doesn’t live on the property doesn’t mean
the life estate ends. Also, widow isn’t abusing property (not voluntarily wasting/decreasing capital value). Therefore, there is no tort in
waste bc its permissive waste, not a product of voluntary act but an omission.

Re Walker (1925 ONCA)

Hold: an attempt to create a remainder interest given the gift of all real and personal property to his wife is repugnant to the initial intent
of the gift and is therefore void

Re Taylor (1982) Absolute interest vs. life interest

Facts: In will, husband leaves land to wife “to have and use during her lifetime”… “any estate she may be possessed with at time of her
death is to be divided between my daughters”. The wife dies, directions in her will are to convert assets into money, then give half to
charity and split other half between 5 named people.
Issue: Whether the husband gave his wife a life estate and created a remainder interest (“gift over”) for his 2 daughters, or whether he
granted her an absolute interest? Hold: Life interest, estate goes to daughters now
Reasons: “during her lifetime” = words of limitation. There was clear intent for a life interest
Ratio: “Where the testator uses plain language to indicate an intention to give a life interest only, that interest is not enlarged to an
absolute interest because the testator has declared that the donee is to have the right in her discretion to encroach on capital for her own
proper maintenance”
Note: These circumstances are diff from Re Walker bc the “gift over” isn’t contrary to the intention of the testator, but rather fulfills those
intentions. Therefore, daughters are entitled to any real or personal property from the estate that was left at the time of the wife’s death

Re Waters (1978) Life estate vs. license

Facts: The executor is asking the court whether the testator intended to create a license or a life estate. Those with the remainder interests
were arguing it was just a license, meaning she couldn’t rent the property to anyone else. Hold: Life estate bc includes words of limitation
Reasons: “for as long as she shall live” = evidence of the period of limitation, therefore creating a life estate. This was further supported by
the bequest of the furniture and other household effects
Note: Estate = interest in land (more robust interest) vs. License = permission to use (privilege could be revoked)

Re Powell (1988)
Facts: Will granted to Verna (sick daughter) “the right to the occupation, possession and use of my house… for as long as she remains in the
possession of the said premises” Once she stops possessing, its split 4 ways between 4 daughters.
Hold: This clause is merely a license to use, not a life estate bc no words of limitation
Reasons: Her need for constant care for the rest of her life meant that license to occupy had expired, and the property was then to be
divided among the residual beneficiaries (which this daughter Verna was one of). This decision protects Verna bc she can use the rent
money she will receive to pay for her hospital bills (which she couldn’t collect if she had a life interest)

3. The Fee Tail Estate

 Fee tails apply to your direct hereditary lines (can’t inherit otherwise)
o Emphasized lineage, hard to sell bc you need to be a lineal descendent of the grantor to receive
o Facilitated the patriarchal structure in England bc you could impose genders on the inheritance (i.e. only sons can get)
 Don’t exist anymore, except in PEI
 After 1956, you can’t create a fee tail anymore, however they aren’t fully eliminated as they weren’t abolished retroactively
o Therefore, possible for some existing fee tails in Ontario to be enforceable

Conditional Estates
 Absolute fee simples and life estates have no conditions, however it’s possible to impose some that can be transferred by will
 Two types of conditions (2):
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1. A condition forfeiture – a condition which when satisfied leads to the end of an estate (if condition occurs you forfeit)
2. A condition of eligibility – a condition which, when satisfied, allows the grantee to assume the estate
 The key to these 2 conditions is that they’re “conditional”: they don’t refer to events that will necessarily happen (i.e. the death of
A bringing about the end of A’s life estate) but refer to events that COULD happen (general form = if X, then Y)

1. Conditions of Forfeiture/ Conditions Subsequent

Two kinds of condition subsequent (2): conditions that come after you already have the estate
1. Estates Defeasible on Condition Subsequent
o “From O to C in fee simple, but if C ceases to farm the land, I may re-enter”
 Here, the grantor (O) has the option to re-enter when the condition is satisfied but need not choose to do so
 Importantly, C’s estate doesn’t come to an end until O exercises their right of re-entry
o Characterized by condition words, i.e. “but if” (explicitly conditional language)
o Consequence: if defeasible condition is conceived as external to the estate, a court that finds this condition void will strike
down the condition, resulting in the grantee acquiring a fee simple absolute
2. Determinable Estates
o “From O to C in fee simple until she stops farming the land”
 Here, O retains a “possibility of reverter” which, when the condition of forfeiture is satisfied, automatically ends C’s
estate which immediately reverts to O
o Characterized by words of chronology, i.e. “until, so long as”, etc.
o Conceptually, determinable estates aren’t “conditions” but are instead part of the definition of the estate itself
o Consequence: if a determinable condition is conceived as an intrinsic element of the estate, a court that finds that condition
void makes the entire estate void, resulting in it returning to the grantor
Main difference between the two:
a) Defeasible – condition is on top of/external to the estate (if condition is void, then just that condition is struck down and the estate
becomes a fee simple absolute)
b) Determinable – condition is a defining feature/part of the estate (if condition is void, the entire estate is struck down)

Re Tilbury West Public School Board and Hastie (1966) “For so long as” (words of chronology) indicate a determinable condition
Facts: The prov expropriated land that had been granted to the school board for a highway and agreed to pay compensation. However, the
original grant of the land (from the grantor’s children) to the school board had a condition attached to it.
Issue: Whether the grant created a determinable fee simple or a defeasible fee simple? (Who gets compensation from the province? The
school board or the children of the grantor who can exercise their right of re-entry/reverter?) Hold: The estate is determinable
Reasons: Used words “for so long as”, indicating a determinable condition. The possibility of a reverter kicks in when the land is no longer
being used as a school. Therefore, the heirs immediately get the fee simple back, meaning they get the prov’s compensation (not the school
board).

Re McColgan (1969) Void defeasible condition, turns into absolute interest in the property
Facts: Dr. McColgan grants a property interest in his Toronto home to his friend Ms. K under words “to hold my property… until her death
or until she is not residing therein personally, whichever shall first occur”. She is originally from the US and becomes ill. Therefore, she
leaves the property for an indeterminate pd of time (to go home for treatment) but asserts she isn’t abandoning her interest in the
property. Hold: This is a life estate, not a mere license
Reasons: Courts ruled that the condition was unclear (didn’t know whether her going home for health care counted as “not residing”). Bc
the definition was unclear, the condition was void. Given that this was a defeasible condition (used condition words), she now has an
absolute interest in the property. This means she can rent it out (keep the income) and the estate was required to pay for its upkeep.

2. Conditions of Eligibility
Conditions Precedent: a condition that must be satisfied before you can acquire the interest in the land
 “From O to B in fee simple upon being called to the bar”
o Condition must be satisfied before B can acquire the fee simple estate
o If B dies before satisfying the condition, the interest will not be part of B’s estate
 A “future interest” – something that will be an interest in the land once the condition is satisfied, but isn’t presently an interest in
the land
 These estates are alienable in principle, but in reality, would be hard to alienate since few people will want to buy something they
might have to forfeit regardless of any action they undertake

The Rules Limiting Conditions on Transfers of Estates

3 basic rules that restrict the types of conditions that can be imposed on conveyances of land interests. Courts will reject a condition if:
1. Impermissible restraint on alienation of land
2. Uncertain
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3. Contrary to public policy

1. Restraining Alienation Impermissibly
Blackburn v McCallum (1903 SCC) If you have a fee simple, you have the right to alienate (a condition that restrains this is void)
Facts: The testator (farmer) splits the farm between his two sons, specifying that neither is allowed to sell the land or use it as security for a
debt for a minimum of 25 years following his death (limits on condition with right to alienate). 9 years later, one of the sons uses the land
as security for a loan, which he then defaults on. The lender takes possession of the land and sells it.
Issue: Whether the purchaser took good title? Hold: Yes good title, the condition is void bc it impermissibly restrains alienation right
Reasons: Dad gave sons a fee simple, and alienation is an inherent right of a fee simple (this condition essentially created a new category of
estates, which you cannot do). This means that the son had a fee simple absolute, as did the lender, hence the purchaser has good title.
Ratio: The general common law rule is that a condition restricting the alienation of a property held in fee simple is void (some exceptions)
Note: Restrictions of alienation can be “partial” but not “substantial”. Partial restrictions include the mode of alienation, limiting the class of
persons whom the land can be sold, or restricting the sale price.

2. Certainty
 As was the case with restrictions on alienation, courts were historically generous in their interpretation of “non-ideally clear”
terms of a conveyancing instrument… Sifton v Sifton marks a departure of this overly generous interpretation
 Pew v Lafferty: a condition that a son “continue to be a steady boy” was upheld as ‘certain’

Sifton v Sifton (1938) Conditions must be clear/certain to be enforced; if unsure if cond subsequent or precedent, always subsequent
Facts: Father stated in will “payments to daughter only if she continues living in Cda”. Daughter wanted to go to school/travel in Europe,
asked the courts a reference question to clarify time period. Hold: This condition is void for uncertainty
Reasons: Condition is void bc too vague. Bc it’s a condition subsequent (condition is separate from the rest of the estate and can be void on
its own) daughter gets a life estate.
Ratio: A condition subsequent that might defeat a vested estate needs to offer a precisely articulated account of the point at which the
condition is satisfied, and the estate forfeit
 If unsure whether a devise is a condition subsequent or precedent, courts should always interpret as a condition subsequent (bc
common law prefers early vesting, we want interests to vest sooner rather than later)

3. Public Policy and Human Rights

 Courts historically reluctant to consider arguments that appealed to “public policy” for fear of encroaching on the powers of
legislators (up to parliament to make these decisions, courts didn’t want to overstep)
 Re Millar Estate (1938 SCC): Court upheld a provision in a will that awarded money to whichever mother in TO gave birth to the
most kids in the 10 years after the testator’s death… ruled it wasn’t contrary to public policy
 While courts have ruled that public trusts are subject to public policy, the degree to which a private trust might violate public
policy isn’t entirely clear (it’s presumed as long as you aren’t outwardly racist/sexist etc in will, your provision is valid)

Re Cda Trust Co and Ontario Human Rights Commission (ONCA 1990) Trust invalid bc public policy (use cy-pres to strike down racists parts)
Facts: A trust was established in 1923 to fund educational scholarships (“Leonard scholarships”). The conditions to receive this scholarship
were racist/sexist. The Ontario Human Rights Commission told the Foundation managing the trust that its eligibility requirements violated
public policy. The Foundation responded that since it was a private trust, it didn’t violate the Human Rights Code.
Hold: The trust is invalid bc it violated public policy. The court used “cy-pres” power to rewrite trust (strike down racists provisions)
Reasons: While the courts are weary of ruling based on public policy, there are some exceptions (like this one). While the freedom of the
testator to dispose of their property how they want is significant, it isn’t unlimited. Here, the trust is premised on the idea of racial and
religious superiority, which is at odds with the equality rights of Cdn citizens

Royal Trust Corp of Canada v The University of Western Ontario (2016 ONSC) Bursaries invalid bc public policy (couldn’t use cy-pres)
Hold: Bursaries distributed from a private will were invalid based on public policy (selection criteria was racist and homophobic). However,
court couldn’t use “cy-pres” bc provision in will requiring it be dissolved if it were deemed to be invalid due to public policy.

Re Ramsden Estate (1996 PEI SC) Not against public policy to only give bursary to a specific group (just can’t say they are superior)
Facts: Trust creates bursaries exclusively to protestants. Uni of PEI has policy where it can’t give out scholarships on discriminatory grounds.
Hold: While the uni can’t administer these bursaries, the provisions are valid bc they don’t offend public policy.
Reasons: In Cda Trust case, the document was highly offensive and asserted superiority. Here, there is nothing in the doc that asserts
superiority of protestants (just specifies only they can receive the money).
 Logic based on s.15 of Charter, affirmative action. Allowed to give advantages to underprivileged groups by creating programs
specifically to help them.
Ratio: In a bursary, can’t say one group is superior to another bc against public policy. However, if you just give to a specific group that’s ok

Re Peach Estate (2009) Can’t restrict who purchases your property in your will on the basis of religion
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Hold: A will can’t restrict the party that’s purchasing a private residence on the basis of religion. This is bc it violates NS Human Rights Act
Re Goodwin (1969)
Hold: A restriction on the wife of a testator’s deceased son prohibiting her remarriage is allowed on the grounds that the testator only
intended to support her while she was a widow

4. Public Policy and Testamentary Freedom

Spence v Bmo Trust Co (2016 ONCA) Wide scope of testamentary freedom in Ont (can do almost anything except directly against pub pol)
Facts: Father and daughter immigrate from England (black). Daughter marries a white man and has a child, relations with dad become
strained. Dad disinherits her (cuts her out of the will) but kept other daughter who’s still in England in will (not close with her). Daughter
argues that while will isn’t discriminatory on its face, that was the motivation as her dad was racist.
Issue: What is the scope of testamentary freedom as limited by public policy? Hold: Provision is valid, no public policy issue
Reasons: Testamentary freedom is broad, nobody is entitled to a share in an estate. This isn’t a public charitable trust, and the relevant
motive was clearly expressed in the will (dad stated daughter hadn’t communicated with him in several years).
Ratio: “No one is entitled to receive anything under a will” (nobody has pre-existing entitlement)

Tataryn v Tataryn Estate (1994 SCC) BC has a more limited scope of testamentary freedom
Facts: Dad has 2 sons and a wife. Dad loved one son, hated the other. Dad wants to disinherit son #2, but worried if he did wife would just
pass on the money to him. To prevent this, he granted his wife a life estate in the marital home and created a discretionary trust from
which she was to benefit from, that son #1 was deemed trustee. Son #1 would inherit it all on her death. The wife and son #2 challenged
the will under s.2(1) of the Wills Variation Act in BC, which allows courts to step in and provide adequate/fair division of estates if the will
fails to provide for spouses and children.
Hold: Wife gets a fee simple in the home and son #2 gets 1/3 of estate (can’t cut him out completely but can disfavour him)
Ratio: It’s possible to limit testamentary freedom, however in Ontario the scope is exceedingly broad (almost anything ok except not
against public policy of being a racist)

FUTURE INTERESTS IN LAND

The Rule in Shelley’s Case (1581)
 Rule: all references to “heirs” as remainder persons in a conveyancing document are words of limitation, not words of purchase
o The rule only applies to life estates (NOT fee simples)
o This means that the life estate vests immediately as an estate in fee simple
 “From O to A for life, remainder to his heirs”
o “for life” = life estate, but bc of the rule, “his heirs” means that A is getting a fee simple, not a life estate which goes to
A’s kids afterwards (which was normally intended)
 Means that A has all the power over the estate, instead of just having a life estate while “his heirs” retain the
power
 It’s a rule of law, not a rule of construction, meaning it supersedes the intentions of the grantor/testator
o Therefore, if the grantee of the life estate wants to sell the land or give to someone other than their heirs, they can
 Original intention: this rule ensures you can’t avoid tenurial incidents (taxes) bc the individual to whom the life estate has been
granted would inherit a fee simple estate, meaning they’d have to pay the tax
o If “to his heirs” was construed as words of purchase, then the heirs merely had a contingent future interest for which no
relief was owed (until the interest vests)
 Rule abolished in England in 1920, but still “good law” in Ontario (not Qbc or Mtb though), although not very relevant
 How to get around the rule: when you devise a life estate and create a remainder interest for heirs, don’t use words “heirs” or
“descendants” (state the names of kids)… this is how you ensure the intended life estate followed by remainder interest to your
kids actually follows through so the child gets a fee simple (instead of the person you are giving the life estate to)
o Rule is usually an undesirable outcome of a poorly drafted will

Re Rynard (1980) The rule won’t apply if it’s very clear in the doc that the testator’s intention wasn’t for “heirs” to be words of limitation
Facts: Son inherited a life estate in farmland from mom with words “heirs”. However, the will didn’t refer to an indefinite line of heirs, but
only those living at the time of his death. Therefore, son has a determinable life estate (can’t sell/mortgage/dispose of his interest,
executors have full discretion) bc his kids have the fee simple interest upon his death. He argues that the rule in Shelley’s case should apply
(bc he wants to sell the land) whereby his life estate would be recognized as having vested in him as a fee simple absolute
Issue: Did the testatrix intend to include “and his heirs” as rule of limitation? Did she intend to invoke the rule in Shelley’s case? Hold: No
Reasons: In clause 5, mom devised a determinable estate to son, establishing that she didn’t intend for his interest to vest as a fee simple
absolute. Therefore, the rule in Shelley’s case doesn’t apply bc it was very clear by the words in her will she didn’t intend it to.
Ratio: Although the rule should have applied here bc it used “heirs”, there were so many other factors/provisions in will that made it clear
the testatrix didn’t intend the rule to apply (she wanted her son to have a life estate, and his children to have the fee simple after his death)
 Villeneuve 12

Re Swenson Estate (2012) “Descendants” is interpreted the same way as “heirs”, therefore the Rule applies
Hold: References to “descendants” aren’t to specific children but to the entire bloodline, meaning they are words of limitation. Therefore,
the beneficiary inherits the absolute interest in use of the land and the rule in Shelley’s case applies.

Future Interests
 Future interests: contingent on some possible event occurring (ex. conditions precedent)
o As opposed to present interests, such as remainder and reversionary interests
 The language used to distinguish these 2 types of interests in estates is: “vested” or “contingent”
 “to A once she finishes school”
o If she completes school = vested (she forsure gets) vs. if she hasn’t yet = contingent (depending on if she meets criteria)
 Vested interests = present interests, therefore you can make a claim (i.e. in tort of nuisance).
 Contingent interests = future interests, can’t make a claim yet (only when interest vests in future you can)
 Presumption in Sifton case: if a doc is ambiguous between a vested and contingent interest, the vested interpretation prevails
Vested Interests
 Criteria for a vested interest (2):
a) The holder of the interest is a known/specific person, and
b) Possession will fall to them on the completion of an estate
 “to my daughter upon graduation from law school”
o The estate is vested in interest so long as there is a first daughter who graduates from law school
o If there is a daughter and she hasn’t (and never does) graduate from law school, the interest doesn’t ever vest and
reverts back to the estate of the grantor on the daughter’s death
 Vested in interest: postponed possession (i.e a remainder interest, the possibility of a reverter, or the right of re-entry)
o Different from vested in possession bc you actually have it
o Your interest is vested in interest and possession when you own a house, but if you are a reverter/remainder person for
a life estate, then your interest is vested only in interest
o The possibility of a reverter or right of re-entry with defeasible estates are interests that are commonly vested in interest
(aren’t vested in possession until the estate comes to an end or until the condition of the estate is violated)
 Most of the time interest in interest and interest in possession go together (i.e. house ex) but you can split them in a will
Contingent Interests
 Arises in one of three circumstances:
a) There exists a condition precedent (ex. “to my daughter upon graduation from law school”
b) The holder of the interest doesn’t exist (ex. the interest is conveyed to a currently non-existent child)
c) The holder of the interest is unknown (ex. when a grantor devises an interest to “their widow”)
 If contingent interest never vests, it reverts back to the original grantor (you don’t have a claim until you complete the condition)
 Can’t bring an action in waste until interest actually vests

British Columbia v Engen (2009 BCSC)

Hold: An ambiguous devise didn’t create a contingent remainder interest for whichever of 3 daughters was the last alive, but instead
created a vested remainder interest in all 3 daughters at the time of the grant

Overview
 Those who have an interest that’s just vested in interest (not possession) can transfer their interests, but don’t have the ability to
assert control over the land
 However, a contingent interest may never vest, granting no control over the land until it does
o If it never vests, the interest will be terminated)

Legal Remainder Rules

In order to preserve seisin with complex contingent interests, common law developed 4 “legal remainder rules”:
o Important to preserve seisin because the feudal lord needed to be able to identify who owed them tenurial dues
o Although these rules don’t apply often anymore because these interests are normally conveyed by trust (remainder rules only
apply to legal interests), they are still considered “good law” (a remainder interest was deemed “naturally destroyed” in
Ontario in 1984 because contrary to rule #4, it didn’t vest in time)
1. Remainder that are not grounded in a particular freehold estate are void – no springing interests
o Ex. “To D and his heirs 10 years from today’s date”
 Violates rule #1 bc no person who takes seisin at the time of the grant (no “owner” for the 10 year period)
o Ex. “To E’s first daughter for life” (E has no daughters)
 Violates rule #1 bc no person who takes seisin at the time of the grant (no “owner” until E has a daughter)
 Villeneuve 13

o If you include a “springing interest” it’s void (reverts back to the estate)
2. No remainders after a fee simple
o The possibility of a reverter (for a determinable estate) or the right of re-entry (for a defeasible estate) can only be held by
the grantor or their estate (i.e. can’t ever be conveyed to a 3 rd party)
o Ex. can’t have “and then to” if a fee simple bc no remainder people allowed (can only have reversionary interests, i.e. penalty
of remainder)
3. Remainders that interrupt an existing estate are void – no shifting interests
o The rule only applies to defeasible interests (condition is separate from the estate itself)
 Ex. the grant of a life estate made that estate subject to a right of re-entry (used language “if”) then it’s void
o However, the rule doesn’t apply to determinable interests (condition is built into the nature of the estate)
 Ex. the grant of a life estate used language of “so long as”, then the remainder would be upheld (bc the life estate
comes to an end once the determinable condition was satisfied)
o If condition is void bc it’s defeasible, then the estate vests as a complete life estate absolute or a fee simple absolute
4. A remainder is void if it doesn’t vest during the estate or by the moment the estate is determined – “wait and see” rule
o This is the only rule that doesn’t immediately determine whether a remainder is void
o Ex. “To R for life, remainder to S upon her marriage”
 Here, the remainder is contingent and will vest in interest once S marries
 So long as S marries before R dies, the interest will vest in interest and be upheld (bc it won’t interrupt seisin)
 If S doesn’t marry before R’s death, she loses her interest by natural destruction (the interest can’t be recovered)

Equitable Interests in Land

 Courts of equity designed to remedy problems in common law of applying the law rigidly, yielding an unfair result
 1881: Courts of equity and common law fused together in Ontario (if conflict, common law rules prevail)
 1330: the courts of equity started as an administrative body called the Chancery, where the chancellor handed out the writs that
needed to be completed in order to start an action in common law
 The chancellor started taking on a judicial role by providing remedies to people who’s situations didn’t conform to an existing writ
o I.e. if a debtor could bring evidence that he had repaid the debt to the creditor, the chancellor would determine that the
second repayment of the debt for an uncancelled bond was inequitable (vs. common law courts would treat the bond as
irrefutable proof that the debt was still owing)
o The chancellor listened to additional evidence and considered it even though it was unrecognized at common law
 The chancellor’s decisions weren’t intended to alter or overturn the common law rulings (just trying to remedy the inequity)
o Not an appeal court
 Idea of a “use” started with conveyances (transfers) of interests in land (“use” meant to indicate a benefit)
o I.e. when a knight went off to war, they would transfer their land interest to a trusted friend (bc wife and kids couldn’t
hold title)
 Feoffer – knight who transfers land to friend
 Feoffee – friend who receives land (trustee)
 Cestui que use – family who receives the benefits (beneficiary of the trust)
o This was the start of the modern trust
 The common law didn’t recognize “use” as an interest in land, meaning that if I transferred title to you for my use, a creditor
wouldn’t be able to come after my interest in the land bc I no longer held that interest (I wasn’t seised)
 By 1420, the interests in use were being enforced by the Chancery to ensure that the feoffee to uses was bound (as a matter of
equity) to ensure that the cestui que use continued to enjoy the benefit of the land
o If the feoffee sold/devised their interest in the land, the purchasers were bound to respect the cestui que use’s interest
o The cestui que use is shielded from the common law by the title holder, but if the title holder were to turn on the
user/beneficiary, they had no remedy under the common law (why courts of equity stepped in)
 Uses came to resemble proprietary claims bc they could be used to compel behaviour from the feoffee and served as in rem rights
against other parties who were trying to interfere with the equitable interest
o This was problematic for the Crown bc it deprived them of revenue
o It was legally problematic bc transfers and the creation of uses didn’t require clear evidence/ statements proving that
the nature of the use conferred
 The Chancery’s protection of uses became like the features of a legal estate bc the chancellor mimicked language of the common
law. However, the rigid structure of the approach wasn’t adopted bc the chancellor wasn’t concerned with uninterrupted seisin
 Ex. X grants to T and his heirs to the use of A for life, remainder to the use of B and his heirs when he turns 21
o At common law, the contingent remainder interest of B depends on whether B turns 21 prior to A’s death (if not, the
remainder is “naturally destroyed”)
o But since T holds seisin, the remainder rule is unnecessary if the life estate ends prior to B turning 21… T would just pay
the profits from the estate to X (per an equitable reversion)
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o Basically, X is granting his fee simple estate to T and his heirs (this is what tells us it’s a fee simple)
o “to the use of A” is what creates cetsui que use
 Cetsui que use = protects from bad actions of the feoffee
o The conveyances in this example explicitly violate the common law rules against shifting and springing interests
o Therefore, this is dealt with as an equitable contingent remainder (equitable interests are what’s relied upon to avoid
common law rules)
 Chancery says they aren’t bound by the common law, so springing interests are allowed
 Statute of Uses (1535): stated that upon the creation of a use, seisin was vested in cestui que use, meaning the equitable
beneficiary also held title (partially resolved the problems of equitable uses)… converts all users into fee simple holders
o Statute said if you try to convey the use of land, it converts all equitable interest to a fee simple
 Treats conveyances like a fee simple
o Statute doesn’t apply if you transfer title to a corporation or active feoffee , and only applies to free holds
 Passive feoffee = just takes seisin/ holds onto title, don’t have anything specified to their role in conveyancing
document vs. active = create a condition where they collect rent
o Statute is still technically good law/not repealed (except in Mtb)
o Ex. “From O to X and his heirs to the use of C” = X gets bumped out of the picture (no more feoffee), all that’s left is C as
the fee simple title holder
 Two steps took place with the merger of legal and equitable interests: (1) those interests were divided by the conveyancing
document, then (2) those interests were merged
 Statute of uses was supposed to do away with uses (but left our corps and active feoffees)
o Passive feoffees were being “ripped off”, courts of equity started being more charitable to them bc felt bad
 Creative lawyers found ways to get around the Statute of Uses, i.e. with the use upon a use
o Ex. “from A to T and his heirs, to the use of B, for the use of C”
o Statute of uses says that B holds a fee simple, but if we make another use for C, they are the cestui que use
 All interests are shifted over one, so the second user (C) becomes the cestui que use again
o Feoffee was seised of the land for a moment, then their seisin was transferred to the cestui que use, meaning they were
less interested in demanding the strict enforcement of the Statute of Uses
 Tenures Abolition Act (1660): relaxing of the Statute of Uses bc the Crown was less dependent on revenue from tenurial incidents
(therefore they were less interested in demanding the strict enforcement of the Statute of Uses)
 Initially, the courts were unwilling to recognize the “use upon a use”. However, after the Tenures Abolition Act the courts of equity
started to interpret them in a way that made all the words meaningful
o The second cestui que use would be transferred equitable title
o However, this was only the case if the use on a use was for a fee simple on a fee simple (a successive number of life
estates would be executed by the statute)
 Following the Statute of Uses, it was possible to create 3 types of contingent future interests:
1. Legal remainders (subject to the 4 remainder rules)
2. Equitable executory interests (not subject to the remainder rules)
3. Legal executory interests (subject to the rule in Purefoy v Rogers)

The Modern Trust

 “Use upon a use” = the mechanism that make an equitable interest in land separate from the legal interest in land
o After the Tenures Abolition Act, courts started acknowledging the “use upon a use” in this way
 The introduction of trusts therefore didn’t change the character requirements of a conveyancing document, just a change in
terminology:
o Don’t use feoffee to uses and cestui que use anymore… now it’s a trustee and a beneficiary
 Trusts: “unto and to the use of T in trust for A”
o Must use the “use upon a use” language to create a trust that relies on a private trustee
o “unto” = conveyance of a fee simple, “to the use of T” = the part that would have been eliminated
 Use upon a use now: Ex. “from O to X and his heirs to the use of C to the use of A”
o O=grantor (feoffer), X gets eliminated, C becomes the legal fee simple holder (feoffee), A=beneficiary (cetsui que use)
 “Use upon a use” is only relevant for inter vivos trust to a private party bc Statute of Uses remains “good law”
o It isn’t required for the purpose of a grant to a corporate trustee bc corporations were never covered under this statute
o Ex. “to royal trust for the use of/ in trust for A” is good with corporations
 “to royal trust” = transfers title (royal trust = trustee, Y = beneficiary of trust)
o Bank/trustees have a rigid fiduciary duty to your benefit (i.e. can’t invest in own business even if it would benefit
beneficiary)
 With respect to a devise, the Statute of Uses has in most provinces (including Ontario) been repealed by legislation
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o According to the Estates Administration Act (1990), the executor (testamentary) or administrator (intestacy) are also
trustees of the deceased’s assets until they have been distributed
 While estates in personal property weren’t possible at common law, equitable estates in personal property can be created as part
of a trust
o Most common form of trusts today = financial instruments (personal prop like investments) instead of land
 Trustees hold legal title to all assets in the trust, meaning they can dispose of, manage, administer, and possess all those assets
o However, these assets held in trust are distinct from the trustee’s own property (i.e. if sued, creditors can’t make any
claim to those assets)
 The beneficiary usually doesn’t have possession of the assets, but they can if included in terms of trust document
o Regardless of whether the beneficiary has a possessory interest, their interests in those assets is equitable
 Trustee holds the fee simple (legal title) while the beneficiary of the trust has no input in how the trust is managed
o But can sue your trustee for damages if not being prudent/managing your trust in a way that optimized your interests
(must manage the trust as a “prudent investor” under the Trustee Act 1990)
 The equitable interests of the beneficiary are transferable and can serve as securities
 A trust insulates the trustee from 3rd party liability, but it doesn’t create a “legal person” like a corporation (meaning the
beneficiary has no grounds to offer input into the management of the assets)
 Trusts are a mechanism to avoid taxes, they protect from certain liabilities
 In Ontario, executors become trustees automatically
 Main function of trusts today = financial instruments (although still used to preserve interests in land and preserve the vulnerable)
 Trusts usually end at the point specified by the trust document. However, the rule below can apply

Saunders v Vautier (1841)

Hold: the beneficiaries can end the trust and claim legal title to its assets if they are all the age of majority, of sound mind, and the trust
contains no additional conditions

The Rule Against Perpetuities

 This rule was made to prevent land from being inalienable for long periods of time (it ensures there is a limit on the time period in
which the interest will vest)
o Courts want to protect familial interests, but there is a limit (just means that if you want to keep interest in family, each
subsequent generation has to make a new will invoking a new perpetuity period)
 Rule: if it’s possible that a contingent/executory interest will not vest within the perpetuity period, the interest is void
o In other words, the vesting event must occur within the perpetuity period (if it occurs at all)
o The rule is framed negatively (if it’s possible for the interest to vest outside of the perp pd, then that provision is void)
 Perpetuity period = 1 generation (1 life) + next generation’s age of maturity (21 years)
 Vesting event = if a condition precedent, the point at which the condition is violated (i.e. when the land is no longer farmed)
 You must identify a “life in being” (specify the living person who counts as the “one generation”… you don’t need to know that
person personally)
o Makes it challenging to det the length of time for each perp pd bc it varies depending on each “life being”
 Ex “from O to A for life, remainder to A’s eldest son at 21”
o A= life in being (no possibility here that if the interest vests, it vests outside the perpetuity period)
 It is NOT a requirement that the interest ACTUALLY vest (instead, it requires that the possibility of the interest vesting must be
guaranteed to occur within the period)
o If the interest doesn’t vest, i.e. A never has a son, then the interest reverts back to O’s estate
 Ex. “from A to the first of my great-grandchildren to go for a walk with X” (X is 40, A has no children)
o It is unlikely here that the interest in question will vest given X’s age
o However, this example doesn’t violate the rule bc IF (by some rare circumstance) it does vest, it will vest within the
perpetuity period bc X is the “life in being” upon which the condition depends
o X has to be alive for the condition to be satisfied. Therefore, if it’s satisfied ever, it will be satisfied within the perpetuity
period (bc X needs to be alive in order for a great grandchild to walk with her)
 The “life in being” doesn’t have to be specified (named) at the time of the grant, ex. “from c to my first grandchild at 21” (C has
two kids, D and E, but no grandkids)…(the unborn grandkid can’t be the life in being, but as soon as born, the 21 yr clock starts)
o Here, D and E are the “lives in being” even though they aren’t named bc the existence of a grandchild depends on their
existence (they are simply not beneficiaries)
o If D and E both die before having kids, the grant will fail… but not bc it violates the rule against perpetuities. It will fail
instead bc the interest didn’t actually vest, therefore the interests will revert back to C’s estate
 If there is no explicit or implicit life in being at the time of the grant, the grant fails for violating the rule
 Problems with the rule: Ex. “from A to her first grandchild to reach 21” (A is 80 and has 2 adult kids & 6 grandkids under 21)
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o Problem here is that it’s possible that all of A’s existing descendants might die and A might have another child, meaning
the guarantee that the interest vest within the perp pd wouldn’t be satisfied bc there wouldn’t be a “life in being” at the
time of the grant (i.e. a grandchild)
o While this is basically impossible that an 80-year-old woman could give birth to another kid, the common law doesn’t
recognize any upper/lower limits on the possibility of reproduction
o Also, with respect to the perp pd, the interpretation of a grant is guided by “the rule of remorseless construction”
 Even though the intent of the grantor was likely to use the life of one of her kids as the “life in being”, the literal
wording identifies the grandkids as the “life in being”
 Perpetuities Act (1990): Ontario statute that partially addresses the problems of the rule by introducing 3 notable reforms:
1. Operates on the presumption that the grant is valid under the rule/ that the interest will vest during the perpetuity period
(i.e. adopt a “wait and see” approach instead of the “no possibility” one)
 Presumption is that the grant is good (it must be established that the interest would vest outside the perp pd)
2. Rely on presumptions that acknowledge the impossibility of the “fertile octogenarian” (puts limits on childbearing ages)
3. Can choose between a uniform period of 40 years on rights of re-entry and the possibility of reverter or the old “life in being
+ 21 years”
o Choose original life in being + 21 years to ensure the period lasts longer (I.e. if your life in being is 21 years old,
chances are that will be longer than just 40 years… but taking a chance bc if the 21 year old dies by a freak accident,
the 21 year clock starts right away)
 Problems with reform = it’s prospective (it only applies after 1966), and it remains difficult to det who the “life in being” is
(therefore, it remains difficult to pinpoint the period)
 However, getting rid of the rule entirely isn’t a good option bc it would allow the possibility that rights of re-entry and executory
interests could remain valid for generations

Laurin v Iron Ore Co Canada (1977) Can use people you don’t know personally (i.e. royal family) as “life in beings”
Facts: Iron Ore sold discount homes for their employees as fee simple estates but wanted to impose a condition in the conveyancing doc
that stated when an employee left the company, Iron Ore would have the option to repurchase. This condition makes the P’s interest a
defeasible fee simple, a condition the P sought to void (which would transform their estate to a fee simple absolute) bc the condition is
subject to the rules against perp. To avoid violating the rule, Iron Ore relied on the royal family “the option is open…from the date of the
grant to the 21st anniversary of the death of the longest living descendant of Her Majesty Queen Elizabeth the Second”.
Hold: The court found the defeasible condition void, but it held using the Royal family as “life in being” was consistent with the rule

Silver v Fulton (2011)

Hold: An oral agreement for an option to purchase land was deemed to violate the rule without specifying a life in being or a time period
during which the option could be exercised wand was therefore void

2123201 Ontario Inc v Isreal Estate (2016 ONCA)

Hold: An agreement to reacquire a gravel quarry once the gravel was removed violated the rule bc the option had to be exercised with 21
years following the death of the right holder

INTER VIVOS TRANSFERS OF INTEREST IN LAND

Conveyancing Legal Interests in Land
 Two steps involved in with transfers of interest in land: 1) Agreement of purchase and sale, 2) Conveyance of the estate from
vendor to purchaser
 Both a deed and registration are required to transfer interests in land
o Conveyancing and Law of Property Act (1990) & the Registry Act (1990)
 Transfer of land steps: purchaser and vendor agree on all sale terms, sign P&S agreement, then purchaser provides a deposit
(consideration for the contract) in exchange for the vendor agreeing not to sell the interest to a 3 rd party before closing date
 Statute of Frauds (1677, then in Ont in 1990): requires that all land transfers must be in writing and signed (no oral conveyances)
o Ont has an additional requirement that transfers must also be registered (on closing date)
 Increase of conveyances through electronic communication have complicated the interpretation of the Statute of Frauds
o Beddell v Kidder – email correspondence could satisfy the requirement of a “signature”
o Druet v Girouard – email exchanges can theoretically satisfy the requirements that an agreement be signed
o However, courts have held there is a presumption against treating email exchanges in this manner (“populist view” =
email exchanges are preliminary negotiations, must be followed by a formal agreement)
 Land Registry Reform Act (1990) & the Electronic Commerce Act (2000): work together to confirm the validity of an electronic
signature in an agreement of P&S in Ontario
 Teraview: new online system in Ontario allowing lawyers to submit and search land registrations without having to physically go
to the Land Registry office
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Specific Performance
 A land transfer is only complete at closing (purchaser has no estate in land until that point)
o Therefore, equitable principles were developed to protect the purchaser in interim period after P&S agrmt is signed
 Specific performance = the presumed remedy for land conveyances
o Usually only available for realty - not available for services and usually not for chattels (personalty)
 However, if P can argue that chattel is unique and damages wouldn’t do justice, then allowed (i.e. painting)
 If D doesn’t give notice to 3rd party purchaser of P&S agreement, P has no claim against them (therefore, damages in lieu of
specific performance are the only remedy)
 3 components of a valid P&S contract: 1) the parties, 2) the property, and 3) the price
o All agreements must be in writing and signed by both parties to be enforceable (Statute of Frauds)
 3 situations where a P&S agreement won’t be recognized in equity:
a) The agreement to lease isn’t a valid contract
b) The P fails to fulfill a term of the agreement
c) There is a bona fide purchaser for value without notice

Lysaght v Edwards (1876) The vendor is a trustee for the purchaser after P&S agreement is signed until closing date
Facts: P&S agreement signed, but vendor dies before closing date and his heirs want to cancel the sale. Purchaser wants specific
performance for land conveyance. Hold: For P, gets specific performance
 Specific performance is presumed bc realty is conceived as “unique” (no two parcels of land are identical)
Reasons: The vendor has a responsibility not to damage the land and to take reasonable measures to ensure land isn’t damaged
Ratio: As long as the contract is valid, the purchaser gains an equitable interest in the land the moment the agreement is signed. The
vendor becomes a trustee and the purchaser the beneficiary of the trust.

Strategic Acquisition Corp v Starke Capital (2017, ABCA) Presumption in favour of specific performance can be rebutted by context
Hold: Damages in lieu of specific performance are appropriate here bc the parcel of land was an investment property

Chai v Dabir (2015, ONSC) Accepting a return on your deposit = forfeiting your right to specific performance
Hold: Damages were appropriate bc the P had accepted the return of their deposit, a forfeiture of their right to seek specific performance

Semelhago v Paramadevan (1996, SCC) To get specific performance, P must prove uniqueness of the property (extra step)
Facts: P enters P&S agreement with D, markets get better in Toronto so property worth much more. 3 rd party offers D $120k more than
agreed price in P&S agreement, D sells to 3rd party. 3rd party didn’t know about previous agreement bc D didn’t give them notice.
Hold: For P, D had to pay $120k expectation damages. P couldn’t get specific performance bc 3 rd party was innocent here (had no
knowledge of the P&S agreement, so can’t be held liable).
Reasons: Relied on Lysaght v Edwards, P gave consideration for the agreement with their deposit
Ratio (in obiter): Specific performance shouldn’t always be an available remedy for transfers of realty, and in terms of investment
properties, the “uniqueness” of the land is irrelevant.
 This doesn’t eliminate the presumption for specific performance with land conveyances, but it waters it down by adding an
additional burden/step for the P to prove

Southcott Estates Inc v Toronto District Catholic School Board (2012, SCC) Reaffirms Semelhago decision
Hold: To successfully argue specific performance, P must establish that a property is “unique” (i.e. it can’t be easily substituted)
 Uniqueness of property is less prevalent in commercial holdings bc the purpose is to make a profit. Therefore, damages in lieu of
specific performance is more common with commercial property vs residential

John E Dodge Holdings Ltd v 805062 Ont Ltd (2003, CA) Commercial properties can meet the “unique” criteria to get specific performance
Facts: P enters P&S agreement to buy hotel near Cda’s Wonderland, D sells to 3 rd party in interim period, P brings action for specific
performance before sale closes. P argues that even though there are other comparable properties close by, none are as close to the park
Issue: Can a commercial purchaser meet the uniqueness standard? Hold: Yes, court said P established uniqueness here bc this hotel had
the highest visibility, a unique traffic pattern and superior location (at intersection of mall and Cda’s Wonderland)

Marvost v Stokes (2011, ONSC) Example of uniqueness criteria being met with a standard residential home
Facts: P buying expensive home on Bridal Path in TO, signed P&S agreement. Then seller wanted to back out bc wanted to keep property. D
argued P’s interests weren’t unique here bc all the homes in this area were basically the same Hold: For P, specific performance
Reasons: P satisfied the uniqueness criteria (brought a list of 28 criteria to courts showing that this home had). This criteria + character of
property in question (on Bridal Path) made damages an inadequate remedy

Minto v Jones (2008) Possible that uniqueness criteria is entirely subjective

Hold: Even though this was a homogeneous subdivision, P’s attraction to it’s attributes was suff to establish uniqueness
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Part Performance – Overcoming Abuses of the Statute of Frauds

 Some vendors began abusing the Statute of Frauds by starting bidding wars… vendors began defrauding the good faith of the
purchaser who signed the P&S agreement or who orally agreed to purchase by trying to find a 3 rd party buyer who will pay more
(bc if purchaser signs but vendor doesn’t, vendor isn’t liable for selling to a 3 rd party under the Statute of Frauds)
o Relying on the s.4 of Statute of Frauds (must be in writing and signed) to commit fraud
 Equitable remedies used to protect purchasers from the above situation (protection to ensure the agreement can’t be used for
contradictory purposes)… therefore, courts can identify an agreement based on the actions of the party to the agreement
 Part performance can make a contract of sale enforceable even when it doesn’t satisfy the requirements of the Statute of Frauds
 Part performance: a specific set of actions that serve as evidence for explicit/implicit intent to contract by the parties in the agrmt
o Used to try and establish that there is a contract, it’s just not written down (drawing inferences based on party’s actions)
 To argue part performance, the P must show they relied on D’s promise, and that reliance produced inequity
o The mere payment of money isn’t sufficient to qualify as part performance
o The court must be able to identify, with suff precision, the provisions of the agrmt so as to be able to enforce them
(depends on P showing that their actions are the primary indicator of the contract terms)

Walsh v Lonsdale (1882, CA) P’s part performance of the lease terms show that there was a binding contract
Facts: P and D made an agreement to lease but never actually sign. In agreement, D gives P a lower rental rate in exchange for P fixing up
the property. P moves in and fixes house, then D tries to alter lease conditions by demanding more rent money (bc house is nice now so he
can charge more). P seeks action.
Hold: For P, specific performance (the lease in the agreement to lease is the final lease on those exact terms)
Reasons: Although there was no actual written conveyance (bc an agreement to lease isn’t a lease), there was a conveyance of possession
(P actually moved in and started fixing up property according to terms of the lease).

Deglam v Guaranty Trust Co of Canada (1954, SCC) Test for Part Performance
Ratio: 3 part test for part performance
1. The action must be consistent with contract law
2. Actions must be a detriment to the P
3. The contract claimed must relate specifically to the land
“The part performance relied upon must be unequivocally referable to the contract asserted. The acts performed must speak for
themselves, and must point unmistakably to a contract affecting the ownership or the tenure of the land and to nothing else”
Reasons: The test is rigid bc court doesn’t want to water down the significance of the Statute of Frauds (don’t want to open the floodgates/
increase the litigation seeking to establish that there was a contract when there actually wasn’t)

Taylor v Rawana (1990) Application of part performance test

Facts: Tenant and landlord made an oral agreement where tenant would purchase the property from the landlord with a down payment of
10% over 2 years. Tenant started maintenance on the property. Landlord then said there was no agreement for sale of land – while it was
discussed, it was never finalized, and therefore P was just a tenant. Hold: For P, all 3 criteria in the test were met
Application: 1) P’s actions were to his detriment (fixed up land), 2) P’s actions were a reflection of the oral agreement entered into, and 3)
P’s actions were directly related to the land (he was fixing it up)
Note: Court’s decision based on their finding of fact (it was a he said he said situation, they just believed P’s story more)

Starlite Variety Stores Ltd v Cloverlawn Investments Ltd (1979) Damages in lieu of specific performance for part performance
Facts: Convenience store operator (P) wants to lease space in strip mall (D), enter an oral agreement, a written agreement was made but
never signed by strip mall CEO. In the interim period, P takes actions (i.e. buy shelves, draw up plan for store layout, prepared ad, etc) that
are to their detriment. Then another convenience store Mac’s makes another offer, D accepts. P brings action for specific performance.
Hold: For P, but get damages in lieu of specific performance bc Mac’s had already taken up residency

Hill v Nova Scotia (SCC) Can consider the behaviour of all parties to an agreement to establish part performance (not just P’s actions)
Facts: NS (D) expropriates the farmer’s land, splits it in half to build a highway. His land is now split, one half on each side of the highway. D
built ramps over the highway so he could access both sides. This wasn’t written in a formal agreement, but it has been the case for 27
years. Farmer dies, P (inherited farm) argues that even if there isn’t a signed agreement, he has an easement to cross the highway.
Hold: For P, D’s behaviour of building ramps is evidence of part performance/ evidence that there is an agreement. D’s behaviour suggests
that the knew P had a legal entitlement to cross the highway by reference to the fact that the prov built the ramps.
Reasons: 3 part performance requirements met. All the actions are directly concerned with he easement over the highway, and the
farmer’s detriment was if he didn’t receive the easement, he would have been entitled to greater compensation (expropriation award
would have been considerably higher)
Ratio: The actions of the P are not the only relevant acts to establish part performance, can consider acts of all the parties.
 Villeneuve 19

Earie Sand & Gravel Lmtd v Tri-B Access Inc (2009) Example of D’s behaviour proving part performance
Facts: P makes an offer to buy D’s property, but Tri-B has a right of first refusal. So P makes D an offer that says unless Tri B’s offer was
identical, D would sell to P. Tri-B made an offer than wasn’t identical, but D accepted Tri-B’s. D argued they didn’t violate the Statute of
Frauds bc they never signed P’s offer. Hold: For P, received specific performance (all 3 requirements of part performance were met)
Reasons: After Hill, the courts don’t only have to look at P’s behaviour but can look at behaviour of all the relevant parties. D’s actions here
show them accepting a non-identical offer from Tri-B when they said they wouldn’t.