1 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 4 4 4 5 6 8 9 9 10 10 11 11 11 13 13 14 14 15 15 16 17 18 19 19 19 20 20 22 24 25 25 26 27 30 32 32 33 35 35 36 37 37 38 39 2 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 3 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 ● ● ● 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 1 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. 3 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 4 Saulnier uses fishing license as collateral for loan, defaults on 400k and then claims licenses are not property. 5 Example of court looking to statute for property interest 6 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. 7 Dissent by Laskin: balance the right of property with right to picket; this is pre-charter 8 Union members picket at employee entrance of Eaton Centre. Eaton tries to kick them out. Claim unfair labour practice. 9 Does not overturn Harrison v Carswell R WDSU is labour dispute. Carswell is property 4 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. 11 Peterborough had a complete ban on poster. Ramden put up posters and was convicted. 12 Posters are a way marginalized individuals communicate to society 13 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? 14 FLG practition used large structure to protest China. By law prevent such large structures. 15 Constitutionality of by law prohibiting homeless people from setting up tent city in public park when there were no shelters available. 10 5 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 16 Tried to eliminate middlemen in fishing so Government created a “wheat” board for fishing. Middlemen all went out of business. 17 Bill being passed prevent class action made by veterans trying to get their pension 18 Regulated shoreline land such that the P couldn’t build a house there. 19 Wants to develop property where railway is running. City states that land is only for greenspace and transportation. 6 7 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 possidendi : 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 20 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. 22 Kept animal as a pet and argued it was best interest of child (money) to keep it 23 Go on metal detecting expedition in potato field, with permission from owner, and find valuables. Argues who gets title. 24 Boy find money in pool hall and gets it confiscated by police. Police cant find owner so boy sues to get money back. 25 Mother finds stash of marijuana in car → drives aimlessly to seek advice. 21 8 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. 26 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. 31 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. 9 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. 32 10 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 11 12 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 49 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 51 Aboriginal right to fish 52 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? 50 13 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. 56 14 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 15 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 16 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 contract—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 prospective 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 restatement of common law: leaves market as main determinant 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 32 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 34 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 35 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 36 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. 37 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 38 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
