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2018/2019 Girard Property
CONCEPT OF PROPERTY - What is property
Indigenous Concept of property
How to determine whether something is property
CONCEPT OF PROPERTY - Property Rights & The Charter
CONCEPT OF PROPERTY - Takings
POSSESSION - Title and Possession
JOINT FINDING
Possession & Landowner
POSSESSION -- Land and possession of land
Adverse Possession
INCONSISTENT USER TEST
MUTUAL MISTAKE
UNILATERAL MISTAKE
PROPERTY INTEREST IN LAND -- Doctrine of Tenure
Aboriginal property rights
PROPERTY INTEREST IN LAND -- Doctrine of Estate
Freehold
Life Estate vs License
Waste
PROPERTY INTEREST IN LAND -- Conditional Estate
PROPERTY INTEREST IN LAND -- INVALIDATING CLAUSES
PROPERTY INTEREST IN LAND -- Distinguishing Contingent from Vested Estate
PROPERTY INTEREST IN LAND -- Legal vs Equitable
Remedies of Beneficiary
Functions of a modern trust
How to create a trust
When does a trust end?
TRANSFERRING PROPERTY INTEREST -- LEASEHOLDS
TRANSFERRING PROPERTY INTEREST -- BAILMENT
TRANSFERRING PROPERTY INTEREST -- TRANSFER BY GIFT
How to give a gift
Presumption of resulting trust
TRANSFERRING PROPERTY INTEREST -- Transfer interest in Land
TENENANCY -- CO-TENANCIES
TENENANCY -- Co-Tenancies & Family Property
Cohabitees not JFV
Joint Family Venture
INCORP HEREDITAMENT -- Easements
3. Easements
Prescriptive Easement:
INCORP HEREDITAMENT -- Restrictive Covenants
Benefit & Burden
Termination of restrictive covenants
Mortgages
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Is there a question of law and equity? → ​Express trust, resulting trust, constructive trust
What are the estates being created? →​ leasehold, life estate, fee simple
Any conditions or qualification on these interests? → ​Determinable vs Condition subsequent vs Condition
precedent?
Are conditions void? → ​uncertainty, constraint, or public policy
What are the interest? ​→ Vested in possession / Interest , contingent on Condition precedent
Co-current interest? → ​Joint tenants or Tenants in common
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CONCEPT OF PROPERTY - What is property
Set of entitlements
Victoria Park v Taylor 1937 HCA1: No trespass of the eye and no property in spectacle.
-Money expended is not enough to create property interest
Indigenous Concept of property
Little concepts on exclusive property but there is some distinction between private and shared property
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Indigenous have more communal property and less private property
Land and landscapes have rights — interdependence with nature
Property also belongs to future generation
How to determine whether something is property
Proof on plaintiff to show that disputed property is property
INS v AP US2: News story was considered property to prevent unfair competition (contrasts Victoria park)
Formal Approach​: Look at precedent -- the definition
of property includes A, B, and C
Functional Approach​: what is the right being asserted
JCM v ANA 2012 BCSC3 :​ Sperm is Property. It was
purchased, the parties had to deal with it, and
transactions were carried out.
Saulnier v RBC 2008 SCC4: ​Lobster licenses have to
be treated as property if they're to fill an economic
function and to be used as collateral.5
Doodeworth v Spence 1908 AUS​: Creates a property
interest in human body part if labour is added to it.
Harrison v Carswell 1976 SCR6: The common law
protects private property rights unconditionally unless
there is an overriding statute.7
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RWDSU v Eaton Company ONCA8: Statute allow the
court to balance private property with statute right of
labour practices.9
Defendant built tower to look into horse stadium and announce the winner via radio. Then people
stopped going to watch the horse game -- Issue arises as more technology disrupts
2
AP sued INS for taking their news stories and publishing it earlier in another timezone. INS could not
report on war due to prohibition.
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Sperm was formally not considered property cause it was body part. JCM wanted to buy out ANA’s
interest. ANA wanted to destroy the sperm
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Saulnier uses fishing license as collateral for loan, defaults on 400k and then claims licenses are not
property.
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Example of court looking to statute for property interest
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​P charged with 4 counts of Petty Trespass of Fairview property after owner asked her to leave premise. It was
unclear whether P could picket on the city sidewalk near the dominion store. ​Picketers were kicked off Fairview
mall property. Property rights more important than picketing.
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Dissent by Laskin: ​ balance the right of property with right to picket; ​this is pre-charter
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Union members picket at employee entrance of Eaton Centre. Eaton tries to kick them out. Claim unfair
labour practice.
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​Does not overturn ​Harrison v Carswell​ R
​ WDSU is labour dispute. Carswell is property
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CONCEPT OF PROPERTY - Property Rights & The Charter
R v Layton 1987 SCC10: ​PTA c​ hanged to only exclude those whose behaviours were incompatible to public use or
contrary to posted rules
Ramsden v Peterborough 1993 SCC11:​ ​Complete ban on poster is limit on freedom of expression -- 2(b) can
trump municipal by laws12
Committee for Commonwealth of Canada SCC 1991​: Airport subject is quasi-government property subject to
the charter. Trespass notice over leafleting is violation of freedom of speech
Batty v. City of Toronto, 2011 ONSC13: The Charter does not permit protestors to protest if they take over public
space and exclude public from enjoying use of space
Zhang v Vancouver (City), 2014 BCSC14: ​By law that prevent large structure was redrafted after Court found that
it impaired freedom of speech
Victoria (City) v. Adams, 2009 BCCA15: Tent city allowed in park (contrary to Batty) due to circumstances,
international human rights to adequate housing, and failure of bylaw to minimally impair. Engagement in s.7
Jack Layton was charged under ​Petty Trespass Act​ for handing out leaflets at Eaton Centre. He
claimed Charter 2(b). Case went moot after ​PTA ​was changed.
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Peterborough had a complete ban on poster. Ramden put up posters and was convicted.
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Posters are a way marginalized individuals communicate to society
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Tried to bar Occupy Toronto protestors from camping in park overnight. Found it was violation of
freedom of speech but was saved under s.1. Balancing interest of those trying to enjoy park.
Sarah Hamil: why are interest of people who live in victinity given priority?
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FLG practition used large structure to protest China. By law prevent such large structures.
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Constitutionality of by law prohibiting homeless people from setting up tent city in public park when
there were no shelters available.
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CONCEPT OF PROPERTY - Takings
Expropriation law​: Formal title has been take from
citizen by state
Generally compensated for fair market value
Regulatory Takings​: Title not take. Property pretty
much rendered useless
Generally not compensated at all
Manitoba fisheries 1979 SCC16
Test for regulatory taking:
● Lose something that is actually a property interest.
● The state has to acquire what you lose
● P must have lost all reasonable uses of the property
AG v Authorson 200317: Result: CBR does not alter
common law perceptibly in this area: in law Parliament
has extensive power to expropriate, but in practice
seldom uses it:
Mariner Real estate v Nova Scotia 199718:L
​ and-use
regulation is not exempted just because land is owned
by someone
Canadian Pacific Railway v Vancouver (2006) SCC19:
No need to compensate due to devalue of land due to
regulation -- its a reg taking
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Tried to eliminate middlemen in fishing so Government created a “wheat” board for fishing. Middlemen
all went out of business.
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Bill being passed prevent class action made by veterans trying to get their pension
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Regulated shoreline land such that the P couldn’t build a house there.
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Wants to develop property where railway is running. City states that land is only for greenspace and
transportation.
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POSSESSION - Title and Possession
Possession: ​fact — Physical control of property
Title​: A legal conclusion not dependent on possession
-Obtain via sale, gift, will, or intestate succession
A person’s rights to a title cannot be affected due to the outcome of a court battle between two others.
IF A purchases a chattel and B has possession (with or without A's consent). Then C takes chattel without B's consent.
B will sue C to get it back. → ​Whatever happens in this dispute, A's rights will not be affected
Right of the Tertii​: C cannot point to A and tell B that all you had was possession and it should A who is suing me.
Armory v Delamirie Eng KB 172220: Even if P doesn’t have title, they can sue for return of item if their title is better
than Ds
Pierson v Post 1805 US21: Pierson’s two principles for defining possession:
1) Provide notice to the world through a clear act (weak societal consent theory – community requires clear
acts so that it has the opportunity to dispute claims)
2) Possession as a reward for useful labour (suggests a labour theory of property – owner gets the prize by
mixing labour by hunting)
Whaling​: First harpoon gets right to pursue whale -- Clear sign to everyone else once your harpoon is in whale.
Seal​: is someone salvages seal pelts, they get percentage of profits
Nakhuda v Story Book Farm Primate Sanctuary
(2013) ONSC22: Animals are chattel and not family
members.
Wilk v Arbour 2017 ONCA:​ Dog Owners’ Liability Act
(DOLA) refers to the owner as someone who is even
walking the dog or watching over the dog.
Perry v Gregory 2003 PEI23: If we can discern a custom of the participants, then we can assume the customs will
prevail unless the custom itself is problematic.
Animus possidend​i : intent to possess
● Question of fact: yes or no
Factum possidendi​: Physical control
● Question of law and fact.
Bird v Town of Fort Frances 1949 ONHC24: Where A
enters the land of B and takes possession of and
removes chattels to which B asserts no legal right and
A is wrongfully dispossessed of those chattels, he may
bring an action to recover them
R. v. CHRISTIE [1978] N.B.J25.​: Test for possession may
vary in civil vs criminal settings: it is a contextual doctrine
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Boy finds jewel and gets scammed by jewel dealer. Boy sues for jewel back
P went fox hunting when the defendant swoops in and chases the fox and captures it. The plaintiff sues
the intruder for the fox skin.
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Kept animal as a pet and argued it was best interest of child (money) to keep it
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Go on metal detecting expedition in potato field, with permission from owner, and find valuables.
Argues who gets title.
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Boy find money in pool hall and gets it confiscated by police. Police cant find owner so boy sues to get
money back.
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Mother finds stash of marijuana in car → drives aimlessly to seek advice.
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JOINT FINDING
Edmonds v Ronella (1973) US26/ Keron v Cashman27: Intention & physical control must be concurrent to establish
legal ‘finding’ for the purpose of possession.
Popov v. Hayashi28 · 2002 Cal → ​Criteria of possession:
1) the object must be lost or abandoned
2) intention to control the exclusion of others
3) actual physical control
If #2 and #3 are met, but actual physical control is prevent by an illegal act, courts may find a pre-possessory right29
based on equity
In cases where rightful ownership cannot be distinguished between parties, it is acceptable and reasonable to split the
ownership evenly.
Possession & Landowner
Rules listed in ​Parker v British Airways Board [1982] 1 QB
General principles
1. Finder of chattel only has rights if
a) it is abandoned or lost,
b) he takes it into his care and control (doesn’t cover Bird scenario – money put there intentionally)
2. No rights if he takes it with dishonest intent or while trespassing (contradicts Bird v Fort Francis)
3. Finder acquires right to keep it against all others except for true owner or one with prior right (​Amory)30
4. Servant who finds chattel - belongs to employer
5. Obligation to take all reasonable circumstances to find true owner
Rights and Liabilities of Occupier
1. Has rights superior to finder over chattels in or attached to land/ building
2. Has rights superior to finder over chattels upon or in, but not attached to, IF before chattel found he has manifested
an intention to exercise control over building and things in it
3. Obligation to let true owner know of findings and whereabouts
4. “Occupiers” of chattels like like boats, cars, airplanes, etc. are treated like the occupiers of buildings for these rules.
Parker v British Airways Board [1982] 1 QB31: On a spectrum of public (no intention) to private (strong intention)
places, when the place falls in the middle, the onus is on the owner/occupier to show that sufficient manifest intent to
control was asserted to win over a finder.
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Find envelope filled with money in the parking lot. D takes it to police and get receipt as sole finder.
Court finds that P and D didn’t “find it” until they left the parking lot. Therefore joint finger.
27
5 boys played with the stocking which eventually broke and money was found inside. The boy who
found the stocking argues that the money is his. Court says joint finding.
28
Popov catches ball in hand. Get tackled and drops it/ Hayashi picks it up.
29
Had he been allowed to continue. Likely would have had possession.
30
Situation where landowner can say "I had a prior right over this" . Although you are finder, I have better
rights than you.
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P found bracelet in British airway lounge. P turns it in but D sells it. Court in favour of P. D did not
manifest control over bracelet because lounge was quasi public.
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POSSESSION -- Land and possession of land
Doctrine of Possessory title​: Someone who is not paper holder of land by long possession of that land gains title to it.
Policy Rationale​: People get the wrong idea and
property change hand. Better to recognize the new
normal. → allows you to rely on what you see when
purchasing a property
Law and Economic Rationale​: Squatter makes better use
of the land than title holder32
Adverse Possession
If S retained possession for limitation period (10 years), paper holder loses title and S have next best title → can then
register land to gain title.33
Pedal Possession​: S can only claim what they actually occupy (occupy 2/6 acres, will only AP 2/6 acres)
Three elements to show that AP has succeeded (​Masidon v ham; St. Clair)
1. Possession as of right for statutory period
● Without consent of paper title holder—Consent to possess property is a bar against to squatter gaining title.
● Acquiescence​: If paper title owner sees someone taking possessory title, but does nothing, then the squatter
will get title
● MacLean v Ried 1978 NSCA34: Consensual tenancy ends after 1 year without renewal and statute of
limitation for AP can begin then.
Possession is ​open​, ​notorious​, ​exclusive​, ​continuous​ (as far as land permits)
● Does not really have to be continuous because some properties are seasonal (cottages).
● St.Clair Beach Estates v Macdonald 1974 OR35: C
​ ontinuous doesn’t require day-to-day possession
2. Squatter has an intent to exclude owner (Implied in Statute)
● Leichner v Canada36: fencing must be for the intention of excluding others and not just for keeping cattle in
3. Effective exclusion37 of Owner38
● If they carry some act of possession, then even though squatter is doing various things on land and maybe
more than the title holder, we cannot say that the squatter has exclusive title on the land.39
Doesn't have to be the same squatter for the same time. Can sell interest from 1 squatter to another. I.e., If Squatter 1
had 4 years of possession and squatter 2 had 6 year, squatter 2 will take possession.
​Girard: ​Just because someone ends up with possessory title doesn’t mean that have to make better
use of land than title holder does.
Carl Rose​: Property owners have to speak to maintain their voice.
33
Takes 60 year to gain AP on government land.
34
D looks after the farm while P has title and moves to ireland. D sells property and P argues he has
possessory title. D did not pay P rent.
35
The fact that the owner came onto the property two weeks a year was enough to prove non-exclusive
possession. Court also felt there was bad faith by P because he had tried to purchase land before and
now they were trying to get it via AP.
36
Tried to AP property by canal, but didn’t close off the side facing the canal because fence was to keep
in cows. Court found there was no exclusion cause fence was for cows
37
Easiest way is with a fence
38
either by active “dispossession” by S (eg, fencing) or passive “discontinuance” of possession by O
accompanied by acts of possession by S
39
In St. Clair, Owner was no effectively excluded.
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Moffatt v Kazana (Eng HC 1969)
Senecal v The Queen (FCTD 1984)40: ​Valid statute overrides the CL principle that finder gets lost chattel if original
owner does not claim it.
INCONSISTENT USER TEST
Keefer v Arillotta 1976 ONCA41: A
​ cts relied on as
dispossessing the true owner must be inconsistent with
the form of enjoyment of the property intended by the
true owner (Inconsistent User test)42
Masidon Investment v Ham 1984 OR43: Land used for
prespective or investment reasons is way to deter squatter44
→ failed inconsistent user test
Inconsistent user test does not apply to Mutual mistake or
unilateral mistakes. This case leaves us to think that it only
applies to bad faith squatters.
MUTUAL MISTAKE
Woods v gateway of Uxbridge 1990 Ont GD45: Mutual
mistake in AP claim alone establish intent to exclude
the true owner → holding for speculation is not valid
defence
Muller v Lee 207 OJ: ​Occasional use, which were trivial
and not acts of ownership, on disputed land is not enough to
curb adverse possession when there is mutual mistake.
Teis v Town of Ancaster OCA 199746: Reaffirms that test of inconsistent use cannot be applied when both parties are
mistaken about their respective rights.47
UNILATERAL MISTAKE
Bradford Investments Ltd v Fama (2005)ONSC48: Inconsistent user test doesn’t apply when it’s a unilateral mistaken
40
Person find $ in airport and airports says if no one claims it, he can take it. No one claims it but airport
states that Department transport acts states person doesn’t get to keep
41
Expanded easement and tried to take AP. P’s use was not inconsistent with D’s so he goes not get AP
42
Criticism: puts impossible burden on squatter to know what owner wants to use land for.
43
Land was rented out to lawyer who is amatuer aviationists and he put landstrip on it. Landlord sells land
with landstrip to investment company who leases it to the lawyer. Lawyer tries to take land via squatter
laws.
44
Court said that AP was in bad faith but Girard believe that this is just how possessory interest works.
45
P occupied land for 18 with no complaint. In good faith thought land belong to P. Survey found part of it
belong to D. P asked for AP and D claims it was being hold for speculation.
46
P applied for possessory title he thought was part of his field but belonged to city.
47
This is a mutual case because paying taxes does not necessitate knowledge of ownership
48
D Claimed several strips he thought was his. P knew it was P’s land because P paid realty taxes on it.
D get possession because P never objected
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PROPERTY INTEREST IN LAND -- Doctrine of Tenure
How you hold land
Doctrine of Escheat​: if someone dies without a will or blood relatives, their assets go to the Crown
Aboriginal property rights
Treaty rights​: rights that have been recognized in a
treaty
Inherent rights​: flowing from long occupation - flowed
from indigenous law into common law
Aboriginal Title​: Fee simple
Other rights​: Right to fish, hunt, etc.. → less than
ownership
Aspects of Aboriginal title (​St. Catherine Milling)​ 49:
-Only Alienable to the Crown
-Exists in conjunction with underlying Crown title
Doctrine of Aboriginal Title, post-​Calder:​ ​Aboriginal title is inherent
● Land is communal property vested in community and community of future.
● Title is substantial interest in land that is tantamount to ownership
● It co-exists with Crown title and can only be alienated by Crown
● Increases bar to prove extinguishment
Guerin 1984 SCC​: ​Crown owes fiduciary duty to first
nations in terms of land—relationship is no longer
mere “political trust” and gives rise to legal duties that
are enforceable by doctrine of fiduciary duty50
● Aboriginal title is “Suey generous” -- unique
interest
Manitoba Metis Federation v Canada (AG) (SCC)​: no
fiduciary duty to Metis because they did not adhere to
sui generis conception of aborignal land
Prove Aboriginal Right51: ​Sparrow 1990 SCC:​
(1) whether the limitation imposed by the legislation is
unreasonable;
(2) whether the legislation imposes undue hardship; and
(3) whether the legislation denies the holders of the right
their preferred means of exercising the right
Prove Aboriginal Title52: Delgamuukw v British Columbia 1997 SCC
(i) the land must have been occupied prior to sovereignty,
(ii) There must be a continuity between present and pre-sovereignty occupation, and
(iii) at sovereignty, that occupation must have been exclusive (this rule has been weakened)53
ONUS ON CROWN
(iiii) are infringement of Aboriginal title justified?
(a) Compelling and substantial legislative objective
(b) Restriction meet fiduciary obligation of Crown
R v Marshall; R v Bernard:​ Nomadic or semi nomadic people can claim Aboriginal title. Aboriginal title requires
“proof of sufficiently regular and exclusive use” as established by Delgamuukw54
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Some of the other features have been overruled by later cases
Critique that this is a paternalistic model where first nation are analogized as children
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Aboriginal right to fish
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Cannot develop the land in a way that would destroy it or make it impossible for traditional uses
53
Fine to have voluntary sharing of land with other bands, but had to shown to keep out intruders
54
Girard: what’s stopping first nation from claiming whole peninsula?
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PROPERTY INTEREST IN LAND -- Doctrine of Estate
Estate​: Right to own a land for a particular time → divided into Freehold and leasehold
Freehold
Fee Simple​: Largest Estate known to Law →
ownership
Life Estate​: Last the lifetime of a specific person.55
→ Fee simple holder can grant someone a life estate
→ Fee Simple Holder has Reversion56 or Remainder57
→ FS holder can sell remainder/reversion to another
person who would regain full control once life tenant
dies.
→ Assumed to be granting fee simple unless specified.
To grant fee simple, has to overcome presumption of
fee simple
→ Life tenant can’t sell property because they only have
life interest58
→ Life gets all income generated by property
→ When Life tenant dies, FS holder regains full fee simple
→ If O gives life interest to A and B and either one dies,
the survivor of A and B get full life estate until they die.
Estate of Peter Ryan v Elizabeth BR (NLTD 2007)59: In life tenant-remainder relationship, default rules that life
tenant is in charge of current expenses while remainder is responsible for those of capital nature—unless clear
intention to contrary
Free Simple vs Life Estate
Re Taylor (​ ​Life estate with power of encroachment) 60; Re Walker61: Need to clearly state life interest to get over fee
simple presumption
Dying Intestate:
200k or less​: it all goes to the spouse.
55
Can disclaim life estate before death and give remainder holder full fee simple
In ordinary life estate, owner has reversion.
57
If transfer is “to A for life and to B thereafter” B has remainder.
58
Nemo dat quod Non habet:​ No one can give that which they do not have — Fundamental law of
property law
59
Deceased and widow had marriage contract: “to use and occupy… 104 Newton Road... during her
lifetime, ​without charge​.” Also said trustee would pay for any major expenses for widow. Widow argued
that “without Charge” all expenses including snow removal and lawn care. Court stated it only meant no
paying rent
60
‘I give … all my real and personal estate … to my wife K, to have and use during her lifetime Any Estate
of which she may be possessed at the time of her death is to be divided equally between my daughters”
was considered fee simple due to ability to ​encroach
61
Will write that assets go to wife and whatever is “undisposed of by her at death goes to nephew” →
presumed fee simple to wife, gift to nephew void.
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200k+ estate​: Surviving spouse takes 200k. Rest divided to the spouse and the kids
Life Estate vs License
Life Estate:​ Reference to her death and then the
property going somewhere is indicative of a life estate
(​Re Water 1978)​ 62
License​: Remain on premise/ use → license
(​Re Powell 1998​)63
Waste
Tort to prevent remedy remainder person in instances where life tenant is in position64
Voluntary​: Life tenant is liable after committing
voluntary harm to property that is disadvantageous to
owner.
Permissive​: Life tenant is not liable → let place go to ruin
by not maintaining it (​Re Macdonald Estate65)
Ameliorating​: Life tenant is liable → does something
to improve property66
Equitable​: Life tenant is liable → harms reversionary
interest in land that is inconsistent with fruitful use67
Wills
Armchair rule​: judge determines​ intent of will
be sitting in position in testator​-- knowing
what they knew.
62
Inheritor dies as if he/she had not had a will → inheritor
gets property
I give use of property to Ms. Jones for as long as she lives, or until she re-marries, or gives to my
executors and trustees a written notice that she no longer needs and desires the use of property. Taxes,
insurance, repairs and other upkeep expenses shall be paid by Mrs. Jones.
63
Verna shall have the right to the occupation, possession and use of my house… for as long as she
remains in possession of the said premises,,, and that in the event my said daughter ceases to remain in
possession of the said premises or married or upon her death… the said premises…shall be held… in
trust for my four children.
64
Tort of waste is uncommon. Usually life tenancy it's behind a trust, which usually solves the problem.
The trustee manages the conflict between life tenant and remainder person.
65
Left life estate to widow with remainder to stepson. Widow vacated property and it fell into disrepair.
Widow does not lose life interest because of permissive waste.
66
Unlikely remainder will sue for this
67
Cutting down immature trees
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PROPERTY INTEREST IN LAND -- Conditional Estate
Absolute Estate​: no conditions
Eligibility​: Hurdle to overcome before you get any
interest 68
Forfeiture​: You have estate but can lose it if something
happens69
Two types:
Condition Precedent: ​to B in fee simple upon being
called to the Bar
-Grantee has a ​Contingent Interest
Re Down71: ​ Presumption of vesting
● “Stay on the farm” was considered uncertain
Tilbury W PSB v Hastie 1966 ONHCJ72:
determinable fee simple​ sets the limit for the estate
first granted.
condition subsequent​ independent clause added to
complete a fee simple absolute, which operates so as to
defeat it.
Deadhand control
Estate Defeasible on condition subsequent70: To A, but if
X then they lose estate
-Grantor has ​Right of re-entry
-Grantee has ​fee simple defeasible on condition
subsequent
-If Condition is void, grantee gets full fee simple
-Use of “on condition”, “Provided that”, “If”, “but if it
happens” (​Tibury W PSB v Hastie)
-I​ ndependent clause added to fee simple
Determinable Estate​: To B, until something happens73
-Grantor has ​possibility of reverter74
-​Grantee has ​Modified fee simple75
-If condition is void, whole estate reverts back to grantor
-Use of “until”, “so long”, “Whilst” (​Tibury W PSB v
Hastie)
-s​ ets limit for for estate first granted
1.restraints on alienation: ​Blackburn v McCallum
a. What happens if you have a grantor or testator but says you can't dispose or sell it for 25 years?
Impose inalienability of property
2. uncertainty: ​Sifton
b. If estate is terminated prematurely, need to make the event is specific and certain
3. public policy: eg, discriminatory conditions; OHRC d/n directly apply to wills but can apply indirectly through
doctrine of public policy: eg Leonard Foundation (1990 OCA)
68
When A turns 21….
Loses estate upon remarriage
70
Also known as condition subsequent
71
Testator provided that when his son Harold “arrives at the age of thirty years, provided he stays on the
farm,” then all the testator’s property was to go to Harold and his brother Stanley in equal shares.
72
“so long as it shall be used and needed for school purposes and no longer.” “To have and to hold unto
the said parties of the Third Part, and their Successors as Trustees so long as used for school purposes
[their sole and only use for ever]…”
73
Not a condition
74
Upon event, grantor’s limitation period begins so grantor must take action to show possession
75
Less than full estate
69
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PROPERTY INTEREST IN LAND -- INVALIDATING CLAUSES
Three ways to invalidate clause: Total restraint, uncertain clause, Public policy
Total restraint:76
Impermissible restraint on Alien clause
Uncertain clause​:
high bar on ​condition subsequent.
Only need to prove ​condition precedent​ has a viable
meaning77
Blackburn v McCallum78: cannot impose total restraint
but can impose partial restraint79
Retivibo​ - son to son80
​ Grandparents will81
Sifton v Sifton:​ ​“as long as she remained in Canada” was
deem too uncertain
Doctrine of Public Policy
Look at public policy of legislature and use it for court public policy
Lysaght82: Court always tries to avoid using public policy
to invalidate
Canada Trust v OHRC83: Charitable trust can have public
policy applied to it84
Re Millar Estate85: Line between “Mere eccenticity” and
“Violating public policy” was not crossed. In 1938, there
was pro-natalist movement.
Post canada trust
Cases distinguish precedent on facts of the case
McCorkill:​ ​will left to neo-nazi group not allowed.
Distinguished from ​Spence​ on “unique factual
circumstances” where beneficiary was an “unworthy heir”
Spence v. BMO
Testator has freedom of testation. Cannot bring extrinsic
evidence to prove that disinheritance was done with racist
intent.86
Cy-près doctrine​: If original objective of charitable trust
or will is impossible or illegal, court can amend it to bring
Re Ramsden Estate; University of Victoria
Scholarships for specific religious grounds is okay.
76
Essentially a new estate → fee simple without something important. Only Legislator can make new
estate. I.e., condominium fee estate.
77
Ziff 2010
78
Father left farm to sons with 3 restraints for 25 years—​not to be disposed of, free from all
encumberments, and no debt contrac​t—which were found invalid by the court. 25 years was too
restrictive. Cannot use restraints to protect beneficiary from themselves.
79
Court said you couldn’t restrain for 25 years. But would 10 years be reasonable? 5?
80
Parents left land to Son who could not sell to anyone except his son who could not sell unless his
education
81
Clause that said condo left in will cannot be sold for 30 years found to be too restrictive.
82
Women sets up trust for medical students who are neither Jews nor Catholics. College said they don’t
want to set up this fund. Court says it’s not invalid on public policy but invalid because if College doesn’t
administer it, it will fail.
83
Scholarship exclusive to White anglo saxon males of proper parenthood. Limits use of public policy
away from private trusts. ​Girard believe this is wrong because we apply public policy to private law
like contracts
84
See Cypress doctrine
85
Left his money to whoever could pump out the most babies.
86
Father did not have to leave will to daughter even though it was evident he disinherited because he got
pregnant by white boy.
17
it as close to the original doctrine as possible.
Grams V. Babiarz:87 ​Enough evidence to show that
father disinherited son for being gay. Invalid on public
policy
If clause is invalidated ​grantee​ will gain full interest
Restraint on marriage (​Re Muirhead Estate)​
Cannot restrain someone who has never been married from marrying
Only time we look at motivation in property law:
✓​ If restrict remarriage is because new husband will take care of widow
X ​ ​Used in punitive way or to break up marriage
Murley88
Allowed to restrict never-married women from marriage
because women did not have life interest
PROPERTY INTEREST IN LAND -- Distinguishing Contingent from Vested Estate
Vested​: No condition precedent → holder has present
interest, not necessarily present possession 89
Contingent: ​There is a hurdle of eligibility
→ holder can be yet in existence or not identified90
Vested in interest​: a present right to future possession
-vested remainder is a fee simple vested in interest
Contingent remainder in Fee simple​: To A for life, then
to B in f.s.,​ if B survives A91
-Cannot mortgage this interest. If B dies first, the interest
disappears
-usually worded as “to my children then surviving” (BC v
Engen)
Vested in possession​: a present right to possession
Vested interest must satisfy two criteria:
1. Held by ascertained person92
2. No condition needs to be satisfied subject only to end
of prior estate93
*if these criteria fail, it must be contingent*
87
BC v Engen 2009 BCCA:​ If there is ambiguity, go with
vested
● ”then survive” → contingent
Handwritten will where father let “venom loose” on how son only gets $1 for being gay.​ Non binding and
was only found to have enough merit to be brought to trial
88
Testator left estate to nephew and allowed never-married mother to live there until she marries. This
was allowed because mother had no life interest → would not have been allowed if mother had life
interest
89
To A for life, then to B in fee simple → B has a vested remainder in f.s.
90
A’s Widow
91
B only has an interest if he survives A
92
Cannot be “to my first daughter who graduates from law school”
93
On A’s death, there can be no condition before B takes ownership
18
PROPERTY INTEREST IN LAND -- Legal vs Equitable
Legal rights​: Allows for disposition, management,
administration, possession, etc.. for the benefit of the
equity right holder.
Equitable right​: Given to the beneficiary of the property
Trustee​: Manage and invest assets to produce revenues
for beneficiaries, adhering to standard of reasonable
business person94
-can be bad investor as long as they’re prudent person
Beneficiary​: All net proceeds of trusts after expenses
-has ​fructus95 ​but not necessarily the ​usus96
-No control of trustee’s decision -- cannot order to divest
from tobacco
Remedies of Beneficiary
Personal remedies:​ If the trustee is negligent and doesn‘t
manage assets and suffer loss, then there’s a remedy in
damages → typical tort remedies
Proprietary remedies: ​Can sue for return of property if
trustee misplaces it unless it was a “​bona fide​ Purchaser
for value of a legal estate without notice”
There kinds of notice:
-Actual
-Implied​: what the buyer’s agent knows
-Constructive​: Buyer ought to have known it was trust
property
If there is notice, beneficiary cannot get asset back. Can
only sue Trustee for damages.
Functions of a modern trust
1.
2.
3.
protection of minors, incapables, vulnerable
parties
investment (mutual funds)97
pension funds --> Sometimes held in trust.
4. tax advantages98
5. philanthropy (charitable trust)
6.. secrecy (trust not subject to corporate disclosure
requirements)99
-If ​trustee dies,​ the trust usually dictates what happens or the executors of the trustee’s estate​ will decide what happens
→ the legal title passes down to his inheritors with the trust attached to it.
-The trustee’s title of the trust is different from his/her title to their own property. If they go bankrupt, creditors do not
have access to property in the trust,
Types of trust
Express​ ​Trust​: by will or grant → intend to create
Resulting​ ​trust​: In between
Constructive​ ​Trust​: Results as remedy to unjust enrichment
94
Investments cannot be too risky nor too conservative
Right to fruits
96
possession
97
purchase of equitable interest in fund
98
At 21 years Deemed disposition: need to pay capital gain tax.
99
Tax havens are often built as trust because there is little oversight on trust --> can work the same as a
corporation
95
19
When does a trust end?
How to create a trust
Trusts are created through intention -- no magic words.
Can us phrases such as ‘unto and to the use of T in trust
for A’ OR ‘to the use of T in trust for A’
Legal and equitable title come together
-Former trustee will no longer be under any obligations
Usually end when trust says it does 100
Sauder V Vautier:​ if all beneficiaries are age of majority,
of sounds mind, and theres no condition attached to
interest, they can all agree to end the trust prematurely.
100
Can say at a certain point and time, the trust ends and all assets are divided to beneficiaries
20
21
TRANSFERRING PROPERTY INTEREST -- LEASEHOLDS
A hybrid of property and contract law101
- ​Covenants: ​contractual promises in lease
Requirements of a valid lease
1. Grant of exclusive possession (cf. licence)
2. Identified parties
3. Term (duration)
4. Date of commencement
5. Rent, if any
**In Canada, there is a residential tenancy status wherever shelter is paid for regardless or licence or lease function →
legal definition prevails.
Lessee / Tenant
-Obtains possession of property for a term certain
-​Point of Lease​: Lessee gets exclusive possession for
certain amount of time
-Has a Leasehold Interest or Estate
-Can ​assign​ or ​sublet​ the property to someone elsE
Lessor / Landlord
-Retains reversion of property
-Re-obtains possession at the end of term
-Can sell reversion to someone else102103
Assign vs Sublet
Assign - ​Sell remaining balance of lease
- No privity of contract between assignee and landlord.
- Privity of estate is between assignee and landlord
- Tenant can assign unilaterally104
- ​Complexity​: cannot assign burden to assignee so
tenant is still in charge of rent for remainder of term105
Sublet ​- Assigns part of entire remainder balance
- Landlord and subtenant have no legal relationship106 (no
privity of contracts or estate)107
Lease Termination
101
Oscillated over time → use to be purley contract but values were so high that it needed more
protection → new protection created what looked like an estate
102
Between T1 and L2 there is ​privity of estate → l​ egal relationship between landlord and tenant even
aside from contract.
103
L2 cannot change rent of lease
104
Landlord needs to approve, but approval must be reasonable
105
If the assignee goes bankrupt before end of lease, tenant would be responsible for it.
106
Can create a sublease contract to create legal relationship between landlord and subtenant
107
Everything must be mediated via tenant → Tenant will do something to protect himself from liability of
subtenant’s action
22
1.
2.
3.
4.
5.
Fixed-term lease will expire naturally108
Surrender—consensual​: L agrees to end lease prematurely & discharge T109
Surrender—operation of law​: where T accepts a new lease or licence from L110111
Implied surrender via abandonment​: Tenant goes off. Signed lease and couldn't follow through.
Breach of condition112
Expansion of 4 - choice upon implied surrender via abandonment (​Highway Properties SCC 1971)​
1. Treat lease as subsisting & ​sue for rent as due113
2. Terminate​ w/o future damages & sue for past rent due114
3. Re-let​ on T’s behalf and deduct rent received from new T from total rent due115116
4. (​new​) terminate & claim p​rospective damages​: Present value unpaid future rent ​less​ actual rent value of
period117
Lease vs License
Binding on
assignee?
Revocable by
creator?
Hallmark concept Legal nature
Where litigated
Lease
Yes
No
Grant of
possess’n
Comm’l: ordinary
cts; resid: tribunal
Licence
No
Yes
Mere permiss’n to Personal
occupy
(contract) right:
non-transferable
Estate in land:
can be assigned/
sublet
same
CP Hotels v Hodges 1978 Co Ct: ​License because no intention118 to create estate in sublet. Mere length of stay does not
make it a L-T relationship119
108
At end of lease, if tenant stays on and offer rents and landlord accept → new periodic tenancy on
monthly basis. Perpetually renews as tenant pays rent. *unique clauses will not continue*
109
T is discharged of all obligation. L usually does this cause they can get better rent
110
New lease supersedes the old one (​(Perasso v Perasso 2011) a
​ nd license superseeds lease (​AG for
Saskatchewan v Whitehorse Salt & Chemical co.)
111
Can happen is tenant mistakens time of lease and landlord offers different amount of time
Breach of covenant as opposed to condition would just result in damages
113
No duty to mitigate → if there is mitigation, can’t sue for back rent (​Postal Promotions OCA 1981​)
double recovery
114
Assumes that there’s no prospective damage
115
Based on estates → mitigation is present.
116
If re-let for longer duration than original lease, then it counts as option 1 (​Pacific Centre v Micro Base
BCSC 1990)​
117
Based on contract and requires duty to mitigate.
118
If there is no written agreement, intention must be gathered from evidence of circumstances
119
Stayed in hotel for 11 years and P argued it was no landlord-tenant relationship
112
23
Policy
Creation of ​Residential tenancies Act​ → Old ​Landlord​ ​tenant Act w
​ as heavily landlord oriented and landlord could
essentially disregard ​act​.
● Result in no equal bargaining power and little protection for tenants
● Change in tenancy laws did not affect commercial tenancies.
Commercial Tenancies Act​ mainly a r​estatement of common law​: leaves ​market as main determinan​t of lease
content → mostly freedom to contract
● Shopping mall leases more complicated
Policy
Residential tenancies → Rebalance bargaining power, create new dispute resolution and substitute contract for estate.
TRANSFERRING PROPERTY INTEREST -- BAILMENT
A ​split120 between title and possession affecting ​only personal property
● When someone parts with possession of their chattel. E.g., asking someone to watch over your stuff.
Requirements
- Transfer of personal property
- Returned of dealt with according to owner’s
instructions
Creation
- Usually made by contracts → warehouse storage
- Gratuitous → informal loan of chattel
- Involuntary → forgetting chattel at friend’s house121
Bailee
-Has possession of item
Bailor
-Has title of item and has ​reversionary​ interest122
-Can find remedies in Tort123124 and Contract125
120
Not a trust -- no split between legal and equitable title
The friend in this case becomes a bailee once they discover the forgotten item -- not responsible for it
if they don’t know about it
122
Not a reversion because it’s no estate but is analogous to a reversion
123
Tort of Detinue (wrongful detainment); Tort of conversion (accidentally selling it)
124
Due to ​Coggs v. Bernard​ bailment now follows tort law standard of care
125
Remedies are more likely framed in tort but standard of care etc.. can be framed in contract
(exemptions, limited liability).
121
24
TRANSFERRING PROPERTY INTEREST -- TRANSFER BY GIFT126
Valid contract without consideration​ -- unilateral127 acts, where we only consider the ​donor’s state of mind​. We are
only concerned about​ title and not motivation of title​ (distinct from intent)
Common law presumption of greediness​: common law that protect people from giving gifts.
How to give a gift 128129
Delivery of item​: Intent and transfer of possession130
Intent
Deed131: ​legal form of transfer title through document
Delivery
Types of delivery
Signed
Sealed132
Delivered133134
Re Sammon OCA 1979135: ​If deed could be rescinded, it does
not count as delivered
Symbolic
Ross v Lynds Estate 1977 NSR136: ​An intention to be bound
can substitute for delivery
Lock v. Health​: The delivery of one item from a set
can constitute the delivery of the whole set.
Jones v Jones Estate SKQB 1979137: ​A written document does
not always constitute a deed.
Constructive Gift : ​Words or gesture to indicate delivery
Winter v Winter​ - ​barge;​ ​Kilpin v Ratley​ furniture to daughter → Delivery and intention to gift don’t need to coincide
in time. Gift someone when they’re already possession of item
In Re Cole 1965E​: Needs to have sufficient change of possession to constitute delivery138
126
Can’t sue person for failure to deliver gift
Differs from Quebec civil law where gifts are a bilateral contract. Gifts can be revoked due to
ingratitude
128
Can’t mix and match methods.
129
Formalities because: make sure donor wants to gift, prevent fraudulent claims, proof of property
interest transfer (s.13 ​Ont evidence act​)
130
Acceptance is assumed; must prove doner’s i
131
No longer used for real property. Useful for Chattel but ​Electronic Commerce Act ​kind of said you don’t
need it.
Even if signed, sealed, and delivered, the donor must have intent
132
Not strict. Writing seal or getting a seal sticker is enough
133
Even if it is signed and deal, it is effective upon delivery
134
Delivery on escrow​: sign and give it to lawyer for further instructions
135
Man wants to break joint tenancy with wife on home. Signs and seals deed and tell lawyer to deliver
later. Dies before lawyer delivers deed. Deed is ineffective
136
Contrast ​Re Sammon​: Grandma signs and seals deed to give grandson her house. Leaves deed in her
purse and dies. Grandson has claim to house. Argued that if she didn’t have intention to be bound, she
would have thrown deed out
137
Father asks son for $16 and send him receipt for purchase of his farm. No sale because not meeting of
mind. Not gift because was not delivered (farm equipment) and no valid deed
138
Mr. Cole went bankrupt and claimed that the furniture in his house belong to his wife, to which he
gifted. Court claims that it was not a gift because there was no delivery or acceptance—they both had
possession. Possible that court didn’t want Cole to get away paying creditors in bankruptcy
127
25
** In contradiction with ​In Re Cole **
Mackedie Estate 1​ 998 BCSC​: Gifted items in possession of doner is still owned by donee. Doner is bailee of item139
Langer: 1​ 932 BCCA​: ​In Re Cole ​except husband doesn’t own home with furniture is in. Court said is valid gift due to
status of home.140
Teixara v Markgraf Estate​ 2017 ONCA141: Cheque does not constitute as delivery of money
Thomas v Times Book Co ​1966 WLR142: ​Consent to keep something by donor along with donee recovery of item can
constitute delivery143
Beaverbrook Foundation v Beaverbrook Art Gallery​ 2007 NBR144: Once a gift is completed it can’t be changed
Declaration of Trust​: Donor keeps legal title and holds it in trust for donee. Donee has equitable trust145
Gift by trust can be done ​orally​ but only for ​personal property ​and not land. It also requires evidence — any witness
who was there and heard the oral trust being made.
Watt v. Watt ​1987 Man. CA146: ​delivery of keys does not constitute a gift — there is no loss of control by the owner
because there could be an alternate set of keys.
● A trust can be made in joint ownership. In this situation, one person has to buy the other out or the property is
sold and the proceeds are split.
Presumption of resulting trust
If A puts property in name of B and B pays nothing. B has legal title, but equity says B holds it on trust for A unless B
can prove gift was intended
Presumption of advancement​: Parents to child exchanges are assumed to be gift. Onus on parents to prove it was a
gift
Pecore v Pecore scc 2007147: SCC changes above law and it’s only presume a gift if child is minor148
139
Parents gift son a painting every year. Back of painting says “happy birthday son” keeps painting at
parents home. Dad gives it to someone else in his will. Son claims it from estate. → evident gift because
of “happy birthday son”
140
Husband was planning to buy the home and had agreement to do so. Home owner said he could put
furniture there first.
141
Neighbour gave cheque of $100,000 but cheque bounced. Neighbour died and person tried to claim
from estate but failed
142
Grateful writer said if person recovered manuscript, he could keep it.
143
Brown: look at circumstances of donor, the relationship, and size of gift in proportion to network of
donor to see if there was intention to gift.
144
Art gallery thought paintings were on loan from Foundation but they were actually gift. Beaverbrook
tried to forge documents to say it was a loan after feelings donors remorse.
145
Only time there’s a split in equitable and legal title
146
Two neighbours becomes close friends and Mr. Watt gives a set of keys to Shirley for his boat along
with a piece of paper declaring a joint interest in the boat. After Mr. Watt passes away, Shirley tries to lay
claim to part interest in the boat. Due to the specific wording of the document, it was found to be a gift by
trust.
147
Daughter and father have joint bank account and father dies. Was money left in account a gift to
daughter?
148
Abella in the dissent: ​Why should we assume an adult child make such a different? Does love and affection
suddenly disappear? Arguing for status quo.
26
TRANSFERRING PROPERTY INTEREST -- Transfer interest in Land
Agreement of purchase and sale (contract149) → Closing date (conveyance150)
Between Contract and Conveyance:
Vendor
-Bound to transfer property
-Holds legal title and is entitled to possession until
closing.
-Interest is converted to money (personal property)
-Has lien on property for purchase price
Purchaser
-P has equitable title because equitable title assumes that
contract will go through.
- assume risk of loss → suffers loss is property suddenly burns
down151
-Has real property interest that’s conveyed on closing152
Specific performance and sale of land
Real property generally considered unique and thus, specific performance is available.
Not available when
-There is an equitable defence
●
Laches​: If you wait too long equity won't let
you enforce the contract.
● Acquiescence​: Knowingly stands by without
objection when their rights are infringed
-Parking seeking SP has “unclean hands” or guilty of
laches153
Priorities of SP ​-If during P&S, the V sells to a third
party
→ Third party will get property and P will get damages
if Third party is ​Bono fide purchaser without notice of
equitable estate
→ P will get property and Third party will get nothing
if third party knew about the equitable estate.
149
Semelhago v Paramadevan 1996 SCC​: Real property is
fungible and burden on person seek SP to prove land is unique
(Obiter)154155
● Alta Law Reform Institute (2011)​: ​A ​proposed ​piece
of legislation that would declare all property unique
for purpose of SP.
John E Dodge Holdings 2003 ONCA156: Uniqueness defined
quite broadly → uniqueness can be a unique location with few
alternatives in proximity
Marvost v Stokes 2011 ONSC157: P
​ roving uniqueness of home
is not hard → finish of basement, school location, number of
bedrooms.
A promise to sell you my land. Also outlines timeline that P can get financing, title search etc..
The actual transfer of land from V to P
151
Often will ask vendor to cover this risk wit their insurance.
152
Only relevant if someone’s will is worded as “I leave all my person property to X and all my real
property to Y”
153
Waiting too long in that equity won’t enforce your contract. More flexible than limitation period
154
Highly criticized → Not sure if obiter should be applied like ratio, great uncertainty on evidence needed
to establish uniqueness, and temptation for V to back out and let P establish uniqueness
155
Courts usually don’t uphold this anymore and just pay lip service to it
156
Needed location close to Canada’s wonderland to attract certain crowd for commercial business.
157
V backs out of deal to sell $3.2m house on Bridlepath and provides P with 28 alternative homes. P
rules all of them out.
150
27
Statute of Frauds
Requires writing for creating and transferring most interests in land
S. 1(1​) ​creation​ must be in writing signed by parties, otherwise tenancy at will only
S. 2​: ​assignment​, ​grant​ or ​surrender​ must be by deed or note in writing signed by transferor
S. 4​: agmts to ​create​ or ​assign​ interests in land must be in writing & signed by “party to be charged”
Electronic Commerce Act:​ essentially removed need
for Statute of Fraud
Bedell v Kidder​: e​ mail correspondence can satisfy
signature requirement
Cannot be used for ​engine of fraud​ → people would
reach oral agreements and then back out because it
wasn’t in writing
*EXCEPTION 1*
3 Year rule
-If lease is ​less than 3 years ​and rent is at least 2/3rd of
market value, oral argument is allowed
-If lease is ​more than 3 years​, requires a deed.
Walsh v. Lonsdale 1882 ch D158: ​doctrine of anticipation,
whereby a specifically performable agreement to create or
transfer a property right will be good in equity, even if not
finally effective at law.
*EXCEPTION 2* ​Doctrine of Part Performance
Oral contract + acts of part performance by lessee/grantee can lead to valid + SP in spite of SF
Test for part performance (​Delgman v Guaranty Trust159 1954 SCC)
**before you start → is there oral evidence of actual terms of contract? BOP testimony of what terms of contract were. If
terms are fuzzy, you will fail**
1. the alleged acts of part performance must be “unequivocally referable” to the alleged contract.
● Mere payment of money does not count as past performance ​(​Erie Sand & Gravel ONCA 2009​)
● “unequivocal “ is watered down to “what a reasonable person would deduce” ​(​Erie Sand & Gravel ONCA
2009)
2. it would be unconscionable for the defendant to take advantage of lack of writing (reliance to detriment)
3. the alleged contract must, in its own nature, be specifically enforceable by the courts in equity.
4. there must be proper parol (oral) evidence of the contract, which is admissible because of the acts of part performance.
Taylor v Rawanna 1990 (ON HCJ)160: Repairs on
property beyond expectation of tenant was considered
part-performance on sale of property.
158
Starlite Variety Stores v Cloverlawn 1979 OCA161: ​Accepting
Starlite’s request while building the property prior to lease was
considered part performance.
L & T enter into 7 year lease but formal lease where rent must be paid year in adv was never signed by
L. T does not pay in advance and L attempts to take his chattels to compensate for rent. T claim lease
was never signed.
159
Unmarried aunt owns two houses. Promises nephew to give him one if he does chores for her. Aunt
dies intestate and Nephew sues estate. Fails on part performance due to “Unequivocally referable”.
Succeeded on unjust enrichment.
160
L allows T to occupy run down house and agrees to sell it to him later on. T makes various renovation
in anticipation of purchasing the house. L then asks for a higher price. T sues for PP of original deal.
161
Oral contract betwee P and D to lease unbuilt premise. P request certain changes that are not usual
and also orders shelves and signs to prepare for store opening. D leases to someone else.
28
29
TENENANCY -- CO-TENANCIES
Does a co-tenancy exist or is it a license? If so, is it a Tenancy-in-common or a Joint Tenancy
Defining features:
1. Equal right to possession of the whole → no tenant can exclude other tenants from any part of property
2. Obligation to share expense in proportion to interest
Tenancy in common → ​No right of survivorship (share goes to inheritor); Only requires unity of possession
Joint Tenancy​ → right of survivorship
✧ Must share four unities: Time162, title, interest, and possession → If even one is missing, it’s a tenancy in common
✧ If property is sold, proceeds must be divided evenly
✧ A & B are joint tenants and B conveys away to C → C and A are tenants in common
✧ If A, B, & C are joint tenants, and C conveys to D → A & B are joint tenants and D is tenant in common with A & B
Jansen v Niels Estate163 2017 OCA: R’s expression on future intent of transferring tenancy does not result in severance
of joint tenancy.
Death of JT at the same time
Ontario → 55(2) → heirs become JT at common law
Maritimes → 3(1) younger individual is presumed to have
died later
Creation of Co tenancies
CLPA Ontartio
13. (1) → presumption of tenants in common for real
property
14. → If gain land in AP, it’s held as tenants in common.
Exceptions:
1. If land is conveyed to 2+ executors / trustees, they take
in JT164
2. Personal property is presumed to be held in JT
McEwen165: ​Even if the word “jointly”166 is used, it is not enough to rebut the presumption of tenants in common.167
Severance of co-tenancies
Partition Act​: If co-tenant doesn’t want to buy your share, judge can grant partition to force the sale of property and
division of proceeds.
Voluntary Severance of co-tenancies
Involuntary severance of co-tenancies
Unilateral Dealing​ (severance in law and/or equity):
Statutory Severance ​(Severance in law & equity):
Severance in joint death
162
Exception to time: “to A’s children to be born in JT” is allowed
Mom Transfers house to self, R and R’s wife in JT. R and I get separated and R state he will transfer
his share to I upon death of mom. When mom dies, Sister argues that R’s contract to transfer upon
mom’s death broke the JT and Mom was in Tenancy in common. Share should go to inheritors.
164
If one executor/trustee dies, it goes to other executor instead of that late executor’s inheritors.
165
Dad gives remainder of property to two daughter in ​home-made​ will. One daughter dies and the other
claims that it was a joint tenancy and that she gets 100%.
166
“Jointly” was also used in Watt v Watt but rebutted.
167
Any time the word “share” is used or there’s reference to division, we presume tenancy at common.
163
30
Agreement​ (severance in equity): Explicit agreement of
discharge
Bankruptcy ​(severance in equity): If A and B at JT and A
goes bankrupt → T is now JT with B in equity. A and B
remain JT in law.
-If B dies, T holds property for creditors of A and hiers of
B.
Course of Conduct ​(severance in equity): Driven by
implicit agreement to sever
Murder ​(severance in equity): If A and B are JT and A
murders B, A has to hold property for B’s estate168.
Conveyance to self → Get of JT by conveying through a deed to yourself.
Knowlton v. Bartlett (1984) N.B.R 169: Court can decline partition on equity basis
168
Severance in equity. If A is inheritor of B’s estate, then B dies intestate.
Wife and husband are JT and had a contract for W to sell her share for $3000. She later declines and
conveys to herself and wills it to her brother. Brother tries to partition property to sell. Court says its not
fair for husband who will have nowhere to go.
169
31
TENENANCY -- Co-Tenancies & Family Property
Early on, Lawyers used ​Resulting Trust170 to help divorced wives get assets from husband171
● Husband would be sole owner in law but co-tenants with wife in equity. In divorce, ask husband to buy out
shares.
Murdoch v. Murdoch Scc 1973172: Resulting trust occurs when wife does “extraordinary” labour173
● Remedial constructive trust174: Translates into money’s worth the contribution of labour by one spouse which is
more than housekeeping
Community Property ​(created by statute after
Murdock)​ : Everything produced by joint effort is
divided by spouses in end.
→
Ontario​: Look at what parties brought into marriage
and how networth has grown over time less debts.175176
FLRA 1978177178:
Net value of family property of each party at end of marriage
Less​ value at beginning
Equal ​increase in value subject to equalization179
↓
Cohabitees not JFV
Peter v Beblow SCC 1993180: H
​ ousekeeping ​can ​but
not always, result in constructive trust181
Pettkus v Becker SCC 1980182: Rights for cohabitees183. Can
remedy constructive trust due to action of unjust enrichment
1) is there unjust enrichment
2) what are the remedies
● Is money remedy (​quantum meruit) ​just?
● If not, consider connection contribution and
property to ground constructive trust
Unjust enrichment requires: 1) deprivation, 2) enrichment, 3)
no juristic reason for enrichment (gift, contract)
YOU CAN APPLY UNJUST ENRICHMENT IN CASES WHERE IT IS NOT COHABITEE
170
H held title to home, farm, and assets in trust for wife to recognize her contributions in $$ or labour
Only some courts accepted this
172
Wife did plenty of farm work but farm was under title of husband.
173
The husband could just pay off wife for labour instead of providing equity of materials.
174
Based on unjust enrichment → is a remedy and not a cause of action
175
Person with title must make equalization payments
176
Cohabitants don’t fall under this act → unsure when they started
177
​Current​ ontario law → applies to married couples ​only
178
Overthrew resulting trust
179
Person with more wealth makes equalization payment to person with less
180
H and W bought house together. W does housekeeping and kids. H works.
181
Husband can pay damages (hourly wage) or quantum
182
Unmarried company build successful business but title was all in name of man. Separated after 20
years and wife left with nothing.
183
Difficult point: co-inhabitants have no starting point for equality.
171
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Joint Family Venture184
Only cohabiting relationship
*if they live separate economic life → use ordinary unjust enrichment
Kerr v Baranow; Vanasse v Seguin SCC 2011​: Unjust enrichment based on JFV → results in sharing wealth
accumulated over course of relationship, even without contribution to specific asset
● Establishes the connection, where often there’s a hurdle between P’s work and property in marriage185
How to identify JFV
● mutual effort
● economic integration
● actual intent to share their life
● priority of the family (children, joint bank
account)
184
185
Pro​: allows sharing in increased wealth, not just wage
equivalent
Con​: not easy to prove: mounds of evidence required; no
“starting presumption” of sharing, as with FLA 2
Recognizes cohabiting couples pool their income into familial economy (especially is children involved)
Very fact driven analysis
33
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INCORP HEREDITAMENT -- Easements
corporeal hereditament:​ right to possession (fee simple, life estate)
incorp hereditament ​(servitude): right to use land of another in a way short of possession, or control the
Three kinds of​ incorp hereditament
● 1. easements
● 2. restrictive covenants
● 3. profits à prendre
Three ways to provide a positive right:
1. Gratuitous licence (permission)
-Not contractual;
-Weakest interest you can have;
-Revocable at any time without liability to A;
-A’s privilege is personal to A, non transferable
-if B sells to C, permission automatically revoked
2. Contractual licence
-At least paid for the license but don't have an interest
in property
-B can breach the contract whenever he likes and
Rarely enforceable by injunction or SP
-revocable by B at any time, provided he pays
damages
-if B sells to C, A can sue B, not C, if C fails to respect
licence (privity)
-licence not transferable from A to D unless B
consents (privity)
3. Easements
Grants easement by deed → binds dominant tenant and servient tenant forever
Property interest by grantee party.
Enforceable by all successors of the title on both sides.
Requirements for an Easement
1. Dominant tenement & servient tenement
2. Different owners (unless statutory exception)186
3. easement must “accommodate” DT
4. capable of forming subject matter of grant
Positive easements​: give the owner of land a right to
do something on or to his neighbour's land
Re Ellenborough Park187
Cannot form subject matter of grant if
i. too vague
ii. joint possession with owner or deprived owner of
proprietorship or legal possession
iii. for mere recreation, not utility188
Gypsum Carrier v Queen (FCTD 1977)189: ​All
requirements for easement are satisfied but court finds
it’s a license.
-Agreement was renewable on a car basis. Easements
are usually only periodic or in fee simple
186
Negative easements:​ give an owner of land a right to
stop his neighbour from doing something on their own
land.
If person has 2 parcels of land, it could be useful to grant self easement and the convey the land
Land subdivided to make houses and provided homeowners with interest in pleasure ground. Original
builder wanted to develop pleasure ground, but homeowners objected. Requirement 3: saw pleasure
ground as making the DT better → judges saw it as extension of backyard.
188
S​ eems to overlap with “accommodation” requirement
189
Shipowner runs into bridge and railcars can’t run. Railcarts sue ship owner but can only claim certain
damage if their use of bridge was easement.
187
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Shelf V Husky ABCA 1989190: If there is a possessory
interest, it cannot be an easement
Depew v Wilkes (ONCA 2002)191: Parking
“accommodates” DT and therefore an easement.
The court asked first if there’s an easement then asks if
there’s a prescriptive easement
Ways to create an easement
1. Express Grant​: Written agreement; Oral Agreement + Part performance ( Hill v. NS)192
2. Implied grant: ​All easements reasonably necessary for enjoyment of property are implied.
3. Presumed Grant​: Prescription
4. Estoppel​: Representation or reliance
5. Necessity​: Landlocked193
6. Statute
Ways to Terminate Easements:
1. Common ownership and possession → unless statutory provision preventing it
2. Express release by DT owner to ST owner
3. Implied release: abandonment (high bar – intention & long period of non-use)
4. Radical change in use of DT; major change in burden on ST may result in loss of easement, or injunction to cut
back use (Changes in technology etc..)
Prescriptive Easement:
3 ways to get prescriptive easement
1. Common Law​: not available in Canada
2. Lost Modern: ​Show 20 years of use
3. RPLA (s.31): ​Show 20 years of use without consent,
or 40 use with oral consent.
● S.32: action must continue up to time of action
194
Prescriptive easement encourage people to watch their
land and discourage neighbourly acquiescence.
Kaminskas v Storm (ONCA 2009)195: with respect to
limitation act, if written consent is provided before
action,
190
Requirements similar to AP
-Nec vi:​ no violence
-Nec clam:​ no secrecy (open user)
-Nec precario:​ no consent (must be user as of right for
period in question)
-Must be ​fee simple holder vs fee simple holder​,
otherwise only lesser right is acquired (e.g., if ST held
by life tenant L, easement acquired only for L’s
lifetime)
Phipps v Pears EWCA 1965​: Court hesitant to adopt
new negative easement
Husky wanted to build a pipeline and had an easement on farm. Debated whether it was a possessory
interest or an easement.
191
DT has right of way to drive through land. Began parking there too. ST allowed it for over 20 years and
DT acquired prescription easement. Issue -- can parking be easement?
192
Creates equitable easement
193
Hirtle v Ernst: Doctrine of Right of Way of Necessity: land should not be rendered useless due to
inability to get easement. There is partial necessity where necessity can come in when alternative is
highly inconvenient
194
Very hard to get prescriptive easement if there is written permission
195
K parks his car in the driveway which is partially owned by neighbour. Neighbour provides oral consent
and later written consent. New owner builds fence to surround property. K tries to claim easement
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INCORP HEREDITAMENT -- Restrictive Covenants
Overcomes privity by making benefit and burden of covenant apply to property interest enforceable against
subsequent purchaser
Person assuming burden of covenant = “​covenantor​”
(holds ST)
Person entitled to benefit of covenant = “​covenantee​”
(holds DT)
To show RC, P show that benefit has run to them and burden has run to defendant.
Benefit & Burden
Start with ​common law​. If burden/benefit cannot run, move onto ​equity
Equity​:
Tulk v Moxhay 1848196: Restrictive covenant is also an
equitable doctrine, and an established requirement of
notice results in it running in equity197
Rules for running benefit200 in equity
1. Clear benefit intended to run
2. Plaintiff holds interest in DT (leasehold or mortgage
Safeway​)
3. Covenant touches and Concerns DT.
4. Covenant is negative in substance
5. Dt is precisely described in initial covenant
Rules for running a Burden in equity
1. Notice on part of assignee of coventor203
2. Covenant is negative in substance
3. Burden is intended to run with coventor’s land
(sufficiently described)204
4.Touches and concerns the land and not merely
personal
196
Common Law
1) benefit runs198 if:
i) successor in title of covtee holds same estate
as original covtee,
and
ii) covenant “touches and concerns the land”
of covtee
2) burden does not run199
Parkinson v Reid SCC 1966201: Can’t covenant burden
onto self and heirs. Can’t change law with private
agreement202
Amberwood ONCA 2002:​ Affirms no running burden
as common law. Exceptions are
-Leaseholds (benefit and burden run with privity of
estate)
-Conditional grant of easements
Develops lots under Sq and leave centre open for enjoyment of owners. V sells to P who covenants to
keep it as open space (positive covenant). Subsequent owner wants to build but V gets injunction.It would
have been unequitable for the restrictive covenants to not be enforced because new ower could sell
property without RC for more
197
BOna fide purchaser without notice cannot have covenant enforced on him/her
198
If B Covenants to A that B will not to erect builder higher than 3 stories on his lot, when A sells to C, C
can enforce to B because the benefit runs.
199
If B Covenants to A that B will not to erect builder higher than 3 stories on his lot, when B sells to D, A
cannot enforce on D because burden cannot run. Burden never runs at common law
200
Positive benefit cannot run in equity
201
B Covenanted on behalf of self and heirs with A to build and maintain staircase on B’s lot to serve as
common entrance. Lots changed hands and B successor took down stairs. A’s successor cannot succeed
in enforcement
202
Would have succeeded if agreement was positive covenant
203
Can be actual, implied or constructive intent
204
DT has to be precisely described in the initial document. Covenantor needs to know who can sue
them, and who they can see to negotiate buying out the covenant.
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5. Intention that covenants bind successors and not just
the covenantor personally
Galbraith v Madawaska Club205:​ → To touch and
concern the land, the covenant has to effect the value of
it. I.e., cannot be built on.206
Conditional Grant of easement
Ellenborough Park:​ initial covtees agreed to pay fees for maintenance of “pleasure ground” – as long as they
pay, they can force ST owner to maintain plesure ground207
Black v Owen208: ​owners in private development must pay annual levies for use of private roads, etc; not drafted
as conditional grant of easement according to OCA but if properly drafted might have succeeded
Termination of restrictive covenants
1. Agreement of all parties
2. Unity of ownership and possession
3. Change in neighbourhood209
4. Legislation210
Rice v Condran NSSC 2012211: Developer can put
waiver clause to grant power to waive restrictive
covenant
​Challenge covenant that only allows Uoft Staff and student to own cottage land. Court found that covenants did
not touch and concern the land and only had to do with occupiers of the land
206
**This requirement used to nullify racially/ religiously exclusive restrictive covenants: Noble v Wolf in
SCC
207
Condition subsequent on easement -- must be explicitly expressed. Never came up in ellenborough
because they never complained about levy
208
Home owner is rich neighbourhood didn’t pay levy. He was on public road and didn’t need the
neighbourhoods private roads. He also wanted to be excluded from other common amenities
209
​If wayback it was residential neighbourhood and there was covenant that it wouldn't be used for commercial, and
then the whole are turned commercial, reasons to defend against covenant
210
​CLPA s. 61 allows court to discharge RC on application
211
RC forbid livestock but developer had power to waive. Plaintiff purchased lot and neighbour built horse
bar next door. Sued lawyer for not telling them but it was a usual clause.
205
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Mortgages
Mortgagor → borrower
Mortgagee → lender
The Chargor-chargee systems retains remedies and rights available by way of mortgage previously available.
However, the borrower retains both legal and equitable title.212
Law of mortgages is hybrid of contract and property:​ Primary element in mortgage transaction is contract of
loan; Interest in land, whether legal title or charge, is only ‘back-up’ security for mortgagee
● Loan contract and security in itself is a property right that can be collateralized
Mortgagor Right
Under ​Registry Act & Land Titles, ​Mortgagor
considered “owner” or property
1. Entitled to possession and control
2. Can lease, re-mortgage, sell, and will property
3. Oner for purpose of taxation and assessment
212
Mortgagee Remedies:
1. ​Foreclosures​: Takes property → property and equity
of redemption is extinguished and mortgagee becomes
owner of property (can over or under compensate
mortgagee)
2. ​Power​ ​of sale​: Lender has ability to put property for
sale on late payment213
-After sale, accounting is done and surplus/debt is paid
by or to mortgagor
-Bank cannot bid for property unless court allows it.
Formally, mortgagor had equity of redemption and mortgagee reconveys title once loan is paid off
In Ontario and BC, Mortgagee has to get best price possible or else mortgagor can have sale set
aside.
213