What is Property ......................................................................................................................................... 3
Indigneous legal relations in relation to property – NZ....................................................................................3
Te Urewera Act, 2014, New Zealand ................................................................................................................................ 3
Te Awa Tupua Act, 2017, New Zealand ............................................................................................................................ 4
The Bundle: Rights and Obligations ..................................................................................................................4
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor ........................................................................................ 4
Human Material ...................................................................................................................................................6
Moore v Regents of U of C (Cells) .................................................................................................................................... 6
JCM v ANA (SCBC)(sperm) ............................................................................................................................................. 6
SH v DH.(embryo) ............................................................................................................................................................. 7
Lam v UBC (sperm) ........................................................................................................................................................... 8
KLW v Genesis Fertility Centre (reproductive material) ................................................................................................... 8
Pilijak Estate v Abraham (Tissue Samples) ....................................................................................................................... 8
Fishing licence ......................................................................................................................................................9
Saulnier v RBC .................................................................................................................................................................. 9
Property, Human Rights and the Charter ............................................................................................... 10
Private Property and the Right to Exclude ......................................................................................................10
Trespass Act........................................................................................................................................................10
Harrison v Carswell (SCC 1975)...................................................................................................................................... 11
R v Layton ........................................................................................................................................................................ 13
Property Rights and the Charter ......................................................................................................................13
Committee for the commonwealth of Canada v Canada (1991 SCC) .............................................................................. 13
Batty v Toronto City (2011 ONSC) ................................................................................................................................. 14
Victoria city v Adams (2008 BCSC ................................................................................................................................. 15
Vancouver Fraser Port Authority v Brett ......................................................................................................................... 16
Possession ................................................................................................................................................. 16
Possession of Animals - Wild.............................................................................................................................17
Pierson v Post ................................................................................................................................................................... 17
Two prong test for possession in relation to chattels ........................................................................................................ 18
Nakhuda v Story Book Farm Primate Sanctuary.............................................................................................................. 18
Clift v Kane ...................................................................................................................................................................... 18
Doyle and Bartlett ............................................................................................................................................................ 19
Possession of Animals – Domestic .....................................................................................................................19
Wilk v Arbour .................................................................................................................................................................. 19
Baker v Harmina .............................................................................................................................................................. 19
Finders.................................................................................................................................................................20
Armory v Delamirie (1722) .............................................................................................................................................. 20
Bridges v Hawksworth ..................................................................................................................................................... 20
Parker v British Airways Board (1982) ............................................................................................................................ 20
Cases cited in Parker v British Airways ........................................................................................................................... 21
Staffordshire water co v Sharman .................................................................................................................................... 21
City of London Corp v Appleyard ................................................................................................................................... 22
Grafstein v Holme and Freeman (1958) ........................................................................................................................... 22
Kowal v Ellis (1977) ........................................................................................................................................................ 22
Summary .............................................................................................................................................................22
Comparing Bridges and Parker ........................................................................................................................................ 23
1
Statutes and finders............................................................................................................................................23
Trachuk v Olinek.............................................................................................................................................................. 23
Land – Adverse Possession ................................................................................................................................24
Asher v. Whitlock ............................................................................................................................................................ 24
Statute of Limitations ....................................................................................................................................................... 25
Piper v Stevenson ............................................................................................................................................................. 25
St Clair Beach Estates Ltd v MacDonald 1974 ................................................................................................................ 26
Leichner v Canada 1997 ................................................................................................................................................... 26
Leaseholds and Limitation Statutes in Ontario: Giouroukos v Cadillac Fairview Corp Ltd 1983 ................................... 27
Other possessory claims ................................................................................................................................................... 27
Trachuk v Olinek.............................................................................................................................................................. 28
Nelson (City) v Mowatt (SCC, 2017) .............................................................................................................................. 28
Adverse possession in BC ................................................................................................................................................ 30
Adverse possession important statues summary .............................................................................................................. 31
For adverse possession question....................................................................................................................................... 31
Doctrine of Tenure ................................................................................................................................... 32
Doctrine of Estates ................................................................................................................................... 32
Freehold Estates .................................................................................................................................................32
Fee Simple ........................................................................................................................................................................ 32
Life Estate ........................................................................................................................................................................ 32
Doctrine of Waste ............................................................................................................................................................ 33
Vested and Contingent (future) Interests .......................................................................................................................... 34
BC v Engen Presumption of vesting ................................................................................................................................ 35
Absolute v Qualified Estates ............................................................................................................................................ 35
Tilbury West Public School Board and Hastie Distinguish between defeasible and determinable estates. Presumption of
early vesting consequences .............................................................................................................................................. 37
Re McColgan 1969 Distinguish between defeasible and determinable estates. Presumption of early vesting
consequences .................................................................................................................................................................... 38
Sifton v Sifton 1938 Distinguish between defeasible and determinable estates. Presumption of early vesting
consequences .................................................................................................................................................................... 39
Restraints based on Public Policy .....................................................................................................................40
Re Canada Trust co. and Ontario Human Rights Commission (1990 ONCA) Violation of public policy ...................... 40
Royal Trust Corp of Canada v Univ of Western Ontario ................................................................................................. 41
Fox v Fox Estate (1996) ................................................................................................................................................... 41
McCorkill v McCorkill Estate 2013 Violation of public policy ....................................................................................... 42
Spence v BMO Trust Co Violation of public policy ........................................................................................................ 42
Fixtures ...............................................................................................................................................................43
LaSalle Recreation Ltd v Canadian Camdex Investments Ltd ......................................................................................... 43
Diamond Neon (Manufacturing) Ltd. v. Toronto-Dominion Realty Co. Limited ............................................................ 45
2
What is Property
Property law/rights frames the relationship among people in respect of resources or things that are the
objects of property.
A system of rules creating and governing relationships among people regarding access to, use and
disposal of (valued?) things
Property is an enforceable claim to exercise power over (including to use/or benefit from) something,
which claim will be enforced by society or the state by custom, convention, or law
Important terms:
Possessory Title
 One way we figure out if someone has a legally enforceable property right
 Possession gives a presumption of title unless someone else can demonstrate a better claim
 Not the same as ownership
Estate
 A bundle of rights in time in relation to a thing
 Fee simple
 Life interest
 Chattel
Personal Property
 A kind of chattel
 Tangible or intangible property
Easements
 The right to use another person’s land in a certain way
 An interest you have in relation to someone else’s property eg sidewalk
 A burden on the party that has rights on the title
 Part of the land title
Covenants
 An obligation on a person to do or not do something in relation to land
 Some are permitted and some are not due to public policy
 Positive covenant
o Obligation to do something in relation to property
 Negative covenant
o Restriction on what they can do with property
Mortgage
 A security interest in land that is created as security for a debt
 Lender mortgagee, borrower mortgagor
 If sold the first to get money is mortgagee
Indigneous legal relations in relation to property – NZ
Te Urewera Act, 2014, New Zealand
Te Urewera has a specific relationship with its "own mana and mauri" and the Aboriginal peoples who
lived in and near it, as well as with other New Zealanders.
It is a "place of outstanding national and intrinsic worth; treasured by all for the distinctive
•
natural values of its vast and rugged primeval forest, and for the integrity of those values; its
indigenous ecological systems and biodiversity; historical and cultural heritage; scientific
importance and place for reflection."
3
Tühoe and the Crown "share the view that it should have legal recognition in its own right, with
responsibilities for care and conservation set out in the law of New Zealand.
The Act is intended to contribute to resolving the "grief of Tühoe and to strengthen and maintain
•
the connection between them and Te Urewera."
As such it is declared a legal entity by the Act, with all the rights, powers, duties and liabilities
•
of a legal person
Establishment land ceases to be vested in the Crown; fee simple estate status given to Te
◦
Urewera
Land cannot be alienated, mortgaged, charged or disposed of except if a lease is granted by the
•
Board
Board made up of nine members, six appointed by the Tühoe tribe and three from the
◦
Waitangi Treaty Negotiations Minister
"We are seeking to reset our human relationship and behaviour with nature; a disconnection
•
from Te Urewera has changed our humanness; we wish for its return."
Te Awa Tupua Act, 2017, New Zealand
Purpose of Act is to record acknowledgments and apology by Crown and give effect to the provisions of
the deed settlement that establishing the Whanganui River as a legal person, holding rights and
responsibilities equivalent to another person.
 Te Awa Tupua is a framework that provides for the legal recognition of its effects
 "Te Pa Auroa is a relevant consideration in the exercise of all statutory functions, powers and duties
in relation to the Whanganui River."
"Indivisible and living whole, comprising the river from the mountains to the sea,
◦
incorporating all its physical and metaphysical elements."
 The people of the river have an "inalienable connection with, and responsibility to, TAT and its
health and wellbeing."
TAT is a singular entity "comprised of many elements and communities, working
◦
collaboratively for the common purpose of its health and well-being."
 Te Pou Tupua office established to be "the human face of TAT"; act in its name
The Bundle: Rights and Obligations
Components that make up a property interest
 Right to exclude – who can come in, use, enjoy and participate in property
 Right to use and enjoy – capital and income from property
 Right to transfer – giving away and selling/leasing or dividing interests in property
 Right to destroy – not an absolute right
There are obligations and limitations to bundle of rights eg contrary to public policy or legislation
Different parties can have a bundle of rights in relation to a property eg easements
Victoria Park Racing and Recreation Grounds Co Ltd v Taylor
F: Victoria Park Racing (VPR) owned Victoria Park, a racing track which charged admissions to people who
placed bets on the races. This racecourse was surrounded by a very high fence.
Mr Taylor set up a platform in his property and charged people a certain amount to view the Victoria Park
races from it.
Attendance at the ground dropped significantly.
VPR sued for trespass
4
Are there property rights in a spectacle? Is Taylor causing a nuisance in relation to interference with the use
and enjoyment of another party’s land
R: Nuisance is interfering with a neighbour's right, protects an owner in their enjoyment of their property rights;
it is a tort action.
There can be no property rights in a spectacle. Profit is made from entrance and a person walking past should
not have to divert their eyes
A: Lantham (Majority)
 "Any person is entitled to look over plaintiff's fences and see what goes on in the plaintiff's land… the
plaintiff can erect a higher fence. In my opinion, the law cannot by an injunction in effect erect fences
which the plaintiff is not prepared to provide."
o On the argument of quasi-property derived from expending money to create a "spectacle," as it
cannot "be owned in any sense of that word."
o if something is not an object of private property, then it must be “common property,” and thus
available to all. By contrast, if something is private property, the “owner” may exclude others
from its enjoyment. By concluding that the plaintiff’s spectacle was not his private property, the
court in Victoria Park left the plaintiff without legal protection—in this way, the racecourse
appeared to become common property.
 land is still being used as it was before. No interference by defendants in relation to land
 Maxim cannot be justified – if there’s damage caused to any other party an action will lie – there has to
be a basis in law that upholds that position. Not a case available just because some harm was experienced
 Broadcasting – nothing clear in connection with the defendants use of adjacent land and the business
being carried on. Broadcasting the race and the business of the race are separate events under the law.
Just because they’re looking over the fence doesn’t mean they’re connected with regard to the law
 No general right of privacy. Just because you can see another party’s actions doesn’t mean there’s a legal
action happening
 It was preferable for the legislature rather than the courts to define rights and obligations in new context
of broadcasting Judges did not want to overstep their role
I:
Dixon (distinguished)
The argument by the π that he expended labour/costs to justify the proprietary interest was shown through
INS v AP that just because someone has laboured for an interest the law does not automatically qualify that
as property → distinguish labour theory
INS v AP:
 Majority: news is quasi-property and its proprietary interest is justified through economics and labour
theory
 Company worked for the fresh news and its freshness is an economic incentive
 Dissent: news is not property, legal property does not arise from the creation of value (against labour
theory) and it depends on exclusion (single-variable essentialism)
 Dissent: published news is not property because it is not exclusionary → expenditure of labour does not
equate proprietary interest
Rich (dissent)
Said issue laid out was incorrect.
 There is a non-natural use – broadcasting what’s happening in someone’s property
 Means of appropriating – taking away profitable enjoyment of π’s land
5

Purpose of land occupation is profitable enterprise and the acts of the ∆ has interfered with the use of the
proprietary interest of the property enough to amount to nuisance
C: 3-2 decision to dismiss the appeal as "no wrong committed that was known to the law."
Human Material
General principle: A human body and the substances generated by it are not capable of being owned
(Doodeward v Spence; Moore v Regents of the University of California)
Legislation: Assisted Human Reproduction Act, SC 2004, c 2
7 (1) No person shall purchase, offer to purchase or advertise for the purchase of sperm or ova from a
donor or a person acting on behalf of a donor.
Considered Property
• Sperm (JCM v ANA; Lam)
• Embryos (SH v DH) – but note appeal decision
• “Reproductive material” (KLW v Genesis Fertility)
Factors:
• Whether there is a genetic link
• Whether the parties have contractual agreements
• The past treatment of the human material
• Interpretation of applicable statutes
Not considered property – Piljak Estate v Abraham
Moore v Regents of U of C (Cells)
 Cells extracted and patent made because of their capabilities, so profit made
 Moore sues in conversion, claiming he had property interest in his excised cells
 No property interest because patient loses control after excision (Cali Statute Law that they must be
destroyed after excision)
 Pinelli holds that there is diff between his cells and the cell-line in the patent so he cannot hold an
action
 Mosk dissents saying cells and cell-line legally indistinguishable, the statute does not remove the
entire bundle of rights of prop and Moore was necessary contributor to invention
JCM v ANA (SCBC)(sperm)
F: Litigants were spouses and had a child each using a sperm donor. Extra sperm straws were stored in fertility
clinic. Their relationship ended. JCM started new relationship with TL who wanted to have a child with the
donated sperm so it would be related to the existing child. JCM offered to buy out ANA’s interest in the
extra sperm straws but ANA was against TL using the sperm and wanted the rest of it destroyed.
I: Can D use sperm straws as property after separation agreement was entered into
R: Sperm straws are property and should be divided as such
A: How have other parties treated the straws
1. Everyone else has treated this sperm as property
2. It has been purchased – hallmark of property
3. Court is ill equipped to handle moral and philosophical issues in relation to this
6

Once the claimant and respondent purchased the sperm straws they were their property to be used for
their benefit.
 ANA will not be a biological parent she will not have any parental obligations or responsibilities to the
child conceived. Her right to avoid procreation is not being infringed
 The claimant argued that the basis of the determination should be that of parental obligation.
o If awarding the sperm straws to one of the parties does not create a parental obligation on the
other party who chooses not to procreate, then there is no reason to treat the sperm as anything
other than property.
 The respondent argued that the issue is a moral one.
 The court relied primarily on C.C. v A.W., which involved a dispute over four embryos remaining in in
vitro fertilization.
o Twins were born to C.C. through a donation of sperm from A.W. He refused to consent to the
release of the embryos because of the difficulty he faced from C.C over access to the twins. The
Alberta Court found that the embryos were the property of C.C. as “they are chattels that
can be used as she sees fit.” In C.C the court found that sperm became the plaintiff’s property
once it was given to her.
o Similarly, once the claimant and respondent purchased the sperm straws, they became their
property and could be used for their benefit.
 Sperm had been treated as property by everyone in transaction
 Sperm had been purchased
 Not up to the court to make any kind of moral determination based on what should or shouldn’t be
property
 There was statutory material – Supreme court of family rules issue.
 Court was not talking about the common law rule (body and substances not subject to ownership)
they were talking about family law rules.
C: Judgement for JCM
SH v DH.(embryo)
 Lab signed a contract saying the females wishes would be honoured in the event of a separation.
They separated and wife wanted to use it. Action brought against her to withdraw mans consent.
Court said no the contract was clear she gets to decide.
 Situation where the courts are taking the common law position and taking the statute and saying its
contextual. Looking at specifications of case at hand
 concluded that embryos were property in the context of a divorce dispute. There was no genetic
relation between the parties and the embryos which may have made it easier for the courts to regard
the embryos as property
 Neither party involved in reproductive materials
 Contract stipulated lab would honor wife’s wishes. Husband wanted to withdraw his consent
 At appeal level judge talked about a regulation assisted human reproductive act and consent. Went
through what consent meant. If you read consent regulations with contract, the consent still applies.
Statute takes priority over contract.
 Court indicated embryos can be considered property in certain situations
7
Lam v UBC (sperm)
the British Columbia Court of Appeal considered a class action by claimants who had been diagnosed
with cancer, and before proceeding with radiation treatment had stored their sperm in a laboratory
freezer at the University of British Columbia.
 The trial judge had concluded that the sperm was “property,” thereby creating liability for the
university when the freezer malfunctioned and the sperm was damaged or destroyed.
 The appeal court, which reviewed provisions of the Warehouse Receipt Act RSBC 1996, c 481,
agreed with the lower court decision; in addition, the appeal court agreed that it was appropriate to
consider both a “strictly literal approach” as well as a purposive or contextual analysis in reviewing
the statute.
 Sperm was from individual who had stored it. Not purchased
 Another statue applied – warehouse receipt act. Defined what goods were.
 Storage company was liable for loss of sperm under warehouse receipt act (storage issue sperm lost)
 Sperm is not something that should be owned under federal (defence)
 Court said that good included human sperm, and the nature of the act was different and was
introduced for other reasons (cloning issues)
 The court emphasized even if a statue limits what someone can do with property that doesn’t mean it
limits every aspect of ownership. This upholds the bundle of rights in property interests
KLW v Genesis Fertility Centre (reproductive material)
 A widow applied for access to reproductive material previously stored by her spouse at the fertility
centre.
 The evidence indicated that she and her deceased spouse had intended to have children, but that her
spouse’s health issues prevented them from attempting to procreate.
 Her spouse had deposited reproductive material at the facility prior to his death so that his widow
would be able to procreate in the event of his death.
 According to the contract between the husband and the facility, the husband was required to consent
to the release of this material in accordance with BC law.
 After his death, his widow wished to obtain the reproductive material. The contract failed to provide
for what was to happen to the sperm after the husband’s death, thus creating a problem for the
widow in accessing the sperm. In addition, the consent requirement is s 2 of the Assisted Human
Reproduction Act, not BC law.
 In this case, the court permitted release of the material to the widow as “property”; however, the
facility did not participate in this litigation to oppose the widow’s application.
 Contract said deceased needed to consent for it to be released to spouse
 Court allowed access
 She was sole beneficiary
 Deceased owns the sperm. His property goes to the beneficiary (wife) so does the sperm
 Court said there was a practical aspect that was unjust. To deny it would be unfair and an affront to
her dignity. Not having it as property in this case would be unjust
Pilijak Estate v Abraham (Tissue Samples)
 Tissue extracted for genetic testing, owner of tissue died
 Family of deceased bring action against doctors saying they should have known it was a serious
disease from the tissue
8


Possession and ownership transferred to hospital. Therefore there was no ownership interest
anymore that was held by patient
Not considered patients property anymore
Fishing licence
F:
I:
R:
A:
C:
Saulnier v RBC
Saulnier holds four commercial fishing licences in Nova Scotia. In order to finance his fishing
business, he signed a General Security Agreement ("GSA") with a bank, as well as a guarantee for the
debts of his company. The GSAs gave the bank a security interest in "all ... present and after acquired
personal property including ... Intangibles ... and in all proceeds and renewals thereof". In 2004, the
fishing business faltered and Saulnier made an assignment in bankruptcy. The following year, the
receiver and the trustee in bankruptcy signed an agreement to sell the four licences and other assets to
a third party for $630,000, but Saulnier refused to sign the necessary documents. The trustee in
bankruptcy and the bank brought an application for declaratory relief. Saulnier claimed that the
commercial fishing licences did not constitute "property" available to a trustee under the
federal Bankruptcy and Insolvency Act, or to a creditor who has registered a GSA under the Nova
Scotia Personal Property Security Act.
Do commercial fishing licences constitute “property” under the Bankruptcy and Insolvency
Act and Personal Property Security Act?
Having control over how something can be used is an important factor in deciding whether or not the
thing at issue is indeed private property. Under PPSA and BIA the fishing licences are property
A fishing license gives the holder exclusive right to fishery and a proprietary right in both the fish
harvested and the resulting earnings which is directly analogous to profit à prendre, which is
undeniably a property right - they are current commercial realities.
The license serves as precondition for unlocking the appellant's other marine assets; since the value of
the appellant's other business equipment is conditional upon acquisition of a fishing license, it follows
that the trustee was entitled to require Saulnier to transfer his fishing licenses to a third party
purchaser
 Decision: Yes, a fishing licence, coupled with a proprietary interest in the fish, constitutes a
property interest under the BIA and an intangible property interest under the PPSA
 SCC reasoning:
o Licences at common law – “extremely doubtful” that a simple licence would constitute
property
o Rejected traditional ‘property’ approach, regulatory approach & commercial realities
approach
 Traditional (formal) property approach - The licence were subject to the discretion
of the crown so not considered propriety
 Regulatory approach - What has the crown done in relation to licences, court said it
doesn’t matter
 Commercial reality approach - Doesn’t matter property isn’t about commercial
value
o Adoption of the preferred approach - Cant look at licences without considering fish.
Holder has the right to fish and harvest and sale
Appeal denied
9
Property, Human Rights and the Charter
Private Property and the Right to Exclude
Trespass laws
 It is a statutory framework meant to protect those that have possession of private lands
 Meant to protect privacy of those who possess land
 Largely dealt with under provincial quasi criminal statutes such as BC trespass act
 Person can be charged with criminal code offense of trespass in a limited set of circumstances – s
177 of CC
o Peeping tom scenario
 Tort in provincial offences regime
o Remedies available range from damages against person who trespassed to an injunction to
fines and even as a defence under CC
Trespass Act
Section 2 Trespass prohibited
(1)Subject to section 3, a person who does any of the following commits an offence: (quasi criminal)
(a)enters premises that are enclosed land;
(b)enters premises after the person has had notice from an occupier of the premises or an authorized
person that the entry is prohibited;
(c)engages in activity on or in premises after the person has had notice from an occupier of the premises
or an authorized person that the activity is prohibited.
"enclosed land" includes land that is
(a)surrounded by a lawful fence,
(b)surrounded by a natural boundary,
(c)surrounded by a lawful fence and a natural boundary, or
(d)posted, in accordance with section 4 (1) [methods of posting or giving notice], with signs prohibiting
trespass;
(2)A person found on or in premises that are enclosed land is presumed to be on or in the premises
without the consent of an occupier of the premises or an authorized person.
(3) Subject to section 3, a person who has been directed, either orally or in writing, by an occupier of
premises or an authorized person to
(a)leave the premises, or
(b)stop engaging in an activity on or in the premises
commits an offence if the person
(c)does not leave the premises or stop the activity, as applicable, as soon as practicable after receiving
the direction, or
(d)re-enters the premises or resumes the activity on or in the premises, as applicable.
How is the right to exclude under the trespass act enforced?
10



7(2) A peace officer may arrest without warrant a person found on or in premises if the peace officer
believes on reasonable and probable grounds that the person is committing an offence under section
2 [trespass prohibited] in relation to the premises.
8(1) court can order trespasser to pay damages
There are limitations on the use of force that prohibits lethal force
Owners in rural area responsible for lawful fence
10(1)Unless otherwise agreed, the owners of adjoining land in a rural area must make, keep up and
repair the lawful fence and any natural boundary between their respective land.
(2)Each of the owners is liable to the other for 1/2 of any cost reasonably incurred for the purposes of
subsection (1).
(3)This section is not binding on the government.
(4)This section does not apply in
(a)treaty lands, or
(b)Nisg̱a'a Lands.
General rule: Owner has the right to exclude entire world but there are limitations
Eg if no no trespassing sign visible then time has to be given for them to leave
Defending private property
If person has reasonable belief that someone is on their property to be violent or steal they can use
reasonable and proportional force
Trespasser must be given time to leave
Deadly force only reasonable in exceptional circumstances overlapping with self defence
Harrison v Carswell (SCC 1975)
F: Carswell is picketing on a sidewalk outside of a shopping mall operated by Harrison.
The sidewalk is private and owned by the shopping mall.
She started picketing on a city sidewalk, but it was too far from the store so she moved to the mall property.
Harrison asked her to leave, but she came back several times.
Harrison charged Carswell under The Petty Trespasses Act of Manitoba for trespass despite the fact that
the strike itself was a legal action.
I: 1. Does the court have a role in balancing public rights and private property rights?
2. Does a shopping centre owner have sufficient possession of a private sidewalk in the centre so as to
invoke a trespass statute against an employee peacefully picketing her employer who is a tenant of the
owner?
3. Is the mall truly private property after it has been opened to all members of the public?
R: Sufficient control and possession of a property is needed to establish an intention to exclude an individual
from a shopping centre.
 The majority stated that in general common law always protects private property unless there is an
applying statute that takes away one's property rights.
A: The majority (Dickson) states that in general the common law always protects private property unless there
is an applying statute that takes away one's property rights. There is no such statute in this case, and thus
the case must be found on the common law bill of rights, which states that private property is the most
important thing to be protected at common law.
11
In the dissent Laskin CJ questions the underlying issues and says that the common law must be updated to
take new phenomena into consideration. There were no such things as shopping centres like the ones today
when the common law developed. These malls are essentially public places – the owners invite all
members of the public virtually without restriction. Therefore there must be a significant grievance to expel
someone from the property, which he does not think happens here
Disagreements between majority and dissent:
1. Precedent - Justice Dickson found the peters case was indistinguishable and therefore controlling. Laskin
argued against Peters case being controlling.
 Peters was a member of the public leafleting for a boycott. Carswell was an employee involved in
labour dispute
 Peters case holding was distinguishable because the question in peters was possession and in this
case it was possession in context of labour dispute. And also different activities being engaged in
2. Institutional competence - Dickson argued judicial role is to advocate in a reasoned way from principled
decisions and established concepts.
 Laskin said trespass was an ancient common law doctrine and even though legislation was added to
guide trespass courts it didn’t matter court had expertise and had obligation to deal with merits
3. How you balance rights - Dickson – Mall owner holds whole bundle of rights and it is private property.
A fundamental freedom that has been given a quasi-constitutional status so only limited by legislative
action. Because it is public property their right to exclude is unlimited subject to rules or limitations
 Laskin – emphasizing private nature of property and private ownership in context of public
property. Mall has public nature even if its private property. Areas are open to public use. Owner
cannot order someone out for no reason - "Whether the court has a balancing role to play, without
yielding place to the Legislature, where an ancient doctrine, in this case trespass, is invoked in a
new setting to suppress a lawful activity supported both by legislation and by a well-understood
legislative policy."
C: Appeal allowed, original conviction reinstated. "If there is to be any change in this statute law, if A is to be
given the right to enter and remain on the land of B against the will of B, it would seem to me that such a
change must be made by the enacting institution, the Legislature, which is representative of the people
and designed to manifest the political will, and not by the Court."
Harrison v Carswell was pre charter case. Charter protects freedom of assembly and expression but does
not protect property rights.
 Freedom of assembly and expression protects picketing
RWSDU v T Eaton Co Ltd (1986)
F: Landlord of mall barred union from information leafleting at entrance of mall which was employee entrance.
Complaint before the Ontario Labour Relations Board. Union organisers leafleting on mall property. Mall
had “no solicitation” policy, which union said was in violation of OLR Act.
I: Union v Mall
R: No employer or person acting on behalf of an employer can interfere with the formation selection or
administration of a trade union
A:  Union argued banning them from leafleting was unfair under this act
o Board held that the fact that broad solicitation policy was applied uniformly against everyone did not
justify illegal interference against union rights under statute
 Question was whether landlord was pursuing its own business interests or desire of tenants
o Has commercial interest in ensuring mall traffic not be disrupted or consumers distracted
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o There was no interference with shoppers as they were at employees entrance not public entrance and
was before opening time of store
o Therefore solicitation policy had no justification and was illegal
o Upheld on appeal
 This decision is like Laskins dissent
o Notable distinctions – pre charter, different legislation – not trespass, different set of questions and
factual basis – leaflets to employees not main body of law
C: Cadillac Fairview (mall) was in violation of the OLRA because they were interfering with the administration
of a trade union. Harrison v. Carswell was held to not give mall-owners a blanket exemption for unfair
labour practices. It was found that they were acting as employer, and they weren’t acting in any other interest
than Eaton’s (employer) because leafleters were interfering with shopping public.
R v Layton
 A municipal counsellor was leafleting eaton employees inside mall during union drive as a citizen.
 Layton was arrested and charged with trespass and convicted
 On appeal court applied charter of freedoms to invalidate trespass conviction
 Expressive rights infringed under trespass act
 No reasonable limit – no reason why he should be prohibited from distributing union literature.
public area of business venture
Has charters enactment in situation of common areas of shopping malls where there’s a labour context
overruled Harrison? - Not at superior court level
Other cases that have shown that Harrison is still good law despite charter
Property Rights and the Charter
Property is not a protected interest in the charter
There is no right to compensation for government taking of private property and courts have strictly
interpreted provisions of provincial statutes concerning governmental expropriation of private land.
Committee for the commonwealth of Canada v Canada (1991 SCC)
Leafletters were at the Dorval airport telling passersby’s about the Committee for the Commonwealth of
Canada and soliciting memberships when airport manager ordered them to stop because political propaganda
activities were not permitted under the Government Airport Concession Operations Regulations.
I: How does the fact that the events occurred on govt property affect the freedom of expression and prospective
limitations with respect to that right?
R: Justice L’Heureux-Dube what is a public arena test
A: SCC held unanimously that the ban violated s.2 and could not be justified under s. 1. But not unanimous on
reasons or framework for analysis
 Rejection of Federal government “hard line” that government property is state private property, and they
can do what they like as a property owner.
o Government cannot assert property right to ban speech
 LHD is concerned about freedom of expression and dissent.
o Where would expressive activity go if not on state property?
o She refused to decide the issue of the Charters effect with respect to leafleting on private property
because she concluded that was not the issue at hand, thus she did not expressly overrule Harrison
v Carswell
F:
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
But the government does retain some right to regulate activities on its property. This depends on the
nature and purpose of the property.
Justice L’Heureux-Dube elaborated a detailed framework broadly consistent with the other judges’ opinions
and is the most cited – it is the contextual approach advocated by the Ontario AG.
Underpinning her reasons is the characterization of the airport as the “contemporary crossroads”, similar to
streets and parks.
L’H-D: “the Charter did not have the effect of reducing in any way the govt’s rights and prerogatives as an
owner.” The s. 1 analysis simply has to be sensitive to the unique relationship between govt and its property
(as a public use facility). Recognize that some, but not all, govt-owned property is constitutionally open to
the public for engaging in expressive activity.
L’H-D then set out guidelines to determine what is a “public arena”.
1. Traditional openness of such property for expressive activity.
2. Public ordinarily admitted.
3. Compatibility of the property’s purpose with such expressive activities.
4. Impact of availability of such property for expressive activity on s.2(b).
5. Symbolic significance of property for message being communicated.
6. Availability of other public arenas in vicinity for expressive activities.
Consider the place, time and manner. Onus is on the state to justify infringement.
C:  SCC held unanimously that ban violated s. 2(b), not justified under s. 1, but for diverse reasons
 Government cannot assert property right to ban speech but can regulate government-owned property
Airports are contemporary crossroads, open to public (except secure areas), large numbers pass through,
valuable arena since many people choose to be there
Limits: Similar to Laskin’s dissenting view in H v. C in viewing different spaces within a site, here parts
of the airport as subject to different rules.
Charter didn’t open internal govt offices, air traffic control towers, prison cells, to leafletting &
demonstrations
Countervailing interests:
Effective delivery of government services (ie the function of the property in question)
Captive audience: people have right to be free from forced intrusions; therefore right to express does not
mean right to be heard! Therefore buses, airplanes and other enclosed areas with no possibility of exit
not public
Note here the emphasis on the use of the property as determinative not the right infringed and not
the owner.
The use of the property is really the determining factor, not so much the owner, when decided what
expressive activity can be limited in spaces
 Carswell – private person, labour contest
 CCC v Canada – state owner, expressive activity
Public space cant all be assessed based on the same framework
Batty v Toronto City (2011 ONSC)
F: Protesters occupy park as part of occupy movement.
 Camping overnight
 300 tents, 3 yurts, 10 larger tents and 25 porta potties
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I:
R:
A:
C:
F:
I:
R:
A:
 Homeless slept there overnight
Issued a trespass warning that prevented them from creating shelters and being in the park from midnight to
5:30 am. Protesters say it violates 2 (a) (b) (c) and (d) of Charter.
Is the activity protected by s 2 of charter, are their rights violated
If the activity is protected, what about s1 – is it ok to limit this activity because of the nature of this park
The Courts will take into account the needs of a community as a whole when ruling on the justification of a
government restricting people from protesting in a public place. Proportional analysis based on use of park.
Yes the activity is protected – it’s an expressive statement, talking about specific issue, they weren’t being
violent. They had expressive rights that were being violated
 the court concluded that there was an infringement of s 2 of the Charter
But that the city’s infringement was saved by s 1.
 It is prescribed by law it has a pressing in substantial purpose and it is rationally connected.
 The restrictions of the City are reasonable with the balancing of rights of citizens to use the park.
The Charter offers no justification for the Protesters’ act of taking up a large portion of public space for an
indefinite period of time. – Does not permit them to take over public space without asking while excluding
the rest of the public.
 They were allowed to express themselves for 19 hours in the day. It’s a reasonable limitation on the
violation of their expressive rights.
 Their expressive activity rights were violating other people’s rights to access the park
 The space is meant to be common space. If you didn’t regulate one group from taking it over then
that’s not fair to other groups
Judgement for city
Victoria city v Adams (2008 BCSC
∆s are homeless people living in the city that claim the prohibition against erecting temporary shelter on
public property that is constitutionally infringing their rights to life, liberty and the security of their persons.
Π is the City, who asked for a writ to remove the homeless and an injunction.
If they couldn’t sleep in a park over night then they couldn’t sleep. By law was basically stopping them from
sleeping
Does the Victoria Parks Regulation bylaw and the Streets and Traffic bylaw infringe on the §7 charter
rights of homeless people? If so, is it justified under §1?
The city's actions were adjudicated as depriving homeless people of liberty, in disallowing them to erect
overhead shelters to protect themselves from the elements. Court framed it in Human Rights not property
law. If there is shelter space then the by law is ok.
(Ross J) Because the city’s emergency shelters were insufficient to house the entire homeless population,
some homeless people were invariably forced to seek public shelter in a way that exposed them to significant
health and safety risks.
 The purposes of prohibition were to ensure that use of public spaces was open to all members of society,
to protect natural environment from damage, and address public health and safety concerns.
 But the specific ban on setting up a tent in a park, failed to target any of these purposes. In short, the total
ban on sleeping in parks overshot the legislative mark, running afoul of the constitution.
Similar to Chaoulli 2005 SCC in which prohibition on accessing private health care was found to violate the
Charter. It was the state’s deprivation of a right which was problematic, not the failure to provide it.
Government can’t prohibit activities on public property based on its ownership of the property if doing so
involves deprivation of fundamental human right not to be deprived of ability to protect one’s own bodily
integrity.
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This sounds like a right not to be excluded but they are explicit that it is not a property right.
At trial Justice Ross held that in the absence of sufficient safe and secure beds for the homeless, it was
unconstitutional per s 7 for the city to prevent them from erecting some form of overhead shelter to protect
themselves from the elements.
Prohibition deprived the homeless of life, liberty and security of the person under s. 7 of the Charter,
not saved by s. 1.
The CA mostly agreed with the Trial judge but limits remedy – only makes two portions of the bylaw
inoperable, while there are not enough shelter beds.
What the section 7 analysis is concerned with is whether government action deprives someone of their rights,
not with the imposition upon government of positive obligations to fix the problem.
There is no charter guarantee to property. The argument cannot be based on property interests. Basis for
claim is life liberty and security
C: Yes, the prohibition is an interference with the life, liberty and security of the person of these homeless
people. It is both arbitrary and overbroad and hence not consistent with the PFJ.
 Victoria amends bylaws to allow overnight temporary shelters between 7 pm and 7 am so long as they
take it down in the morning
Tent city cases have been pretty mixed. If no shelter available court will find in favour of tent
encampments but have to show other members of public will not be negatively affected by tent
encampment if they want to use the space
Vancouver Fraser Port Authority v Brett
Tent encampment came up on state property. No shelter due to covid. Courts ruled it was appropriate for
federal governments to restrict access as it was like private property and people should be moved.
Court focused on public nature of property. Not same kind of s7 case as in Victoria Adams case. Court
framed ports interest – never meant to be public land. Was using this land for private commercial
purposes. Nothing in regulations bout private use about allowing encampments so port has a right to
restrict tents.
Court acknowledges the potential for s 7 and s 15 breaches here, and the possibility for irreparable harm.
But under the balance of convenience test, the Court essentially accepts the City’s evidence about the
availability and adequacy of shelter spaces. The court uses the word “choose” in describing why some
people would sleep outside and not go to a shelter. Schabas also accepts the City’s evidence that shelters
are safe during COVID.
Possession
Property interests are always relative, never absolute.
“Relativity of Title” - The  who can establish a right on possession that is prior in time to the
defendant’s claim can succeed in an action against the , even if there is a “true owner”—a person with
a better claim than the plaintiff’s.
If someone is taking possession with bad intent they’re taking the opportunity away from the rightful
owner so they do not have rights
What is possession?
 The possessor has many interests protected under the law
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

o Possessors are rewarded under the law of finders – no one else can say they have a better
claim
Property rewards the productive use of land
o Possessing something means you are attached to that land and you are going to make use of it
Property law rewards and favours reasonable expectations of parties
o If parties believe a certain right is attached to something they usually get those rights
o Largely because property law developed through common law
Actual possession - a party has something in their physical contact. 2 components
- A taking of the thing itself
- The taking was done with an intention to possess it
Have to have capacity to take it eg not children
Constructive possession - Somebody might not have actual possession, but they believe that object is
theirs. Eg something in a storage box
Legal possession – legal right to possess it
Right of possession – you have/claim to have some kind of legal right to have it. You can take the thing
from someone else who has it
Ownership
Ownership is legal right recognised in relation to that object. You have the bundle of rights to it. Right
to possession is one aspect of ownership
 Mix labour with it (Pierson v. Post, Lockean labour theory)
 Consent theory—through consent of rest of society
 Common law theory – possession through first occupancy (combines other two theories – Rose)
Possessory title: possession as a root of title.
Possession of Animals - Wild
Pierson v Post
F: Post was hunting and had flushed fox and was about to kill it then Pierson killed it and took it away
I: Who owns the fox. Person who chased it? Person who took it and has it?
R: Majority decision – pursuit alone is not sufficient to acquire ownership in a wild animal
You can only own a wild animal if you possess it. Need a clear act of possession.
A:  Unless wild animal has been mortally wounded and person has not given up pursuit. Continued pursuit of
a mortally wounded animal shows intention to take possession and control of animal.
 Court justified by - What if 10 people were chasing it and they all injured it before they killed it. All
would be claiming ownership
 Dissent said foxes are a menace and we want to have fox hunting as a social good. There should be a
better decision. If hunt has large likelihood of success, they should get it. They put a lot of labour into it.
If hunter is in reach or has a reasonable chance of catching it then they should get it.
Still good law but other cases have come since.
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C: Court holds for Pierson saying that pursuit does not constitute possession, it only has
intent but not physical control
Two prong test for possession in relation to chattels
Clear act theory
 Intention to control
 Physical control
However, Pierson v Post sets out that sometimes manual control (manucaption) is not always demanded,
and instead "constructive possession" can suffice.
F:
I:
R:
A:
C:
Nakhuda v Story Book Farm Primate Sanctuary
Nakhuda had a pet monkey. On December 9, 2012, she went shopping and took the monkey along. She left
him in a double locked crate inside her locked car. She did this because the store she was attending did not
allow pets. While she was in the store, the monkey escaped from both the crate and the car and ran away.
He was picked up by Toronto Animal Services. When Ms. Nakuda arrived at the shelter to claim the
monkey, TAS would not give him to her. Ms. Nakhuda signed a document which states, “I surrender/sign
over the animal…” TAS took the monkey to Story Book Primate Sanctuary where the Sanctuary signed an
adoption form. Ms Nakuda brings this action against the Sanctuary and its owner, to recover the monkey.
Did Nakhuda have property rights in the Monkey
1. Animal can be property
2. Monkey was not “domesticated” didn’t go back to her. Statutes say wild animals
3. Once she lost possession of him she lost any claims to ownership.
 Court proceeded to determine entitlement to the monkey
o Was it a wild or domesticated animal? – Courts decided wild – City by-law stated wild
o Did he make a habit of escaping and returning to her? No he didn’t escape before
o The court also considered other principles relating to wild animals, none of which assisted Ms
Nakhuda’s application for the return of Darwin.
 In addition, the court held that there was no inconsistency between these principles of common law and
the city’s bylaw, so that when the monkey ran away she lost possession
 Court also decided she understood she was fully signing him away at the animal services
She had no claim in monkey once it left her possession. Monkey defined as wild
Clift v Kane
F: Some seal carcasses left on ice. Ship was jammed in ice and couldn’t get to carcasses. Crew that had killed
seals recovered what they could, but a rival ship came and took the remaining carcasses.
Seals were killed and marked by first ship. They couldn’t get them due to being jammed. They were
rightful owners
I: Does π have possession rights over seal bodies left behind
R: Majority– right is by party who killed and marked them
Minority – needs to be control of animals (better law)
A: Hoyles C.J. (majority) argued that when a person kills a seal and seizes it, they take manual occupation of
it and it becomes absolute property.
 He goes on to argue that wild animals simply become normal chattels upon their killing and seizure
and, as with all chattels, they become absolute possession.
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
C:
F:
I:
R:
A:
Hoyles indicates that the weather and ice deprived the crew of the Brothers from their ability to benefit
from the possession of the seals but it did not cease to be their property and therefore, they still had
claim to the right of possession.
Robinson (dissenting): argued that this ruling and approach was novel for the court and went against all
previous precedent.
 There needs to be control of the animals bodies
Court ruled in favour of π but minority is better law
The dissenting view is now how courts decide on wild animals if no statute
Doyle and Bartlett
(2 years later)
Similar situation, Doyle took possession of carcasses that were found on ice floats. Had been killed 15 days
earlier by White who had gifted them to Bartlett. Both ships arrive at same time to collect these seals.
Who owns seals
Court says No title in wild animal who was killed and left behind.
Must take possession or have them under complete control or else they’re no longer theirs.
Deemed abandonment – Can’t have indiscriminate killing of wild animals that are just going to be left
behind. Would encourage misuse of property.
Possession of Animals – Domestic
Possession and ownership not necessarily the same thing. Must look at statutes
Wilk v Arbour
Dog being walked and had seizure. Bit the girlfriend and she lost a thumb. She argued owner
(boyfriend) should be responsible. Court looked at who had possession of dog. Person who exercises
dominion or control of dog or who stands in shoes of owner is who has possession. She was exercising
control, so she has responsibility
Possession in dogs = a measure of control
1. In this Act,
“owner” when used in relation to a dog, includes a person who possess or harbours the dog and, where
the owner is a minor, the person responsible for the custody of the minor.
2. (1) The owner of a dog is liable for damages resulting from a bite or attach by the dog on another
person or domestic animal.
Baker v Harmina
 A couple break up and courts decide who gets custody of dog. Boyfriend had bought the dog,
girlfriend had spent more time with the dog. Boyfriend purchased dog and he was owner of dog so
possession was with him.
 Look at statute to see if ownership or possession is important. Ownership you have something that
states you are the rightful owner
 Majority – can’t split a dog in half legal system not able to divide it
o Can’t divide possession of dog. Putting ownership and possession together
 Minority – dogs are like kids and times have changed so can’t say nothing we can do, we are capable
of joint custody. Dogs are loved and we make decisions about children so we should be able to
figure this out. Is more complex than who paid for animal
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Finders
F:
I:
R:
A:
C:
F:
I:
R:
A:
C:
Armory v Delamirie (1722)
Plaintiff found a jewel and brough it to the defendant’s shop to appraise it. Apprentice took out stones to
“weigh” it and told master it was three halfpence. Master offered plaintiff money but he wanted the thing
back. They gave back without the stones, and refused to give him the stones
Does a finder of an object have a right of ownership that the court will recognize against someone other than
the rightful owner?
A finder of an object has a property interest which is not absolute but is sufficient to allow the finder to keep
the object against all claims but those made by the rightful owner.
Points against defendant:
1. That the finder of a jewel, though he does not by such finding acquire an absolute property or ownership,
yet he has such a property as will enable him to keep it against all but the rightful owner, and consequently
may maintain trover.
2. That the action well lay against the master, who gives a credit to his apprentice, and is answerable for his
neglect.  employer responsible for actions of employee
3. As to the value of the jewel several of the trade were examined to prove what a jewel of the finest water
that would fit the socket would be worth; and the Chief Justice directed the jury, that unless the defendant
did produce the jewel, and shew it not to be of the finest water, they should presume the strongest against
him, and make the value of the best jewels the measure of their damages: which they accordingly did.
Finder was entitled to the return of the jewels or a price equivalent to its highest value.
Bridges v Hawksworth
Plaintiff found banknotes on the floor of Defendant’s shop and left the notes with Defendant to return to the
proper owner, and, when the notes were unclaimed after three years, asked that the notes be given to
Plaintiff, a request which Defendant refused.
Does the fact that the notes were found inside Defendant’s shop give him the right to keep them against the
claim of the Plaintiff, who found them?
The mere fact that the banknotes were found on the floor of Defendant’s shop was not sufficient for the
Defendant to retain possession of the notes against the claim of π, the finder. ∆ did not have control.
What was the nature of the space in which this money was found? Where something was found really
matters. – Public space
The banknotes were held to have never belonged to the Defendant. Because the notes were not intentionally
deposited there by the rightful owner, the Defendant had no responsibility to the notes. The Court found no
reason to find this case as an exception to the rule established in Armory v. Delamirie, infra, which states
that the finder of an object holds title to the object subject to no claims except that of the rightful owner.
Shopkeeper had no intention to control the area in which the money was found and there was no
actual control of it so finder has better interest
Judgement for finder to keep money
Parker v British Airways Board (1982)
F:  Plaintiff found a gold bracelet on floor of executive lounge in airport
 He gave the bracelet to an anonymous official of the defendants instead of to the police.
 He also gave the official a note of his name and address and asked for the bracelet to be returned to him
if it was not claimed by the owner.
 The official handed the bracelet to the lost property department of the defendants.
 Defendants did not return the bracelet to him but sold it and kept the money
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I: Who has better property rights, the owner of a premise or him?
R: Finder has right against all but true owner or one who can assert a prior right to keep the object, which was
subsisting when finder took possession
A:  The occupier must attempt to exert control if they want to have the best claim
 A person who dishonestly acquires a chattel will have little claim to it
 The owner always has a better claim
 A finder only has a right if it is lost or abandoned and s/he exerts control over it
General principles of law (Rights and obligations of the Finder)
1. Finder takes right only if chattel is (a) abandoned or lost and (b) under finder care and control
2. Finder acquires limited rights if trespassing or w/ dishonest intent
3. Finder acquires right to keep it against all those but true owner or one with a prior right
4. Unless wholly incidental, employees who find, find for employer
5. Finder must take all reasonable steps to find true owner and care for chattel in the meantime
Application of principles (Rights and Liabilities of Occupier)
1. Occupier of land has superior rights (in land or building) than finder for chattels in or attached, regardless
of awareness of the chattel
2. Occupier of land has superior rights to finder for chattel upon or in (but not attached) if, before finding,
they manifested intention to own or control area in question.
3. Occupier must take reasonable steps to acquaint owner to chattel
4. Occupier of chattel, e.g. ship, car, trailer, plane is treated same as building.
Application to this case
Plaintiff had full finders rights and obligations
 Not a trespasser
 Acted in honesty
 Discharged obligations by handing bracelet in
 Finders rights not displaced in favour of employer or principle, he was there by himself
Defendant cannot assert any title to the bracelet based upon the rights of an occupier over chattels attached to
a building
 Bracelet loose on floor
 Their control over the lounge was based on classes of user and availability of lounge if it was being
cleaned
 No sufficient manifestation of any intention to exercise control over lost property before it was found
C: Finders keepers
Cases cited in Parker v British Airways
Staffordshire water co v Sharman
Plaintiffs hired Defendants to clean a pool situated on Plaintiff’s land, within which, during the cleaning,
Defendants found two gold rings and thereafter refused to give the rings to Plaintiffs.
 There is a presumption that whenever something is found on a person’s land, possession of that
object is maintained by the landowner.
 Plaintiffs, as freeholders of the land upon which the pool was situated, had the right to forbid anyone
from coming on to their land, and also, had the right to direct exactly how the pool was to be
cleaned. Further, that they had the right to direct the disposition of any item found during the pool’s
cleaning.
 The Court found this case to be one in which an item was found upon private property when the
property owner was unaware of its existence. This case is decided and distinguished from the
decisions of Armory v. Delamirie and Bridges v. Hawkesworth, infra, by the principle that
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possession of land carries with it a de facto possession of everything that is upon the land, so long as
the landowner exercises his general power of ownership over the land and expresses intent to
disallow interference from others.
City of London Corp v Appleyard
South Staffordshire Water Co. v. Sharman was followed and applied by McNair J in City of London
Corporation v. Appleyard, [1963]
 Workmen found money in a safe of a building they were demolishing
 Lease from corporation to buildings owners preserved corporations right to any article of value
found on building remains, Judge held up corporations claim
 Workmen worked for building owner and it is clear law that a servant or agent who finds in the
course of his employment or agency is obliged to account to his employer or principal
Grafstein v Holme and Freeman (1958)
The defendants opened a locked box in the basement of a shop where they were employed and
discovered a large sum of money.
 These employees had actually found the locked box at an earlier point in time, and after drawing it to
the attention of the shop owner, they had been directed by him to put it in the basement and leave it
there.
 When their curiosity about the contents of the box led them to open it, and to find the money, they
claimed entitlement to the $38,000 inside.
 In this case, the Ontario Court of Appeal held that the shop owner was entitled to the money because
he had assumed possession of the box when it was found in his shop and because he had exercised
control of the box when he told his employees where to place it in the basement.
Kowal v Ellis (1977)
A person who was permitted to drive across rural land owned by another found an abandoned pump.
 Although the court conceded that there were strong arguments in favour of allowing a landowner to
possess everything on his or her land, the finder was held to be entitled to possession in this case
because the court was concerned about creating liability on the part of landowners with respect to all
chattels lost or abandoned by original holders.
Summary
Control and possession:
 Where the public is invited, owners have sufficient C+P to ask them to leave (Harrison v. Carswell),
but not enough C+P to claim all lost objects because the public is invited (Bridges v. Hawkesworth)
 If not a “public premise” but owner still not exerting a lot of control then finder wins (Kowal v. Ellis)
 If owner of land wasn’t the occupier then the finder wins. (Hannah v. Peel )
 If chattel found in course of job, then belongs to employer unless totally incidental to the job
(Grafstein)
 When have joint finders, the “time” of finding will determine who shares in it. Tendency to find that
time of finding allows sharing of the money. In favour of “joint” finders. (Keron, Edmonds)
Occupiers
Definition: one in legal possession or with right of possession of land, eg lessee under a lease
22
Consider:
- Is the object a fixture? “In or attached” (South Staffordshire) versus “on or in but not attached”?
(Bridges v Hawkesworth; Kowal v Ellis)
- Is the object owned? (Elwes v. Brigg Gas Co, Hibbert v. McKiernan)
Nature and Intention of Finder:
 Trespassers (Buckley v Gross)
o Trespassers are not good finders – court doesn’t want to reward them, not considered finders
o Someone finds something who is trespasser, then someone else finds it who is not a
trespasser – Buckley v Gross. Honest finder has superior title
 Employees (Bridges v Hawkesworth)
o Police officer finds something – incidental he found it during his off time
 Intention of occupier (South Staffordshire
o They know object is there and intend to take control of it
Duties of Finders and occupiers
 Reasonable measures to find true owner
 Obligation to notify
 Care for it in the meantime
Comparing Bridges and Parker
How can we compare with Bridges where occupier doesn’t have superior claim with Parker
 Bridges – Public space, unclear how it got there
Parker – controlled space that BA asserts control over
 Courts - You need to look with more nuance at what an occupier is
o Occupier is one who is in legal possession or with right of possession of land. Ristricting
access to member of public
o Court said wasn’t strong enough for BA to be restricting access to certain passengers.
Weren’t restricting access to everyone
 BA said bracelet was in seat and attached – Courts said no it was loose and Parker took it in
control
Have to see is Owner aware of item? – If yes they have a heightened right under 1 and 2 of rules above.
True owner of property is not necessarily the party that will meet definition of occupier. If leaser is
occupier of space and item is found there not attached, the rightful owner of space does not have a
better claim than the lease holder
Statutes and finders
Common law can always be overruled by statute eg crown owns treasure found eg Trachuk v Olinek
Trachuk v Olinek
Rule: A recoverer is able to acquire a possessory title to a recovered chattel only subject to the rights of
the owner or occupier of privately owned land when the chattels are under the land or attached thereto.
As a general principle, where a person has possession of a house or land, with a manifest intention to
exercise control over it and the things which may be upon or in it, then, if something is found on or
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under the land, whether by an employee of the owner or by a stranger, the presumption is that the
possession of that thing is in the owner of the location in question.
(Where a person has possession of a house or land, with a manifest intention to exercise control over it,
then, if something is found on or under the land the presumption is that the possession of that thing is in
the owner of the location in question.)
The finders of a cache of Canadian bills ($75,960 in total) on land that was a well site were entitled to
the money because the lessee-occupier of the land had failed to manifest an intent to exercise control
over it
Pay attention to statute and legal agreements between parties – occupier has legal agreement with party
over space – meaningful for knowing how rule of finding is significant
Occupancy requires intent and ability to exclude others –
Olinek was lawfully on the premises, took possession of money; Trachuk loses because he could not
show: de jure (legal title) right to the land where money found, de facto (actual) possession of the land
since the fence wasn't meant to exclude others from the area.
Land – Adverse Possession
If you occupy the land, you have a possessory title (traditionally in the courts).
Possession needs to revert back to lessor of land.
Adverse possession assumes legal owner has some right to possession. But if land has been rented to
another party they have legal possession of land
Rightful possessor of land is tenant. In adverse possession case owner of land is asserting they should be
in possession of land through
When does statute of limitations start to run?
Test so far:
Criteria set out partly by statutes and partly by common law: Open, without stealth without permission
1. Actual possession – intention to possess and physical possession (same as possession with chattel)
2. Open and notorious – communicating to everyone what you’re doing with land
3. Exclusive
4. Peaceful
5. Without permission – intending to exclude
6. Continuous
7. Inconsistent use with what owner uses it for
Asher v. Whitlock [1865]  Williamson adversely possessed land, devised it to wife until she died or
remarried and then to daughter. Wife remarries and later daughter dies. Now new hubby wants the land,
but so does daughter’s legally defined heir.
  is estopped from claiming adverse possession because he wasn’t there long enough (only 3 yrs)
and he accepted that wife didn’t own the land, but that daughter did, so he can’t get title from wife. 
wins.
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


“I take it as clearly established that possession is good against the whole world except the person
who can shew good title.”
Court said grand-daughter had a better interest because of tacking – the possession in land that Lucy
held tacked onto Thomas’s interest, that tacked onto Mary Ann when she died then tacked onto
Grand-daughter
Possession needs to be continuous
o A person who is claiming this land has to do it without the true owner coming back and
exercising any of their rights, or the clock restarts
Statute of Limitations
Statutes of limitation merely define an end point, after which the true owner (or anyone with a right to
possession that is prior in time) can no longer succeed in negating a possessory title.
 From Perry v. Clissold  possessor has good title over everyone but rightful owner. If rightful
owner doesn’t assert title within the statutorily prescribed period, then the possessor gets absolute
title.
 It is 10 years in Ontario, starting from when the right of action accrued. Don’t just lose right of
action, but very title in the land. (it is extinguished).
 Statue is the vehicle by which the court is trying to codify what the common law rules actually are.
 Statutes always supersede common law. But statutes mix together with common law.
Ontario Statutes
 Real property limitations act RSO 1990 – establishes the right of a paper holder to recover
possession.
 Defensive statutes
 True ownership in the form of paper title can be extinguished after a statutory period has run out.
 A possessor in land can gain a better interest than the paper title holder
 Statutory period is 10 years. Paper holder has that amount of time to bring the action to court to
claim they have a better claim to the land. After 10 years they lose their rights
 Term first accrued - Possessor in land needs to have committed a certain set of acts 10 years before
they have a better claim
Questions arising from statute
 How do we know when limitation period starts?
o Needs to have been some dispossession – person who is bringing claim as paper holder needs
to have been dispossessed or discontinued of their position
 What quality of possession is required to trigger limitation period?
o Open continuous exclusive eg Piper
 What is the relevance of intention?
Piper v Stevenson
In September 1901 Ms Piper fenced in 6 lots of land she purchased and also accidentally 2 others owned
by a neighbour. They were completely enclosed until her neighbour brought an act of trespass against
her in June 1912. By then Piper had ploughed, fertilised, sown and harvested the land, built buildings on
them and lived there.
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


The trial judge concluded that “until 1906 everything was done upon the land that an owner could do
in reaping the full benefit of it; and since the spring of that year, everything was done that an owner
in actual, constant occupation would do.”
Judge concluded that Mr Piper had dispossessed her neighbour in 1901. Her actions constituted
dispossession according to s5 (1) and the limitation period had thus commenced in September 1901,
expiring 10 years later prior to the lawsuit in June 1912
Appeal also dismissed with Clute J commenting on the arguments presented against Pipers
entitlement concluding that “she had fenced them in, in September 1901 and her possession of them
and of the land in question was continuous and exclusive from the date of fencing”
St Clair Beach Estates Ltd v MacDonald 1974
MacDonalds are neighbours of Grant. Used a portion of Grants land, without consent but without objection.
New owner purchased land and wanted to register it. They claimed possession to this stretch of land. Under
statute burden falls on party who is seeking adverse possession to show they have possession of land.
I: What extent was the owner of the land dispossessed or discontinued from land
R: Possessor of land needs to both dispossess and discontinue true owner with intent
A: Court looked at how possession in land operated between parties
 The parcel that was being used and occupied by MacDonalds was overgrown with weeds and rubble.
They had started to put in more structures to use it as a yard. They also tried to acquire it from the Grants.
The Grants had only occasionally done anything regarding the land. One thing they had done was pick
cherries from a cherry tree on the land.
 In order to use statute as defence the owner had to defeat the possessory in lands claim in 3 ways (from
Pflug and Pflug):
1. actual possession for the statutory period by themselves and those through whom they claim
2. that such possession was with the intention of excluding from possession the owners or persons entitled
to possession; and
3. discontinuance of possession for the statutory period by the owners and others, if any, entitled to
possession. – if Grants had kept possession in land in any way then that defeats the test.
 Court said the possessor in land of this area would need to both dispossess and discontinue the owner
o Dispossess – exclusive use of dispossessor
o Discontinue – No use of land by true owner
 Intention also important
1. to possess
2. to possess as owner
3. to exclude the true owner
4. to use the land inconsistently with the use intended by the true owner
C: Seasonal use qualifies constructive possession, land was not dispossessed from owners
 was on neighbour’s land pursuant to right of way, and even if they exceeded this right, that didn’t mature
to a possessory title. A possessory title cannot be acquired by depriving him of uses of his property that he
never intended or desired to make of it. Used the test from Pflug and it failed the 2nd and 3rd leg.
F:
Leichner v Canada 1997
 Court allowed an appeal by the federal crown denying the plaintiffs assertion of possessory title to a
strip of land along the Rideau Canal, part of the federal crown reserve
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


o Someone squatted on land adjacent to canal and private land. Plaintiffs argued they had a
better claim against the government of Canada. They had fenced it off (Piper) and met the
statutory requirements of being open and excluding Canada.
o They succeeded at first level court but lost at appeal. There had to be intention to dispossess.
The decision was based partly on the absence of acts by the plaintiff sufficient to show actual
possession and an intention to exclude the true owner –
o Court applied dispossession test (pflug)
Even though the plaintiff’s predecessors in title had fenced the property, Rosenberg JA held that
“line fencing to protect pasture or keep in cattle and not done for the purpose of taking possession is
not sufficient to establish possessory title.”
o The fencing was not along the shoreline and did not prevent members of the public from
gaining access to the canal for swimming
o Only sufficient if it was to create an exclusive right to land. Parties could still access
waterfront. So not able to show dispossession and discontinuance
A case similar to Leichner held that the purpose of a fence surrounding the disputed property was to
keep sheep in, rather than to keep others out, see Inglewood Investments Co v Baker, [2002]
o (Must show both dispossession and discontinuance)
This case set the bar even farther in terms of intention requirements. They need to signify that they are
claiming the land, that they know who owns the land and they are intending to act in a manner
that is inconsistent with intention of owners. In this case true owners – Canada – want it to be open to
public to use waterfront. They didn’t stop that from happening.
When does ownership revert back with tenancies back to back?
Leaseholds and Limitation Statutes in Ontario: Giouroukos v Cadillac Fairview Corp Ltd 1983
 This case is about when the statute of limitations began in regard to the lease based on adverse
possession of the tenant in relation to part of the lessor’s land. This is because there was a
subsequent lease (the tenant had the lease for a 20-year period, followed by a renewal for 20 years)
and the tenant possessed the land throughout.
 When did the limitations period start - at the start of the first lease, at the end of the first lease, or
some other period.
 The trial judge decided that the limitations period began at the end of the first lease, as that was
when the lessor was entitled to possession of the land. However, the court of appeal reversed the
decision, stating that the question of possession was a “legal fiction” and that the tenant did not
interfere with the lessor’s interests.
 Instead, the court focused on the inconsistent use test, according to which a squatter succeeds in a
claim for adverse possession only where she establishes, by acts of possession that are inconsistent
with the owner’s intended uses of the land, that the original owner lacks effective authority over the
land.
Other possessory claims
 Multiple beneficiaries: Re O’Reilly (1980): application of equitable principle of laches to bar
beneficiary claim
 Tenancy at will: MacLean v Reid (1978): Possession extinguished right and title of registered owner
after 21 years
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

Squatting on leasehold estate: Fairweather v St Marylebone Property Co Ltd (1963): squatter
possessed land occupied by a tenant subject to a 99 year lease – termination of lease allowed for
recovery of possession, followed by eviction of squatter
Leaseholds and limitation periods: Giouroukos v Cadillac Fairview (1983): because a tenant
remained in actual possession, more than an entitlement to possession was needed to show the start
of a limitation period against the lessor; at SCC (1986) court declined to consider possession and
held no interference with owner’s use of land
Trachuk v Olinek
This case had to do with 4 parties who all claimed a right to money that was buried on land.
 Party who constructed fence on land (Trachuk) said it was theirs as the money was under the ground.
In or on land doesn’t matter who finds it chattel belongs to owner of land. No leasehold interest but
claimed this part of land for himself with fence
 4 other parties
 Court decided best interest belonged to those who found the money not Trachuk. While money was
on land/attached to land, Trachuk did not have de facto possession. Needed to have occupancy and
intent to control use of land and exclude others from it
 He was not excluding others – fence was to keep animals out of area
 Another party who hired 3 of the other parties to do work was not entitled as it was contractual work,
different from employer/employee relationship
 Being a finder on land requires looking at who has control over the land if the chattel is attached to
land
True owner also has to possess it and use it to have a better claim
Nelson (City) v Mowatt (SCC, 2017)
F: ∆ claim title to a parcel of land in Nelson, which they took possession of in 1992, but their claim is
predicated on three other families' continuous succession of the land starting in the early 20th century. TJ
granted the π dismissal of the proceedings due to an evidentiary gap from 1916 to 1920. BCCA held that
the lack of registration did not prevent transfer to the ∆s of their predecessor's interest in the land.
I: Do the ∆s have a possessory interest in the property as a result of intergenerational squatters?
R: Statute of Limitations §16: if you have a right to remove X from your property, you have 20 years to do so
from the moment they first occupy to your bringing an action to remove them.
 §17 says the moment at which the owner is dispossessed, the clock starts ticking
o If the land is private, 20 years
o If Crown land, 60 years
 Further, proving AP claims to title to land requires satisfaction of the six-part test listed below.
A: (Brown J) Adverse possession is when the right of the prior possessor of land, typically the holder of
registered title, can be displaced by a trespasser whose possession of the land goes unchallenged for a
prescribed period of time.
 Act of possession: "open and notorious, adverse, exclusive, peaceful, actual and continuous".
 Adverse possessor who obtains title need not always be the same person whose adverse possession
triggered the running limitation period; successive adverse possessors can "tack" on
 *It must be truly adverse, or entail a use of the property that is inconsistent with the true owner's
intended use of land* NOTE this is not the law in BC/England, some other Canadian provinces
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When proving continuous possession, the burden lays with the ∆ to demonstrate it on the balance of
probabilities, and not with the π to demonstrate abandonment. Further, common law recognizes a person
may possess land in a manner sufficient to support claim to title while choosing to use it intermittently.
 Note that absent palpable and overriding error, AKA an error that is "plainly seen" and has effected
the result, appellate courts should not upset trial judge's findings of fact
Adverse possession test:
a. Actual possession:
i.
Intent to possess
ii. Physical control
b. Open and notorious (i.e. Must be visible and known that you are in possession)
c. Exclusive
i.
Possession is making use of the land when the owner isn't; if the owner is still using the
land, then it is not possession
d. Peaceful/without force
e. Without permission
f.
Continuous
i.
Continuity does not mean the same person must be in possession; the interest can be
transferred to others. It does not require constant occupation either
ANY gap in possessory rights would be fatal to the claim, and both the BCCA and BCSC found a gap,
albeit of differing lengths.
New act in BC in 2012 Limitation act 28 1 and 2– legislature said we don’t want adverse possession
anymore. But this does not apply for land acquired by adverse possession before July 1 1975
Statute of limitations RSBC 1960 c 370
Two options for what limitation periods will apply
If it happens to relate to land that has been acquired adversely from private party then limitation period is
20 years
They need to establish that no later than 1910 that’s when the clock started they were in possession from
then on
Related to crown then needs to be established 60 years prior
1975
In BC there is a Land Act – abolished adverse possession involving crown land – 1970
Mowatts need to show continuous possession for 60 years after 1910 to either 1970 or 1975. Mowatts need
to show chain of title never broken
Courts said 1970 or 1975 it didn’t matter – there was an evidentiary gap that is profoundly relevant to the
statute of limitations in section 17 – there needs to have been continuous dispossession for adverse
possession to work. No evidence that the families were dispossessing the owners of the land. The dates
didn’t matter, evidentiary gap was not satisfied.
C: BCCA overturned, BCSC decision reinstated, but not adverse possession found as the time could not be
continuously proven.
Notes: *Limitation Act §13 abolishes adverse possession but holds any claim that can be established prior
to 1975. Therefore Mowatt's had to be able to show they had adverse possession from 1915-1975.
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Adverse possession in BC
What is the law of adverse possession in BC – none after July 1 1975 (Limitation Act SBC 2012 c 13)
 Except as specifically provided by this or any other Act, no right or title in or to land may be
acquired by adverse possession (LA, s. 28(1))
 Fences, buildings: application to Supreme Court (PLA, s. 36)
Before 1975:
1. Petition to Supreme Court (LTIA, s. 1)
2. Limitation period:
• Private land (20 years)
• Crown land (60 years – but note LA s. 8)
3. All components of AP must be met: open and notorious, adverse, exclusive, peaceful (not by force),
actual (generally), and continuous (in bc we don’t need inconsistent use part)
4. Registration of title (LTA, s. 23(3) & (4))
Land Title Inquiry Act, RSBC 1996 c251
1. On petition to the Supreme Court, a person claiming to be the owner of an estate in fee simple in land
or a trustee for the sale of the fee simple is entitled, whether the person has the legal estate or not, and
whether the person's title is subject or not to any charges or encumbrances to have the title judicially
investigated and its validity declared by the court
Limitation Act SBC 2012 c13
S.28 Adverse Possession
(1) Except as specifically provided by this or any other Act, no right or title in or to land may be
acquired by adverse possession.
(2) Nothing in this Act interferes with any right or title to land acquired by adverse possession before
July 1, 1975.
Statute of Limitations, RSBC 1960 c 370
16. No person shall make an entry or distress or bring an action to recover any land or rent but within
twenty years next after the time at which the right to make such entry or distress or to bring such action
shall have first accrued…
17. In the construction of this Part of this Act, the right to make an entry or distress, or to bring an
action to recover any land or rent, shall be deemed to have first accrued at such time as hereinafter
is mentioned, that is to say,
when the person claiming such land or rent… shall, in respect of the estate or interest claimed, have
been in possession or in receipt of the profits of such land, or in receipt of such rent, and shall while
entitled thereto have been dispossessed, or have discontinued such possession or receipt, then such
right shall be deemed to have first accrued at the time of such dispossession or discontinuance of
possession…
Land Title act RSBC 1996 c 250
(3) After an indefeasible title is registered, a title adverse to or in derogation of the title of the registered
owner is not acquired by length of possession.
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(4) Despite subsection (3), in the case only of the first indefeasible title registered, it is void against the
title of a person adversely in actual possession of and rightly entitled to the land included in the
indefeasible title at the time registration was applied for and who continues in possession.
( no registration of interest through adverse possession. No squatters right that are going to be
registered. Except if there is a first indefeasible title registered. They were first legal holder. Then
continuous tacking on of interest. Can’t be second indefeasible title holder. )
Property law act rsbc 1996 c 377
What if a building or fence encroaches on adjoining land
36(2) supreme court can hear the parties and help them come to a solution – alternative to adverse
possession
Common law position in possession of land – adverse possession
1. Needs to be continuous possession
2. Not possessing the land through use of force
3. Can’t have permission
4. In BC we don’t need to have inconsistent use just actual possession, open, continuous, non-violent
Adverse possession important statues summary
 Statutes land title investigation Act s1 allows petition to the court for claim in adverse possession
 Limitation Act s28– no adverse possession prior to 1975
 Statute of limitation Act s16 – adverse possession period in BC is 20 years. 60 years under s48 for
crown land (1975)
 Statute of limitation Act s17– sets out when someone would be bringing a challenge in regard to
adverse possession. As soon as title owner is dispossessed from land clock starts ticking
 Land Title Act s23(4) – rightful owner listed on land title, but this leaves room for adverse
possession in 1 situtation.
o Indefeasible title is conclusive evidence at law and equity as against crown and all others that
person named in title is entitled to estate subject to where it involves the first indefeasible
title registered with someone in actual possession then it can be void. Adverse possession,
continuous possession etc. Chain of title can pass on through generations. Someone can
claim title to the land.
 Mowatt
 Would need to note adverse possession could succeed in exam because its unregistered. If it was
registered, unless it was the first registered title adverse posession wouldn’t work.
 Crown land Act 1970
 Property law act s 36.2 – a building or fence that had been improperly located such that they are
on another parties registered land. A court can rule on who should receive compensation, who
should have title vested or whether an owner must remove the encroachment
For adverse possession question
1. Note how you would bring claim and who you are bringing it forward on behalf of
2. Limitation period that is relevant eg 20 year or 60 year and if 60 year which statute
3. Go through components of adverse possession based on mowatt test
4. Talk about registration of title
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If building or fence, consider s 38 property law act only. Process would fail early on due to statute of
limitations, but we have statutory framework designed for buildings and fences.
Doctrine of Tenure



Tenure – all interests in land are head “of the Crown.” In theory, the Crown retains ownership of all
land since the Norman Conquest (1066).
The only incident of tenure left now is escheat. If ‘tenant’ dies without heirs, the land escheats (goes
back) to the Crown.
Native title to land is not tenurial because it doesn’t originate from a Crown grant
Doctrine of Estates
The concept of an estate created flexibility in arranging for property interests to be held by different
people and at different times.
Remember the importance of seisin and possession in modern property law:
 Prior possession is the basis for property interests
 No gaps in seisin! This means someone ALWAYS as to be entitled to present possession.
1. Freehold Estates – Uncertain duration
2. Leasehold Estates – Certain duration
Freehold Estates
1. Fee Simple
2. Life Estate
3. Fee Tail (no longer exists)
Fee Simple
O grants “to A and her heirs”
Closest to absolute ownership
• The owners of fee simple can come and go but the estate remains, since it is of potentially indefinite
span. Each new owner steps into the shoes of the predecessor.
• Relatively few limitations on their power to dispose of an estate in the land whether by will or by
alienation inter vivos.
• Public policy considerations require that the fee simple estate in land should remain freely alienable,
since unrestricted transferability is a vital precondition of a healthy and vibrant economy.
• If no heirs, then it escheats
• To A in fee simple, to A forever, to A – Does not have to be “and his/her heirs” anymore
• Presumption of fee simple
Life Estate
O grants “to A for life”
O grants “to A for the life of B” (autre vie)
An estate that will last for the owner’s lifetime
Holder often referred to as life tenant
Needs to have clear language
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Differences in Fee Simple v Life Estates
Duration
Potentially forever (fee) v Life (life)
Nature of Interest
Income (life) vs capital (fee simple)
Limited bundle (use, possession, profit) (life) vs full bundle (use, possess, profit, alienate, transform,
destroy) (fee simple)
Combining Interests
O grants “to A for life, remainder to B and his heirs”
 When A dies, B gets the land in fee simple, and O doesn’t get anything
 If B dies without any heirs or wills or descendants, then it escheats to the crown
 A is immediately entitled to possession of property, B has immediate interest in future possession
 B can sell/devise their fee simple interest before A dies if they want
 They are governed by law of waste – stops A from destroying land before B gets it
Doctrine of Waste
Permissive: passive conduct allowing for decay (no liability unless instrument says)
Voluntary: acts that damage the capital value of the property in a non-trivial way (liable if instrument
does not allow changes)
Ameliorating: changes that increase value (objective value, no liability)
Equitable: wanton and severe destruction (liable even if instrument specifies not liable for waste)
Must specify not liable for “equitable waste” for no liability
Normally there is a trustee there to take care of interests of land for parties
Know examples of different wastes eg roof is permissive, taxes are voluntary
How does it work?
Formula:
Words of purchase
+
Words of limitation
“to A”
“and his/her heirs”
“for life”
Who takes an interest
What interest they take
If Y is A’s heir, they acquire no interest until A’s death. A is free to transfer their interest
Can be multiple words of purchase or limitation.
Life estate:
X grants “To A for life”
 X retains reversion: fee simple estate reverts to X on A’s death
 X – reversioner
X grants “to A for life then to B and his heirs” (A has life estate, B has fee simple subject to As interest)
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
B acquires a fee simple remainder
o Fee simple passes to B upon As death
o B = remainderperson
o X retains nothing (recall substitution)
Fee Simple v Life Estate – Re Walker v Re Taylor
Re Walker: Fee Simple
Will said “I give and devise unto my said wife all my real and personal property”, but then says “the
portion of the estate undisposed of by her such remainder shall be divided as follows”
 Need to ascertain what part of the testamentary intention predominates, and in this case, they said the
first part held to be a transfer of the fee simple with the attempted gift over being repugnant and void
Re Taylor: Life estate, fee simple to daughters
“Give, Devise, and Bequeath all my real and personal estate to my wife to have and use during her
lifetime”. Then says, “any estate which she may be possessed to be divided equally between my
daughters”.
 Have to consider the intention of the testator to ascertain what was gifted
 Distinguished from Walker because first gift here is qualified to make it a life estate, she is also
allowed to encroach on the capital but only for her proper maintenance
 Right to encroach does not expand life interest into fee simple
Powers and Obligations of Life Tenants
Life tenant has the right:
 To occupy and use property
 Income from the property
 Make inter vivos transfer of the life estate in the property
Life tenant is responsible for:
 Current expenses (including property tax, and interest payments on mortgage)
 Not responsible for expenses preserving capital (responsibility of fee simple)
Vested and Contingent (future) Interests
Vested – Present interests, but not necessarily present possession
Vested in possession: a present right to an immediate possession
Vested in interest: a present right to future possession
An estate is vested in interest if:
1. The person holding the interest is ascertained/known
2. It’s ready to fall into possession right away subject only to the ending of the prior estates
 There is no condition precedent to the interest taking effect
Contingent – if an interest isn’t vested, it’s contingent. An interest that’s subject to the happening of an
event that may never occur
Contingent interests exist for 3 reasons
1. The person holding the interest is not yet alive
2. The identity is unknown
3. There is a condition precedent to the interest taking effect
o To A for life remainder to B in fee simple when he turns 21
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o This means not ready to fall into possession right away
To A for life, then to B in fee simple
 Vested
 We know who they are
 Ready to fall into possession right away
To A for life, then to B in fee simple if he survives A
 Contingent
 If B predeceases A then he gets nothing
BC v Engen Presumption of vesting
MZ dies (1971) leaving 8 adult children.
Will states: “for the sole use and benefit by my single unmarried children [now] living in it, LZ, VZ & RZ.
After the last of [them] would die, then it is my wish that the house be sold and the proceeds … be
distributed among my surviving children in equal shares.”
In 2008, RZ is last of 3 named children still alive + another child, Ann.
I: Who are “my surviving children”?
Those surviving MZ (alive in 1971) OR those who survive RZ?
In other words, is there a vested or contingent interest (must survive L, V and R)?
R: Presumption of early vesting rather than contingent where possible
A:  Normal meaning of wording would be all kids that were alive when testator died
 Presumption of early vesting
o whenever the words used in a will permit a construction that results in early vesting, the gift will
be vested rather than contingent
o If we know the fee simple is going to all of the children who were alive at time of testators death
then that’s early vesting
o The gift to the surviving children was vested, it was not subject to an event that might never
occur, since it was inevitable that the 3 single daughters would die.
 If it was to the kids who were alive at the ending of the life estate then its contingent interest as we
don’t know who they would be yet.
 Courts lean towards vested interest when both are probable
C: Only two alive – so them and the estates of the deceased kids get the fee simple
F:
Absolute v Qualified Estates
Absolute: The full estate passes unconditionally to the grantee. Grantor has given away everything
 To A for life, To B in fee simple (absolute estate ending with A’s death)
Qualified: an owner seeks to control certain aspects of an estate in the future
 To A for life on condition that they continue to farm
Conditions
1. Conditions of Forfeiture: If a certain event happens, the grantee will forfeit or lose the estate which
she received (by grant or will)
 Condition subsequent (CS): “to A but if X happens”
 Determinable limitation (DL): “to A until X happens”
35
2. Conditions of Eligibility: a certain event must happen before grantee becomes entitled to receive
estate
 Condition precedent (CP): “to A when she turns 21”
Condition Subsequent (defeasible)
Vested interest but something can happen to terminate it
 An external clause: condition added to the language of the grant
o On condition that; provided that; but if
o “G grants to A in fee simple on condition that he continues to practice law”
 Fee Simple subject to Condition Subsequent (FSSCS): if A ceases to practice
law, then G has a right of re-entry and may re-enter and take possession
 A’s estate is not automatically terminated, but only if G exercises optional right of re-entry
(contingent) – steps must be taken for termination to occur
 Full estate is granted, but subject to early termination
o If condition on FSSCS is void, then only the added condition is void and it will be struck off,
leaving the recipient with an absolute (unqualified) estate
 Court uses this when they don’t want gift to fail
Determinable Limitation
 Estate is a modified fee simple estate: defines the estate itself, not a full estate
o Language: So long as, until, during, while
 Grantee has less than full estate from outset
 If condition on Fee Simple Determinable (FSD) is void, the whole grant fails (as though there were
never any grant)
 “G grants to A in Fee Simple so long as A continues to play the violin professionally”
o This is a fee simple determinable, so that G retains an interest known as “possibility of
reverter”
o If A ceases to play the violin professionally, estate automatically terminates, and the FS
revert to G (vested) – grantor retains possibility of reverter (automatic)
Condition Precedent (if)
Previous conditions of forfeiture (determinable estates and estates defeasible subject to condition
subsequent) affect entitlement to retain the estate
 FSD: To A for life as long as s/he lives in Vancouver (if FSD void for uncertainty, interest is
defeated)
 FSSCS: To A for life on condition that s/he lives in Vancouver (if CS void for uncertainty, interest
vests)
Conditions of eligibility or conditions precedent, affect the entitlement to acquire the estate
 FSSCP: G grants to A is Fee Simple if A moves to Vancouver
o A’s FS can’t occur until she moves to Vancouver
 Note: If condition precedent is void for uncertainty, then whole FSSCP defeated (as with FSD void
for uncertainty) - it falls away and party gets fee simple. Grant itself can still exist check this
 Condition precedent are future interests
Comparing defeasible and determinable estates
 Type of fee simple
36



o With a fee simple defeasible on condition subsequent, the grantee takes an “ordinary” fee
simple subject to premature termination.
o With a determinable fee simple, the grantee takes a modified fee simple, and the grantor
retains an interest known as a possibility of reverter.
The right of re-entry which requires O to re-enter (defeasible) and the possibility of reverter which
occurs automatically (determinable).
Impact of an invalid condition or limitation
o Because a defeasible limitation is characterized in terms of an “added condition,” the
condition on its own may be struck out as void, leaving C with a fee simple absolute.
o By contrast, because the limitation in a determinable estate is regarded as an intrinsic
definition of the estate, the entire estate will be struck down if the limitation is void.
Language
o A defeasible estate generally uses words of “condition”: that is, “on condition that,” “but if,”
“provided that,” etc.
o By contrast, the language of a determinable estate suggests duration: “so long as,” “until,”
“during,” “while,” etc.
Are there
qualifications on a
freehold estate?
Yes
Does a certain
event need to
happen for the
grantee to
acquire the
estate?
Condition
Precedent
Is the condition
VOID?
(uncertainty,
restraints on
alienation,
against public
policy)
Yes: Entire
grant is void
No
Will the grantee lose
the estate if a certain
event happens?
Absolute Estate
Conditions of
Forfeiture
Is it an external
clause added to
the grant? (on
condition that,
provided that,
but if)
Is the
condition
internal to the
grant? (so
long as, until,
during, while)
Condition
Subsequent
(defeasible)
Determinable
Limitation
Is the condition
VOID? (uncertainty,
restraints on
alienation, against
public policy)
Is the condition VOID?
(uncertainty, restraints on
alienation, against public
policy)
Yes: Condition is
void but grant
survives
Yes: Entire grant is
void
Tilbury West Public School Board and Hastie Distinguish between defeasible and determinable estates. Presumption of early
vesting consequences
F:
I:
Motion to pay out of Court to school board sum of $1500 by Highways Dept when expropriated certain
lands previously used for school purposes
Grant unto said parties & their heirs for so long as it shall be used and needed for school purposes…
Ceased being used for teaching in fall 1961
Grant also said When no longer used for school purposes, reverts back to owner
Condition subsequent (defeasible) or determinable limitation
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Watch the wording for distinguishing DL from CS
The essential distinction appears to be that the determining event in a determinable fee sets the limit for
the estate first granted. A condition subsequent, on the other hand, is an independent clause added to a
complete fee simple
Words for determinable limitation: While, during, so long as, until
Words for condition subsequent: provided that, on condition that, if it so happens that
So long as and no longer in the clauses were setting a limit in the granting clause itself
So even though later clause said “when it was no longer used” might indicate a condition subsequent,
the earlier words were held to be decisive, and they were repeated several times
C: Fee simple determinable with possibility of reverter
We want to give grantors maximum control over what they can do with their land. But also temper it
with things like public policy etc
R:
A:
Differential impacts
• If condition subsequent is void, grantee gets fee simple absolute (defeasible interest)
Only condition is void so it is removed
• If determinable limitation is void, the entire grant fails
Limitation is internal to grant itself, land reverts to grantor
NOTE: same is true for condition precedent
Court will try to determine what the grantor wanted despite the language. Maybe the language points to
determinable but if it seems the grantor wanted the grant to survive then they will give respect to the
intention the testator had. Eg McColgan
Re McColgan 1969 Distinguish between defeasible and determinable estates. Presumption of early vesting consequences
Mc Colgan left his house to Mary Kovalchick, until her death or until she is not residing therein personally.
All upkeep charges shall be paid for her while she lives there.
She was someone he was very close to, who did a lot for him and who was with him when he died, nursing
him, although she normally lived in Pennsylvania. She was not in great health herself.
• Will states: “hold such property as a home”…”until her death” … “or until she is not residing therein
personally…”
• Court: look to “expressed intentions,” “real meaning” AND contextual analysis - look to the
relationship(s) involved to understand the meaning.
I: Is this a licence to remain in home or meant to be life estate?
What condition would apply to life estate – determinable or condition subsequent?
R: Courts can strike conditions if not legally appropriate. Will base decision on what they think the testator
wanted more than the language
A:  Definitely not intended to be a licence from language in grant
 Court found condition attached to estate was an external limitation – condition subsequent attached to
life estate
o Condition subsequent could be struck and held to be void due to uncertainty in this case.
Why did they strike the CS?
Courts have the ability to strike conditions if not legally appropriate:
 In order to uphold overall intention of testator
 To make sense of entire will
 If it violates public policy (not applicable for this case)
F:
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If it was determinable limitation and failed, she would lose all of it. Courts decided that was not testators’
intention – because they had such a close relationship. He wouldn’t have wanted that for Mary.
Dominant intention was creation of life estate and to cover charges. It was clearly a desire to take care of
Mary to ensure she was protected and ok in her life. Court concluded the requirement she live there didn’t
need to be literal. Because it didn’t make sense with his clear intention to look after her. So therefore, the
clause was uncertain.
Also, term residing was hard to figure out in this context – main house? Never travel? On these grounds
courts determined it was uncertain
 Case didn’t tell us what the conditions would be for residing to be unambiguous so not sure why
court is saying residing is uncertain
 We know it’s hard to draw a line (test from Sifton case seeing it from start to finish) that residing is
hard to define
C: External limitation – condition subsequent attached to life estate
Condition subsequent could be struck and held to be void due to uncertainty.
Limits on Conditions
If a condition is:
 Insufficiently certain
 Impermissible restraint on alienation
 Contravention of public policy
Whole grant will fail if determinable limitation so courts will be more determined to figure out intention
of testator so whole grant will not fail
Restraints on alienation
Tension between making land freely accessible and allowing landowners to do what they want
Courts don’t like a restraint on alienation so not a lot of cases stating that they’re using this rationale
More case law on uncertainty and public policy
Uncertainty
Sifton v Sifton 1938 Distinguish between defeasible and determinable estates. Presumption of early vesting consequences
Devise for payments to daughter from his estate until she turned 40, when the income of the entire estate
would be paid to her. Conditioned on “only so long as she shall continue to reside in Canada”
I: Is subsequent clause about the payments stating, “only so long as she shall continue to reside in Canada”
a DL or CS?
R: Courts often default to CS over DL
A:  Sounds like DL “so long as” but court determined it was a CS
o Intention of testator
o Testator did not want grant to be gone, weight to underlying interest testator has
o Courts seem to default to CS because if testator went to lengths of setting up a trust they
intended grantee to get it.
F:

For a condition to be certain: Court establishes test for CS requiring that “the condition must be such
that the Court can see from the beginning, precisely and distinctly, upon the happening of what event
it was that the preceding vested estate was to determine.”
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o That its really clear from wording of clause what it means for the events that are referenced
in this clause to come into effect.
Court said condition was uncertain: impossible to say how long daughter had to be in Canada at a time.
Therefore, uncertain and void CS
C: Uncertain – condition subsequent – dropped – daughter got estate in full
Restraints based on Public Policy
This limitation is contentious in the context of property law because we’re dealing with grants of private
property
Courts are reluctant to interfere with what grantor intends to do with property
Courts do have power to refuse grants that are private in nature where they offend public policy
1. Court is going to determine if there are limitations, same consequences apply – CS, DL, CP. So still
need to know what kind of condition it is. Eg DL grant fails
2. Cy-pre doctrine – applies only in context of trust.
Can amend a document to bring it in line with public policy purposes
Used for Charitable trusts only. They have a public facing profile.
Not applied to general gifts
F:
Re Canada Trust co. and Ontario Human Rights Commission (1990 ONCA) Violation of public policy
A gift in a will that has been in place for decades – charitable trust. Grantor has set out scholarships for
students premised on values like British empire being superior, Christian supremacy, white supremacy.
Gift was to exclude anyone who wasn’t a British white Christian. And only ¼ of recipients can be
female. The selection committee must also adhere to these requirements.
Lots of complaints from universities, students, parents, Angelico church. Universities stopped
administering it. Members of the committee had serious concerns about it
Ontario human rights commission asked courts for advice on direction about how they should be
carrying out requirements in this trust
1st Court determined provisions of trust not invalid
 Recitals of trust were not part of trust instrument itself
 Can separate recitals from rest of document
Rest of courts said document must be read as a whole, said you cannot separate out recitals from clauses
They stated the trust was operating in public sphere so court has ability to enforce for public policy
reasons that these recitals should be determined to be contraindicated to public policy
Testamentary freedom is also important Canadian value to be considered.
I: Does the trust violate public policy?
R: Because it was a charitable trust that meant the court could use cy-pres to modify effects of trust
in order to bring it in line with prohibitions against public policy
A: Majority sets out:
 Public policy only applies in clear cases.
 There needs to be statements in the instrument that are patently at variance with constitutional
guaranteed equality rights and multiculturalism
40


They focus on wording and content of trust itself. Focus on specific language used
If you focus on specific provisions its clear students are determined to be less qualified based on
gender or religion which is very against public policy
 Goes beyond other scholarships that are created for particular backgrounds. This one states particular
students are less qualified.
 Discrimination v for a particular population difference – premised on values contrary to social values
 To say that a trust premise on these notions of racism and religious superiority contravenes
contemporary public policy is to expatiate the obvious”
o But also: “The settlor’s freedom to dispose of his property through the creation of a
charitable trust…must give way to current principles of public policy…”
Concurring:
Constitutions etc Instruments should be used to inform our reasoning
Emphasis on public nature of the trust Court decides to use Cy-pres to change trust to be brought in
line with Canadian society



Strike out recitals
Take out conditions about gender race religion etc
So trust can still be available for students
Court is allowed to amend it to as close as possible to what testator wanted. Court said the minimum
they can do is remove all the offensive stuff which just happens to be most of it
Recitals are not binding they set out the rational about why the trust is created. Meant to inform what it
means, background information, doesn’t set out definitions.
C: Impossible to read requirements of trust without recitals due to language used and because it went to
purposes of trust as a whole
Disagreement about human rights being read into the trust by judges
Royal Trust Corp of Canada v Univ of Western Ontario
(E) To provide funds, from time to time and in the discretion of my Trustee for awards or bursaries to
Caucasian (white) male, single, heterosexual students in scientific studies…Further, to similarly provide
funds for an award...to go to a hard-working, single, Caucasian white girl who is not a feminist or
lesbian
o No recitals – is it discriminatory on its face?
o Ramsden & Uvic: Distinguishable?
 This case had to do with provisions of a will that mandated the charitable trust would go to students
who were white straight male or if a female not a lesbian or feminist
 Contrary to human rights so could not be upheld. Required the trustee to violate public policy in
administration of this trust.
Fox v Fox Estate (1996)
 Trustee has life estate and discretionary power to encroach on estate
 Son has remainder interest
 Trustee uses her power to exhaust the estate by granting to grandchildren expressly to punish son for
marrying outside Jewish religion
41


F:
Improper exercise of power – majority invokes Re Canada Trust: “it is contrary to public policy and
abhorrent to contemporary community standards that a trustee could exercise her discretion on this
basis”
Contrast with public/private divide? But this is really about the trustee NOT the testor’s
discriminatory motive
o She also treats estate as her own, contrary to obligations of a trustee
McCorkill v McCorkill Estate 2013 Violation of public policy
 Left estate to National Alliance (neo-Nazi organization in the US) (not a charitable trust)
 Purposes and actions of NA are against public policy
 Notable that here an absolute grant is being defeated, not a condition
 “Unworthy heir” extended
 Ziff: 1) core and substantial aim to pursue policy manifestly violating Canadian public policy; AND,
2) Donee pursues these illegally
 Parachin: focus should be on gift as illegal, not power of court to intervene in unconditional bequest
Court to decide should gift be prohibited for public policy reasons. No clear legislation that identifies this
as being a public interest.
Courts asked if it could intervene on basis of recipient
I: Court to decide should gift be prohibited for public policy reasons.
R: Extension of common law argument gift be prohibited if allows recipient to engage in illegal activity
– unworthy heir
A: Court stated this grant would fail.
 It would be considered void against public policy. Purpose of gift is rooted in illegality. Gift would be
supporting recipient in illegal activity – contrary to public policy
 Where the object of the recipient is illegal in nature that would mean this gift would fail. The grants
invalidity is related to the character of the recipient. This is an unworthy recipient because of the
illegality this organization stands for.
 Judge is relying on motivation of testator but not relevant to formal validity of test.
Organization is valid under law and no way court can conclude the activities it engaged in would be
illegal.
Grant J. found that the purposes of the National Alliance and the activities and communications it
undertook were racist, white supremacist, and hate-inspired, contrary to s. 319(2) of the Criminal Code¸
R.S.C. 1985, c. C-46, and contrary to the public policy of both Canada and New Brunswick. He declared
the residual bequest to the National Alliance void, and, as that left an intestacy, he ordered that the residue
be divided amongst Mr. McCorkill’s next of kin under the Devolution of Estates Act, R.S.N.B. 1973, c.
D-9. He declined to remove Mr. Streed as executor as that remedy did not flow from his decision and
would require a separate application under the Probate Rules. CAFE’s appeal was dismissed.
C: Grant fails
Spence v BMO Trust Co Violation of public policy
F: Father excluded his daughter and grandson from will. Judge finds it was racially motivated. Father is black
and gave money to daughter who was black but not other daughter who married a white man and had a kid
with him.
Nothing in language of will that stated daughter and grandson excluded on basis of race. It said they had
shown no interest in him as a father and had no communication.
No statutory obligation the daughter and kid had to receive anything from the will
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Private bequeath
I: Did terms of will offend public policy
R: Because is it private it doesn’t matter that it is discriminatory
A: Court concluded terms of will was not facially discriminatory and so did not offend public policy. Not
courts place to interfere just because they find testators choices stupid
Request would still be valid even if he had said it was because of race – private and his own opinion. Up to
them to decide who receives their property.
Barring:
1. some kind of public obligation or trust relationship,
2. statutory obligation forcing beneficiary to be recognised,
3. some requirement the executor or trustee act in a way against public policy
C: Terms of will did not offend public policy
Fixtures
A fixture is a thing that has been attached to realty. It’s no longer considered a chattel anymore.
Fixtures Objective Intention Test
 Determined objectively by reasonable 3P
 Degree or annexation: attached? To what degree?
 Object or purpose of annexation: to enhance the land? Or for the better use of the chattel as chattel?
 First part creates presumption that can be rebutted by second part
 Established in LaSalle
F:
LaSalle Recreation Ltd v Canadian Camdex Investments Ltd
They borrowed money to build hotel – floating debenture and mortgage in favour of Camdex.
La Salle sold to villa including carpets and under matting. Villa foreclosed so receiver and manager was
appointed.
Sold to whitespot for more than amount owing to Camdex. They were paid off. But no mention of carpeting
and undermatting. They took possession then transferred it onwards. LaSalle was still owed money for
carpeting and undermatting. Were they fixtures or chattels.
If determined to be chattels then LaSalle could get compensation under conversion.
1962: carpet & undermatting affixed with installment agreement under conditional sale agreement
entered into by Villa & La Salle)
1963: foreclosure proceedings commenced; property assigned to Whist Spot without mention of carpets
1964: Full payment of debenture & mortgage to Camdex
did the carpets and rubber undermatting become fixtures within the meaning of section 12(1) of the
Conditional Sales Act?
R: §12(1) of the Conditional Sales Act points us to the common law test.
A: La Salle had to comply with Conditional sales act if they wanted carpets to remain as chattels.
Affixed includes any good that are affixed to the lands and may be determined to be a fixture
I:
Were the goods fixed or annexed to the land in such a manner and under such circumstances as to
constitute fixtures falls to be determined by the Court according to established principles of law?
43
In Stack v T Eaton Co 1902
I take it to be settled law:—
(1) That articles not otherwise attached to the land than by their own weight are not to be considered
as part of the land, unless the circumstances show that they were intended to be part of the land. Eg
water bottle sitting on soil is not part of the land
(2) That articles affixed to the land even slightly are to be considered part of the land unless the
circumstances show that they were intended to continue chattels.
(3) That the circumstances necessary to be shown to alter the prima' facie character of the articles are
circumstances which show the degree of annexation and object of such annexation, which are patent
to all to see. An obvious conclusion you could draw just by looking
(4) That the intention of the person affixing the article to the soil is material only so far as it can be
presumed from the degree and object of the annexation. The objective of the person is not that
important unless it can be presumed from the degree of the annexation
1.
What is the degree of attachment?
a. Is the thing attached to the land by more than its own weight? Prima facie fixture
i.
i.e. carpets are attached
ii. OR b. Chattel not attached, prima facie fixture
b. How strongly is it attached?
i.
there is a slight attachment; comes with the presumption they are fixtures
2. Purpose of annexation? This leads to the ground for rebuttal of presumptions
•
Onus is on party claiming contrary to presumption
a. Is it to enhance land (fixture) or for better use of chattel as a chattel (not a fixture?
i.
i.e. there is a market for used carpet, the plywood floor underneath needed covering,
carpets were replaced every three to five years typically
ii. Facts pointed to the fact that carpets were for the better use of a hotel as a hotel, not
for their use as carpets
Note that matter of the test is objectively determined
•
If something is attached, then the presumption is a fixture and the burden lies on the party trying to
•
establish that it is not a fixture
Further, π hadn't registered with the Land Registry, which was a requirement under the Conditional Sales
Act. But if the carpets were affixed, then they failed to fulfil their statutory duties under the requirements
Permanent interpreted in the context as "indicating the object of having the carpeting remain where it is so
long as it serves its purpose. I think the permanency of the original affixing in this sense, is not affected by
consideration that it might well be intended to replace the carpeting."
While the annexation was slight, the carpeting and accessories were annexed to the land in such a
•
manner as to constitute fixtures.
Degree of annexation in this case is described as slight.
•
The question is whether the goods were affixed to the building, though slightly, for the better use of
•
the goods as goods, or for the better use of the building as a hotel building
whether the annexation of the carpets was for the better use and enjoyment of the carpets as such or
•
for the better use of the building as a hotel building
unfinished plywood flooring unsuitable for a hotel
•
carpet needed to be attached, necessary for the completion of the floors and commonly replaced
•
every 3-5 years
44
•
ready market exists for used carpeting
 “Weighing all these circumstances, I am of the opinion that the object of the annexation was the better
and more effectual use of the building as a hotel and not the better use of the goods as goods.”
 They’re an inherent part of what is needed for the hotel. The enhancement of the flooring was much
more than a chattel eg laying down a rug. It appears this was a permanent annexation. Not meant to be
taken up regularly, mean to be long term
C: These are Fixtures
Even though statute says LaSalle should have registered interest
Application of test leans more towards carpets being fixtures
Conditional Sales Act
15.
After possession of goods has been delivered to a buyer under a conditional sale, every provision
contained therein whereby the property in the goods remains in the seller is …null and void … unless
the requirements of this Act are complied with.
Conditional Sales Act
12.
(4) In addition to compliance with the provisions of sections 3, 4, 5, and 6, and not later than
twenty days after the commencement of the affixing of the goods to the land, there shall be filed in
the Land Registry Office of the land registration district within which the land is situate a notice in
Form A, setting out
(a) the name and address of the seller;
(b) the name and address of the buyer;
(c) a description of the goods by which they may be readily and easily known and distinguished;
(d) the amount unpaid on account of the purchase price or under the terms and conditions of the hiring;
and
(e) a description of the land to which the goods are affixed or are to be affixed, sufficient for the purpose
of identification in the Land Registry Office.
Diamond Neon (Manufacturing) Ltd. v. Toronto-Dominion Realty Co. Limited
F:  Signs leased to display ads, but contract says Diamond Neon retains ownership of signs
 Dueck takes over lot and new lease signed, Dueck later leaves but signs remain and then
 it is sold to TD (who are unaware of contract between Diamond and Dueck)
 TD sells the signs to another company and Diamond sues for conversion
 The sign is strongly attached by concrete block in soil. The purpose is not as an address
 sign but to display advertisements
I: Question - Were a pole and sign fixtures at the time of sale?
R: Tenant's fixtures right is lost when the π lost the right to reclaim its property once the land lease expired.
Π's capacity to remove the signs was dependent on the tenant's rights to remove the sign; in a timely manner
likely means before the expiry of the lease.
A: This court looks at Eaton principles spoken about in La Salle:
(1) That articles not otherwise attached to the land than by their own weight are not to be considered as part
of the land, unless the circumstances are such as shew that they were intended to be part of the land.
(2) That articles affixed to the land even slightly are to be considered part of the land unless the
circumstances are such as to shew that they were intended to continue chattels.
45
(3) That the circumstances necessary to be shewn to alter the prima facie character of the articles are
circumstances which shew the degree of annexation and object of such an-nexation, which are patent to all to
see.
(4) That the intention of the person affixing the article to the soil is material only so far as it can be presumed
from the degree and object of the annexation.'
(Robertson J) Found that the signs were fixtures. The signs were strongly attached to the land and were for
better use of the car lot as a car lot, not for signs as signs. Regarding the issue of notice, ∆ only had notice
after it bought the property, and ∆ had reasonable reliance on the property as including the signs.
 Notice after the fact of sale is irrelevant. Even if the ∆ did have notice six months after being sold the
land, it didn't affect the title of the land they had purchased
 Object of intention is what matters
C: The degree of annexation is strong, and the purpose was for the better use of land as land (i.e improved the
land and announced the tenants).
Note: Strong dissent that points that subsequent owners sold the signs as chattels which lends to the fact that
they could be viewed as chattels all along.
Tenant's Fixtures: If a tenant attaches chattels to the land, they become fixtures in the same way.
However, a tenant may remove items if attached for trade, ornamentation, or domestic use, and can be
removed without serious damage to the property.
 However, the right may be limited by contract, and the tenant must remove the item in a timely
manner
 Exceptions for tenants allows them to make improvements to their living spaces
46