Property Law Summary

The Concept of Property
 Property- a relationship/bundle of rights and corresponding obligations, not things and not absolute. There can be
limits on the individual rights in bundle.
o Common= everyone subjects to object relationship. VS Private= one/some people subject
 Personal Property/Chattels- everything other than land (Tangibles/ Choses in possession +Intangibles/C in action
Types of Argument/Approaches in Common in Property Law (Courts generally use both Victoria Park; JCM v ANA)
1. Formalist/Essentialist- Looks to precedent to identify essential strands in a bundle that must be present for there to
be property.
2. Policy (Functionalism): policy driven, looks to why someone is making a claim and for some normative justification
(social norms/values) for why it’s good to consider it property.
a. Labour Theory- John Locke says common property + invested labour= personal property
b. Occupancy or Possession Theory- the first person who controls land or a chattel has title to that property (overlaps
with labour).
c. Common Law Clear Act Theory- common law theory that possession= a clear act by which others can be aware that
someone intends to possess something, this must be combined with the individuals labour.
d. Economic Efficiency Theory- Property should be structured to enhance the free market which creates the greatest
amount of economic efficiency for people. All strands of bundle should be had by one/small amount of people for
easy/efficient transfer to enhance functioning of free market
i. The Tragedy of the Commons- if land is held in common, there will be no incentive for people to conserve it for
the future, it will get depleted.
1. Arguments against- indigenous view of land in common actually sustained land, makes it seem like there is
justification for taking away indigenous/commonly held land, underlying assumption that free-market is a
good thing, that people are self-serving and want to maximize their own interest
e. Societal Consent Theory- people engage in an agreement within the community to decide what an individual possesses
i.e. possession is based on what the community consents to
f. Individual Autonomy Theory- is maximized by property ownership. Based on liberalism and minimal state interference,
need to balance this freedom FROM interference with freedom TO have a minimum amount of property to live a good
TEST – Is something going to Count as Property/as an OBJECT in the subject object relationship
 Rule- There is no settled and definitive definition of what’s going to count as property in the subject/object
relationship. Property is a bundle of rights, not all or nothing. (Victoria Park, Morris Communication, Int’l news
Functional Arguments
o Labour theory argument- news/data events are common property, but AP has invested labour/skill/money into it to
try to get profit. INS should not get same profit without investing that labour. (Int’l News Service)
o Economic efficiency/policy argument- if INS is allowed to profit off of AP’s labour then there is no incentive for news
agencies/reporters to go collect news (Int’l News Service)
o Commercial Realities argument- fish license should be treated as property because it gives commercial value to
fishing equipment (RB v Saulnier 2008 ONCA)
o Functional approach- a range of things should be found to be property, so banks/creditors can get money back
when people declare bankruptcy (RB v Saulnier)
Formalist approach/Judicial Restraint
o Int’l News dissent reluctant to find published news as property bc no legal rationale/precedent to support.
o Recognized common law principles but it’s necessary to keep up with scientific advancements. All parties involved
treated it as property- it was alienated, the parties were entitled to use it, and they made use of it for their benefitsperm is property (JCM v ANA)
o Fish license was property in this case only, drew analogy to profit a prendre (RB v Saulnier)
 Rule- There is no property in the spectacle. Victoria Park
 Victoria Park- The spectacle of a race track was not property despite VP having less right to benefit/profit, court
used functional argument based on fairness, everyone has right to look. Dissent- VP should win bc formalist
argument identifying essential right to exclude and right to profit are being interfered with.
 Morris Communication- M CAN’T broadcast golf game. KEY difference from Victoria Park, M had to enter PGA
property, not ‘watching from their own property’
If Someone is Claiming Possession of an Object they must have both aspects:
Rule- objects that are not generally owned become the property of the person who possesses them. At law, one
must have both aspects of possession which is constituted by (Perry v Gregory- metal detecting)
1. Factum= physical control
2. Animus Possidendi= intention to possess
*If it is a found object it must be lost or abandoned first*
Factum Aspect of Possession
 Rule- possession is contextual and value driven (Perry v Gregory)
 What is the standard of control we should apply as required to constitute possession?
 What is the reasoning for using this standard/rule?
Rule- In order to have factum aspect of Possession, you must physically control the object, there are different
standards of control (Perry v Gregory 2003 PEI- metal detecting)
 Industry standard- actual possession is not necessary in the metal detecting industry, detecting signal +
digging 2/3 was enough.
 Labour theory eg. for animal’s: animal in hand>mortal wounding/nets and toils> pursuit and reasonable
prospect of success> release hounds/ready to hunt (Pierson v Post US 1805)
Rule- where a person takes significant steps to obtain possession, but those steps are incomplete because of
the wrongful act of someone else then that person has pre-possessory interest which is a sort of qualified
possession (Popov v Hayashi US 2002)
o Not part of common law, newly intro’d in this case
Rule- Possession is not always determinative of who has title (Armory v Delamirie UK 1722)
Rule- If a wrongdoer is claiming to have ‘found’ an object, the prior possessor can claim a remedy in trover to
prevent the wrongdoer from having title to it (Armory)
Intention Aspect of Possession/Joint Finders
 Rule- You can have something in your control and know that it exists, but you don’t have possession until you
have the intention to possess it. (R v Christie 1978 NBSC, Edmonds v Ronella US 1973, Keron v Cashman US 1896)
o Boys playing with sock- can only have intention once they know$ there (Keron v Cashman US)
o If thing is something valuable, then intention to possess the valuable thing more likely to arise when the
valuable thing is possessed (Edmonds v Ronella)
o Mom found marijuana in car but no intention to possess so not charged (R v Christie 1978 NB)
 Rule- the finder of personal property or chattel, even though they don’t acquire absolute property or
ownership, has better title than anyone other than the true owner. Apply principle of prior possession in the
case of two competing claims, the one who had prior possession has better relative title (Armory v Delamirie)
 Rule- Title is relative (Armory v Delamirie) the chimneysweep boy
The finder must claim the object within 2 years of the date that the claim was discovered Limitation Act s 4.
If lost personal property has been found on someone elses land, then must decide if finder or occupier has better claim.
Apply Principles from Parker UK, which have been adopted in Cdn courts.
1. The finder of a chattel acquires no rights over it unless (a) it has been abandoned or lost and (b) he takes it into
his care and control.
a. UNLESS its attached to land, then right of occupier (Waverly, metal detector to find gold broach in
park, Park has better title) (Staffordshire, gold rings in mud of pond)
b. UNLESS the occupier exercises sufficient control
2. The finder of a chattel acquires very limited rights over it if he takes it into his care and control with DISHONEST
INTENT or in the course of TRESPASSING. (Weitzner 2000 ONSC)
a. Finder does not get to keep essentially ‘stolen’ golf balls – Hibbert
b. New owner of house does not get to keep money found in fire-extinguisher, they lied about it to the
true owner- Weitzner ONSC
c. Boy trespassed while playing and found money, he can keep it bc can’t find true owner AND owner
didn’t exercise control (Bird ONSC)
3. A finder of an object has better title to a chattel than everyone except the true owner (or anyone claiming it
through the true owner), and anyone who can say they found it first (assert prior right).
a. New owner cant keep money ‘found’ in fire-extinguisher in house, prior owner was true owner
(Weitzner ONSC)
b. New owner of couch cant claim money inside it, it goes to widow of old/true owner (Cranbrook)
4. If an employee finds a chattel while in the course of their work (on-duty), they do so on behalf of their
employer, unless otherwise agreed.
a. Airport has title over money found on floor by an employee (Senecal 1984 SCC)
b. OFF-DUTY cop can keep $ found in park that he turned into police, true owner not found (Millas v BC
5. The person claiming to find a chattel, must take all reasonable steps to find the true owner and take care of the
chattel in the mean- time.
a. New owner can’t keep money ‘found’ in fire-extinguisher in house, they knew the prior owner was true
owner (Weitzner ONSC)
Rights of the Occupier (Parker)
1. An “occupier” of a chattel, e.g. a ship, motor car, caravan or aircraft, is to be treated as if he were the
occupier of a building for the purposes of the foregoing rules. (AG v Brock)
2. If the CHATTEL IS ATTACHED TO LAND/BUILDING then the occupier of land/building has better title than the
finder, whether or not the occupier was aware of its presence.
a. Waverly- metal detector to find gold broach in park, Park has better title
3. If the Chattel is NOT attached to land/building and:
a. The occupier did NOT manifest an intention to exercise control, then the finder will have better title.
1. If the land/building is one where there is not a lot of control needed likea park then less
control needs to be shown compared to high control= airport>store>park>wilderness
2. Shopkeeper did not exercise sufficient control, finder keeps $ found on floor on ‘public part’
of shop- Bridges v Hawkesworth
3. Not visiting property/house= not enough control (Hannah)
4. Finder has permission to drive over land, gets to keep pump- Kowal
5. In Parker the airport did not exercise enough control
b. The occupier DID manifest an intention to exercise control over the land/building, then the occupier
will have better title than the finder (if step 4 met).
4. The occupier who has manifested sufficient control, will ADDITIONALLY need to show that they accept (or are
obliged by law) to ACCEPT LIABILITY for lost chattels on their premises. They can accept liability by express or
implied means. They must show that they are going to take steps to find true owner and take care of lost
chattel in the meantime, whether it was found by the occupier, or anyone on their premises.
a. Eg. the owner does an occasional sweep of property to look for lost things
Start to Adverse Possession
Definition- uninterrupted enjoyment of land of the correct nature over a period of time stipulated by law by a squatter
(non-owner) deprives the owner of his or her title and effectively gives to the squatter a title to the land, a title better
than all others. 2 Key Elements of Possession:
 Quantitative- enjoyment of land for the stipulated time period
 Qualitative- enjoyment of land of the right nature
First must ask what system of recording title the land is under
1. Registry System- Registry Act, RSO 1990 c R 20- not required to register land, but no title guarantee
Allows adverse possession
2. Land Title or Torrens System- Land Titles Act, RSO 1990, c L 5- govt guarantees title
Adverse possession not possible unless: if adverse possession occurred and crystalized before the land
was registered under here
Rule- If an adverse possessor meets the qualitative but not quantitative requirement, they still get a claim to
the land better than anyone in the world other than the owner (analogous to Armory) (Perry v Clissold NSW
1907- old guy who fenced, govt claimed for school, Perry won)
o Because- Rule- Relativity of Title applies to personal and private property/land (Perry v Clissold)
Rule- A person in possession of land as its owner and exercising peaceably the ordinary rights of ownership
(an AP) has perfectly good title against all the world but the rightful owner UNLESS the owner claims title
before the limitation period expires (RPLA) (Perry v Clissold)
Does the claim it Meet the Limitations Period? Real Property Limitations Act ON
i. The clock starts/ paper title holder has a right to bring action against the purported AP from the time the owner
is dispossessed/discontinues their possession of the land, and someone else is possessing it s5(1).
o If AP recognizes true owners title in writing, the clock starts over s13
ii. True owner has 10 yrs (limitation period) from start of AP to bring an action against the AP- s4
o This time continues even if AP or paper title holder change as long as no gap i.e. continuous
o If true owner is minor, incapacitated/has disability then clock will start WHEN they are no longer such.
And limitation period is 5 years from then s36
o Crown land- limitation is 60yrs for Crown to bring action against non-vacant AP s3 BUT it is no longer
possible to claim AP over vacant Crown land or public highways s16
Legal Test for Adverse Possession (Pflug and Pflug v Collins 1952 OR)
To establish title by adverse possession, the purported possessor/claimant must show:
Look at Stat Exceptions above if any apply!
1. Actual possession for the statutory period by themselves and those through whom they claim
a. Statutory period= s4: 10 years general; s3: 60 years Crown Real Property Limitations Act
b. Actual possession
i. actual: (how a true owner would use)
ii. continuous: no gaps in time, packing is possible, can claim through previous possessor (Nelson 2017
SCC- no AP claim bc not continuous)
iii. exclusive: adverse possessor excludes the true owner
iv. peaceful: no violence to get the true owner out
v. adverse: can’t be with permission of the owner
vi. open or notorious: clear to people/public or to industry that you are using it
c. Intensity of possession must be sufficient (Saint Claire Beach 1974 ON- intensity only enough when they put
boat and trailer on property, not kids playing, and putting other things on land).
2. Intention to exclude the true owners from possession
a. Intention AND physical control/factum, are both relevant to possession (Keron v Cashman)
- Offering to purchase the land does not support an intention to exclude (Saint Claire Beach KEY)
Building fences shows intention to exclude (Piper 1913 OR)
b. Inconsistent Use Test- The one claiming possession must intend to exclude the true owner in a manner that is
inconsistent with the owners intended use (this higher standard was articulated in Keefer 1976 ONCA but in
Masidon ONCA it was applied in step 3, we do not have a clear ruling on which step it should be applied to, in
Bradford Cullity J said it should apply to step 2. I argue that because it has been applied by the ONCA at both
steps, that we should apply it at both. Policy arguments are in favour of raising the threshold that should be
met by the AP.
i. If true owner has no immediate intention to use land, the AP’s use will never be inconsistent with thatthe AP will fail. The owners intended use was ‘to use as they wish’, parking on owner’s property didn’t
exclude the true owner because he didn’t intend to park there (Keefer)
ii. Inconsistent Use Test not applied in BC (Nelson v Mowatt 2017 SCC- possession was not continuous), it
does apply in ON unless theres mistake (Marotta ONSCJ- they pretended)
iii. Exception, it is a contested area of law if the inconsistent use test should be applied in the case of
unilateral mistake, in Bradford Cullity J argued that it should not be applied here. Although it is a lower
court decision, policy arguments support that Courts should be more sympathetic to innocent AP and
the inconsistent use test shouldn’t be applied because it is a high threshold to meet. He said Inconsistent
use is artificial and it is requires too much effort to make the test consistent with s4 of RPLA. Additionally,
courts have not applied it in the case of mutual mistake in Gateway and Mueller- So I will not apply
inconsistent use test here. (Bradford v Fama 2005 ONSC).
Instead use Three factors test for Unilateral Mistake (Bradford 2005 ONCA) and for Mutual Mistake (Wood v Gateway;
Mueller)- this is essentially the Beaduoin approach but clarified (if step 1 and 3 are met, then assume step 2 is met.
1. The disputed lands are physically joined to lands of AP
2. The AP enclosed the disputed lands and exercised full possessory rights of ownership over them in an
honest bona fide belief that they are true owner, with intention to exclude whole world
3. The true owner didn’t make a claim to the lands, and didn’t physically enter them i.e. was dispossessed
(finish step 3 analysis)
3. The true owners, or all entitled to possession, discontinued possession or were dispossessed for the statutory
a. For the purposes of S5 RPLA, dispossession is satisfied by physical dispossession that interfered with the
purposes that the owner intended to use the land for, i.e. if the true owner didn’t physically enter the land
then they are dispossessed.
i. Fencing is a key indicator of dispossession (Piper 1913 OR)
b. However, the smallest act by the owner would be sufficient to show that there was no discontinuance of his
possession. Possession is contextual, for agriculture may just be for one season (Saint Claire Beach)
i. UNLESS there was mutual mistake- if the true owner is mistaken, then trivial acts won’t be sufficient,
they have to do acts of ownership, otherwise the true owner is dispossessed (Mueller v Lee 2007 ONtrue owners kids playing on driveway was trivial, so true owner WAS dispossessed).
c. Additionally, the Inconsistent Use Test WAS applied at this step in (Masidon 1984 ONCA) this increases the
threshold and the test becomes conceptual not just physical i.e. one may seem physically dispossessed if they
never step on their property, but if they intend only to hold it for future purposes then they are not
conceptually dispossessed (Masidon)- this must also be met.
i. Exception- don’t apply inconsistent use test when there’s Unilateral Mistake (Bradford cited exception
from Beaudoin even though in Beaudoin the exception was applied at step 2) of AP or if theres Mutual
Mistake (Ancaster ONCA) then dispossession is satisfied at step 3 by physical dispossession
Arguments in favour of Possession
1. Limitation periods help minimize the cost of litigation by minimizing old claims, they also force P to come to
court within a reasonable period of time. It was more important for the common law/courts to be able to
protect people’s titles before there was a registry system to keep track of titles
2. Protects the rights of the paper title holder, not the squatter. Limitation period helps remove old claims e.g.
unresolved divorce claims, mortgages from old owner
3. Reinforces principle of Use it or Lose it. Positive from economic efficiency standpoint, compels people to use
their land and develop it in a way that’s most profitable. People then won’t think its unoccupied and can identify
true owner. BUT people shouldn’t be told how to use land AND nowadays can use registry to find true owner
4. Protects the reliance interest of the innocent adverse possessor who accidentally may have entrenched on true
owner’s property, BUT we don’t want people to make dumb mistakes
Unilateral Mistake
- Bradford- AP bought land and thought they owned a portion they didn’t, they fenced in part of it. TO did not enter
it. Inconsistent use wont apply in unilateral mistake. AP wins.
- Beaudoin 1981 ONHC- AP rented thought it was theirs for 15 yrs, then AP bought it and learned not theirs but
continued use. TO bringing action 16 yrs after AP bought it. Inconsistent use not applied, presume step 2. AP wins.
Mutual mistake
- Mueller 2007 ON- the true owner had to do more than just trivial acts (letting their kids play on the driveway), these
were not acts of ownership, so the true owner was dispossessed. AP wins
- Ancaster 1997 ON- theres conflicting evidence that the TO knew it was theirs, but courts treated it as mutual mistake.
Inconsistent use not applied, step 2 was presumed satisfied. AP wins
- Wood v Gateway 1990 ON- mutual mistake about a fenced in portion of land. The TO was holding land for
investment. Inconsistent use not applied, step 2 was presumed. The AP wins
Masidon 1984 ONCA- the only case that applies inconsistent use at step 3! AP continues to use the land as an airport even
after its sold to M. M intended to hold it and sell in future for investment, AP use not inconsistent with intended purpose.
AP does NOT win.
Keefer 1976 ONCA- intro’d inconsistent use applied to step 2. The AP didn’t not meet the inconsistent use test by parking
on the driveway bc the TO never intended to park there ALSO not for the grassy area by making a skating rink. The AP did
not overuse their right of way in a manner that was inconsistent with intent of TO. The AP does NOT win.
What is Tenure? – NOT ABSOLUTE OWNERSHIP IN LAND- Crown holds it and we have estate in land
 Why does the Crown own all land today? Goes back to Politics of Conquest since 1066
o the regime of land ownership as it is in today’s common law goes back to 1066 medieval times where
William the Conqueror was thought to own all the land in England. Any private land owner by was thought
to be in a tenant-type relationship with the Crown, they were granted interest in land in exchange for
services or loyalty. Allowed for people to benefit and not retaliate.
o This land system recognized that there were different levels of people who all owned the same land. So,
the people above the low ones had taxing power.
 Feudal System- medieval model of govt, a military hierarchy in which subjects of the King/ruler are granted land
in exchange for services and incidents
o Feudal ladder- structure of hierarchy, conceptually infinite number of rungs can be added to the ladder at
any point (except above king)
 Reflecting class structure of English society. These were the 3 classes:
 Nobles: tenures in chivalry (eg. Knights service) – military way.
 Clergy: ecclesiastical tenures – ecclesiastical way
 Peasants: free (socage) and unfree (copyhold) tenures. – agricultural way.
o Subinfeudation- practice by which tenants holding land under the king/other superior lord, carved out
new and distinct tenures in their turn by sub-letting or alienating a part of their lands i.e. creating more
rungs in the feudal ladder by giving someone interests in land in exchange for services. Created
cumbersome ladder, needed consent of Lord to add rungs
o Incidents of tenure- rights conveyed on the lord over the tenant’s land or the tenants person that arose
in certain circumstances, most commonly the death of the tenant eg. escheat= land of tenant would revert
back to Crown land in the event that there are no heirs; aid= tenant bound to pay to release Lord form
prison, knight his son, help marry his daughter
o Services of tenure- owed by tenant to Lord; like knight service, grand sergeant/kings personal service,
divine service, chivalry, tenure in socage/agricultural services.
 How did we get from the feudal pyramid to current system/ON law
o Tenurial services became obsolete, only one incident (of escheat) remains Tenurial Abolition Act 1660
o Statute Quia Emptores 1290- England got rid of subinfeudation with this, as it complicated the feudal
system and allowed tenants to avoid taxes in a legitimate way which Lords disliked. Prohibited alienation
of land by subinfeudation, instead allowed for freedom of alienation as a principle of public policy (tenant
has right to alienate w/o permission of their lord) substitute transferee to transferor, services to Lord
remain the same.
 Quia Emptores still regulates fee simple transfers of land. The statute results in a levelling of the
feudal pyramid so all tenants in fee simple are directly tenants of the Crown.
o Doctrine of tenure still exists but is practically obsolete because there is only one level under the Crown,
Crown is still our overlord
Types of Title/Tenure
 Feudal Tenure:
o A real property ownership system in which ownerships rests with a sovereign who may grant lesser interests
in return for service or loyalty.
o Historically in the system of feudalism, the lords who received land directly from the Crown were called
tenants-in-chief. They doled out portions of their land to lesser tenants in exchange for services, who in turn
divided it among even lesser tenants. This process—that of granting subordinate tenancies—is known as
 Allodial System:
o Allodial title, a system in which real property is owned absolutely free and clear of any superior landlord or
sovereign. True allodial title is rare, with most property ownership in the common law world (Australia,
Canada, Ireland, New Zealand, United Kingdom, United States) being in fee simple. Allodial title is inalienable,
in that it may be conveyed, devised, gifted, or mortgaged by the owner, but it may not be distressed and
restrained for collection of taxes or private debts, or condemned (eminent domain) by the government.
Allodial title emphasizes the distinction between public and private, as allodial lands considered to be owned
by those who worked on them (adopted strongly in US who denied Monarchy). Compared to tenurial where
state/public intervention is thought to be as negative.
 Fee Simple:
o Under common law, this is the most complete ownership interest one can have in real property, other than
the rare Allodial title. The holder can typically freely sell or otherwise transfer that interest or use it to secure
a mortgage loan. This picture of "complete ownership" is, of course, complicated by the obligation in most
places to pay a property tax and by the fact that if the land is mortgaged, there will be a claim on it in the form
of a lien. In modern societies, this is the most common form of land ownership. Land can also be owned by
more than one party and there are various concurrent estate rules.
Classification of Tenures
 The different methods of landholding (different according to the form of service required) were known as “tenures”
– each tenure indicating the precise terms on which the land was held
 different tenures:
o → “free” → formed part of the strict feudal framework
o → “unfree” → appertained to tenants of lowly status
o → adscripti glebae → effectively little better than slaves
 Free Tenures
o “tenures in chivalry” example of service: provision of armed horsemen for battle (knight’s service) or the
performance of some personal service such as the bearing of high office at the king’s court (“grand
o Other examples: “spiritual tenures” of “frankalmoign” and “divine service” (ecclesiastical lands were
held in return for the performance of some sacred office)
o “tenures in socage” – obliged the tenant to render agricultural service to his lord
With time, military + socage (agricultural) tenures were commuted for money payments
All tenures carried with them incidents (privileges enjoyed by the lord) – which were often more
valuable than the services themselves
Unfree Tenures
o Appertained to tenants of lowly status, some of which were adscripti glebae – effectively little better
than slaves.
o Many unfree tenure is copyhold (most peasants held in this tenure) but it gradually became very similar
to socage.
Reform of the Law of Tenure
 Major landowners always sought ways to evade the incidents (or taxes) that were attached to the tenure by which
they held an interest in land
 Nobility were subject to the most onerous incidents
 Before the emergence of a modern taxation system, these incidents represented an important part of state revenues
 Monarchs tried to find “loopholes” to escape the incidents of tenure
 The most important of the tenurial incidents were those relating to wardship and marriage, and escheat. Escheat
came in two forms: when there was a lack of heirs, or if a felony was committed- the estate would go to the holder
feudal superior.
 When the Tenures Abolition Act 1660 was passed, it did not abolish tenures but converted free lay tenures to socage
tenures which had no onerous incidents/taxes attached.
Tenure in Canada – Post Tenures Abolition Act 1660
 After the passage of the Tenures Abolition Act , all Crown grants in British North America and later Canada were
made in free and common socage, rather than for services like knights service
Current State of Law re Tenure
 OLRC although today all land in Canada outside Quebec is held in free and common socage, there is no practical
significance of the relationship. Tenure is obsolete and has no practical impact on drafting of the law.
 Escheat from no heirs is now governed by statute rather than tenurial relationship Escheats Act RSO 1990. In Ontario,
however, s 47(7) of the Succession Law Reform Act , RSO 1990, c S.26 makes any property (including personal
property) of a person who dies intestate and without heirs the property of the Crown to which the Escheats Act then
 Escheat for felony occurs now pursuant to statute that remove property acquired in the proceeds of crime.
Benefits of Tenurial System – Forestry Example
 Tenurial system is more favorable to stewardship of land because there is some idea that there is responsibility to
future generations and it is not just them.
 With respect to forest conservation, professor Mossman compared US (allodial land historically) and 8% of the historic
trees have been lost because people were just worried about private interests in the US, however, in Ontario the
forests are mostly Crown lands, and Ontario holds 40% of the world’s sustainable forests, and a lot of this has to do
with governmental tenure over those lands.
Tenure vs. Estate
 As tenure became less important, estates became more important
 Tenure set out the general parameters for landholding (holding an interest in land)
 Doctrine of estates described nature of the interest held (rights of landholders currently or with future interest in
ESTATE DEFINITION corporeal hereditament = possessory interest in property (fee simple, life estate) → this is
everything we’ve done (so it’s basically a fancy word for estates in land)
 Estates are a bundle of rights, it gives you the right to possession, and it is described by duration. Instead of
saying people own land itself, in common law tenure-based system, it is said that the owner holds an estate in
land because only the state owns land. [Not a large tract of land, estate of a deceased, or estate as status- other
common definitions]
Freehold Estate= synonymous to our idea of ownership, you hold land without obligations to others
- Fee Tail- can only go to lineal descendants
lasts only the length of one
Potentially infinite, ends when the holder dies
intestate (without will) or without known heirs
o O grants ‘to A for life’
o O grants ‘to A in fee simple’
o O grants ‘to A for life, remainder to B in
o O grants ‘to A all my real and personal property’fee simple’
if no other limitations
o O grants ‘to A and her heirs’
(overridden/reversed by legislation below)
Nature of
Limited Interest
Absolute Interest
Grantor retains reversion (future interest is
retained by grantor) in fee simple:
- Back to self
- To another
Life Estate is income interest
- KEY full right to alienate through lease,
Strands in
- Usus (possess/use) + Fructus (benefit
mortgage etc.
from income/rent)
- Usus (use or possess)
- Limited right to Abusus (physically alter
- Fructus (benefit)
land in significant way)
- Abusus (physically alter or destroy)
Remainderperson interest
- gets no income while A alive, but all
capital interest. Can mortgage or sell
subject to A’s life estate
Presumption While Alive/inter vivos/a grant
While alive/grant
- CL presumption i.e. X grants to A= a life
- Stat presumption is fee simple CLPA s5(5)
estate, X has reversion
On Death/will/devises
ON death/will
- CL presumption i.e. X devises to A= life
- Stat presumption is fee simple SLRA s26
estate, X has reversion
o A license is not a property interest at all, it is merely permission to be somewhere.
o Life estate is a freehold, license is a tenuous kind of interest.
Rule- The fundamental rule in interpreting the language of a will is, what is the expressed intention of the
testator i.e. not what the testator meant to do when making the will, but what the written words mean in the
particular case (McColgan 1969 ONHC)
Rule- Inter Vivos there is a presumption stat that the estate is in FEE SIMPLE, unless there are words/evidence
to indicate otherwise (CLPA 1990 s5(3) and s5(4)
Can use words ‘fee simple’ or other words of limitation, don’t need to use heirs (CLPA s5)
Intestate Succession on SPOUSE
 SLRA s1 spouse= only formally married spouse, cohabitees are not heirs
SLRA s5 if have child then ‘spouse’= unmarried and cohabited continuously for min 3 years, or
relationship of some permanence if they are natural or adoptive parents of a child.
Rule- CL there is a stat presumption that the estate is in FEE SIMPLE unless there are words/evidence to
indicate otherwise, if alive/grant cite CLPA s5(5), if in death cite SLRA 1990 s26. It overrides the CL presumption
that it’s a LIFE ESTATE if theres no language eg. X grants to A.
Rule- Naming a ‘remainderperson’ won’t make a fee simple into a life estate, you need words of limitation to
indicate it’s a life estate (Re Walker 1925 ONCA)
o “I give and devise unto my wife all my real and personal property” = absolute/fee simple interest
Rule- Where sufficient words of limitation are present, a life estate will be created (Re Taylor 1982 Sask)
during her lifetime (Re Taylor 1982 Sask)
as long as she lives (Re Waters 1978 ON high crt)
for X’s life
Rule- the interest will be MERELY A LICENSE to use the property where sufficient words indicating a life estate
are not present (Re Powell 1988 QB). A license is just the right to use, it does not confer a property interest.
o Testator’s daughter shall have right to use, possess my house ‘for as long as she remains in possession of
the premises’ = LICENSE (Powell)
o ‘I give all my property to my trustee to hold for K until her death or until she no longer lives there
personally’= LIFE ESTATE (McColgan)
o ‘for as long as she lives’= LIFE ESTATE (Waters)
Rule- If words of limitation are present that indicate a life estate (for life, as long as X lives) then the interest is
a life estate; as long as the beneficiary abides by any included CONDITION, they are entitled to the life estate.
(Re Waters 1978 ONHC).
Rule- It is possible to give the life tenant the RIGHT TO SELL (this must be explicit), if the property is sold by the
life tenant, then any gifts made by the testator when the life tenant dies are invalid. (Re Walker 1925 ONCA,
although in this case there a fee simple was transferred so there was no need to give a right to sell)
Rule- the life tenant/beneficiary is responsible for current expenses (maintenance if they want it) and estate
responsible for capital expenses. (Ryan v Boulos-Ryan 2007)
o Exception Rule- the above default rule can be overridden with explicit language. (Ryan v Boulos-Ryan
2007- ‘without charge’ was not enough to override the life tenant’s responsibility to pay maintenance if
she wanted to maintain)
If the Life Tenant let WASTE ACCRUE/SPOIL THE PROPERTY, determine if it is allowed.
 3 Types of Waste at Common Law- law of waste protects the interests of those who follow the life tenant/the
remainderperson from the acts of the life tenant that may spoil the land (Anne Warner)
1. Voluntary- active action/acts that damages the capital value of the property in a non-trivial way.
o NOT PERMISSABLE it is not permissible because life tenant is not entitled to capital.
2. Permissive- occurs where the life tenant fails to maintain the property in a passive way allows to deteriorate
o PERMISSABLE, they can let the property passively be ruined or not maintained (Ryan see
RULE below)
o Macdonald Estate 2008 NSSC- widow had no duty to repair the property or to live in it
personally, her actions constituted mere permissive waste and did not disentitle her to her
The life tenant does not have to engage in permissive types of repairs, but they also cannot
call on the reversion or remainder person to pay for it if they want to undertake it
3. Ameliorating- that which alters the property for the better
o NOT PERMISSABLE i.e. cannot increase market value
 Rule- The fundamental rule in construing the language of a will is, what is the expressed intention of the
testator i.e. not what the testator meant to do when making the will, but what the written words mean in the
particular case (McColgan 1969 ONHC)
o **‘I give all my property to my trustee to hold for K until her death or until she is not residing therein
personally’= until her death indicates life estate, not license; event though ‘until’ was used the condition
was considered to be external from the grant of the estate (disjunctive) thus defeasible estate
1. Conditions of eligibility- aka conditions precedent. Certain events must happen before A is entitled to receive
an estate
a. ‘to A at 21’ OR ‘to A in fee simple if she survives B’
2. Conditions of forfeiture- if something happens then the person to whom the estate is granted will lose it:
Estates Defeasible on Condition Subsequent
Determinable Estates
O grants ‘to C in fee simple, but if she ceases
O grants to ‘C in fee simple until she ceases to
Law Formula to farm the land, I may re-enter’
farm the land’
Not automatic, granter may elect to exercise
Automatically back to granter, conveyance is void
right otherwise grantee retains fee simple
when condition not met (as if estate was never
Nature of
The condition is separate from the grant of
The condition is part of the grant of the estate, its
the estate. A has a full fee simple BUT if they
built right into it. A has essentially less than a fee
do something then they may lose the fee
Language of
Disjunctive language= comma, but if, on
Conjunctive language= no comma, while, during,
condition that, provided that, it if happens
so long as, until** (not OR UNTIL McColgan)
(Tilbury 1966 that, or until** (not UNTIL McColgan)
Format of
Despite language used, if the condition is in a
separate passage from the grant (not part and
parcel of the grant but added on) then grant more
 like defeasible (Sifton 1938 UK)
IF Condition
Estate Holder gets to keep the estate
The whole estate is void and goes back to the
 Courts intervene because 1. Dead hand from the grave problem, 2. Make land less attractive
Rule- Restraints on alienation that are substantial/complete for all or substantial period of time, or which
restricts ability to alienate to a very small group of people- are not permissible (Blackburn 1903)
o B leaves farms to sons with condition that they can’t alienate for 25 yrs until death of father- ruled
o Mills J- Historically common law allowed restrictions on alienation (subinfeudation need permission of
Lord) but statute Quia Emptores authorized tenants to transfer/alienate land without authority from
above. Power to alienate now belongs to estate, the grantor is not permitted to change the nature of an
estate. Alienation is an essential strand in the bundle of rights to an estate.
a. require you to do something unlawful
b. have conditions based on marriage, that encourage separation or divorce, conditions that interfere with
parental duties
c. have conditions that subvert bankruptcy law (anyone who goes bankrupt loses the property) because its
contrary to bankruptcy law where your assets go to your creditors.
Noble v Wolfe- demonstrates the ‘public policy as an unruly horse’ we don’t know where it will get us.
Denning- with the good man the unruly horse of public policy can be great
Rule- Charitable trusts that give sums of money for purposes that fall into the public sphere can’t violate public
policy or these violating conditions will be void. (Canada Trust 1990 ONCA)
o TEST for public policy= Robins J public policy is violated where it is incontestable that a condition is
harmful to the public, not based on ‘idiosyncratic inferences of a few judicial minds’
 Eg. Wishart Estate 1992 NBQB judge void will, found killing horse’s contrary to public policy
o Evidence for determining public policy= Tarnopolsky J legislation, precedent, Charter, treaties and
international norms. Does the group being limited fall into a group that has been historically
disadvantaged? [now can use ON human rights code, explicitly says no discrimination]
o Cy Pres Doctrine- if the settler has a general intention to give out scholarships then the discriminatory
condition can be removed from it and the court will rewrite how the trust will operate.
o Canada Trust (1990 ONCA)- discriminatory scholarship conditions Rule applies when MOTIVE DECLARED=
white race best entrusted to carry on maintenance of the world, they said that if the motive is NOT
declared then we should decide that when we get there
o Royal Trust v UoW (2016 ONCA)- discriminatory scholarship conditions Rule applies when MOTIVE NOT
DECLARED but condition discriminatory on face i.e. when a discriminatory motive can be inferred (school
for Caucasian males in science, non-feminist or lesbian females)
Persuasive Rule- Public policy should only be used to strike down differentiations that are clearly offensive
(evident through expressed intentions/motives)
o University of Victoria 2000 BCSC- trust leaves money to uni to be given to practicing Roman Catholic
student- not a violation of public policy, because not offensive like the scholarship in Canada Trust
o Ramsden Estate 1996 US- scholarship to be given to protestant students- no violation. NO MOTIVE
Rule- Doctrine of public policy will not be applied in cases involving absolute/whole gift transfer to PRIVATE
BENEFICIARY (not subject to condition), because that would be contrary to countervailing principle of right of
alienation as a key strand in the property rights bundle (Spence v BMO 2016 ONCA, echoes Tarnopolsky J in
Canada Trust 1990)
o Spence- dad left all money and not to the other, there was evidence it was bc she married a white man.
Additionally, in Spence there was no condition, the father just excluded one child, so no condition
analysis. [Obiter- even if explicit intention is discriminatory, the condition is valid bc freedom to alienate]
o Not followed in McCorkill 2014 NBQB- Ratio: A testator is not free to gift their estates to groups that
promote hate speech/activities are contrary to public policy, they are unworthy heir (good result but not
consistent with law) can argue that it should be applied bc if the group has a public function
Rule- Where a TRUSTEE or EXECUTER acts in a discriminatory fashion or is told by conditions of testator to do
so, the decision of trustee/executer will not be respected (Fox ONCA)
o Fox v Fox 1995 ONCA- doctrine of public policy DID apply to a trustee who acted in a discriminatory
fashion (left wife trustee, life estate to son. Wife divided majority of property to grandchildren bc son
married non-jew= this was void for 1. Overuse of power as trustee 2. Contrary to public policy).
3. CANNOT BE UNCERTAIN (difficult to know if something has occurred) (Canada Trust)
TEST for Conditions Subsequent/of Forfeiture i.e. defeasible on conditions subsequent OR determinable- the
court must be able to see ‘from the beginning/outset, precisely and distinctly’ what the condition is (Sifton UK
adopted in Re Down 1968 ONCA), court should not have to make up rules to clarify the condition
o Son gets property ‘provided he stays on the farm’- void for uncertainty, ‘stay’ can have different meanings
 TEST for Conditions Precedent – is less stringent, the certainty of the condition will be determined on a case
by case basis (Truck Settlement 1978)
o Determine if certain by a case by case basis eg. condition if A is tall- determine if true for particular case
not generally what it means to be tall
Why is there a different test? For precedent as soon as the condition is satisfied then the property is gotten. But for
condition subsequent a condition must be breached, and it must be determined what would constitute breach of a
condition in order for the property to be lost.
IS the Interest (Fee simple or Life interest) VESTED or CONTINGENT?
Rule- There is a Presumption in favour of early vesting (Vested interest). If the words will permit of either
construction (interest is vested or contingent), then the courts will choose the one that supports the presumption
in favour of early vesting (vested interest) i.e. unless there is clear language that is contrary to this presumption
and overrides it in favour of a contingent interest (BC v Engen 2009 BCSC)
a. T leaves house to 3/8 children ‘after last of said unmarried children die, proceeds of house be divided
amongst my surviving children’ – alive at time of her death (vested) OR alive after 3 given house die
(contingent)- court says it is vested
Vested (Present) Interests- both criteria must be met in order for an interest to be vested:
1. It must be held by ascertained person or persons
a. E.g. if there is a grant for the first daughter who graduates law school but if the grantee is not yet
ascertained (there is no daughter who has graduated law school) then not vested.
2. It must be ready to fall into possession right away, subject to the ending of prior (life) estates.
a. ‘to A for life, remainder to B in fee simple’- B has a present interest, it is not vested in possession as
long as A is alive. When A dies then B’s interest will be vested in possession. There is no condition that
B has to satisfy in order to claim the interest bc A’s death is not a condition.
Interest is Contingent (future) if any of these 3 criteria are met:
1. The interest is subject to a condition precedent eg. To A for life the to B in fee simple upon her graduation
from medical school
i. Graduation is a condition precedent, so B’s interest is contingent
2. The holder is not yet in existence eg. To A for life, then to B’s first child in fee simple.
i. The interest of B’s first child is contingent on its existence, there is no first child yet
3. Where the holder’s identity is unknown eg. To A for life, then to A’s widow in fee simple
i. It cannot be known who A’s widow is until A dies i.e. the identity of the interest holder is
unknown until A dies.
Why create contingent interests?
 Another form of dead hand control, like determinable and defeasible estates
 Allows wealth-holders to control behaviour of grantees/legatees (for benign or not-so-benign purposes)
Joint Tenancy
Tenancy in Common
Treated as one entity, not separate people in the law. If
Not treated as one entity in law. Can transfer interest to
the interest of one is extinguishes, the others interest will others.
be enlarged.
Right of Survivorship- KEY
- If one of the joint tenants passes, her interest is suspended, interest of other joint tenants is enlarged.
- cannot pass property to someone in will, your
- Your interest goes to who you leave it to in your will,
interest will go to the other joint tenants/your
or your successors.
1. Unity of title- interests are from same source (grant, doc,
2. Unity of time- interests vested at the same time
3. Unity of interest- interest of same quality(size) AND duration (estate-fee simple/life estate)
4. Unity of possession- equal entitlement to possession, cannot exclude other
All 4 Must be present
Only Unity of Possession Required
- Unity of interest not required, but courts won’t enforce anything other than equal- bc
they should agree if they are tenants in common
STATUTORY Presumptions for Personal Property
Common law presumption favours
Equity presumption favours
- More efficient; Easier to search title; determine who
- Fairer for people to devise their interest as they
to collect feudal dues from bc there is only one
want; Fairer to go to heir than to JT
- Easier to alienate property
STATUTORY Presumptions for Real Property/Land
Presumption can be
S13 of Conveyancing and Law of Property Act- presumption favours TC
overridden/rebutted by 1. S13 does NOT apply to:
clear language  ‘to A
a. Prior to 1834
and B as joint tenants’
b. Executors or trustees
c. Assurance/transfer of land ONLY by agreement of purchase and sale
2. S13 DOES apply to: conveyances that occur through letters patent (govt), assurance
(transfer of land, but NOT if transfer by agreement of purchase and sale)
Presumption can be
Equity Presumption Favours TC
rebutted by clear
1. Equity may insist there is TC even if there’s joint tenancy at common law IF:
language  ‘to A and B
a. Purchase price is provided in unequal shares
as joint tenants’
b. Property belongs to a business or partnership
Can corporations be joint tenants?
Simultaneous death of tenants
- At Common Law- NO
- s55(2) Succession Law Reform Act - presumption is
- Under Legislation- YES: s43 Conveyancing and Law of
that they were tenants in common
Property. Where one dissolves=death, there is right
Adverse Possession by more than one person
of survivorship for the other.
- S14 Conveyancing and Law of Property Act- will be
tenants in common
‘Jointly’ does
McEwan 1946 ON
NOT always
- Equal, equally, to be divided, equal share, share- are words of division, suggest
indicate Joint
division/distribution/shares of interest i.e. TC because joint tenants are single entity
Tenants 
- Facts: remainder to go to daughter B and J ‘jointly and if they decide to sell, then each gets
equal share of proceed’
points to Joint
tenants 
- TC despite use of the word ‘jointly’
McCollough 2000 NBQB
- Property left to children ‘jointly and in equal shares’, residue to go to their successors
- Successors= tenants in common, no right of survivorship
SEVERENCE of Joint Tenancy
Definition= Severance is the process of turning a joint tenancy into a tenancy in common, it is a logical/conceptual
separation, not a physical one. Practically the effect is to remove the right of survivorship.
Common Law (and at Equity bc equity prefers tenancy in common anyways. If a severance is effective at common law
then equity will follow it)
1. Destroy one of the first 3 of the 4 unities (title, time or interest) i.e. unilaterally take yourself out by selling
or transferring your interest etc. (Knowlton 1984 NBQB citing Murdoch 1975 ON)
1. You can sell property to yourself based on ON Statute Conveyancing and Law of Property Act
RSO 1970 S41 but not at common law- as was done in Knowlton based on NB statute, she sold to
herself and left her interest to her brother in will. At common law, best you can do is transfer
your interest to a trustee, and you are beneficiary
2. Making a will by itself does not constitute severance (Hansen 2012 ONCA), this would go against
the point of right of survivorship
b. Hansen- husband named daughters as heirs, but this did not cause severance, it was through course of
c. Jansen- R and I decided the house would go to their daughters, but they did not want to sever the joint
tenancy, so it was not severed
3. You have to actually change/do something to the legal title, you cannot just intend to do so in
the future (Jansen v Niels 2017 ONCA)
Effect at Common Law- There is no right of survivorship for either tenant, there is a tenancy in common only.
Equity- prefers tenancy in common
2. Mutual agreement between the co-owners to sever the joint tenancy- including informal/oral agreement at
any point (Burgess 1975 UK)
i. Burgess- R and H joint tenants agree that R will sell her share to H, she later asks for more and
he disagrees then he dies. – YES there was severance bc both agreed to sever for $750.
3. Through a ‘course of dealings’ demonstrating the co-owners intend to be tenants in common-the intention
to sever must be communicated (express or implied verbally or through action) to the other co-owner, not
be made behind their back. (Hansen 2012 ONCA citing Hensman)
Hansen TEST- there are no exact steps that must be met; look for ‘mutually treating
interests as being separate’ and ‘common intention’ Course of dealings being affected
unilaterally does not apply in ON (applies in UK)
Hansen- wife communicated to H lawyers to start separation agreement. H lawyer didn’t
respond but H acted on it. The communication of lawyers AND H preparing needed
documents and a will= course of dealings
Jansen 2017 ONCA- a true joint tenancy may exist where the intention of joint tenants is
clear  Mom and son R and his wife I, wanted to be joint tenants, Mom daughter M says
there was severance- NO bc Mom R and I made intention clear that they want to be joint
Robichauld- There does NOT have to be an ACTUAL AGREEMENT. The negotiations/offer
and rejection of offer between the co-owners constitute ‘course of dealings’ that leads to
severance. [was not enough to =severance in NB- Morgan 1948 NB
4. Murdering your JT leads to severance at equity but not at common law (Schobelt 1967 ONHC)
Effect of severance at Rule 2 or 3 or 4- (if B dies- A is sole owner at common law, has B’s interest through right of
survivorship. But at Equity, A is trustee for self, and beneficiary to B’s heirs- A must fulfill fiduciary duty).
- Trustee: has legal title. Rights= all legal acts, can convey the title, lease it out, mortgage it out etc. but owe a
fiduciary duty to the beneficiary.
Beneficiary: has equitable title. Rights= all benefits, fruits, rent etc.
When does a co-owner in possession have to pay OCCUPATION RENT to co-owners out of possession?
In both types of co-ownership, the co-owners have the right to unity of possession, but in some cases where it is not
or cannot be exercised then one co-owner may have to pay occupation rent, only 3 ways through Common Law:
i. Where the co-owner in possession has excluded the other i.e. has affected ‘ouster’ of the other co-owner aka
‘constructive exclusion’ when a wife must leave the home due to husband’s violence (Dennis v McDonald)
ii. Agreement- where the co-owners have made an agreement about occupation and occupation rent (can do so by
iii. Agent- where one co-owner is to be the agent for the other. And agent takes on rights/obligations for another
e.g. manage the property. Agency can happen by agreement or enforced by court.
If none of these common law principles apply, there can be an ACCOUNTING (a portion of profits) between coowners i.e. a co-owner can claim money that is not occupation rent.
b. ON CJA s122(2) says that a co-owner is required to account for benefits achieved through the land BUT not if
achieved through their own efforts
c. Labour theory applies, if the co-owner invests their own labour then can keep the profits for themselves
d. Henderson v Eason 1851 QB- the co-owner who lived on the FARM does not owe accounting to the co-owner
who didn’t live on the farm, bc he worked on the farm i.e. the profits came from his own labour
e. Spelman 1994 BCCA- where it is unclear if the profits arise from one’s own labour or not, the court will
exercise caution in finding that there is an accounting between co-owners- a co-owner in possession who
runs a BOARDING HOUSE will NOT owe an accounting.
f. Examples where clearly not from own profits- rent, you pay/give license to someone to extract resources
from land, if govt expropriates your land and pays you for it
g. Accounting can only happen after Partition/Sale, not during the co-ownership (Knowlton 1984 NBQB)
How do you TERMINATE CONCURRENT INTERESTS if you don’t want to be a co-owner anymore?
1. SALE- can sell your interest but whoever you sell to will become a co-owner, so it may be difficult to sell. The
parties can agree to both sell, but if they do not, then need court order.
2. PARTITION- a contextual division of property Partition Act 1990 s2- a court can order the partition of a
property i.e. order destruction of the co-owner’s unity of possession such that each will have their own interest
rather than a concurrent interest. The court MAY also order sale, consider rules:
1. RULE- Partition is the default; the court must be convinced that sale would be more advantageous/that the
partition would result in prejudice to one party in order to override the default. The onus to show hardship is on
the one claiming hardship. (Cook v Johnston)
a. Cook- Co-owners owned Island with cottage on it. One argues partition unfair bc there is
HOUSE/cottage. Court orders partition; there was no disadvantage.
i. Typically, Court orders sale when there is house BUT since one co-owner paid for the cottage, he
gets the part of the land with it. This was an exception!
b. Rouse- man died, had 2 wives. Court ordered sale of house bc hardship for both to live together.
c. Knowlton- if the court finds hardship and orders sale, it may take into account if one party invested to
improve property, they will get more profit from sale (Knowlton)
2. RULE- the court retains discretion to refuse to grant both partition or sale in some circumstances, based on the
relative hardship to each of the parties.
a. Knowlton- partition or sale won’t be granted if it causes hardship to the parties living in the house AND
if the one seeking partition/sale doesn’t need the money/property
i. Ms. B’s brother does not want to live in the house with Mr. B, he is asking for partition or sale- NO
partition or sale granted, it would cause hardship to Mr. B because he is in old age, has lived there
his whole life and planned to do so, presumption he is attached to the home/area.
ii. Party claiming harm must show evidence of it i.e. financial dependence
iii. IF dependants in house court may refuse partition/sale when couple separates esp if the party who
moved out has no hardship/financial difficulties cites Melvin
iv. Can apply again for partition/sale if circumstances change e.g. dependants grow up, party who
moved out needs money, party in home moves cites Yale v McMaster
Main creature of equity: the trust
 Two different titles to one and the same property. Splits bundle of rights into two: trustee and beneficiary
 A legal relationship in which A gives property to B for the benefit of C
o A= settler; B= trustee; C= beneficiary
 Modern Functions of a Trust
o Used to be to make sure your property was dealt with while you were away on a crusade. Now it is in
order to manage the property:
o protection of minors, incapables, vulnerable parties
o investment (mutual funds are trusts) & commercial uses
o pension funds
o tax advantages (but some disadvantages: deemed disposition @ 21 yrs)
o philanthropy (charitable trust)
o secrecy (trust not subject to corporate disclosure requirements)
 trust IS NOT a democracy: beneficiaries have no (proactive) control over trustee’s decisions – they cannot control
how the trustee invests the assets for example.
Trustee: has legal title
 Rights: to dispose, manage, administer, possess, alienate, lease the property
 Duties:
o Duties of prudent investor: invest & manage trust assets to produce a revenue for beneficiaries.
o Fiduciary duty to beneficiary, they don’t balance their own interest with the beneficiary’s interest, but put
beneficiary’s interest first
o Duty to avoid conflict of interest
Beneficiary: has beneficial/equitable title
o Rights: the right to benefit from a property, enjoy benefits from it, may have right to possess/use
o Duties:
 Premature Termination: Beneficiaries can force trustee to convey trust property even if trust creator
has said this is only to happen at later date, if all beneficiaries are:
sound mind
of the age of majority
there are no remaining conditions attached to their interests; and
they all agree (if more than one beneficiary)
A non-possessory interest in land- property interest without right of possession
Right to USE someone else’s land
Right to BENEFIT (from neighbour not
Right to go onto someone’s land
(gypsum carrier- look at rule below)
doing or doing something) limits what
and extract a natural resource
neighbour can do on own property
Created- expressly, by implication, by
Created- only expressly (written
prescription, by statute
agreement or statute)
Practical Significance
Practical Significance
1. positive easement- lets the
1. Covenants- requires servient
dominant tenement to go on to
tenement to do or not do
servient tenements land
something with their land, limits
2. negative easement- similar to
what owner of servient tenement
covenant, limits what the owner of
can do
servient tenement can do
2. No test like easements from Ellen
Borough Park, covenant just has to
Easements- both burden and benefit
Covenants- once the covenant has been
will run simultaneously with the land.
established (expressly), the analysis is
The analysis begins with determining if
backwards i.e. does the benefit and the
there is an easement
burden run?
LICENSE- is not a property interest NOT ATTACHED TO THE PROPERTY, it is only a right to use. Its revocable at any
time + not transferable. No security
CONTRACT- not a property interest, is revocable at any time if damages paid + not transferable i.e. need privity.
RULE- Look to the intention of the parties as reflected in their agreement. If the right is to last only for the time of
the agreement, it indicates the interest is contractual and only applies to these specific parties (not to the land) and
thus a contract, not easement. (Gypsum Carrier 1977 FCTD).
o ship crashes into bridge, owned by govt, and used by railway. Railway says has easement/property interest,
so ship should pay them damages. -NO easement, only contract bc agreement says ‘right to use to these
parties for specified time period’ i.e. interest not attached to land
DEFINITION- a right to go on someone else’s land and take the natural produce form it eg. timber, crops, turf, coil,
grass, minerals, wildlife of any kind, natural gas
Are ABORIGINAL RIGHTS profit a prendre? - NO
i. Are aboriginal rights that are less than title profit a prendre e.g. right to hunt and keep animals, and right to fish?
 Answer- Although these rights are practically exercised in the same manner as a profit a prendre, the
court rejects this and says that Aboriginal Rights are never characterized as profit a prendre. Aboriginal
Rights are sui generis i.e. unique.
 Rationale- Common law principles are not the only thing that defines Aboriginal Rights, Aboriginal Law
also defines them. According to the Musqueam in Sparrow, the salmon are like human bodies that the
nation has a relationship with. They are not an object; the salmon have agency and have allowed the
nation to take them because of that relationship. This Aboriginal view is inconsistent with the
characterization of Aboriginal Right to fish as being a profit a prendre.
o This is the first time that the court has acknowledged Aboriginal Law in this manner/properly.
But despite the articulation, the court has not treated Aboriginal Rights in a manner consistent
with this Aboriginal law view. Instead they have treated the rights like a profit a prendre.
ii. Is Aboriginal Title profit a prendre?- NO, it is clearly not, it involves a lot more rights in the bundle than to just
go one someone’s land to take something
FIRST ASK- is land registered under Land Titles (there will be no easement/covenant unless claim was before date of
registry i.e. the rest of my analysis can be disregarded). If under Land registry system, then analysis holds.
b. Land titles system- Land Titles Act i.e. NO adverse possession OR easement
c. Land registry
Is it a Grant or Reservation?
 grant= A gives B an easement
 reservation= A reserves an easement for himself; something which A holds for himself from the part that he is
selling to B e.g. I will only sell you this land if I can reserve an easement to have a right of way over the land to
get to my land
Ways of creating an Easement [Grant or Reservation]
1. Express
2. Implied- only arise when someone is selling only some of their property
3. By Prescription- usually when one neighbour was using part of another neighbour’s property, and they
are being stopped from using it now.
Express Easements (grants and reservations)- are explicitly written down (Hill v Nova Scotia 1997 SCC; Lanty v ON
2007 ONCA)
i. Witten Agreement
ii. Statute
Implied Easements (grants and reservations)
Arise by implication, by operation of law even if the parties don’t agree to it in writing/consent/discussion). KEY- Only
arise in the particular situation where one person is dividing their property and selling some of it.
1. Ways of necessity- RULE- You only get easement arising by way of necessity if there is landlocked land, even if
the other way to reach your land is really inconvenient (Hough v Alberta 2000 QB)
 landlocked land (not part of land you want to get to like driveway, but whole land)
RULE- the ability to access land by water, typically is not considered to make the land accessible (Dobson
v Tulloch 1994 ONGD). Especially if the access to water: is not by right, is contrary to law, isn’t available
for transportation of things e.g. fast-moving river, there are no transport facilities like dock. (Hirtle)
o Dobson v Tulloch 1994 ONGD- the ability to access the land by river didn’t actually make the land
accessible, easement to use land granted. Dobson v Tulloch 1994 ONGD + Hirtle v Ernst 1991
NSSC. Because:
o The doctrine of way of necessity is based on public policy that land should not be rendered
useless (Hirtle)
o Initially way of necessity was based on strict necessity, if there was another way to access the
land, then an easement would not arise by way of necessity- but this has been relaxed a bit
2. Common intention- if the parties have a common intention about the way in which the land/dominant
tenement is to be used, and the easement is necessary for that use to be fulfilled, then the easement will arise
by implication. [mostly in leases, not sale bc you don’t control what the land will be used for]
 CLASSIC TEST QBCA- To get an easement by Common Intention, two requirements must be satisfied
(Wong v Beaumont 1965 QBCA):
1. Did the parties have a common intention for how the land/DT would be used?
2. Is the easement necessary to give effect to the common intention of the parties?
Wong- Step 1- YES- to have successful restaurant AND limit odours + STEP 2- YES its necessary to
have vent to eliminate odours = easement granted to have vent
ALTERNATE TEST ONCA- From the point where the land was divided, does the behaviour of the parties
indicate that there a common intention/intention can be inferred, between the parties that there will be
an easement? (Barton v Raine 1980 ONCA; Fife 2007 ONCA)
o Barton- easement granted; It’s clear that everyone agreed that B was allowed to use the driveway
of Lot 1 to get to his Lot 2, behaviour confirms this for over a decade i.e. inferred
o Fife v Cohan 2007 ONSC- Easement denied; because there is only evidence of common intention
to use 76 ft when the land was divided, not to use additional 39ft of driveway
The Rule from Wheeldon v Burrows- when there is someone who divides their land and grants part of it and
keeps some for self, then the grantee/person who buys it, gets the continuous and apparent quasi-easements
that the owner was already using and that are necessary for the reasonable enjoyment of the property.
a. (quasi-easements: weren’t actual easements because the original person owned both pieces of land, so
they didn’t need an easement)
b. Apparent- easily visible, doesn’t need to be looked for
c. Continuous- exists continuously (doesn’t come and go)
EASEMENT BY PRESCRIPTION typically arise by misunderstanding of property boundaries between neighbours
(Kaminskas v Storm 2009 ONCA):
[A had oral permission to park on part of neighbour B driveway, did so since 1950. K bought house from A in
1991, got written permission to encroach on B driveway. 2006 S buys B house and wants to build fence. A
says easement by prescription- NO]
Easement by Prescription VS Adverse Possession (they are similar)
a. Less control needed in easement bc not a possessory interest
b. The owner is not disposed of land, but just limited in their use
c. Easements often arise by neighbours being neighbourly, courts don’t want to bring detriment to
neighbours being nice, so may make it more difficult to get easement by prescription than to get adverse
1. By common law- not applicable in ON
2. Prescription by common law Doctrine of Lost Modern Grant
a. TEST for USE
Use must be continuous- NO
Use must be as of right (uninterrupted, open, peaceful, without permission i.e. similar to adverse
possession)- NO there was permission
3. Prescription by statute (s31 and s32 Real Property Limitations Act 1990)
a. TEST for USE
i. Use must be continuous- YES
ii. Use must be as of right (uninterrupted, open, peaceful, **without permission** i.e. similar to adverse
possession)- NO
b. There is a next before requirement i.e. use must be for 20 years or 40 years immediately before you made
the claim- NO
i. Rationale- promotes certainty and stability, it’s easier for a buyer of the servient tenement to know
there is an easement. Not required in adverse possession
c. 40 yr period- only defeated by written permission – NO only 15 yrs + there was permission
d. 20 yr- defeated by oral or written permission- NO only 15 yrs + there was permission
**Does Passive Acceptance/Acquiescence= permission? ** (Bloor v ONCA)
1. There is no clear ruling on if acquiescence counts as permission/consent
2. Laskin J says acquiescence does NOT= consent  better reasoning i.e. when S refuses to sign agreement,
then he refuses to give permission. Would find prescriptive easement
3. Gillese J says acquiescence= consent B uses it anyways has effect of S giving B permission. Would find no
Facts: S refused to sign doc that gave B permission to have easement over laneway for $300/yr. B used laneway
anyways for 20yr- says prescriptive easement
Positive Easements
 Definition- gives owner of dominant tenement the right to do something on the ST
 KEY feature- courts are willing to recognize new types of positive easements i.e. list of positive easements
not closed
 Examples- right to string a clothes line, right to tunnel under land/sewage/drainage pipes etc, right to
maintain towers, right to use Church pew
Negative Easements
 Definition- requires owner of ST to restrict the use of their land in some way
 Examples- right to have wind blow on your windmill (can’t exist bc the air is not from a defined channel),
right to have a view, right to have shade (cannot exist)
List of negative easements is closed, only 4 types
1. Right to light e.g. owner of servient tenement cannot allow trees to grow to block right
2. Right to air by a defined channel (e.g. tunnel)
3. Right to lateral support for buildings (from side)
4. Right to continue to receive the flow of water from an artificial stream (pipe)
5. EXCEPTION- Real Property Limitations Act s33 overrides the common law right to light/air so they can’t
be acquired by easement by prescription for a house/workshop/building
a. E.g. if you want a solar panel you should negotiate for right to light because you cannot claim
it as right under common law, its overridden by statute
o Dominant tenement- gets the benefit of the easement
o Servient tenement- the one who suffers the burden of the easement
Rule- All Four requirements must be present to Create an Easement (Ellenborough Park 1956 UK)
1. There must be a dominant tenement which enjoys benefit of the easement and a servient tenement which
is burdened (Ackroyd v Smith 1850)
a. There has to be a dominant tenement i.e. land that is benefiting, there is always a servient if there is a
claim of an easement
b. Rationale- easement is relationship bw pieces of land, function of easement is to benefit some other
c. Ackroyd v Smith 1850- the agreement is a right granted to all persons that want to get to the landcourt said not an easement as there is no dominant tenement, the benefit is just given to all people
d. Exceptionsi. Statutory easements- in ON we have easements for hydro lines, water, sewage etc. that don’t
have some dominant tenement
ii. Cemetery plots (House v Black)- those who have burial plots have an easement to access the
plots even though no dominant tenements
2. The easement must accommodate the dominant tenement (Jengle 1992 ONCA)
a. RULE- The easement cannot merely provide a personal advantage for the owner of the dominant
tenement; the easement has to make the land more beneficial in a way that would apply
indifferently no matter who the owner is (Ellenborough Park 1956 CA; Jengle)
b. Hill v Tupper 1863- Owner of land was using a canal, had exclusive right to let boats on the canal for
hire/money. NO EASEMENT The use of the canal is not a normal way in which the land would be used,
the use of the canal (servient tenement) does not benefit or increase the value of the land (claimed
dominant tenement).
c. Jengle v Keetch 1992 ONCA- B has easement to cross A’s land to get to B’s land. C rents out portion of
B’s land to get to C’s land and claims easement between A and C’s land. NO EASEMENT- In order for C
to claim an easement, the servient tenement (A’s land) must accommodate C’s land. But this is not
the case. C’s land is not the kind of land that would normally be benefitted from the use of A’s land.
The dominant tenement is B’s land, not C’s land.
d. Depew v Wilkes 2002 ONCA- cottage owners have easement to travel from a road to get to cottages.
They also use road to park on, argue easement to park even though agreement is just to drive. YES
EASEMENT- Being able to park near your cottage is considered the normal use of the land, it is
reasonably necessary for the better enjoyment of the land
3. The dominant and servient tenements cannot both be owned and occupied by the same person
a. Rationale- if you own both of them then you don’t need a right of way from anyone to use both of the
pieces of land
4. The easement must be capable of forming the subject matter of a grant
a. Rationale- an easement is a property interest, and property can be granted, so easement must be
something that can be granted.
b. Components:
i. Is the right too wide and vague? The interest at issue has to be certain/definite i.e. you have
to know what limits the easement has (Ellenborough Park)
1. Ellenborough Park- court rejected argument that the use of the park was too vague to
be considered an easement
ii. **Is the grant inconsistent with the proprietorship or possession by the servient
owner?**(Shelf Holdings v Husky 1989 Alta CA)
1. **RULE- There is no easement known to law that gives an exclusive or unrestricted
use of the land, if you were to give this through a grant, then you would have given
over ownership of the land. ** (further analysis below)
iii. The right must be a right of utility and benefit and not one of mere recreation and
amusement (Mounsey v Ismay 1863)
1. There are citizens that have right to use horse track to hold horse races for free, one
day per year. They claim they have an easement. NO EASEMENT- being able to do the
horse race is just an example of recreation and amusement, not utility i.e. there is no
benefit to the land [criticism- utility/amusement is subject to judicial opinion/view]
**Shelf Holdings**
- Reilly v Booth 1890- There is a grant for the exclusive use of a gateway, can this be an easement? NO
- Re Interprovincial Pipeline 1951SaskCA- there is a grant to use land for a pipeline, the grant gives the company
exclusive use to use the part of land to build the pipeline; is this an easement? NO, if given exclusive use then
you have ownership, not just an easement
- Metropolitan v Fowler 1893- grant allows railway company to ‘appropriate’ the land to build an underground
tunnel for railway; is this an easement? NO- ‘appropriate’ means to give exclusive use, thus this is granting
ownership, not just an easement. KEY we must look to the words to determine what was granted, easement or
less or more
Court applies above principles
- the grantor/servient tenement has the right to fully use the right of way as long as the dominant tenement can
make use of it as granted in easement. – this is maintained in this case. The owner of the land can still use the
surface as they do
- the grant does not use words that give over exclusive use (appropriate etc)
1. By agreement- probably through negotiations
2. By statutory provisions (not in ON, only in BC)- if one party does not agree
3. By operation of law easement will be terminated when:
a. RULE- The purpose for which the easement was created no longer exists (Giecewicz v Alexander 1989
i. Easement arose by implication. A new highway gets built and the owner of the dominant tenement
now has access over it, but they still want right of way over servient tenement; DENIED because
they don’t need it
b. The right is abused eg. right of way to farm was used to transport farm equipment, farm is converted
to beach and farm owner claims public can access beach by easement- NO
c. The time for which the easement was required expires
d. If the owner of the dominant tenement and the servient tenement become the same person (buys
Definition- Gives one person a RIGHT TO BENFIT from another’s property- An agreement by which one person agrees to
do or not do something with his or her own land for the benefit of someone else
b. E.g. not to build over a certain height, not to build a sp thing on land like factory in residential
Covenantor (grantor)- the one who agrees to do or not do something
Covenantee- the one who has the right to benefit
A (owner of ST) has a covenant with B (owner of the DT). If A sells to C then B will want to show that the burden,
attached to land of A, now runs such that C has to bear that burden. So complete tests to determine if the burden runs.
TEST for if Burden will Run at Common Law
1. Principle of Austerberry- The burden of a covenant does not run at common law even if you say you want it
to run ‘covenanting for successors/heirs’ (Parkinson 1966 SCC)
o Rationales: we can’t let people create any new type of property interest and attach them to land,
there are no limits on covenants so must be careful, there would be too much confusion
o Rationale: it would be too burdensome to allow a burden to run at common law
2. Benefit of Burden Exception when there are mutual covenants (not in ON) (Amberwood 2002 confirmed in
Black v Owen 2017 ON)
a. Definition- if there is a benefit to the dominant tenement of one covenant, then the burden must
also be upheld because it’s the benefit of the other covenant (Tito v Waddel 1977 UK)
- Tito- mining company agrees to plant fruit trees on mining land (covenant 1), in exchange to mine (covenant 2).
New owners of company don’t want to plant trees, but they must. Because there was a benefit (mining), the
burden must be upheld (planting)
- Amberwood- A did not have to maintain the recreational facility bc the burden does run at law, cites Parkinson
SCC. Even though England adopted exception, we will only do that after there’s legislation.
Conditional Grant Exception- this does not negate the basic rule that the benefit does NOT run at common law (not
a property law concept): it’s just a basic interpretive principle that if you benefit from something then you have to
pay for it. (Black v Owen 2017 ONCA)
b. Homeowners pay fee to trustees to use their roads/park. O homeowner does not want to use so
stops paying. Court says IF burden of trustees to maintain the roads is conditional on homeowners
having to pay park/road fee, then it can be enforced i.e. if O had used park, he would have to pay.
[in this case he didn’t use park, so there was no covenant]
TEST for if Burden will Run at Equity
5 Requirements for running the burden at Equity (a Restrictive Covenant)
i. Notice of covenant (Tulk v Moxhay 1848 UK)
a. Tulk- M knew there was a covenant (admitted), doesn’t matter if covenant was not in his
deed/contract. Rationale- when M bought property, the price was lower based on covenant, he would
not be able to build property on it.
b. ON Notice will be deemed/presumed, where the property (that has a covenant) is properly registered
under either of the two systems. Does not matter if buyer knows about it, they must exercise due
diligence to find out
i. Registry Act 1990 s74(1)
ii. Land Titles Act 1990 119(5)
ii. Covenant must be negative (Hayward v Brunswick 1881 CA)
a. TEST to know if positive or negative- if the servient tenement can comply with covenant by not doing
anything at all, then negative. If they have to do something/spend money, then the covenant is
b. Hayward- covenant is to repair building, court will not enforce because it is positive.
c. Aquadel Golf Course 2009 BCCA- covenant says you can’t use it in any way other than as a golf course;
it means you must use and maintain it as a golf course. Court will not enforce because it is positive.
d. Can depend on CONTEXT e.g. the covenantor covenants, promises and agrees to maintain a roadway
free of any blockages or impediments to travel- if the road is prone to blockages then this is positive, if
there are no blockages on road then negative
iii. There must be dominant tenement (125 Varsity 1960 ONCA) AND must be identified in covenant (Beaver
Lumber 1955 SCC)- Land Titles Act s119(4c)
1. London County Council- tries to covenant with A that A wont build on his lots. A sells lots B and B
builds on lots. LLC wants to enforce covenant to prevent building. – NO bc there is no sp land as
dominant tenement, LLC is just a municipal council
2. Varsity Rd- V developer tries to covenant with Town of York/municipality- NO covenant bc the
municipality does not have sp plot of land to claim as dominant tenement
3. Exception (not v persuasive bc BC lower court 1956)- municipalities interest in roadways are enough to
count as dominant tenement, then municipality can enter covenant
4. Statutory Exception – can allow for covenants for water/sewage etc even if no specified dominant
5. Land Titles Act 1990 s119(4c)- covenant can’t be registered unless there is a dominant tenement that
will be benefitted, owned by the covenantee, and stated/mentioned/identified in the covenant
iv. Covenant must touch and concern the dominant tenement (Smith and Snipes 1949 KBCA- classic articulation)
a. the covenant must either ‘affect the land as regards mode of occupation’ i.e. covenant must relate to
the use of the land, make the dominant tenement better to occupy AND
- e.g. covenant not to build building ST beside house DT betters the comfort and value of house, it relates to the
use of the house
b. covenant must be such as ‘per se, and not merely from collateral circumstances, affect the value of
the land’ i.e. covenant has to serve the land, and not just benefit the owner
- e.g. house DT covenant to have no fast food outlets in plot beside it ST- this serves benefit to the land as a
house/residence, no matter who the owner YES covenant
- e.g. Mcdonald’s DT covenant to have no fast food outlets in plot beside it ST- this serves benefit to owner of no
competition- it does not benefit the land so NO covenant.
- Non-COMPETITION CLAUSES Classic Approach- are not thought to touch and concern the land, just benefit the
owner under classic articulation. Francis criticizes- this rule reflects judicial values of how land should be usedtouch and concern requirements suggest that someone’s financial interests are completely separate from
ownership interest. it’s a policy that promotes competition, but just disguised.
 Contemporary Approach to non-Comp Clause (Safeway 1996 Manitoba QB citing Russo SCC)
The SCC affirms conventional approach to not upholding covenants when there is a non-competition clause.
(Russo 1973 SCC) But the court will determine on a contextual basis if they should apply the contextual
approach or not, they will determine if the non-comp clause actually only benefits the owner, if it doesn’t then
the conventional approach may not apply based on policy reasons
- Safeway- followed Russo, did not apply classic articulation (that the covenant will not touch and concern the
dominant tenement when there is a non-competition clause) because they found non-competition clause in
small shopping strip would protect both the DT and the ST, without it they would drive e/o out of business, so
the benefit is to the land, it’s not to the benefit of the owner of DT only.
c. Size of the Dominant tenement being too large in size- does not matter. There is presumption that DT
is still benefited by ST UNLESS there is evidence that shows that DT is too large to actually benefit
(Wrotham Park 1974)
d. Distance between the DT and ST can’t be too much (Molson 2002 ABQB)
- Court found that the two plots of land were too far from each other (one in Calgary one in Alberta) for the ST to
actually serve and benefit the DT as land
5. Covenant must be intended to run with the servient tenement i.e. the document that sets out the covenant,
it must state ‘that the covenant is binding the covenantor and their successors in title/heirs/assigns’ or ‘‘is
going to enure to and be for the benefit of the owner of the ST and its successors/heirs/assigns’
1. Term of Covenant Expires- covenants are express and there can be terms built in saying they expire after sp time
2. Same Owner- if owner of DT and ST becomes the same
3. Laches- an equitable doctrine (similar to a limitation period) i.e. if a certain period of time lapses, the covenant is
terminated. The period of time is not specified, it depends on context.
a. The land must be used for that period of time in a manner inconsistent with the terms of the covenant. If
owner ST does not complain that owner DT went against the covenant within a period of time, then the
covenant will end based on doctrine of Laches
b. Yor can make an argument that it would be unfair for Laches to apply
4. Change in character of the neighbourhood
c. Eg. covenant says covenantor cannot build factory on DT because harms house on ST. If the ST is no
longer a house, then covenant ends because nature changed, building factory won’t deprive ST of benefit.
5. Apply for a court order
d. Conveyancing and Law of Property Act s61(1)
Policy Concerns of Covenants
Reasons why the rules seem to be confusing, the rules point in different directions because there are conflicting policy
rationales that need to be balanced.
1. Covenants impede alienability- because the more covenants there are on the servient tenement, the more
restrictions there are with what you can do with it, so it’s harder to sell- the common law prefers land to be
free and alienable, falls into liberal notion that land should be as marketable as possible, so it can go into the
hands of those who value it the most
a. Rules that limit this
2. Covenants provide a benefit- to the dominant tenement, making the dominant tenement more valuable
a. Rules that increase this
3. Freedom to Contract- should be upheld and respected. Even though no privity of contract between
subsequent buyers, covenants should sometimes be upheld to maintain an agreement as per the contract. If
A and B contract, and B sells right after, then A loses the benefit right away which they paid/gave
consideration for- this is not fair
A bridge between two different systems of law dealing with rights to land: the common law, & the
 Aboriginal title is a sub-category of Aboriginal rights.
 Aboriginal Title is a property right, but not a full fee simple, more than just a profit a prendre
Aboriginal Title is Suis Generis (Guerin, Delgamuuk)- inalienable, inherent source, communally held, inherent limit
1. Source- inherent source, occupation from prior to assertion of sovereignty (Johnson v McIntosh)
2. Content- right to possess, use and occupy, not to alienate except to Crown (sovereignty did not extinguish,
but limited the rights)
3. Extinguished- only by ‘clear and plain legislation’ prior to 1982 (Sparrow)
4. Source of underlying Crown title- the doctrine of discovery and Terra nuillas (Johnson v McIntosh)
Test for Aboriginal Title Claim (Tsilhqotin v BC 2014 SCC)
1. Is the aboriginal title established (onus on Aboriginal Nation to satisfy)?
a. Sufficiency of Occupation? Satisfy both:
Common law perspective- did the Aboriginal nation used the land at a certain level of
intensity and frequency up to key date of assertion of sovereignty. Level of intensity (did they
use the land to maximize its resources) and frequency is contextual, did they use the land in
such a way that indicates to third parties that they are using it for their own purposes.
Aboriginal perspective- manners, laws, customs, characteristics of the land, not just physical
occupation. Territorial approach i.e. claims over vast territory not just intensely used
pockets/tracts of land. Tsilhqotin says standard is not as high as that of adverse possessor i.e.
hunting/trapping/fishing can constitute sufficiency/standard of general occupant (consistent
with Aboriginal law not to take more than you need).
b. Continuity of Occupation
Historical evidence of being on the land since the time of assertion of sovereignty
c. Exclusivity of Occupation
Common law Test- did they have the intention and capacity to exclude others from the
territory? (Can argue that they needed support to defend their territory)
Aboriginal perspective- proof of exclusion, need for permission, treaties, any challenges to
occupancy AND aboriginal trespass or treaties
If not met then nation can have Ab rights but not Title OR joint title amongst selves
2. Was the Title Extinguished?
a. Legislation prior to Apr 17, 1982 must exhibit ‘clear and plain intention to extinguish title’ (Sparrow)
b. By land surrender treaty
c. By constitutional amendment
3. Is there an Infringement of the Claim- constitutes gov’t limiting any of the strands of the bundle
a. What is content of Aboriginal title/ strands in the bundle? - the right to use for a variety of purposes
to decide how it is used, right to economic benefit, control, use in modern ways etc. equivalent to
fee simple except there is an inherent limitation and inalienable
b. Test Does the Legislation/executive decision result in a meaningful diminution of the right?
Factors- does legislation a) impose unreasonable limitation or b) undue hardship, or c) deny holders
their preferred means of exercising the right? Don’t apply each step but look at it holistically
basically ask is there some sort of interference with Aboriginal rights?
4. Is there a Justification of Infringement?
a. Did Crown comply with duty to consult (collective right)
i. If Aboriginal Title is not proven, then apply Three-part Triggering Test for if there is a duty to
consult a) Crown must have knowledge of the title claim b) there must be Crown
conduct/decision potentially affecting the right c) the conduct/decision will have an adverse
impact on the right. [if passed =duty to consult, If not passed= no duty to consult]. (Mention
but don’t apply strictly, if there is title step 1 and infringement then duty to consult is
ii. Determine where on the spectrum the duty lies. Consider strength of the claim (title proven or
not) AND level of intrusion (how adverse the impact is).
A. High end- robust consultation will be required, full consent may be required
(Delgamuuk). Govt is obligated to accommodate OR give the nation a seat in the
decision-making process
B. Intermediate- give notice and get feedback, accommodate if possible
C. Low- only duty to consult
b. Is there a compelling and substantial legislative objective? Possible Objectives: The development of
agriculture, forestry, mining, protection of environment or endangered species, infrastructure and
settlement of foreign populations, hydroelectric power, general economic development of BC
(Delgamuuk). Need evidence to support objectives AND benefits of the objective have to be
compared to detriments to Aboriginal (balance common law and Aboriginal perspective).
c. Crown must comply with its fiduciary duty (Guerin- golf course Crown negotiated diff agreement)
The inherent limit applies to the Crown- the infringements won’t apply if they would
substantially deprive future generations of the benefit of the land.
The Crown has an obligation of proportionality (Oakes Test): Rational Connection (of
means to objective); Minimal Impairment; Proportionality of Impact
- Tsilhqotin 2014 SCC- SCC granted nation the territory despite technical issue of the nation not claiming the whole
area. Crown lost because they did not fulfill duty to consult, they didn’t consult at all. Only 200/3000 pop is living in
the claimed area. There are no treaties in BC so no surrender. They lived with no intrusions until 1983 until BC govt
gives licenses to lumber company. Tsilhqotin protest saying they have Aboriginal title.]
Delgamuuk 1997 SCC- Gitxan and Wetsuwetan claimed territory/Ab Title, govt argues they have no interest in land,
only entitled to compensation from govt. Court sent back for new trial bc technical issues
Guerin 1950 SCC- The crown enters a lease with the golf course which is different from what they told musqueum
which is a bad deal for them- Crown owes a fiduciary duty to Ind peoples
Calder 1973 SCC- BC argues Nisga had title but they extinguished it, 3 judges said not extinguished, 3 said it was, 1
said case lost based on technicality. 6/7 judges recog Ab Title=property right– Nisga final agreement allowed them
to have their own govt with laws over own territory like a municipality AND comprehensive Claims process was
started after this case/process to streamline Ind land claims
St Catherines Milling 1888- Does the Fed govt have jurisdiction over prov territory through Ab Treaties? NO, prov
has jurisdiction. Historical significance of the Treaties is that they do not transfer title but just make it disappear bc
the title is not a property right and thus not alienable (still good law). Aboriginal title is not a property right, its
only usufructuary- NO LONGER GOOD LAW, changed in Guerin.
Johnson v McIntosh- both claiming ownership of land, J traces back through Ab alienated land, M traces back
through someone else. M won because AB title is not alienable except to the Crown
- K GRAY- family property is more about social relations because it surrounds the institution of marriage. There is a
lot of commentary about it because it brings in the complexity of gender roles, societal values and norms, the
institution of marriage, the differences in social status of a married and non-married woman- and how these all
relate to property.
- Married or unmarried spouses have Co-ownership so matrimonial property is highly relevant to concurrent
interests/co-ownership in property.
- Legal Reform- there has been a lot more legal reform in family property than in other areas because of the changes
around gender roles, and status of legally unmarried couples. As well as the recognition of domestic work being
valuable, and not just paid-work which is quite gendered.
- Gender- women tend to have power diminished in household, and men tend to be empowered in households due
to traditionally doing more paid work (Clement and Myles).
Position of Women Under CL in Past (Property and Marriage relationship)
 Doctrine of Coverture  the following would happen upon woman’s marriage:
 Personal property and all her earnings passed to husband absolutely.
 real property/land managed by him for his benefit, he did not need to account for profits (no trust), he had sole
 Wife lost capacity to contract and could not make will.
 Unmarried women- J Johnston Jr explains were free to own, manage and transfer property, enjoy income from her
personal property.
 Dower and Courtesy (in addition to coverture)
 The wife retained a 1/3 interest of the husband’s property upon his death by dower right (Laskin article)
 Dower was sole exception to freedom of testation: if H purported to disinherit W, she could still claim dower
 Dower made conveyance difficult and lead to litigation. Dower at common law was soon protected by statute eg.
Dower Act RSO 1960 (now repealed)
 The husband had a courtesy interest which would allow him to become the sole owner of his wife’s (fee-simple or
fee-tail) estate after she died.
Then → Equitable Settlements and 19th Century Stat Reform
 Equity
 18-19 century replaced CL doctrine of coverture
 Create trust for the “separate use” of married women (usually created by her Dad)
 “To T and his heirs for W for life to her separate use, remainder to such children as she has by H”
 Saves property from creditors of H
 Investment decisions are made by T
 Gives W an income independent of H’s control
 Typically, only accessible to wealthy women, even less accessible in Canada than England
 Statutory Reform
 Married womens property legislations throughout Canada in ON 1859 (Act respecting certain separate rights of
property of married women)
 Later 19th century reforms, third wave reform gave W dispositive powers over separate property estates, and
control of their earnings (Backhouse)
 Despite this, many men and women still accepted the traditional CL principles, reform mostly protected wives from
delinquent husbands
Then → Divorce Reforms (previously married couples)
 Recognized that despite reforms, H still mostly remained titleholders of the property during marriage. Began to
discuss women’s property rights after divorce, not death
 The CL provinces stat reform in 1970s borrowed the civil law/Quebec concept of ‘community of property regime’
 Based on automatic ‘joint ownership’ of family assets during marriage
BUT CL provinces didn’t adopt this exactly, they kept ‘separate property’ of partners during marriage, and deferred
sharing i.e. form of community property on separation.
Murdcoch 1975 SCC: Divorce after 25 yrs of marriage, wife worked ranch.
 Issue- do wives have any interest in matrimonial/family property?
 Martland majority – she does not get ½ interest in ranch. Her labour was ‘ordinary work of ranch wife’
CATALYST- he trivialized women’s contributions
 Dissent of Laskin: he considered remedial constructive trust – which is an imposed trust in order to
remedy unjust enrichment from which H would otherwise benefit if no claim had been made. (lead to
legal reform)
Rathwell 1978 SCC: similar facts to Murdoch, finding for W.
 Laskin dissent in Murdoch adopted i.e. constructive trust to remedy unjust enrichment of H
Rule- Constructive trust based in unjust enrichment will be applied for previously married spouses
with regard to matrimonial property. (Dissent Laskin in Murdoch 1975 SCC, adopted in Rathwell 1978
o TEST from Murdoch: unjust enrichment + additional causal connection (between contribution and
property) = constructive trust available as equitable remedy
o Unjust enrichment= a party that is enriched + a party that is correspondingly deprived + a lack of
juristic reason (contract, gift, debt owing)
ON FAMILY LAW REFORM ACT 1980 (first enacted in 1978, now it’s the FLA RSO 1990 after further reform)- reformed
provincial laws regarding spousal entitlements to property on marriage breakdown (Family Property Regime, it excludes
cohabiting couples)
 Significantly influenced by Murdoch 1975 SCC and by calls for statutes reflecting ‘equal partnership in marriage’
 There was debate in the courts about how much Judges should interfere in sensitive matters involving families, or
exercise discretion as each couple is different
 This does not apply to cohabitees, even today, only to MARRIED couples (opposite-sex until same-sex marriage
 Equalization  Divides the value of property equally. Take net value of family property of each party at end of
marriage, subtract value at beginning, and this increase is equalized
 Party who has more assets has to make “equalization payment” to one who has less (compared to
other provinces where the property is roughly equally divided by Judges by transferring title)
 At the end of marriage there is mandatory equal sharing of family property or the net increase in
family property.
 Maintained constructive trusts as remedy for unjust enrichment.
 Make consent necessary to sell matrimonial home, the matrimonial home, no matter whose name it is in, cannot
be dealt with alone without the spouse’s consent.
 You do not automatically become co-tenants of a home right when you marry though.
Then Rights for Co-Habiting couples at separation (Equity)
 Rathwell lead to constructive trust also applying to cohabiting (not just married) couples, for both same sex and
opposite sex (even prior to marriage rights for same sex couples).
 Provincial family property statutes focus on rights of married spouses at separation, despite similarities between
married and unmarried couples, were excluded from Family Property Regime. Court found its NOT unconstitutional
to exclude unmarried couples from Provincial schemes concerning property sharing at separation or divorce (in
Recent Walsh 2002 SCC).
Nova Scotia v Walsh 2002 SCC- Cohabited for 10 yrs, W wants spousal and child support. Challenges definition of
spouse in s2g of Matrimonial Property Act as violation of s15 of Charter- court says no violation
Rule- The application of the Matrimonial Property Act only to married couples is not unconstitutional. The right
to choose to avoid the consequences of marriage or registered domestic partnerships must be respected.
Because the legislation did not apply to cohabiting couples at separation, principles of equity were fashioned by
SCC to achieve goal of equity for cohabitees in CL provinces
These developed over the decades, see Pettkus v Becker
Pettkus v Becker 1980 SCC: 20 yr cohabiting couple, B sought ½ interest in bee keeping business. Husband owned
the bee farm but there was a beneficial interest for her.
Constructive trust, based in unjust enrichment applies for cohabiting spouses (apply Murdoch Test).
 Even though prov stat reform was not intended for cohabiting spouses (only for married), judge found that
there is no basis why equitable principles cannot be applied for cohabiting couples who lived in ‘marriage like’
relationship in order to prevent unjust enrichment at separation
 The indirect contribution of money and the direct contribution of labour is clearly linked to the acquisition of
 The question is really an issue of fact: Was her contribution sufficiently substantial and direct as to entitle her to
a portion of the profits realized
[subsequent newspaper reports indicated that there were problems in enforcing the judgment, she committed
suicide. Courts still made it quite difficult for former couples to have their rights enforced]
BUT ITS STILL HARD FOR UNMARRIED COUPLES- because they have to prove that they contributed to the
assets/property of the other spouse, there is no automatic ‘equalization’ of property as there is for married
couples under FLA. They still have to meet the constructive trust TEST from Murdoch to qualify for this equitable
remedy. Pettkus and Becker B committed suicide because of the whole ordeal of trial and enforcement issues.
Peter v Beblow 1993 SCC- P seeks entitlement based on constructive trust to family assets after end of 12 yr
cohabiting relationship. She took care of kids, did house work and worked part time but assets mostly were in B’s
Rule- Constructive trust based in unjust enrichment also applies to cohabiting couples where one’s contribution is
DOMESTIC (rather than working on a bee farm/Pettkus or ranch/Murdoch).
 Failing to recognize childcare and home-making as giving rise to equitable claims against other spouse devalues
the contributions that women tend to make to the family economy- McLachlin
 Court rejected B argument that any nanny could have done her job so she should only get money damages.
 BUT McLachlin said- after finding that there is unjust enrichment, the automatic remedy is NOT constructive
trust. First must determine if quantum merit/money damages are appropriate, if not then constructive trust is
Sorochan 1986 SCC- Had six children, they finally got married. He pre-owned the assets before they started
Constructive Trust could be awarded where the non-titles cohabitee had contributed to the MAINTENANCE of
property already owned by the other cohabitee at the beginning of the cohabiting relationship (compared to
contribution to acquisition in Peter v Beblow).
 i.e. maintenance does contribute to the causal connection needed for the unjust enrichment TEST from
 BUT constructive Trust in not the automatic remedy (McLachlin in Peter v Beblow- where domestic
contribution did have a causal connection such that it could lead to unjust enrichment)
 So theres a THIRD REMEDY for cohabiting couples if unjust enrichment test isn’t met
Vanasse 2011 SCC- cohabiting couple, M moved for work W left her job and moved with him, she cared for kids and
he had v successful business worth $11 mil when separated. There was no causal link bw her contributions, but also
quantum merit wouldn’t be fair for her.
Rule- If constructive trust not available for lack of causal connection between property and contributions (under
Murdoch Test), new remedy of Joint Family Venture is available Where the required link bw contributions and a
specific property may not exist, but there is a clear link bw the joint efforts of the parties and accumulation of
wealth then ‘joint family venture’ available:
o TEST for Joint Family Venture= mutual effort, economic integration, actual intent and priority of the
BUT this is STILL DIFFICULT for cohabiting couples because there is a need for a lot of evidence in order to get
this remedy, to figure out complex analysis of the work done by each member of the cohabiting couple as well
as the need to link work to the accumulation of family wealth- thus there is need for reform in law to include
cohabiting couples
o Had the equitable remedies that cohabiting couples had available, before marriage of same sex couples
was allowed (Anderson v Luoma- unjust enrichment and constructive trust were used for same sex
o After same sex marriage legalized in ON in 2003- they are entitled to all previously married couples
rights under Family Law Act
What Constitutes Matrimonial/Family Property- Definition of property
 After reform that assets/property should be equally divided between couples at separation, it had to be determined
what counts as property
 ON Family Law Act s4- Property= any interest, present or future, vested or contingent, in real or personal property
and includes
A. property relating to a power of appointment
B. property relating to a power to revoke disposition
C. the “imputed value” of a spouse’s pension plan
it’s very broad
 JCM v ANA 2012- sperm counted as property to be separated bw a same-sex couple at separation
 Professional degrees- the courts had different decisions in regard to this, Corless 1987- wife claimed H LLB degree
should count for property value, court said yes property but no value so not included in calculation. Keast 1986 wife
put her H through med school but his degree not property. Linton- W awarded financial support bc H PhD didn’t
count as property.
Caratun 1992 ONCA- Wife supported husband until he came to NA to be dentist, he divorced her after 2 dayslicense not property bc nature difficult to make license: license not transferrable/alienable, requires personal
efforts of licensee, courts cannot negate policy objective of self-sufficiency, cannot regard all efforts put in
work as property under FLA s4 (work of plumbers carpenters etc), difficult to assess value based on likelihood
of success/competitiveness etc.
A professional license does not constitute property within the meaning of s.4 of the FLA 1986. Judge
awarded wife 30k for contribution to it (Caratun 1992 ONCA)
 Not constructive trust because that only applies to property
 In Caratun the court mentioned Woodworth US. It shows that family property claims may be dealt with in
a unique approach. The courts should have found this as property, example approach in Woodworth
Rule- Whether or not an advanced degree can physically or metaphysically be defined as “property” is
beside the point. Courts must instead focus on the most equitable solution in dividing among the respective
parties what they have Woodworth 1983 US
 Woodworth 1983 US- husbands law degree was considered a family asset/property.
How do families determine how to organize themselves?
 Knetsch- the professional degree dilemma is an example of the difficulties that arise when there is a ‘maximization
of family welfare via specialization’, eg. husband works outside, and W works in household, it’s the rationale for
traditional organization of families. And traditionally thought of as best way to contribute to overall well-being of
family BUT
o Also based on external variables- discrimination against women in job market, socialization that
encourages and discourages certain activities based on sex, lack of flexibility in jobs to accommodate
household responsibilities.
o Traditional roles are really frequent- has to do more with biases in system rather than efficiency
Criticism of Caratun- the judge compared family relationship to commercial relationship. Its not the same eg. she
said Ms Caratun’s support of her husband, instead of focusing on her personal betterment was not a good
Revised definition of property in FLA- would take into account what Knetsch said. It would not equate or promote
property to be the same in family and business contexts. It would focus more on ‘property as relationship between
subjects and objects’ i.e. it would be different based on diff relationships
Professional Licenses vs Pensions- The court took different approach from Caratun in Clarke
o (consider diff bw pension and prof license, a prof license is more difficult to value bc there is a whole career
difficult to quantify- but both often supported by the W contributions)
o American Law Institute approach- According to the report, market data can establish a value for pensions,
by contrast with professional degrees- NO the courts can, based on average salaries in the profession etc.
still give value, or give value based on education/tuition/training that went into the license
o Clegg- this was more consistent with Clarke, not Caratun. Both payments made to husbands, and prof
licenses are non-transferrable YET there are different results in each. i.e. the court CAN make modifications,
broaden the definition of property to fit needs i.e. it was seen as a relationship between subjects/objects,
rather than a thing.
 A spouse’s pension constitutes property (Clarke 1990 SCC) – discretionary support payments are not a
substitute for entitlement to share assets accumulated during the marriage as a result of spouses combined
o Wilson J specifically noted that the problems of valuation should not preclude the characterization of a
pension as a matrimonial asset
o Wilson J expressly noted (at 811) the importance of pensions as family assets—sometimes the only
significant assets—and the inadequacy of support payments by contrast with a pension asset
 Money owed to husband constitutes property (Clegg 2000 ONSCJ)
 Couple divorced, shortly before husband sold business and entered non-competition agreement at 1.5mil.
Husband argues not property subject to division bc its related to personal service. - Court says Despite the
payments owed to the husband being non-transferrable, the payments are within the definition of
Poverty concerns at separation/Need for Reform-the definition of property in FLA should be more broad
 the outcome of the decision left Ms Caratun in a precarious economic situation by contrast with her husband
(Mccallum critiqued Caratun)- We have already seen that poverty increases the risk of divorce. In turn, divorce
also increases the risk of poverty for a large proportion of women and their children. On average, single parents
who are poor have an income that is 40% below the poverty line. Now as earnings are more similar or both
partners work outside, men may be dissuaded from divorce.
 These concerns SHOULD be relevant to the definition/interpretation of ‘property’ in family property cases.
 The definition of property right now perpetuates negative gender differences in society while we are still moving
away from traditional social roles
 What judge said in Pettkus SHOULD be considered as well (see below)
 We should stop focusing on ownership in family property- and look at it instead based on the family home in
terms of- (1) a right of control over dealings ; (2) a right of occupation or enjoyment ; (3) a right of capital
entitlement on sale ; and (4) a right on the termination of the relationship to have basic needs met out of the
family resources represented by the family home. THEN the law around family property would be clearer (John
Need for Reform- Cohabiting Spouses
 Should also be included in definition of ‘spouses’ in Family Law Act family property regime- this was proposed by
OLRC in 1993 i.e. that they should be included in definition if they register as ‘registered domestic partners’. OR
separate legislation should be put in place that recognizes their rights at separation.
 It is much harder for cohabiting couples to get equal property shares (see the cohabiting couples section above)
 In Petkus v Becker the SCC took the right approach, ‘This was not an economic partnership, nor a mere business
relationship, nor a casual encounter. Mr. Pettkus and Miss Becker lived as man and wife for almost 20 years.
Their lives and their economic well-being were fully integrated. The equitable principle on which the remedy of
constructive trust rests is broad and general; its purpose is to prevent unjust enrichment in whatever
circumstances it occurs.’ To explain why there was no basis for a different approach to dividing property for
previously married compared to previously cohabiting couples.
The indirect contribution of money and the direct contribution of labour is clearly linked to the acquisition of
property= causal connection for unjust enrichment to apply (Pettkus)
‘the courts should not develop equitable remedies that are “contrary to current legislative intent.” (Pettkuscohabiting couple entitled to equitable remedy of constructive trust). – legislative intent of Family Law Reform
Act is to prevent unjust enrichment for MARRIED couples on separation (not cohabiting couples) BUT judge found
that there was no basis for a different approach to dividing property for previously married compared to
previously cohabiting couples.
The court just need to award spouses (married or unmarried) an equivalent share or money’s worth for what
they contributed to. (Petkus)